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

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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.

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    Dapo Akande says

    January 5, 2010

    Andre,

    Thank you very much for your excellent post. I agree with the main point you make that a State cannot invoke its constitution as a justification for non-observance of its international obligations. I have a question though about your opening sentence dealing with protection of nationals as a justification for a use of force. Are you saying that protection of nationals abroad is not a valid exception to the prohibition of the use of force? Or did you simply mean that in this particular situation, the case for using force on this basis was not made out?

    John C. Dehn says

    January 5, 2010

    Andre,

    I wonder whether you or others have considered a different possibility regarding the Report's statement that a state's constitution might justify a breach of international law. It would seem to me to be a possible response to modern human rights instruments.

    You correctly state the clear principle embodied in the VCLT and in the Responsibility of States for Internationally Wrongful Acts (RSIWA) that a state's internal law cannot justify the breach of an international obligation. But what if that obligation is owed only internally? What if no other state or its nationals are injured by the violation (unlike Avena, LaGarand and Treatment of Polish Nationals)?

    In other words, is the Report's statement possibly true when an "international obligation" relates solely to a matter of internal governance, possibly addressing societal rights or the rights individuals vis a vis their government, and is in conflict with a state's own foundational constitutional requirements? One might see this as a possibility in Islamic countries with regard to, let us say, the Convention on the Elimination of All Forms of Discrimination Against Women (or any part of it that might be argued to represent universally binding customary international law).

    I have no vested interest in one or another answer to my questions. I just wonder what others think of this possible interpretation of the Report's seemingly unfounded and certainly carelessly stated proposition.

    Tobias Thienel says

    January 6, 2010

    André and John,

    This observation in the Report is indeed curious - murky at best, troubling at worst. If I had to hazard a guess as to the reasons for it (which I don't, but will do anyway), I would suggest that the reference to "core elements of the national constitution" is no more than an attempt at applying Article 46 of the Vienna Convention. As you say, André, that is clearly incorrect, Article 46 (and clause 2 of Article 27) referring only to the validity or otherwise of consent to be bound, not to state responsibility under a treaty. Even so, "core elements of the constitution" sounds a lot like the concept of "[rules] of [...] internal law of fundamental importance" in Article 46.

    More particularly, I imagine the misunderstanding might be one of clause 2 of Article 27, more than one of Article 46 taken alone. Article 27 (2) could conceivably have been read as saying that the exception in Article 46, for rules "of fundamental importance", applied also in the context of Article 27. Again, that is not even remotely plausible, but it might go some way towards an explanation of the passage in the Report - which of course is no more plausible itself.

    John,

    Of course, I have no way of knowing if the drafters of the Report may have wanted to make the point you suggest, but I do hope they did not. Human rights law is no less international law for the fact that it applies as between individuals and "their" state (not necessarily their state of nationality, obviously). That, I would have thought, is the great beauty of the rise of the individual to a (partial) subject of international law. As for your example of Islamic states and CEDAW, I would suggest that the fact that even its constitutional law can never save the state from a violation of international law is precisely the reason why that treaty and others like it are so relatively weak, and the reservations by those states so sweeping.

    Also, for authority on the primacy of international human rights law even over constitutional law (as a matter of international law), you might look at the comments of Anne Peters, Marko and myself to Marko's recent post about Sejdic and Finci v. Bosnia and Herzegovina.

    John C. Dehn says

    January 6, 2010

    Tobias,

    In my humble opinion, there is a trend amongst some European academics and human rights organizations of viewing ECHR pronouncements (and ICTY, etc.) as authoritative statements regarding the scope and effect of all human rights treaties or other international law. This is obviously not the case, sometimes unfortunately, sometimes fortunately.

    We would do well to remember, I think, that the ECHR is a unique instrument in a number of ways, not the least of which is in its limited membership and unique enforcement mechanisms. While decisions like Sejdic and Finci are laudable advancements on the European continent, they are of very limited meaning for the rest of the world.

    I am also not convinced that ECHR jurisprudence is always correct, though I will not quibble with the Court's interpretation of its own instrument. The bottom line is that we must view each development and decision in its context, and the context of the ECHR is quite a limited one for everyone outside of Europe.

    As to my earlier comment, I agree with you and Andre that the Report is truly odd on this point. It could be a very poorly worded and misplaced (as both you and Andre said) articulation of the concept underlying Art. 46. Of course, a "defence" to an obligation could include the argument that one did not validly consent to the treaty that contains it. In the context of the subject of this Report and this specific part of the Report, however, it makes no sense.

