Abstract
1.1. Rawls: linking modern contract theories to classic social contract theories;
1.2. Justice as fairness- the original position;
1.3. Principles of Justice;
2.1. Robert Nozic: Justice in Holdings
1.1. Rawls: linking modern contract theories to classic contract theories
As
a modern social contract theorist, Rawls seeks to refine the definition
put forward by classic social contract theorists such as Rousseau and
Locke.
He does so by not thinking of the original contract as one to enter into
a particular society. Rather, the object of the original contract are
the principles of justice for the basic structure of society, provided
that these principles would be accepted by free and rational persons in
an initial position of equality as defining the fundamental terms of
their association.
1.2. Justice as fairness- the original position
Certain principles regulate all further agreements- they specify the
kinds of social cooperation that can be entered into and the forms of
government to be established. This way of regarding principles of
justice is then to be called "Justice as fairness".
A purely hypothetical situation is introduced as "the original
position". The original position is often critized by contemporary
theorists. It is the question, though, if Rawls' proposition of a
hypothetical position of equality among men, is understood within its
context. Nowhere seems to be made the claim that reality would meet the
requirements of principles of justice as set out by Rawls. Rawls is,
ultimately, a theorist. His original position functions well as a
starting point before entering into any kind of a social contract and
developing any conception of justice. Rawls' conception of an ideal
society is no more than a "thought experiment", like the classic social
theories designed by his predecessors (from Plato to Rousseau). [ M.B.]
As Rawls himself puts it: "The choices which rational men would make in a
hypothetical situation of equal liberty determine the principles of
justice. In justice as fairness, the original position of equality
corresponds to the state of nature in classic social contract theories.
This position is not a historical fact; it is understood as a purely
hypothetical situation to lead to a certain conception of justice."
An essential feature of the original position is that of a "veil of
ignorance"- the initial status quo appropriate to reach agreements as
fair as possible. The veil of ignorance is that "no one knows his place
in society, his class position or social status, nor does anyone know
his fortune in the natural distribution of assets like intelligence and
strength. This implies that no one is advantaged or disadvantaged, thus
no one is able to design principles in his favor."
This concept serves to maintain that principles of justice
are the result of a fair agreement. In the social world, natural assets,
such as intelligence and strength, are no more than arbitrary from a
moral point of view. Rawls explains that "justice as fairness" conveys
the idea that the principles of justice are agreed to under fair
conditions. Hence is why Rawls' contract theory can be described as one
of "procedural justice" [M.B.].
To justify the original position, Rawls states that "The purpose of
these conditions is to represent equality between human beings as moral
persons. The state of affairs I refer to as reflective equilibrum."
In adopting principles, would the (commonly accepted) principle of utility be acknowledged?
"It hardly seems likely that persons who view themselves as equal, would
agree to a principle which may require lesser life prospects for the
sake of a greater sum of advantages enjoyed by others. No one has a
reason to acquiesce in an enduring loss for himself in order to bring
about a greater net balance of satisfaction. No rational man would
accept a structure merely because it maximized the algebraic sum of
advantages. The utility principle is incompatible with the conception of
social cooperation among equals for mutual advantage."
Rawls proposes to replace the utility principle with his two infamous principles of justice:
"The first requires equality in the assignment of basic rights and
duties, while the second holds that social and economic inequalities are
permissible, if only they result in compensating benefits for everyone-
in particular the least advantaged in society."
1.3. Principles of Justice
1. Each person is to have an equal right
to the most extensive scheme of equal basic liberties, compatible with a
similar scheme of liberties for others;
2. Both social and economic equalities are to be arranged so that they are both:
a. reasonably expected to be at everyone's advantage;
b. attached to positions and offices open for all.
1.
Rawls lists the basic liberties as "political liberty and freedom of
speech and assembly; liberty of conscience and freedom of thought;
integrity of the person; the right to hold personal property and freedom
from arbitrary arrest."
2. The second principle is referred to as the "difference principle":
inequalities are admissible, provided that they are at the advantage to
the least advantaged.
