Over the next few days, we will be hosting a discussion of one of the articles published in the last issue of the 2011 volume of European Journal of International Law. That issue included a paper by Jaye Ellis on “General Principles and Comparative Law”. Jaye is Associate Professor of Law and Associate Dean at McGill University’s Faculty of Law. Jaye posts a short overview of her article later today. Tomorrow, Aldo Zammit Borda who is currently a PhD candidate at Trinity College, Dublin but formerly First Secretary at the Ministry of Foreign Affairs of Malta, and Legal Editor, Commonwealth Secretariat, London will comment on Prof. Ellis’ article. Readers are invited to join in the conversation.
Dr James A. Green is lecturer in law at the University of Reading School of Law.
The prohibition of the unilateral use of force, as set out most crucially in Article 2(4) of the UN Charter, is often seen as the archetypal example of a jus cogens norm. Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character, as does the International Law Commission and the International Court of Justice. It is understandable that a plethora of commentators have perceived the prohibition as a peremptory norm: the use of military force usually involves the systematic killing of human beings, often on a vast scale. An underlying rationale for the entire jus cogens concept is the desire to impose some kind of fundamental standard of common values upon state interaction and to strengthen the effectiveness of international law in certain areas of common concern. On this basis, the prohibition of the use of force is exactly the sort of norm that should be peremptory. Coupled with the fact that jus cogens and the jus ad bellum share common natural law underpinnings, one might view them as a perfect conceptual fit.
In ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 Michigan Journal of International Law 215-257, I challenge this widely held view: is the prohibition of the use of force in fact a jus cogens norm? The desirability of peremptory norms, and, indeed, their very existence, has been questioned in the literature, but it was not my aim in the Article to debate the existence of jus cogens norms per se. Without making a value judgment as to the desirability of peremptory norms, the view is taken that there is certainly enough evidence to suggest that states have accepted the general notion of jus cogens flowing from Article 53 of the Vienna Convention on the Law of Treaties.
Based on this starting point, the Article does not argue that the prohibition is necessarily a norm that has failed to achieve peremptory status. Rather, the intention is to demonstrate that there are significant difficulties with such a conclusion and that, as a result, the widespread uncritical acceptance of the prohibition as a jus cogens norm is concerning. The aim is to test the prohibition against the criteria for the establishment of peremptory status—“a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
By way of background, then, the Article sets out in more detail the legal criteria for identifying a peremptory norm of international law, and goes on to consider the majority view—prevalent in the literature—that the prohibition of the use of force is such a norm. A number of problems with the conclusion that the prohibition is jus cogens are then set out. The question of whether the prohibition is suitable, or even capable, of being viewed as a jus cogens norm is examined through various points of focus.
Editor’s Note: This is the third of a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . The earlier posts in the series can be found here and here.
Buried toward the end of The Rise of International Criminal Law is a discussion of communities of authority and interpretation in international law and ICL. Neither Kapur nor Roth raises it, for the very good reason that it is buried toward the end in a couple of paragraphs. As time has gone on since publication of the article, however, I have gradually become convinced that a central, unavoidable question in all this is one I have posed before in the context of IHL – “Who owns international law?” Who has interpretive authority over it?
It’s contested, and always has been. That is a historical constant, and so in writing the original article I mentioned it but did not follow it up. But as I consider ICL and its social claims more deeply, I’m convinced that the growth of the tribunal structure internationally and the deeper involvement of national tribunals through various forms of universal jurisdiction – from Garzon to the ATS, as it were – has in fact introduced a new dynamic in the otherwise perennial argument over interpretive authority in international law. It is a dynamic of fragmentation.
