1. Ius ad bellum & ius in bello: Hague law and Geneva law
There is a distinction between ius ad bellum and ius in bello, the first regarding the waging of war, the latter regarding warfare. Armed conflict is governed by the Hague law on one hand, aiming to curb the conduct of hostilities, and Geneva law, aiming to protect the victims of an armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part of customary international law, as the Court states in para 79, 80 of the Nuclear Weapons Advisory Opinion (a reference to the 1949 Corfu Channel case is made):
"It is undoubtedly [..] rules of humanitarian law applicable in armed conflict are so fundamental to the respect of [..] "elementary considerations of humanity", that the Hague and Geneva Conventions are to be observed by all States, whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law" (para 79). Furhermore, the Court notes that these principles of humanitarian law are part of ius cogens (para 83).
From this follows that, regardless of the act of ratification by States, the rules codified in the Hague and Gevena Conventions apply to armed conflict, because these conventions embody the rules of customary international law.
1.2. The Hague law
Since the 1868 St. Petersburg Declaration, the Hague law has incorporated conventions to outlaw certain types of weaponry, as the 1993 Chemical Weapons Convention is one of these coventions being considered part of the Hague law.
1.3. Geneva Conventions and their Additional Protocols
The four Geneva Conventions are, in a particular order, as follows:
Convention I: protection of wounded and sick members of armed forces;
Convention II: protection of wounded, sick and shipwrecked members of armed forces at sea;
Convention III: treatment of prisoners of war;
Convention IV: protection of civilians
The three additional protocols are:
AP I: detailed rules of protection of victims in international armed conflicts (IAC);
AP II: regulation of non-international armed conflicts (NIAC);
AP III: rules on additional distinctive emblem of the red crystal
2. The scope of humanitarian law: defining an armed conflict
There has always been uncertainty on the precise scope of humanitarian international law. Common Article 2 of the Geneva Convention provides that the Convention "shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them".
Hence, the concept of an "armed conflict" has to be defined. The ICTY Appeals Chamber does so in the 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadić case (2 October 1995): "..we find that an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Humanitarian law extends beyond the cessation of hostilities" (para 70).
As you might have noticed, the threshold for a NIAC is higher than is the case with an IAC. Humanitarian international law applies at the very moment of any act of force between States- with respect to international humanitarian law, one could say it is "war at first shot", as Common Article 2 of the Geneva Convention implicitly makes clear. NIACs, on the other side, require "protracted or large-scale armed violence" for international humanitarian law to be applicable.
2.1. Lotus doctrine and si omnes clause
The rationale behind this distinction is State sovereignty. International law would foremost be applied in conflicts between States, or High Contracting Parties to the Conventions. A si omnes clause has a very limited scope, stipulating
that provions could only apply if States, party to a conflict, were both
parties to the convention that would be applied. According the Lotus doctrine, only the specific prohibition of methods of warfare would govern interstate conflicts; otherwise, much was permissible.
2.2. Martens' clause
Фёдор Фёдорович Мартенс, Fjodor Martens, designed the general savings clause. This clause is included in Article 1(2) of AP I; furthermore, Common art. 2 of the Geneva Convention expressly rejects the si omnes clause. It does so by stating "Although one of the Powers [to a conflict] may not be a party to the present Convention.."
Note that paras 1-3 from Art. 60 of the VCLT do not apply to provisions relating to humanitarian treaties, Art. 60(5) VCLT. This provision stresses the importance of international humanitarian law: treaties concerning humanitarian law should not be terminated along the line of material breach by another party.
3. Principles of humanitarian law
Four principles underlie the rules of international humanitarian law as expressed in the conventions and additional protocols:
I. Principle of distinction;
II. Principle not to cause unnecessary suffering/ humanity principle;
III. Principle of military necessity and proportionality;
IV. Principle of precaution.
3.1. Principle of distinction
A distinction must be drawn between combatants ( defined by art. 43 of AP I) and civilians (defined by Art. 50 AP I). A civilian is any person who does not belong to one of the categories referred to in Art. 4 (A)(1)(2)(3) and (6) of Convention III and art. 43 of AP I. Unless they take direct part in hostilities, civilians shall enjoy protection (Art. 51 (3) AP I). As Articles 48 (basic rule), 51(2) and 52(2) express, civilians cannot lawfully be made objects of attack. Note that enemies hors de combat will be safeguarded by Art. 41 of AP I; Article 41(2) AP I defines persons hors de combat which cannot be made objects of attack.
A combatant cannot be deprived of his right to be combatant, whether he has violated rules of international law or not, Art. 44(2) AP I. Members of the armed forces of a Party to a conflict, have the right to participate directly in hostilities, Art. 43(2) AP I. Any combatant as defined in Art. 43, who falls into the power of an adverse Party, shall enjoy the prisoner-of-war-status, Art 44(1) AP I. If a combatant fails to distinguish himself from civilians, Art. 44(3) AP I, he will not enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be given the equivalent of the protection accorded by Convention III and AP I. In order to garantuee as much protection as possible to all categories of combatants and non-combatants, main rule prescribes that anyone who cannot be considered a combantant in line with Art. 43 AP I, will be considered a civilian, Art. 50 AP I.
Civilians that take part in hostilities, become objects of attack (Art. 51(3) AP I), but they will not enjoy the status of prisoner-of-war when captured; if article 4 of Geneva Convention III does not apply, Article 45(3) in conjunction with Article 75 AP I affords the person, who is not entitled to prisoner-of-war-statues, the right to protection. Otherwise, Geneva Convention IV may apply.
There is a difference between civilians taking part in organized hostilities and civilians participating in levée en masse. The latter, spontaneously participating in non-organized hostilities, do become prisoners-of-war in the event of being captured, Article 4A (6) of Geneva Convention III.
Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some conventions are designed to expressly prohibit the use of certain weaponry, such as the 2010 Convention on Cluster Munitions.
The Threat and use of nuclear weapons Advisory Opinion of 8 July 1996 discusses both the principles of distinction and the principle not to cause unnecessary suffering in paras 95-97. The Court's summary of the principles that constitute "the fabric of humanitarian law" is to be found in para 78.
3.2. Principle not to cause unnecessary suffering (humanity)
Necessity cannot be invoked to justify military actions at any cost, as Martens' clause aims to codify. The basic rules in Art. 35 of AP I stress this principle not to cause unnecessary suffering as a result of warfare. From the application of Common Article 3 follows that the humanity principle applies to NIACs as well.
Regarding Common Article 3, the ICJ notes in the Nicaragua case that:
"The importance of the principles that the Geneva Conventions and other relevant instruments purport to codify is [..] demonstrated by Articles 63, 62, 142 and 158 of Geneva Conventions I, II, III and IV respectively. These provisions allow for state parties to denounce the conventions unilaterally. However, the denunciation: "Shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principle of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity and the dictates of public conscience" (para 218).
3.3. Principle of military necessity and proportionality
As the Court states in the Threat or use of nuclear weapons Advisory Opinion, it is prohibited to use weapons causing the combatants unnecessesary harm, that is to say, a harm greater than unavoidable to achieve legitimate military objectives (para 78).
The last sentence of Art. 51(5)(b) AP I classifies "attacks that are
excessive in relation to the military advantage anticipated" as
indiscriminate and therefore prohibited.