    These facts are what led me to posit another possible explanation. For now, I take your point, but will ponder this further. I well understand the possible implications of my suggestion, but mean to offer it in a very limited context. I would, of course, never accept the view that genocide is permissible even if authorized by a state's core constitutional provisions. However, there appears to be a hierarchy of international human rights norms and I wonder if it is possible to say that the legal (rather than practical) effect of each is different - such that some norms may indeed be legally subject to domestic override by core constitutional provisions.

    Tobias Thienel says

    January 6, 2010

    John,

    I accept that ECtHR precedent is not necessarily a conclusive guide to more general or other international law. I also accept that I may on occasion have been guilty of taking the European Court's opinions as authoritative beyond the four corners of the Convention, or the boundaries of Europe, where those opinions may not actually have been perfectly valid.

    That said, I do have some reservations about your criticism (which, in any event, I do not take to be absolute). First, given that the ECHR, like some practice of the Convention organs, predates and has influenced the ICCPR and the CAT, I would not entirely discount European precedent in discussing either of those two conventions. The same goes for many other international instruments. Like it or not, the ECtHR is the leading authority in human rights law, partly because its experience ranges the furthest.
    The last aspect, incidentally, would seem to be the reason for even the US Supreme Court referring to ECtHR cases (Dudgeon v. United Kingdom in Lawrence v. Texas), and that was not even in an international law context at all (but I do realise this is a huge can of worms; I don't wish to open it now, only to point at it).

    Second, not everything the European Court says is at all influenced by specifically European standards, although I would accept that much of it is. But for present purposes, I believe this to be the crucial point: the holding in Sejdic and Finci v. Bosnia and Herzegovina, as more fully articulated in United Communist Party of Turkey and Others v. Turkey (para. 30) that the Convention controls everything done by a state, including its constitution, owes nothing at all to the European Convention, and everything to general international law. André has explained the general international law on the matter, as have the PCIJ, the ICJ, the VCLT and the ILC. The whole relevance of the ECtHR cases is that they have applied that learning in one particular branch of international law, which just happens to be human rights law and the European Convention in particular.

    My citation to Sejdic and Finci, then, was not for the particular issue of discrimination law, but for the entirely dogmatic issue of the relationship between international law (here: the ECHR) and domestic law (all and any domestic law).

    As to your last point about the hierarchy of norms in international human rights law, I would accept that there is such a hierarchy. Some rights are absolute, others patently are not. But where rights are not absolute, that is a matter under the treaty. If, therefore, a rule of domestic law passes muster, say, under Article 17 ICCPR (the right to privacy), then that is because the article allows for this, not because the treaty is somehow trumped by domestic law.
    I don't see how hierarchically inferior norms could be in any other way subordinate to even fundamental rules of domestic law (as I have already explained, I suspect, ad nauseam).

    John C. Dehn says

    January 7, 2010

    Tobias,

    You are correct. I did not intend to say categorically that ECHR decisions have no relevance outside Europe, just that they are of limited (which is not to say insignificant) relevance. (I also did not intend to criticize -- merely observe.) Decisions of any international tribunal are always persuasive evidence of the matters under discussion.

    You make several good points regarding the relationship of lesser international human rights norms to domestic law, and perhaps help to further isolate the legal causes of their lesser status. However, I am not entirely sure it is the only way to describe the phenomena we observe.

    One might say that the ECHR is powerful not because it is international law -- though that is the doctrinal basis for the decisions you mention, but because states have agreed to significant enforcement mechanisms. The ICCPR, however, does not have the same legal force because it does not provide for the same level of enforcement.

    As a theoretical matter, though, I do not believe it impossible for the rule stated in the Report to develop in custom. How else might we doctrinally describe a "weaker" or "lesser" norm? In other words, how clear is it that a norm is ignored solely for want of enforcement mechanisms? Is it possible or reasonable to say that the lack of enforcement mechanism itself, or the laissez fare attitude of states toward certain norms, is actually the result of a customary rule recognizing the primacy of certain domestic law over the international norm in question? States must believe this true (at least in theory) from their domestic perspective, otherwise all states would be constitutionally monist.

    One can dogmatically assert that the rule is being ignored in various contexts because states can do so with impunity for want of enforcement. We might alternatively say that the substantive norm is itself qualified by the understanding that it is secondary to an essential aspect of domestic law. In other words, states -- regardless of what the say when called to vote on a General Assembly resolution or otherwise -- might in practice (accompanied by opinio juris) recognize the primacy of sovereignty in certain narrow areas of constitutional significance affecting human rights.

    Again, I am not committed to any specific position. This is just something that came to mind as I was reading the posts and comments, and wanted to think through out loud with the bright folks who read this blog!