A lexical order is presented: these
principles are to be arranged so with the first principle of basic
liberties prior to the second. Infringement of the liberties protected
by the first principle, cannot be justified by the second. It is,
however, important to note that none of these liberties is absolute. If
it be, an infringement would be imposed on the "right to property" in
order to reach an equality of econonomic resources.
2.1. Robert Nozick: Justice in Holdings (Libertarianism)
Contributing to the debate of distribution, Nozick develops the "Entitlement theory" of "Justice in Holdings". According to Nozick, "there is no distribution of goods we
want to own, in a sense of these goods being "divided" by any given government.
What each person gets, he gets from others in exchange for something,
or as a gift." In this view, Rawls seems to ignore the factor of
reciprocity that leads man to obtain goods.
"Justice in holdings" implies:
(a)
that one can acquire an object along the principles of just acquisition
[res nullius; mixing one's labor with the object (Locke) M.B.];
(b) that one could obtain an object in accordance with the principles of just transfer.
The
"justice" aspect is to point out that no one can justly own an object
where the ownership cannot be traced by the application of one/ both of
these principles.
In "Anarchy, State and Utopia", Nozick
proposes a "minimal state, limited to the function of the protection of
personal property. Any more extensive state will violate persons' rights
not to be forced and is not justified. Individuals have rights, and
there are things that no person or group may do to them without
violating their rights. The state may not use its coercive apparatus to
get citizens to aid others [re-distribution of sources, M.B.], or in
order to prohibit activities to people for their own good."
Nozick takes into consideration the anarchist claim that a state using
its coercive apparatus, violates an individuals' rights and is therefore
intrinsically immoral. Turning to the tradition of social thought,
utopian theory, Nozick states that "..what can be saved from this
tradition is precisely the structure of a minimal state."
Just
like Rawls, the theory developed by Nozick is a thought experiment. On a
closer reading, one will discover that nowhere the entitlement theory
is presented as an absolute postulate. Nozick's thought experiment seems
to strike a balance between an anarchist view of the state and Rawls'
theory of distributive justice.
Recommended reading
Bix, Legal Enforcement of Morality, 2012;
Nozick, Anarchy, State and Utopia, 1974;
Rawls, A Theory of Justice, 1971.
Posts tonen met het label Mercedes Bouter law. Alle posts tonen
Posts tonen met het label Mercedes Bouter law. Alle posts tonen
vrijdag 21 april 2017
donderdag 20 april 2017
The republican approach: rectification vs. retributivism and utilitarianism
The theory of rectification
The republican approach of penal law shares with utilitarianism its goal-oriented character, but the former has retributivist features as well. Can the "rectification" theory be positioned somewhere in between and what are the advantages?
Pettit and Braithwaite seek to find a theory that promotes personal dominion, a concept of republican liberty. Among some of the topical issues are what procedures should be followed in prosecution and adjudication and what sentences should be imposed for given offences. Any initiative taken in one part of the criminal system affects other parts of the system, thus creating "just deserts".
Retributivists have criticized that on the rectification approach, much like other goal-oriented or consequentialist theories like utilism/ utilitarianism, "A court is provided with a licence (to forward-looking and try to optimise results) to neglect the nature of the offence to which the sentence is meant to be a response."
Two notions of republican liberty
The 19th century notion of liberty was one of being free to enjoy a status constituted by protection and recognition of the law. This republican idea of liberty has evolved into thinking that freedom would be compromised by any interference, be it by protective law: as an isolated individual, one should enjoy perfect freedom [how realistic is this kind of thinking? In our contemporary world, few people live entirely separated from some sort of community].
Pettit and Braithwaite argue that the ideal of dominion, however, should be understood as "that non-interference should be enjoyed, not just a matter of contingent luck [ a kind of thinking reminiscent of Mill, M.Bouter], but in virtue of the protection of the law. Second, that it be salient to everyone in society, that the non-interference involved is of this resilient or secure character."