To NIACs, customary international law imposes on parties to the conflict an equal obligation to refrain from causing greater harm than unavoidable to achieve military objectives.
3.4. Principle of precaution
The principles of humanity and military necessity imply the principle to take precautionary measures. In the conduct of military operations, Art. 57 AP I stipulates that constant care shall be taken to spare civilians and civilian objects. While AP I does not apply to NIACs, customary international law imposes on the parties to a NIAC the obligation to take precautions in order to prevent unnessary suffering.
4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadić case could be considered an international armed conflict, the Appeals Chamber in the Judgment of 15 July 1999 stated that "in order to attribute the acts of military or paramilitary groups to a State, it must be proved that the State wields overall control [..]" (para 131).
Although its scope is limited, Geneva Convention Common Art. 3 applies to NIACs. In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in the Tadić case, the ICTY Appeals Chamber makes clear that a higher threshold has to be passed for an internal conflict to qualify as a NIAC (para 70).
In the Tadić trial of 7 May 1999, the ICTY Trial Chamber has set out which requirements have to be met in order to pass the threshold for the application of rules regarding a NIAC: "The test applied to the existence of an armed conflict for the purpose of the rules contained in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the organization of the parties to the conflict" (para 562).
4.2. NIACs and AP II
Many of the provisions of AP II represent customary international law. The threshold in Additional Protocol II (which governs NIACs) can be derived from Article 1(1) AP II:
"..organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations".
The scope of AP II is, thus, limited, as Article 1(2) AP II puts it: "This Protocol shall not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence."
Like I noted before, the explanation for the restricted reading of the regulation of NIACs is State sovereignty. Also, States might not want to qualify internal conflicts with armed (rebel) groups as NIACs, for qualifying a conflict as such, implicitly means recognizing and eventually legitimizing the existence and actions of those groups.
5. The value of humanitarian law
What is exactly the value of international humanitarian law? Although the (codification of) customary international law aims to guarantee human rights and stems from universal human ideals of what global society should be like, it goes to show that many (non-) state actors don't live up to guarantee those rights. When non-State actors and States lack natural authority, one could image well how these actors resort to the threat with or use of violence and how they would rely on an arms race to scare off future, existent or imaginary enemies; living up to their human rights commitments would be the last to be concerned about. In practice, non-compliance is the rule rather than the exception. Even if all parties to a (human rights) treaty give their consent to be bound, there will always be ambiguity when conflicts arise. That is why many of the rules of international law apply in theory, but not in practice.
Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vité, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.
zaterdag 25 februari 2017
woensdag 22 februari 2017
Immunity from foreign jurisdiction for States and HRSO
1.1. State immunity: par in parem non habet imperium
Codified in the UN Convention on Jurisdictional Immunities of States and Their Property (abbreviated UNCSI), the rules on State immunity are of customary international law. Though in issues governed by certain treaties like the 1972 European Convention, general customary law does not apply. General customary law shall only be excluded when immunity issues between member States of the European Convention arise.
As Article 5 of UNCSI reads:
"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court against another State.
The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State could and should not be prosecuted before a domestic foreign court. Note that State immunity is derived from State sovereignty, which relates to the rule that incumbent high-ranking State officials are also immune from the jurisdiction of foreign States. States have legal personality, therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.
1.2. Subjects of State immunity
For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art. 2(1):
i. the State and its various organs of government;
ii. units of a federal State or political subdivisions which are entitled to perform acts in the exercise of sovereign authority and are acting in that capacity;
iii. agencies " ";
iv representatives of the State, acting in that capacity.
From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a result of the classic view on sovereign immunity, as discussed under para 1.1.
1.3. Relative immunity
A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis. States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..] the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction". Paragraph 1 does not apply in case of one of the exceptions, mentioned in the second paragraph of Art. 10.
How does one determine, whether a contract or transaction is an acta iure gestionis? According to Article 2 of the UNCSI, reference should be made primarily to the nature of the contract or transaction; however, its purpose should also be taken into account. The focus shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States from using the "veil" of acta iure imperii in order to escape their obligations by invoking full immunity from foreign jurisdiction.
Other proceedings in which a State cannot invoke immunity, concern: contracts of employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual property (Art. 14) and so on, see Part III of UNCSI.
1.4. Waiver of immunity
No problems will arise when a State has expressly consented to the exercise of jurisdiction by a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless paras 2-4 of Art. 8 UNCSI apply.
1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012
Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law, as the ICJ sets out in paras 53-58 of the 2012 Immunities case.
State immunity does not imply that a State cannot be held responsible for its actions; as was discussed before, State immunity solely implies that a State could not be prosecuted before a domestic foreign court. See para 53: "The Court is not called upon to decide whether these acts were illegal; the question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian (domestic) courts were obliged to accord Germany immunity". A State prosecuting another State, could in its turn be held responsible for violating the right to invoke immunity from foreign jurisdiction.
1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect of the "Territorial Tort Principle", even is an act on the territory of a forum State was performed iure imperii? The Court considers it is not called upon in the present proceedings to resolve the question, whether there is in customary law a "tort exception" to State immunity to acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that the immunity of a State for the acts of its armed forces, falls out of the Convention and has to be determined by reference to customary law.The consequence is, however, that the inclusion of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that State immunity for acta iure imperii continues to extend to civil proceedings for acts occasioning [..] by the armed forces, even if the acts take place on the territory of the forum State. That practice is accompanied by opinio iuris, as a number of national courts made clear that customary law required immunity. The almost complete absence of contrary jurisprudence is significant (para 77).
The Court concludes that, under customary law, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law. The question of whether immunity might apply in criminal proceedings is, however, not an issue in the present case (para 91).
As to the relationship between ius cogens and State immunity, the Court considers that there exists no conflict between the two legal concepts, as the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not amount to recognizing as lawful the breach of ius cogens and so cannot contravene the principle in Article 41 of the ILC on State Responsibility
(para 93).
2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)
As was set out above, the immunities in respect of HRSO are derived from the principle of sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys both immunity ratione materiae and ratione personae. Note that, after a HRSO ceases to hold the office, he or she will no longer hold all of the immunities. A State may try a former HRSO in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v. Belgium, para 61).
2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002
Yerodia Ndombasi case, Congo v. Belgium
2.1.1. HRSO and full immunities, regardless of a official or private capacity
Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other States, both civil and criminal. It is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider (para 51).
The rationale behind the immunity for HRSO is as follows. In customary international law, the immunities accorded to [..] are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States (para 53).
When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity from criminal jurisdiction throughout the duration of his office [...] to protect the individual against any act of authority by another State which would hinder him in the performance of his duties (para 54).
In this respect, no distinction can be drawn between acts performed by a HRSO in an "official" capacity, and those claimed to have been performed in a "private" capacity (para 55).
2.1.2. Considerations regarding Opinion ex parte Pinochet
According to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "international law cannot be supposed to have established a crime [..] or when Lord Phillips said that "no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime" (para 56).
The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a head of state in power is a complete immunity, attached to the person of the head of state and rendering him immune from all actions or prosecutions" (para 57).
The Court has been unable to deduce from [..] practice that there exists under customary law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers, where they are suspected of having commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not enable to conclude that any such exception exists in customary law in regard to domestic courts (para 58).
