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.

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.