    Tobias Thienel says

    January 7, 2010

    John,

    I guess it is possible for a rule of international law (be it as customary or as treaty law) that renders itself subject to domestic constitutional or other domestic law. I fail to think of any that do, but considering that many extradition treaties have exceptions from the obligation to extradite for cases in which human rights law prohibits the extradition, I can well imagine that some such treaties are subject not only to international human rights law, but also to its domestic equivalent.

    I don't think it particularly likely, however, that such rules will ever become at all common. After all, the actors making international law (states, by and large) generally have little or no interest in allowing other parties to a treaty to, as it were, overrule their treaty commitments at will by amending their constitution (which, of course, is frequently much less difficult than in the United States). This applies most obviously where the treaty is strictly inter-governmental, that is to say where the interests protected are those of the contracting states themselves. But I think the assumption also holds true if we are talking about human rights treaties. Why, after all, would states conclude human rights treaties at all - as opposed to enacting domestic bills of rights -, if they do not want the other parties to respect them as well?

    As for your point about the fact that most, if not at some level all, states have adopted the dualist model of the relationship between domestic and international law, I am not at all sure this is really because they have an international opinio juris to the effect that international law is subject to (some) domestic law. There are, I think, several explanations for why states may operate on a dualist model. First, that model may simply be an accident of history, inasmuch as domestic and international until recently did not intersect much; international law used to be about a state's alliances (not least its belligerent ones) and was of no immediate concern to domestic law. That, I would suggest, is why the Crown in the United Kingdom and several other jurisdictions still has the sole treaty-making power, entirely unfettered by parliamentary oversight, let alone any requirement of advice and consent. Secondly, for all the virtues of international law, its democratic legitimacy is hardly something to shout about, certainly if looked at from the domestic angle. Before international law can have any role in domestic law and domestic governance, some act of acceptance would seem to be required under the high principle of democracy, no less. Thirdly, a degree of separation between domestic and international law gives a state the power (if nothing else) to violate international law. A dualist state can, as a matter of its own law, decline to give effect to any rule of international law. It may not be allowed to do so in international law, but still it can. That is very likely to have a certain attraction for states.

    That attraction is not, I think, conditional on states also believing that they can, in international law, get away with declining to bring their domestic law into line. Being able to do something is a good thing even if there is some cost involved in doing it.

    Finally, as to your suggestion that states might in practice recognize the primacy of sovereignty, I think this is more relevant to international law-making than to any concepts of the nature and effect of international law. If states value their sovereignty in any area, I imagine they will simply not create rules of international (including rules on enforcement, for instance on binding dispute settlement), and not create rules first and then make them subject to domestic law.

    John C. Dehn says

    January 7, 2010

    Tobias,

    As to your second and last points, they are well taken but do they reflect reality? If the object and purpose of a treaty is to have maximum possible participation, won't states be willing to permit derogation? Will they necessarily require a reservation to affect it? I am uncertain. It is sometimes easier to affect in silence, through practice something that might invoke ire if ever expressed openly.

    As to you points about dualism, also well taken but you must admit there are other ways to view it (however likely) particularly with the growth of international law that purports to displace contrary domestic - particularly constitutional - law. This is also relevant to your last point and particularly with regard to customary law (my reference to customary law in my first comment was no accident).

    For example, with the growth of those that view most rules of customary international law as universally binding, or argue that certain human rights treaties or customary norms (or international tribunal decisions which purport to determine their existence and universal nature) refect such universal customary law, I do not think express or clearly implied state consent will always perform the gate keeping role that you assume in your last point. Must a state with a central constitutional provision clearly at odds with a developing customary rule persistently object (and to whom?) to it to preserve its constitution?

    It may sometimes be easier for states to say one thing and do another - either out of a sense of legal obligation or perhaps for reasons of comity that may begin to look like legal obligation if consistently observed. Again, your gate keeping/rule formation point is well taken in theory, I am just wondering out loud if it might be doctrinally/normatively correct to describe actual state practice differently. It is, admittedly, a heavily nuanced analysis that I am offering.

    Tobias Thienel says

    January 7, 2010

    John,

    I don't have a lot of time to reply, or indeed any great capacity for thought, at the moment - it's late where I am, so I should put off a longer answer until tomorrow. Just this one thought: I get a feeling we have as yet not figured in the concept of a casual (or callous) violation of international law. Especially if there is no enforcement mechanism, states that want to say one thing and do another frequently accept a rule (whether by expressing consent or failing to persistently object) but are then happy to violate it. They do not necessarily - or, I suspect, commonly - rationalise what they are doing by redefining the relationship between international and domestic law.

    André de Hoogh says

    January 22, 2010

    André has posted a response to the comments above. See
    http://www.ejiltalk.org/the-relationship-between-national-law-and-international-law-in-the-report-of-the-georgia-fact-finding-mission-a-rejoinder/