2.1.3. Is impunity a result of immunity?
It should be noted that the rules governing the jurisdiction of foreign courts must be distinguished from those, governing jurisdictional immunities; jurisdiction does not imply absence of immunity and absence of immunity does not imply jurisdiction. The obligations of prosecution and extradition of serious crimes that are imposed on States, do in no way affect immunities under customary law, including those of HRSO (para 59).
The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy impunity in respect of crimes committed, as immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts, the first being of a procedural nature, the latter being a question of substantive law (para 60).
Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not represent a bar to criminal prosecution in certain circumstances. The Court nouns four examples, the first being that jurisdictional immunity does not apply to trial in the domestic court of the HRSO; subsequently, the waiver of immunity by the represented State will cease the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office, he will no longer enjoy immunity for his acts commited in private (para 61).
2.1.4. Jurisdiction of International Criminal Tribunals
One important remark is that International Criminal Tribunals can try HRSO in criminal proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or former HRSO shall not bar the Court from exercising its jurisdiction over such a person.
3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)
3.1.1. Defining the scope
The ICJ reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear distinction should be made between State immunity and the criminal jurisdiction of a former HRSO: "Pinochet concerned the immunity of a former Head of State from criminal jurisdiction of another State, not the immunity of the State itself in proceedings to establish its liability to damages"(para 87 Fellini case).
3.1.2 Could torture, committed by a former HRSO, be considered an official act?
Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke immunity with respect to acts committed in private during his time in office, while immunity ratione materiae can be invoked for the official acts that have been committed during his time in office.
Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted that the international law prohibiting torture, has the character of ius cogens or a peremptory norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
The question which has to be answered, is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head of State. It is not enough to say that it cannot be part of his functions to commit a crime. Actions which are criminal under local law, can still have been done officially and therefore give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and ius cogens, is an act done in an official capacity on behalf of the state?
Under the CAT the international crime of torture can only be committed by an official [...] If immunity applies, there can be no case outside of Chile in which a succesful prosecution can be brought (unless the State is prepared to waive its right to its officials' immunity). One of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO, would be frustrated by upholding immunity for former HRSO. The notion of continued immunity for former HRSO is inconsistent with the provisions of CAT.
Codified in the UN Convention on Jurisdictional Immunities of States and Their Property (abbreviated UNCSI), the rules on State immunity are of customary international law. Though in issues governed by certain treaties like the 1972 European Convention, general customary law does not apply. General customary law shall only be excluded when immunity issues between member States of the European Convention arise.
As Article 5 of UNCSI reads:
"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court against another State.
The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State could and should not be prosecuted before a domestic foreign court. Note that State immunity is derived from State sovereignty, which relates to the rule that incumbent high-ranking State officials are also immune from the jurisdiction of foreign States. States have legal personality, therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.
1.2. Subjects of State immunity
For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art. 2(1):
i. the State and its various organs of government;
ii. units of a federal State or political subdivisions which are entitled to perform acts in the exercise of sovereign authority and are acting in that capacity;
iii. agencies " ";
iv representatives of the State, acting in that capacity.
From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a result of the classic view on sovereign immunity, as discussed under para 1.1.
1.3. Relative immunity
A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis. States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..] the State cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction". Paragraph 1 does not apply in case of one of the exceptions, mentioned in the second paragraph of Art. 10.
How does one determine, whether a contract or transaction is an acta iure gestionis? According to Article 2 of the UNCSI, reference should be made primarily to the nature of the contract or transaction; however, its purpose should also be taken into account. The focus shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States from using the "veil" of acta iure imperii in order to escape their obligations by invoking full immunity from foreign jurisdiction.
Other proceedings in which a State cannot invoke immunity, concern: contracts of employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual property (Art. 14) and so on, see Part III of UNCSI.
1.4. Waiver of immunity
No problems will arise when a State has expressly consented to the exercise of jurisdiction by a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless paras 2-4 of Art. 8 UNCSI apply.
1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012
Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law, as the ICJ sets out in paras 53-58 of the 2012 Immunities case.
State immunity does not imply that a State cannot be held responsible for its actions; as was discussed before, State immunity solely implies that a State could not be prosecuted before a domestic foreign court. See para 53: "The Court is not called upon to decide whether these acts were illegal; the question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian (domestic) courts were obliged to accord Germany immunity". A State prosecuting another State, could in its turn be held responsible for violating the right to invoke immunity from foreign jurisdiction.
1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect of the "Territorial Tort Principle", even is an act on the territory of a forum State was performed iure imperii? The Court considers it is not called upon in the present proceedings to resolve the question, whether there is in customary law a "tort exception" to State immunity to acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that the immunity of a State for the acts of its armed forces, falls out of the Convention and has to be determined by reference to customary law.The consequence is, however, that the inclusion of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that State immunity for acta iure imperii continues to extend to civil proceedings for acts occasioning [..] by the armed forces, even if the acts take place on the territory of the forum State. That practice is accompanied by opinio iuris, as a number of national courts made clear that customary law required immunity. The almost complete absence of contrary jurisprudence is significant (para 77).
The Court concludes that, under customary law, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law. The question of whether immunity might apply in criminal proceedings is, however, not an issue in the present case (para 91).
As to the relationship between ius cogens and State immunity, the Court considers that there exists no conflict between the two legal concepts, as the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not amount to recognizing as lawful the breach of ius cogens and so cannot contravene the principle in Article 41 of the ILC on State Responsibility
(para 93).
2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)
As was set out above, the immunities in respect of HRSO are derived from the principle of sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys both immunity ratione materiae and ratione personae. Note that, after a HRSO ceases to hold the office, he or she will no longer hold all of the immunities. A State may try a former HRSO in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v. Belgium, para 61).
2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002
Yerodia Ndombasi case, Congo v. Belgium
2.1.1. HRSO and full immunities, regardless of a official or private capacity
Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other States, both civil and criminal. It is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider (para 51).
The rationale behind the immunity for HRSO is as follows. In customary international law, the immunities accorded to [..] are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States (para 53).
When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity from criminal jurisdiction throughout the duration of his office [...] to protect the individual against any act of authority by another State which would hinder him in the performance of his duties (para 54).
In this respect, no distinction can be drawn between acts performed by a HRSO in an "official" capacity, and those claimed to have been performed in a "private" capacity (para 55).
2.1.2. Considerations regarding Opinion ex parte Pinochet
According to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "international law cannot be supposed to have established a crime [..] or when Lord Phillips said that "no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime" (para 56).
The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a head of state in power is a complete immunity, attached to the person of the head of state and rendering him immune from all actions or prosecutions" (para 57).
The Court has been unable to deduce from [..] practice that there exists under customary law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers, where they are suspected of having commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not enable to conclude that any such exception exists in customary law in regard to domestic courts (para 58).
2.1.3. Is impunity a result of immunity?
It should be noted that the rules governing the jurisdiction of foreign courts must be distinguished from those, governing jurisdictional immunities; jurisdiction does not imply absence of immunity and absence of immunity does not imply jurisdiction. The obligations of prosecution and extradition of serious crimes that are imposed on States, do in no way affect immunities under customary law, including those of HRSO (para 59).
