The Relationship between National Law and International Law in the Report of the Georgia Fact-Finding Mission: A Rejoinder

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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.

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John C. Dehn says

February 4, 2010


My apologies for the delayed response. You have done a wonderful job arguing general or traditional rules. Unfortunately, I specifically intended to argue that states may change those rules through practice whenever they wish (except with regard to jus cogens norms of course).

On your first point to me, that: "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." I agree that this is an accurate statement of the GENERAL rule. My earlier point was that I do not accept at face value that this general rule is the ONLY possible rule with regard to every customary norm, particularly IHRL norms focused solely on matters of internal governance.

It is not impossible for states, in practice, to allow derogation from otherwise universal customary (leave aside treaty for the moment) IHRL norms to account for important or foundational constitutional requirements. They may do so even without persistent objection by the state with a contrary constitutional provision, if they so choose. I do not say that such practice exists or is established, but it is possible and would require analysis with regard to specific norms. Tossing about the general rule without examining or at least recognizing this possibility does nothing to address the potential for this normative development.

It is not necessary, as you later argue, to say that in such cases the rule never develops or lacks the requisite opinio juris. State practice and opinio juris itself may simply require that the norm truly be contrary to a fundamental constitutional requirement, otherwise it applies. Thus, to use your example, not all Islamic states would necessarily be equal depending upon the specific IHRL norm at issue (and whether it is jus cogens), its consistency with a requirement of Islam (as the state understands it), and a fundamental LEGAL requirement for the implementation of, or prohibition of interference with, Islam in a state's constitution.

With regard to your discussion of the CEDAW, I will leave aside a broader discussion of treaty effect and interpretation and the possible effects of subsequent practice for now, but whether a reservation is consistent with the object and purpose of the treaty is first a matter for the states themselves to decide. If the greater object and purpose of a treaty is universal membership to advance the overall goals of the treaty to the fullest extent possible, then reservations with regard to significant elements of the treaty to account for fundamental constitutional requirements --- even if they undermine those goals to some or even to a great extent --- might be possible. Again, I do not here wish to assert that this has happened, but this thought may help us to understand the acquiescence of states to such behavior, and the lack of objections to such reservations. Of course, the lack of objections could also be evidence that other states believed what you assert is you assert is necessarily the case, that the reservation would never be effective. I simply seek other possible normative explanations that might reflect what we observe in the actual practice and diplomatic discourse (or lack thereof) of states in these areas.

I have not relooked our earlier discussion but do not think I argued that the ICCPR and ECHR are not equivalent in terms of the binding nature of their obligations. They are different in that the means of ECHR enforcement results in a delegation of the determination of the full scope and content of its norms to the ECtHR. States party to the ECHR, having delegated that power, are in a weaker position to refine the norm's content through practice. Further, the ECHR contains specific norms which may or may not reflect universal customary law, or the INTERPRETATION of which may or may not reflect universal customary law . Thus, the content of its norms, as interpreted, may be significantly less relevant to the rest of the world. States simply retain greater flexibility with regard to the content of ICCPR norms, in part because of the enforcement mechanisms to which ECHR members have consented.

I do not see the need to argue over the persuasive force of various international tribunal decisions. Some opinions certainly have more force than others. I think it is fair to state that all such decisions have some, even if negligible, persuasive force. Contrary to what you assert, though, I think it is well established that some decisions become persuasive or influential IN SPITE OF the soundness of their reasoning or methodology.