The reason, I think, is the nature of tribunals and judgments as they become widespread enough to become a real source of authority and interpretation. The nature of courts, and judgments, is that they gain in legitimacy and authority, on their own terms, by asserting themselves and their authority. But they do that in part by doing self-referentially – a sort of bootstrapping of legitimacy. Read the rest of this entry…
The Relationship between National Law and International Law in the Report of the Georgia Fact-Finding Mission: A Rejoinder
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…
The Relationship between National Law and International Law in the Report of the Georgia Fact-Finding Mission:
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. Read the rest of this entry…
The Honduran Crisis and the Turn to Constitutional Legitimism, Part II: The Pitfalls of Constitutional Legitimism
In my previous post on this topic, I argued that the international reaction to the Honduran coup potentially augurs a shift in foundational norms governing the relationship between international and domestic legal authority. I also hinted that I regard such a shift as ill-advised, and noted that some of those in the forefront of the reaction appear to have given little thought to the long-term implications.
As, Doug Cassel’s ASIL Insights analysis notes, “Ordinarily international law imposes its own, autonomous norms for the permissible conduct of a government. Questions of domestic law – including constitutionality – are left to domestic authorities, both as a matter of their sovereign entitlements, and because they are presumed better able to interpret their own constitution.” The two reasons that Cassel cites are distinct: the latter is a matter of respect for a foreign pouvoir constitué, on the ground that standards of legal interpretation are themselves a matter of local law; the former is a matter of respect for a foreign pouvoir constituant, on the ground that where permanently effective, breaches of constitutional order (whether by insurrection or by an existing regime’s pattern of practice) beget their own legality. For foreign courts, both of these are ordinarily rationales, not for a mere “margin of appreciation,” but for judicial abstention.
However, it is not unknown for international legal questions to turn on a finding about compliance with domestic law, such as where treaty provisions provide that exceptions to specified human rights must be, inter alia, “non-arbitrary” and delineated in domestic law. In such circumstances, assessing a claim of violation requires an independent basis for ascertaining the requirements of domestic law. The criteria for establishing a violation might be relatively deferential, yielding to plausible claims of local expertise in interpreting local norms; interpretation of legal (including especially constitutional) norms depends on all manner of historical, ideological, political, linguistic, and jurisprudential idiosyncracies, and a high court’s authority to say what is lawful counts for much, even in the face of text apparently to the contrary. Still, one cannot exclude a second-guessing of local judicial authorities on the merits, especially in cases where courts are suspected of participating in a sham. Read the rest of this entry…
Seunghyun Sally Nam is 3rd Secretary for the Korean Peninsula Peace Regime Division at the Ministry of Foreign Affairs and Trade, Republic of Korea. She is writing in her personal capacity and her views do not necessarily represent those of the South Korean government.
In his recent post, Dapo Akande refers to a recent article by Gordon Chang in which Mr Chang argues that North Korea’s announcement that it is no longer bound by the 1953 Armistice Agreement means that the Korean War has resumed as a matter of law. The issue comes down to whether North Korea’s announcement that it ‘will not be bound by the armistice’ terminates the armistice or not. Gordon Chang makes his assertion based on the idea that the Korean armistice agreement is subject to termination by the announcement of either party. However, Article 62 of the Armistice Agreement states that the Armistice agreement is effective until it is expressly superseded either by mutually acceptable amendments and additions or provision in an appropriate agreement for a peaceful settlement. Article 61 also states that ‘amendments and additions to this Armistice Agreement must be mutually agreed by the Commanders of the opposing side’.
Gordon Chang mentions in his article that the U.N. Command, a signatory to the armistice, responded to North Korea’s argument by insisting that the Armistice is in force and by referring to the termination provision. However, the Korean Armistice Agreement does not have a termination provision. The two provisions which I mentioned in the above are the only provisions which regulate any ‘amendments and additions’ to the agreement. Read the rest of this entry…
On Monday, the ICJ delivered its judgment in the Costa Rica v. Nicaragua case, concerning navigational and related rights on the river San Juan (Registry summary; judgment). The case itself is not terribly important in the grand scheme of things, but upon reading the judgment I came across several questions of broader import that our readers might find of interest.