The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy impunity in respect of crimes committed, as immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts, the first being of a procedural nature, the latter being a question of substantive law (para 60).
Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not represent a bar to criminal prosecution in certain circumstances. The Court nouns four examples, the first being that jurisdictional immunity does not apply to trial in the domestic court of the HRSO; subsequently, the waiver of immunity by the represented State will cease the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office, he will no longer enjoy immunity for his acts commited in private (para 61).
2.1.4. Jurisdiction of International Criminal Tribunals
One important remark is that International Criminal Tribunals can try HRSO in criminal proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or former HRSO shall not bar the Court from exercising its jurisdiction over such a person.
3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)
3.1.1. Defining the scope
The ICJ reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear distinction should be made between State immunity and the criminal jurisdiction of a former HRSO: "Pinochet concerned the immunity of a former Head of State from criminal jurisdiction of another State, not the immunity of the State itself in proceedings to establish its liability to damages"(para 87 Fellini case).
3.1.2 Could torture, committed by a former HRSO, be considered an official act?
Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke immunity with respect to acts committed in private during his time in office, while immunity ratione materiae can be invoked for the official acts that have been committed during his time in office.
Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted that the international law prohibiting torture, has the character of ius cogens or a peremptory norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
The question which has to be answered, is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head of State. It is not enough to say that it cannot be part of his functions to commit a crime. Actions which are criminal under local law, can still have been done officially and therefore give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and ius cogens, is an act done in an official capacity on behalf of the state?
Under the CAT the international crime of torture can only be committed by an official [...] If immunity applies, there can be no case outside of Chile in which a succesful prosecution can be brought (unless the State is prepared to waive its right to its officials' immunity). One of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO, would be frustrated by upholding immunity for former HRSO. The notion of continued immunity for former HRSO is inconsistent with the provisions of CAT.
zaterdag 18 februari 2017
Summary: use of force as a means of self-defence
Before considering whether the right to exercise self-defence justifies any measures taken by a State, let's take at look at the general rule of international law regarding the use of force. The general prohibition of the use of force is provided by Article 2 para 4 of the UN Charter. Two exceptions to this prohibition are (1) authorization by the UN Security Council (Article 42 UN Charter) and (2) self-defence (Article 51 of the UN Charter).
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-defence to conditions of necessity and proportionality, is a rule of customary international law. Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law", see also paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes clear that the principle of necessity is a strict and objective condition that leaves States no discretion.
Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be derived from the 1842 letter from Webster to Ashburton, are: the other state must have performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the UN Charter requires that measures taken shall be reported to the Security Council immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua case, the measures taken several months after the major offense, could not be said to "correspond to a necessity justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question is, if the proportionality principle has been met. The Court states in the Oil Platforms case that "the scale of the whole operation has to be judged in order to assess, whether the response ["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although providing training and military support to a rebel group might violate customary international law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that State could not be held responsible and that the self-defence plea had to be rejected for these reasons.
Not everything has been said yet. A lot of controversy still surrounds the question, whether the right to self-defence could be invoked against non-state actors, assuming that their conduct cannot be attributable to a state. It is rather unsure whether or not the traditionalist approach still applies. Hence, in practice, the right to invoke self-defence against non-state actors is no longer categorically rejected.
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear Weapons from 8 July 1996, paragraph 41, the submission of exercise of the right of self-defence to conditions of necessity and proportionality, is a rule of customary international law. Referring to the Nicaragua case, the ICJ states that "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law", see also paragraph 51 and paras 73-77 of the Oil Platforms case. The Oil Platforms case also makes clear that the principle of necessity is a strict and objective condition that leaves States no discretion.
Thus, the three requirements to invoke self-defence, (known as the "Caroline test") as can be derived from the 1842 letter from Webster to Ashburton, are: the other state must have performed an armed attack (1), self-defence was necessary to respond to it (2) and the self-defence was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover, Art. 51 of the UN Charter requires that measures taken shall be reported to the Security Council immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua case, the measures taken several months after the major offense, could not be said to "correspond to a necessity justifying the action" (para 237).
Asssuming that any measures taken have not yet failed the necessity test, the next question is, if the proportionality principle has been met. The Court states in the Oil Platforms case that "the scale of the whole operation has to be judged in order to assess, whether the response ["self-defence"] was proportionate" (para 77).
A problem arises when an attack was performed by a non-state actor [rebel groups, for instance]. Is their conduct attributable to a state? A strict, traditionalist approach was applied in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group (Nicaragua) and although providing training and military support to a rebel group might violate customary international law (Armed Activities Congo/ Uganda), the conclusion that follows from these cases is that State could not be held responsible and that the self-defence plea had to be rejected for these reasons.
Not everything has been said yet. A lot of controversy still surrounds the question, whether the right to self-defence could be invoked against non-state actors, assuming that their conduct cannot be attributable to a state. It is rather unsure whether or not the traditionalist approach still applies. Hence, in practice, the right to invoke self-defence against non-state actors is no longer categorically rejected.
vrijdag 17 februari 2017
Use of force as a means of self-defence
1.1. Letter from Mr. Webster to Lord Ashburton, 6 August 1842
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
woensdag 15 februari 2017
On state responsibility: internationally wrongful acts and case law (Tadić, Nicaragua, 2007 Genocide case)
Crawford provides us with an accurate description of the rationale behind state responsibility:
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), there is an internationally wrongful act of a State when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the extent that restitution is not materially impossible and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), there is an internationally wrongful act of a State when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the extent that restitution is not materially impossible and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
zondag 12 februari 2017
The lawful termination of treaties and Gabčíkovo-Nagymaros
The Vienna Convention contains general provisions on suspension and termination of treaties, in particular Articles 54 to 62 VCLT.
Before I am going to discuss the infamous Gabčíkovo-Nagymaros (pronunciation: Gab-chi-co-vah/ Nagee-marosh) case, I will first make a disctinction between formal and substantive grounds for termination or suspension of a treaty.
1.1. Formal grounds for termination or suspension of a treaty
The formal grounds for termination of treaties is provided by articles 54 to 59 VCLT. These include termination in conformity with the provisions of the treaty and termination by consent of all the parties after consultation (art. 54) and termination or suspension of the operation of the treaty implied by conclusion of a later treaty (art. 59).
1.2. Material grounds for termination
Articles 60 to 62 VCLT provide the substantive or material grounds for termination or suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach, may in many respects be considered as a codification of existing customary law on the subject (see the Namibia Advisory Opinion of 1971, p. 47).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
2. Material grounds for termination or suspension of a treaty and Gabčíkovo-Nagymaros Does Hungary's termination of the 1977 Treaty between Hungary and Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This is the main question in the G-N case, for Hungary invokes no less than five grounds in an attempt to justify its unilateral termination of the Treaty.
These grounds are, in no particular order: a state of necessity, material breach of the treaty by Czechoslovakia, impossibility of performance of the treaty, a fundamental change of circumstances and the development of new norms of international environmental law. Before I am going to discuss the state of necessity, I will highlight the three material grounds that are covered by art. 60-62 VCLT.