Important to note is that "Someone who enjoys non-interference, but does not do so resiliently, lives at the mercy of those who might choose to interfere." Pettit and Braithwaite could not be any more clear. Those who enjoy freedom from any interference by government, seem perfectly free, until others, similarly free from interference by (penal) laws, disrupt their liberty.
Crime as a denial of dominion
In republican theory, Pettit and Braithwaite describe crime as "denial of dominion". "Crime will always involve a negative challenge to the dominion status of the victim and to the dispensation of dominion as it exists in the community at large. Dominion is a good whose enjoyment by anyone is highly sensitive to evidence of its enjoyment by others." The authors point out that the denial of a person's dominion involves both the flouting (nullifying) of his status as a citizen protected and the destroyal of the victim's dominion.
The elements of rectification: recognition, recompense, reassuration
Thirst, the autors propose certain conditions in order to apply their theory of rectification:
"Given that crime represents a sort of damage to dominion, given that the damage is partly remediable and given that the task of the system is to promote dominion, the sentencing job of the courts is to try to rectify the damage caused by crime."
The elements of rectification are now presented: "In sentencing the convicted criminal, courts ought to seek recognition by the offender of the dominion status of the victim, recompense by the offender for the damage done and reassurance to community of a kind that may undo the negative impact of crime on their dominion."
Recognition by the offender of the dominion status of its victim alone is not enough: apologies for the act inflicted are just words. Although Pettit and Braithwaite discuss rectification in practice, it does not become clear which requirements have to be met. However, the authors do recognize that perfect rectification is not realistic.
Comparing the republican approach of rectification with utilitarianism (consequentialism)
To point out some of the traits of utilitarianism that I have noticed while reading Pettit and Braithwaite:
1. "For something to be criminalised, it must be the sort of challenge that can be criminalised with profit: it must not be the sort of challenge whose criminalisation is likely to do more harm than good."
This phrase obviously carries out a trait of utilitarianism: as one would have noticed, it is one of Bentham's principles as presented in his book "The Principles of Penal Law" (Chapter "Cases where punishment is unjustified");
2. "Measures will vary with different sorts of offences, depending on the relationship between offender and victim and depending on the kind of offence. The offender may be a hardened character in whom it is difficult to render any act of apology or reconciliation, or any commitment not to offend again, credible."
To quite an extent, offences are to be categorized under retributivism. In applying the principle of perfect proportionality, talio, offences must be answered alike: "An eye for an eye". The measure thus depends on the sort of offence, but that is where the comparison between retributivism and rectification stops at this point. As circumstances are to be taken in consideration by the court, before imposing any penal measures, the republican/ rectification theory gets closer to utilitarianism.
3. "In any case, both capital punishment and imprisonment, by the evidence of criminology, are dubious means of securing the sort of reassurance sought. Because prisons embitter offenders and introduce them to criminal values and skills, they provide a false assurance."
As an example of the consequentialist approach, this statement could not be any more concise. In presenting this utilitarian argument against capital punishment and imprisonment, Pettit and Braithwaite do not seem to neglect the nature of any offence; rather, they question whether punishment, in general, will succesfully outweigh crimes committed. The advantage of the rectification model is that it pays attention to reality.
Similarities and differences between rectification approach and retributivism
Some authors have compared the republican theory with retributivism. Pettit and Braithwaite themselves list one similarity and three main differences between rectification and retributivism as follows:
One feature in common between republican theory and retributivism, is that they would each have the courts look backwards to the offence in determining the sentence; they would each reject the licence-to-optimise approach, where optimising is thought of as a forward-looking activity. This common point leaves room for three major differences:
1. Retributivist theory cannot go deep in motivating the sort of response which it would have the courts display. The crime cannot go unpunished and that is the end of the matter. In the republican approach, there is no quick end of matter: the promotion of dominion serves as an independent yardstick for the appropriateness of the court's response.
2. Retributivists look in general for some way of repaying the offence, seeking a penalty that is proportionate to it. Republican theorists look to what is required by way of rectifying the offence. The point is not to repay the offence. Whereas the retributivist concentrates on the offence in abstraction, the republican will look to the harm done to victims and communities and will consider how best that harm may be put right in the sentence imposed on the offender.