But first just to say a bit about the facts of the case for the sake of greater comprehension. The river San Juan is on the border between Costa Rica and Nicaragua. The border, however, does not run along the thalweg of the river, as is usually the case with river borders, but is set by treaty to run along the Costa Rican coast. Thus, the entire river belongs to Nicaragua as sovereign. The question raised by the case is what are the navigational and related rights on the river of Costa Rica and its riparian communities, under the terms of the 1858 Treaty of Limits between Costa Rica and Nicaragua. The principal of these rights was set by Article VI of the Treaty, giving Costa Rica a perpetual right of free navigation ‘con objectos de commercio’.
There was a dispute between the parties as to the meaning of this last phrase, with Costa Rica claiming that it meant ‘for the purposes of commerce’, while Nicaragua maintained that it meant solely ‘with the articles of commerce’, i.e. with merchandise (para. 45). On this issue, the Court sided with Costa Rica (paras. 50-56), and the judgment is generally speaking more in its favor than in Nicaragua’s. The background to this dispute is at least partly one of economic self-interest: Costa Rica claimed that this phrase covered not merely trade in goods, but also trade in services, such as the transportation of tourists and passengers on the river by Costa Rican ships. Nicaragua, on the other hand, asserted that the phrase covered only the trade in goods.
This brings me to the issues of general import raised in the case. First, and most important, is the Court’s approach to treaty interpretation. In that regard the Court gave short shrift to its long-standing dicta that restrictions on state sovereignty are not to be presumed lightly (paras. 47-48), and it also made several fascinating remarks on evolutionary treaty interpretation, to which I will devote the bulk of this post.
Second, the Court was quite ‘activist’ in basically creating bright line rules out of whole cloth from treaty provisions that were silent on the concrete matter at hand, but which the Court considered to have exhaustively regulated the relations between the parties. For instance, the Court held that Nicaragua may not impose any visa requirements on passengers on Costa Rican ships on the river, though it could have held instead that Nicaragua may not unjustifiably deny visas to such passengers, but that it could do so in some exceptional circumstances. This willingness to set bright line rules probably emanated from the Court’s desire to preclude further disputes between the parties and definitively settle the matter.
Third, there is the Court’s willingness the establish, with very little evidence, the existence of a bilateral customary rule binding the parties. Namely, it found that the riparian communities in Costa Rica, through the Costa Rican state, had a customary right to subsistence fishing from the river. The Court derived such a customary right solely from the absence of protest by Nicaragua to fishing by Costa Ricans, without in any way searching for opinio juris by Nicaragua and Costa Rica that this absence of protest derived not from the lack of practical significance of the very small amount of fishing involved, but from Nicaragua’s sense of legal obligation, its view that the riparian Costa Ricans had a right to fish as they did.
Indeed, the Court found such a customary right even though Costa Rica never claimed, until the case came to the Court, that it had such a right in its relations with Nicaragua. The Court justified its position by saying that the paucity of evidence of custom is explained by the remoteness of the area and its small population (para. 141). Now, we all know that in some cases the Court does not apply the criteria for formation of custom in a very rigorous way (e.g. regarding the use of force in the 1986 Nicaragua case), while in others it is conversely extremely hostile to the existence of custom (e.g. in the Asylum or the North Sea Continental Shelf cases). But I don’t think that I’ve ever seen the Court establish a customary rule, even a bilateral one, in quite so off-hand a way as it did here. In that regard, I find the separate opinion of Judge Sepulveda to be more persuasive.
But now onto the juiciest part of the judgment, the Court’s approach to evolutionary treaty interpretation. (Warning and apologies in advance for any overly-theoretical rambling).
An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation
Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. In 2005, he was research assistant to Professor Giorgio Gaja, the International Law Commission’s Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of the United Nations for wrongful non-forcible measures by the Security Council. Many thanks are due to Dapo Akande, Gleider Hernández & Devika Hovell. The usual disclaimer applies.