2.1. Inadimplenti non est adimplendum (art. 60 VCLT)
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending the treaty, art. 60 (1). A material breach is, as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In the Gabĉikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation of material breach by Czechoslovakia is justified:
It is up to the Court to decide, whether there has been a material breach, rather than just a grave breach:
The Court is of the view that it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules of general international law may justify the taking of certain [counter]measures by the injured State, but it does not constitute a ground for termination under the law of treaties (para 106);
Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object and purpose of the Treaty (para 110).
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C [by Czechoslovakia]. As the Court has found, Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did not act unlawfully in constructing the works that would lead to the putting into operation of Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach as a ground for termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when putting Variant C into operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by Hungary.
2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of God)
As described by Article 61 VCLT, a party may invoke the impossibility of performance as a ground for termination of a treaty, if the impossibility results from the permanent disappearance or destruction of an object, indispensable for the execution of the treaty. A temporary impossibility is not sufficient for termination of the treaty. If the impossibility of performance results from that party's own breach, the ground of supervening impossibility may not be invoked (art. 61 (2) VCLT). Judging the G-N case, this means that Hungary was not entitled to invoke Article 61 para 1 VCLT, for the impossibility of performance stems from Hungary's own "omission" (para 102-103). In other words, this ground implies a mere "Act of God".
2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)
A fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked, para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be performed.
You'll have noticed the essential grounds for invoking a fundamental change of circumstances: the circumstances have to be fundamentally different, compared to the original circumstances at the time of the conclusion, and the change itself has to be completely unforeseen by either of the parties. Minor changes that do not relate to the consent to be bound or to the obligations to be performed, cannot justify the invocation of a fundamental change. A de facto material breach may be invoked.
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As Hungary argued, the events which would have constituted a fundamental change, were specified as profound changes of a political nature, the Project's diminishing economic viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty, that they constituted an essential basis for the consent of parties and, in changing, radically altered the extent of obligations still to be performed. The profitablity of the Project was not bound to such an extent that the obligations of the parties would have radically transformed as a result. The development of environmental knowlegde and law cannot be said to have been completely unforeseen. The changed circumstances advanced by Hungary are not of such a nature, that their effect would radically transform the extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear indication that the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of States, the Court will consider the question of whether there was a state of necessity which would have permitted Hungary to suspend and abandon works that it was commited to perform in accordance with the Treaty.
A state of necessity may be invoked if:
a. the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the obligation existed.
In the G-N case, the Court considers, first of all, that the state of necessity is a ground, recognized by customary internationa law for precluding the wrongfulness of an act not in conformity with an international obligation. Such ground can only be accepted on an exceptional basis. The state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied. The State concerned is not the sole judge of whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential interest" to a matter only of the "existence" of the State and that the whole case has to be judged in the light of the particular case (para 53) (i.o. words: the existence has to be objective) .
However serious the uncertainties might have been, they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The mere apprehension of a possible peril could not suffice. The extremely grave and imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked by Hungary had already materialized to a large extent for a number of years, so that it could not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction of the G-N Project would have created serious risks, Hungary had means available to it, other than suspension and abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been difficult to see the alleged peril as sufficiently certain and therefore "imminent" in 1989 . Hungary should have resorted to other means in order to respond to the dangers that it apprehended. In particular, within the framework of the original Project, Hungary seemed to be in position to control (para 56).
At the time of concluding the Treaty, Hungary was presumably aware of the situation as then known, when it assumed its original obligations. The Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Hungary asked that the works should go forward more slowly, then asked for the works to be speeded up, only to suspend and abandon them three months later.
The conclusion is that Hungary would not have been permitted to rely upon the state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission, to bring it about (para 57).
Before I am going to discuss the infamous Gabčíkovo-Nagymaros (pronunciation: Gab-chi-co-vah/ Nagee-marosh) case, I will first make a disctinction between formal and substantive grounds for termination or suspension of a treaty.
1.1. Formal grounds for termination or suspension of a treaty
The formal grounds for termination of treaties is provided by articles 54 to 59 VCLT. These include termination in conformity with the provisions of the treaty and termination by consent of all the parties after consultation (art. 54) and termination or suspension of the operation of the treaty implied by conclusion of a later treaty (art. 59).
1.2. Material grounds for termination
Articles 60 to 62 VCLT provide the substantive or material grounds for termination or suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach, may in many respects be considered as a codification of existing customary law on the subject (see the Namibia Advisory Opinion of 1971, p. 47).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
2. Material grounds for termination or suspension of a treaty and Gabčíkovo-Nagymaros Does Hungary's termination of the 1977 Treaty between Hungary and Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This is the main question in the G-N case, for Hungary invokes no less than five grounds in an attempt to justify its unilateral termination of the Treaty.
These grounds are, in no particular order: a state of necessity, material breach of the treaty by Czechoslovakia, impossibility of performance of the treaty, a fundamental change of circumstances and the development of new norms of international environmental law. Before I am going to discuss the state of necessity, I will highlight the three material grounds that are covered by art. 60-62 VCLT.
2.1. Inadimplenti non est adimplendum (art. 60 VCLT)
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending the treaty, art. 60 (1). A material breach is, as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In the Gabĉikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation of material breach by Czechoslovakia is justified:
It is up to the Court to decide, whether there has been a material breach, rather than just a grave breach:
The Court is of the view that it is only a material breach of the treaty itself, by a State party to the treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules of general international law may justify the taking of certain [counter]measures by the injured State, but it does not constitute a ground for termination under the law of treaties (para 106);
Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object and purpose of the Treaty (para 110).
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C [by Czechoslovakia]. As the Court has found, Czechoslovakia violated the Treaty only when it diverted the waters [...]. Czechoslovakia did not act unlawfully in constructing the works that would lead to the putting into operation of Variant C.
In the Court's view, the notification of termination by Hungary was premature. No breach of the Treaty had yet taken place and Hungary was, therefore, not entitled to invoke such breach as a ground for termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when putting Variant C into operation (para 78 and 82). The preparations on the territory of Czechoslovakia had not yet led to a material breach, therefore, Hungary's invocation of a material breach by Czech. was premature. Thus, the Court rejects the invocation of material breach/ inadimplenti by Hungary.
2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of God)
As described by Article 61 VCLT, a party may invoke the impossibility of performance as a ground for termination of a treaty, if the impossibility results from the permanent disappearance or destruction of an object, indispensable for the execution of the treaty. A temporary impossibility is not sufficient for termination of the treaty. If the impossibility of performance results from that party's own breach, the ground of supervening impossibility may not be invoked (art. 61 (2) VCLT). Judging the G-N case, this means that Hungary was not entitled to invoke Article 61 para 1 VCLT, for the impossibility of performance stems from Hungary's own "omission" (para 102-103). In other words, this ground implies a mere "Act of God".
2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)
A fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked, para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be performed.
You'll have noticed the essential grounds for invoking a fundamental change of circumstances: the circumstances have to be fundamentally different, compared to the original circumstances at the time of the conclusion, and the change itself has to be completely unforeseen by either of the parties. Minor changes that do not relate to the consent to be bound or to the obligations to be performed, cannot justify the invocation of a fundamental change. A de facto material breach may be invoked.
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62 of the VCLT. As Hungary argued, the events which would have constituted a fundamental change, were specified as profound changes of a political nature, the Project's diminishing economic viability, the progress of environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty, that they constituted an essential basis for the consent of parties and, in changing, radically altered the extent of obligations still to be performed. The profitablity of the Project was not bound to such an extent that the obligations of the parties would have radically transformed as a result. The development of environmental knowlegde and law cannot be said to have been completely unforeseen. The changed circumstances advanced by Hungary are not of such a nature, that their effect would radically transform the extent of the obligations to accompish Project G-N. Article 62 of the VCLT is a clear indication that the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the International Responsibility of States, the Court will consider the question of whether there was a state of necessity which would have permitted Hungary to suspend and abandon works that it was commited to perform in accordance with the Treaty.
A state of necessity may be invoked if:
a. the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the obligation existed.
In the G-N case, the Court considers, first of all, that the state of necessity is a ground, recognized by customary internationa law for precluding the wrongfulness of an act not in conformity with an international obligation. Such ground can only be accepted on an exceptional basis. The state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied. The State concerned is not the sole judge of whether those conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context, reduce an "essential interest" to a matter only of the "existence" of the State and that the whole case has to be judged in the light of the particular case (para 53) (i.o. words: the existence has to be objective) .
However serious the uncertainties might have been, they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The mere apprehension of a possible peril could not suffice. The extremely grave and imminent peril must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes that the dangers were mostly of a long-term nature and, above all, that they remained uncertain. The peril invoked by Hungary had already materialized to a large extent for a number of years, so that it could not, in 1989, represent a peril arising entirely out of the G-N Project. Even if the construction of the G-N Project would have created serious risks, Hungary had means available to it, other than suspension and abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been difficult to see the alleged peril as sufficiently certain and therefore "imminent" in 1989 . Hungary should have resorted to other means in order to respond to the dangers that it apprehended. In particular, within the framework of the original Project, Hungary seemed to be in position to control (para 56).
At the time of concluding the Treaty, Hungary was presumably aware of the situation as then known, when it assumed its original obligations. The Court cannot fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Hungary asked that the works should go forward more slowly, then asked for the works to be speeded up, only to suspend and abandon them three months later.
The conclusion is that Hungary would not have been permitted to rely upon the state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission, to bring it about (para 57).
vrijdag 10 februari 2017
Reservations to treaties: Advisory Opinion on the Genocide Convention
3. The Advisory Opinion of 28 May 1951 on the Genocide Convention
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the Convention on the prevention and punishment of the crime of genocide. The concerned actors are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they wish to enforce the treaty between certain other States.
The General Assembly raises the following questions:
I. Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation if the reservation is objected by one or more parties to the Convention, but not by others?
II. If the answer to question I is the affirmative, what is the effect of the reservation as between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?
III. What would be the legal effects as regards the answer to question I if an objection to a reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?
3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded as being a party to the Convention, if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.
On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.
On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I, only upon ratification. Until that moment, it merely serves as a notice to the other State of the eventual attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect.
3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting States whether a reservation is deemed tolerable or not, regarding the object and purpose of the Convention- given that certain reservations are not excluded in the Convention itself. However, take a closer look at the Advisory Opinion and you will find the raison d'être of the convention, extensively described at page 22 to 25.
As page 24 reads:
" The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of States which adopted it, that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis".
4. Is a reservation to article IX of the Genocide Convention compatible with its object and purpose?
4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo. The Court is required to address only the questions of whether it is competent to hear the dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance (regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of the Court).
4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide Convention was excluded by its reservation to the entirity of Article IX (para 29).
4.1.2. The Court's considerations
The Court will begin by reaffirming that "the principles underlying the Genocide Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that a consequence of that conception is "the universal character both of the condemnation of genocide and of the co-operation required in order to liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that a dispute relates to compliance with a norm of ius cogens character (peremptory norms of general international law) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the consent of the parties (para 64).
The Court notes that is has already found that reservations are not prohibited under the Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal situation is not affected by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention (para 66).
Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. The reservation of Rwanda in question, meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is not to be regarded as being incompatible with the object and purpose of the Convention (para 67).
As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case (para 70).
4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"
The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda. However, their joint separate opinion stresses that some issues do require further consideration.
With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the particular convention concerned and the particular reservation. In some treaties, not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. Some such reservations to particular substantive clauses may be of this character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural" provision in a certain convention, could be contrary to the treaty's object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments ("at the heart of the convenant system")" (para 21).
It is, thus, not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention (para 29).
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the Convention on the prevention and punishment of the crime of genocide. The concerned actors are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they wish to enforce the treaty between certain other States.
The General Assembly raises the following questions:
I. Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation if the reservation is objected by one or more parties to the Convention, but not by others?
II. If the answer to question I is the affirmative, what is the effect of the reservation as between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?
III. What would be the legal effects as regards the answer to question I if an objection to a reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?
3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded as being a party to the Convention, if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.
On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.
On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I, only upon ratification. Until that moment, it merely serves as a notice to the other State of the eventual attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect.
3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting States whether a reservation is deemed tolerable or not, regarding the object and purpose of the Convention- given that certain reservations are not excluded in the Convention itself. However, take a closer look at the Advisory Opinion and you will find the raison d'être of the convention, extensively described at page 22 to 25.
As page 24 reads:
" The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of States which adopted it, that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis".
4. Is a reservation to article IX of the Genocide Convention compatible with its object and purpose?
4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo. The Court is required to address only the questions of whether it is competent to hear the dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance (regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of the Court).
4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide Convention was excluded by its reservation to the entirity of Article IX (para 29).
4.1.2. The Court's considerations
The Court will begin by reaffirming that "the principles underlying the Genocide Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that a consequence of that conception is "the universal character both of the condemnation of genocide and of the co-operation required in order to liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that a dispute relates to compliance with a norm of ius cogens character (peremptory norms of general international law) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the consent of the parties (para 64).
The Court notes that is has already found that reservations are not prohibited under the Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal situation is not affected by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention (para 66).
Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. The reservation of Rwanda in question, meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is not to be regarded as being incompatible with the object and purpose of the Convention (para 67).
As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case (para 70).
4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"
The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda. However, their joint separate opinion stresses that some issues do require further consideration.
With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the particular convention concerned and the particular reservation. In some treaties, not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. Some such reservations to particular substantive clauses may be of this character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural" provision in a certain convention, could be contrary to the treaty's object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments ("at the heart of the convenant system")" (para 21).
It is, thus, not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention (para 29).
donderdag 9 februari 2017
International Law: Reservations to treaties and the legal effects of either acceptance or objection by other States (part II)
2.3. Article 19 of the VCLT: different scenarios
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
woensdag 8 februari 2017
What conditions make reservations to Treaties permissible?
Do reservations diminish the object and purpose of a Treaty?
This question could well be posed by a naturalist. From a naturalist point of view, one could state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to treaties concerning human rights, as is one of the main topical issues, the multilateral Convention on the prevention and punishment of the crime of genocide, Art. IX?
1.1. Positivist approach: efficiency and efficacy
From a positivist approach, however, to some extent, compromises are inevitable in the treaty-making process; the treaty-making process requires efficiency. Efficiency could not be reached if every party to a treaty has to vote unanimously on a large number of matters- which was, in fact, the case before 1940. It goes to show that negotiations often take decades before a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy of international rules. States are more likely to adhere to certain rules if they are able to shape the rules, more or less, to their own discretion.