Municipal and regional courts are increasingly engaged by individuals and legal entities in questions relating to UN Security Council measures adopted under Article 41 of the Charter. Most prominent among these are the ‘targeted sanctions’ imposed by Security Council Resolutions (SCR) 1267 (1999) seq, which provide for asset freezes, travel bans and arms embargoes against persons listed by the Committee established pursuant to SCR 1267 (the 1267 Committee). Usually the relevant SCRs are attacked indirectly before the domestic court, the direct attack being on the domestic implementing measures. In the recent case of Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada (Federal Court of Canada; currently available here but also to be made available here shortly), the impugned conduct on the part of Canada which gave rise to a claim for the violation of Canadian constitutional rights began long before any listing by the 1267 Committee. The listing only served to complicate matters and to offer an excuse to Canada with respect to a pattern of conduct that pre-dated the listing. The facts provided the opportunity for the Canadian judge to express what has been on the mind of many with respect to the 1267 regime of ‘targeted sanctions’: if you happen to get listed, it is much like being Josef K in Franz Kafka’s The Trial. In this case though-and possibly for the first time-Josef K got an effective remedy.
The Canadian Federal Court held that Canada had violated the constitutional right of Mr Abdelrazik (a dual Sudanese and Canadian national) to enter Canada, even though he was subject to UN sanctions. The court interpreted the SCRs such that the travel ban and asset freeze imposed by the Security Council would not prevent Canada from assisting Mr Abdelrazik’s return to Canada. In so doing, the Canadian court effectively forced upon the Executive its own interpretation of Canada’s obligations under the UN Charter, and required that Canada comply with the court decision. The Court’s interpretation risks a breach by Canada of the SCR and the UN Charter,, should the Security Council interpret its own Resolution differently. The situation is not unlike the one forced upon the European Community and its Member-States following the ECJ’s decision in Kadi: either breach the obligation stemming from the Security Council decision (by removing Kadi’s asset freeze) or disobey the ECJ (by maintaining the freeze). In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law. The case marks yet another step in a new era that sees domestic and regional courts asserting with confidence their (indirect) jurisdiction over UN sanctions regimes.
II. Factual Background
Abousfian Abdelrazik was jailed in Sudan in 1989 after the successful military coup of Omar Al-Bashir. In 1990 he managed to flee to Canada, where he was first granted refugee status and then Canadian citizenship. In March 2003, after some of his acquaintances had been charged or convicted for participating in terrorist attacks, Abdelrazik returned to Sudan, claiming he had been continuously harassed by the Canadian Security Intelligence Service (the CSIS) in the wake of the September 11 attacks (at -). Abdelrazik was detained in Sudan at the request of Canada (id at -) in 2003 and 2005-2006. Read the rest of this entry…
Piet Eeckhout is Professor of Law and Director of the Centre for European Law at King’s College London. He was a member of the legal team for the applicant Yassin Kadi.
The European Court of Justice’s approach in the Kadi decision has already been described as sharply dualist (see,Professor Joseph Weiler’s EJIL editorial, posted here on this blog and Gráinne de Búrca, “The European Court of Justice and the International Legal Order after Kadi“, Jean Monnet Working Paper No. 01/09). The Court emphasises the autonomy of the Community legal order. Judicial review in the light of fundamental rights is the expression of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system, a guarantee which is not to be prejudiced by an international agreement. Not even the UN Charter is capable of interfering with that guarantee, notwithstanding the Charter’s primacy under international law, a primacy which the Court accepts.
The strong confirmation of the autonomy of Community law is undeniable. But there is of course nothing new in that autonomy: since Van Gend en Loos this is the very premise of the Community legal order. However, I find the notion of dualism much less helpful for the purpose of characterising the Court’s reasoning. The interactions between international law and municipal law in today’s world have too many different dimensions for blunt concepts such as monism and dualism to be helpful. This means that Kadi needs to be put in perspective. It is very tempting to argue that the judgment is ground-breaking, perhaps even revolutionary, the most important judgment handed down by the Court in decades. Alas, my academic assessment is that this is exaggerated. Read the rest of this entry…