1.2. The USSR case and the ICJ Opinion on Reservations
The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide Convention. Not having recognized the jurisdiction of the International Court of Justice, the USSR proposed reservations to article IX of the Genocide Convention, discarding the jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a treaty are permissible, as long as these reservations are compatible with the object and purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT, particularly into article 19. Although the ICJ aims at creating a balance between interests of states and the purpose of - in case- the Convention- one could say that the advisory opinion works in favour of the party proposing reservations to a treaty. In the end, state sovereignty prevails.
Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state to attach a reservation is a means of imposing obligations on this state, being or expressing its will to become a party to the treaty. The question is hence, to what extent reservations to treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard and fast rules" in global politics.
Before I am going to discuss what conditions make reservations to treaties permissible, let's explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties (abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear that the VCLT is not applicable to cases prior to 1980- if you would like to know which treaties and conventions could be applied to previous cases, look up the International Court of Justice database.
2.1. Law of Treaties
The Law of Treaties is said to be governed by the VCLT and international customary law. Since the Vienna Convention is a mere codification of customary international law, can these two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between primary and secondary rules of international law, the first type of rules concerning (substantive) obligations (such as the prohibition of genocide), the second type governing the application and interpretation of primary rules (often mentioned examples of secondary rules include the regimes of state responsibility and the law of treaties). The ILC emphasizes state responsibility for the sake of efficacy.
The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:
"International agreements concluded between States, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the law of treaties. One is that states are sovereign, therefore no valid treaty can do without the free consent of states entering into the treaty, i.o. words consensualism is an essential feature; the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a treaty requires that states perform these treaties in good faith. However, the old Roman brocard "pacta sunt servanda" originally applies to civil law.
2.1.2. Ius cogens
Note that peremptory norms are regarded certain overriding principles of international law, which, speaking with I. Brownlie (Principles of International Law), form a "body of ius cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes clear that a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general internation law, having the same character".
2.2. Reservations
According to article 2 (1)(d) a "reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State".
One main rule conducts the formulation of reservations. As article 19 makes clear, a State may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the object and purpose of the treaty.
Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for there is no general rule to define these concepts of a treaty.
As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations problems in relation to human rights treaties because many of its provisions are written to reflect the operation of multilateral treaty between States in issues where States act in their own interest in respect of other States [...] where the treaty does not establish an independent international mechanism for its application and interpretation" (read "Reservations by States under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights treaties and the Vienna Convention Regime").
This question could well be posed by a naturalist. From a naturalist point of view, one could state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to treaties concerning human rights, as is one of the main topical issues, the multilateral Convention on the prevention and punishment of the crime of genocide, Art. IX?
1.1. Positivist approach: efficiency and efficacy
From a positivist approach, however, to some extent, compromises are inevitable in the treaty-making process; the treaty-making process requires efficiency. Efficiency could not be reached if every party to a treaty has to vote unanimously on a large number of matters- which was, in fact, the case before 1940. It goes to show that negotiations often take decades before a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy of international rules. States are more likely to adhere to certain rules if they are able to shape the rules, more or less, to their own discretion.
1.2. The USSR case and the ICJ Opinion on Reservations
The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide Convention. Not having recognized the jurisdiction of the International Court of Justice, the USSR proposed reservations to article IX of the Genocide Convention, discarding the jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a treaty are permissible, as long as these reservations are compatible with the object and purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT, particularly into article 19. Although the ICJ aims at creating a balance between interests of states and the purpose of - in case- the Convention- one could say that the advisory opinion works in favour of the party proposing reservations to a treaty. In the end, state sovereignty prevails.
Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state to attach a reservation is a means of imposing obligations on this state, being or expressing its will to become a party to the treaty. The question is hence, to what extent reservations to treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard and fast rules" in global politics.
Before I am going to discuss what conditions make reservations to treaties permissible, let's explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties (abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear that the VCLT is not applicable to cases prior to 1980- if you would like to know which treaties and conventions could be applied to previous cases, look up the International Court of Justice database.
2.1. Law of Treaties
The Law of Treaties is said to be governed by the VCLT and international customary law. Since the Vienna Convention is a mere codification of customary international law, can these two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between primary and secondary rules of international law, the first type of rules concerning (substantive) obligations (such as the prohibition of genocide), the second type governing the application and interpretation of primary rules (often mentioned examples of secondary rules include the regimes of state responsibility and the law of treaties). The ILC emphasizes state responsibility for the sake of efficacy.
The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:
"International agreements concluded between States, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the law of treaties. One is that states are sovereign, therefore no valid treaty can do without the free consent of states entering into the treaty, i.o. words consensualism is an essential feature; the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a treaty requires that states perform these treaties in good faith. However, the old Roman brocard "pacta sunt servanda" originally applies to civil law.
2.1.2. Ius cogens
Note that peremptory norms are regarded certain overriding principles of international law, which, speaking with I. Brownlie (Principles of International Law), form a "body of ius cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes clear that a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general internation law, having the same character".
2.2. Reservations
According to article 2 (1)(d) a "reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State".
One main rule conducts the formulation of reservations. As article 19 makes clear, a State may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the object and purpose of the treaty.
Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for there is no general rule to define these concepts of a treaty.
As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations problems in relation to human rights treaties because many of its provisions are written to reflect the operation of multilateral treaty between States in issues where States act in their own interest in respect of other States [...] where the treaty does not establish an independent international mechanism for its application and interpretation" (read "Reservations by States under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights treaties and the Vienna Convention Regime").
zondag 5 februari 2017
Strafprocesrecht: het aanwenden van gewone rechtsmiddelen (3)
3. Behandeling van het hoger beroep: ott en formaliteiten
De voorzitter bepaalt op voordracht van de advocaat-generaal, de dag van de terechtzitting, art. 412 lid 1 Sv, tenzij art.408a Sv reeds is toegepast. Voorwerp van het beroep zijn de feiten die de verdachte in eerste aanleg ten laste zijn gelegd (artt. 412 lid 2 en 415 lid 2 Sv). Er dienen minstens 10 dagen tussen de dagvaarding en de terechtzitting te verlopen, art. 413 lid 1 Sv. Er kunnen in hoger beroep nieuwe processtukken worden overlegd, art. 414 lid 1 Sv. De A-G geeft de gelegenheid om bezwaren tegen het vonnis toe te lichten, art. 416 lid 1 Sv.
3.1. competentie
In beginsel behandelt de meervoudige kamer het hoger beroep in strafzaken, art. 411 lid 1 Sv. De strafzaak kan door een enkelvoudige kamer worden behandeld, indien (art. 411 lid 2 Sv):
a. de zaak naar oordeel van het OM van eenvoudige aard is en de verdachte in eerste aanleg is veroordeeld tot straf of maatregel;
b. de zaak in eerste aanleg door de kantonrechter of politierechter is behandeld en daarbij niet een gevangenisstraf van meer dan 6 maanden is opgelegd.
Dat niet meer dan zes maanden vrijheidsstraf is opgelegd, staat er niet aan in de weg dat de enkelvoudige kamer in hoger beroep tot een hogere vrijheidsstraf komt. Het is wenselijk dat de enkelvoudige kamer gebruik maakt van de mogelijkheid om de zaak te verwijzen naar de meervoudige kamer (art. 411 lid 3 Sv).
Bij verwijzing dient de dag van de terechtzitting vanwege het OM aangezegd te worden aan de verdachte, waarbij de artt. 412 lid 3 en 413 Sv van overeenkomstige toepassing worden verklaard (art. 411 lid 4 Sv). Artt. 377 lid 2 t/m 4 Sv gelden onverkort voor de behandeling door de meervoudige kamer na verwijzing.
3.2. benadeelde
De benadeelde (ruimere definitie dan "slachtoffer") die zich in het geding in eerste aanleg heeft gevoegd, krijgt een mededeling van de A-G, art. 413 lid 2 Sv. De benadeelde kan zich niet eerst in hoger beroep voegen, art. 421 lid 1 Sv! Het is dus raadzaam dat de benadeelde altijd de procedure van art. 51g Sv e.v. volgt. De voeging in eerste aanleg duurt overigens van rechtswege voort in hoger beroep, art. 421 lid 2 Sv. De benadeelde/ het slachtoffer kan geen hoger beroep aantekenen, wanneer zij in haar vordering niet ontvankelijk is verklaard, art. 421 lid 4 Sv. Is geen hoger beroep ingesteld door de verdachte of het OM, dan wordt het hoger beroep door de benadeelde behandeld overeenkomstig civiel recht, zie art. 421 lid 4 Sv, artt. 343 en 407 Rv en art. 60 lid 2 Wet RO.
De niet-ontvankelijkheid is iets anders dan afwijzing van de vordering: blijkens lid 4 kan de benadeelde wel in hoger beroep komen tegen het deel van het vonnis waarbij haar vordering is afgewezen. Het recht van het slachtoffer om te verklaren ex. art. 51e Sv, kan in hoger beroep te gelde worden gemaakt op grond van art. 414 lid 3 Sv. Hij dient zijn voornemen schriftelijk kenbaar te maken aan de A-G of het gerechtshof.
3.3. toelaatbaarheid verkort vonnis, stempelvonnis, e.d.
In eerste aanleg kan worden volstaan met het wijzen van een verkort vonnis, d.w.z. een opgave van de bewijsmiddelen (art. 359 lid 3, laatste volzin jo. art. 365a lid 2 Sv). Wordt een gewoon rechtsmiddel aangewend, dan dient het vonnis gewoonlijk te worden aangevuld. De schakelbepaling, art. 415 lid 1 Sv, verklaart art. 365a Sv echter van overeenkomstige toepassing op het hoger beroep. Bij het hoger beroep kan dus ook worden volstaan met een kop-staart vonnis, tenzij cassatie wordt ingesteld.
Overigens kan alleen een kop-staart vonnis worden opgemaakt, voor zover de verdachte het bewezen verklaarde heeft bekend, nadien niet anders heeft verklaard dan wel vrijspraak heeft bepleit.
De voorzitter bepaalt op voordracht van de advocaat-generaal, de dag van de terechtzitting, art. 412 lid 1 Sv, tenzij art.408a Sv reeds is toegepast. Voorwerp van het beroep zijn de feiten die de verdachte in eerste aanleg ten laste zijn gelegd (artt. 412 lid 2 en 415 lid 2 Sv). Er dienen minstens 10 dagen tussen de dagvaarding en de terechtzitting te verlopen, art. 413 lid 1 Sv. Er kunnen in hoger beroep nieuwe processtukken worden overlegd, art. 414 lid 1 Sv. De A-G geeft de gelegenheid om bezwaren tegen het vonnis toe te lichten, art. 416 lid 1 Sv.
3.1. competentie
In beginsel behandelt de meervoudige kamer het hoger beroep in strafzaken, art. 411 lid 1 Sv. De strafzaak kan door een enkelvoudige kamer worden behandeld, indien (art. 411 lid 2 Sv):
a. de zaak naar oordeel van het OM van eenvoudige aard is en de verdachte in eerste aanleg is veroordeeld tot straf of maatregel;
b. de zaak in eerste aanleg door de kantonrechter of politierechter is behandeld en daarbij niet een gevangenisstraf van meer dan 6 maanden is opgelegd.
Dat niet meer dan zes maanden vrijheidsstraf is opgelegd, staat er niet aan in de weg dat de enkelvoudige kamer in hoger beroep tot een hogere vrijheidsstraf komt. Het is wenselijk dat de enkelvoudige kamer gebruik maakt van de mogelijkheid om de zaak te verwijzen naar de meervoudige kamer (art. 411 lid 3 Sv).
Bij verwijzing dient de dag van de terechtzitting vanwege het OM aangezegd te worden aan de verdachte, waarbij de artt. 412 lid 3 en 413 Sv van overeenkomstige toepassing worden verklaard (art. 411 lid 4 Sv). Artt. 377 lid 2 t/m 4 Sv gelden onverkort voor de behandeling door de meervoudige kamer na verwijzing.
3.2. benadeelde
De benadeelde (ruimere definitie dan "slachtoffer") die zich in het geding in eerste aanleg heeft gevoegd, krijgt een mededeling van de A-G, art. 413 lid 2 Sv. De benadeelde kan zich niet eerst in hoger beroep voegen, art. 421 lid 1 Sv! Het is dus raadzaam dat de benadeelde altijd de procedure van art. 51g Sv e.v. volgt. De voeging in eerste aanleg duurt overigens van rechtswege voort in hoger beroep, art. 421 lid 2 Sv. De benadeelde/ het slachtoffer kan geen hoger beroep aantekenen, wanneer zij in haar vordering niet ontvankelijk is verklaard, art. 421 lid 4 Sv. Is geen hoger beroep ingesteld door de verdachte of het OM, dan wordt het hoger beroep door de benadeelde behandeld overeenkomstig civiel recht, zie art. 421 lid 4 Sv, artt. 343 en 407 Rv en art. 60 lid 2 Wet RO.
De niet-ontvankelijkheid is iets anders dan afwijzing van de vordering: blijkens lid 4 kan de benadeelde wel in hoger beroep komen tegen het deel van het vonnis waarbij haar vordering is afgewezen. Het recht van het slachtoffer om te verklaren ex. art. 51e Sv, kan in hoger beroep te gelde worden gemaakt op grond van art. 414 lid 3 Sv. Hij dient zijn voornemen schriftelijk kenbaar te maken aan de A-G of het gerechtshof.
3.3. toelaatbaarheid verkort vonnis, stempelvonnis, e.d.
In eerste aanleg kan worden volstaan met het wijzen van een verkort vonnis, d.w.z. een opgave van de bewijsmiddelen (art. 359 lid 3, laatste volzin jo. art. 365a lid 2 Sv). Wordt een gewoon rechtsmiddel aangewend, dan dient het vonnis gewoonlijk te worden aangevuld. De schakelbepaling, art. 415 lid 1 Sv, verklaart art. 365a Sv echter van overeenkomstige toepassing op het hoger beroep. Bij het hoger beroep kan dus ook worden volstaan met een kop-staart vonnis, tenzij cassatie wordt ingesteld.
Overigens kan alleen een kop-staart vonnis worden opgemaakt, voor zover de verdachte het bewezen verklaarde heeft bekend, nadien niet anders heeft verklaard dan wel vrijspraak heeft bepleit.
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