3. There is a great difference between the predisposition of the retributivist and the republican when it comes to the question what kind of penalty and what degree of penalty ought to be imposed. Retributivists generally look for hard treatment and seek proportionality between the offence and punishment in how hard this treatment is delivered. "Punishment consistis in hard treatment, in a manner that conveys disapproval of the actor for his conduct".
Republicans acknowledge that the matter of what rectification requires, is dependent of the case. They recognize that in many cases what is sufficient for rectification may fall well below what is required on the account of retributivist metric of punishment.
Conclusion
From this, I draw the conclusion that the republican approach can be positioned between the classic utilitarianism and retributivism approaches of penal law. It shares with utilism the features of consequentialism; to some extent, the republican approach is forward-looking, in that it takes the reality of capital punishment into consideration. Some of the arguments used are even derived from Bentham' utilitarian principles.
With retributivists, the republicans have in common the feature of a backward-looking approach, rejecting the licence-to-optimise approach that some authors have "convicted" Pettit and Braithwaite of.
The advantage of the republican model is that it seeks to provide the courts with a rather non-biased, independent yardstick in considering which punishment to impose on an offender; moreover, it does not hold one from being aware of all circumstances involved.
The republican approach of penal law shares with utilitarianism its goal-oriented character, but the former has retributivist features as well. Can the "rectification" theory be positioned somewhere in between and what are the advantages?
Pettit and Braithwaite seek to find a theory that promotes personal dominion, a concept of republican liberty. Among some of the topical issues are what procedures should be followed in prosecution and adjudication and what sentences should be imposed for given offences. Any initiative taken in one part of the criminal system affects other parts of the system, thus creating "just deserts".
Retributivists have criticized that on the rectification approach, much like other goal-oriented or consequentialist theories like utilism/ utilitarianism, "A court is provided with a licence (to forward-looking and try to optimise results) to neglect the nature of the offence to which the sentence is meant to be a response."
Two notions of republican liberty
The 19th century notion of liberty was one of being free to enjoy a status constituted by protection and recognition of the law. This republican idea of liberty has evolved into thinking that freedom would be compromised by any interference, be it by protective law: as an isolated individual, one should enjoy perfect freedom [how realistic is this kind of thinking? In our contemporary world, few people live entirely separated from some sort of community].
Pettit and Braithwaite argue that the ideal of dominion, however, should be understood as "that non-interference should be enjoyed, not just a matter of contingent luck [ a kind of thinking reminiscent of Mill, M.Bouter], but in virtue of the protection of the law. Second, that it be salient to everyone in society, that the non-interference involved is of this resilient or secure character."
Important to note is that "Someone who enjoys non-interference, but does not do so resiliently, lives at the mercy of those who might choose to interfere." Pettit and Braithwaite could not be any more clear. Those who enjoy freedom from any interference by government, seem perfectly free, until others, similarly free from interference by (penal) laws, disrupt their liberty.
Crime as a denial of dominion
In republican theory, Pettit and Braithwaite describe crime as "denial of dominion". "Crime will always involve a negative challenge to the dominion status of the victim and to the dispensation of dominion as it exists in the community at large. Dominion is a good whose enjoyment by anyone is highly sensitive to evidence of its enjoyment by others." The authors point out that the denial of a person's dominion involves both the flouting (nullifying) of his status as a citizen protected and the destroyal of the victim's dominion.
The elements of rectification: recognition, recompense, reassuration
Thirst, the autors propose certain conditions in order to apply their theory of rectification:
"Given that crime represents a sort of damage to dominion, given that the damage is partly remediable and given that the task of the system is to promote dominion, the sentencing job of the courts is to try to rectify the damage caused by crime."
The elements of rectification are now presented: "In sentencing the convicted criminal, courts ought to seek recognition by the offender of the dominion status of the victim, recompense by the offender for the damage done and reassurance to community of a kind that may undo the negative impact of crime on their dominion."
Recognition by the offender of the dominion status of its victim alone is not enough: apologies for the act inflicted are just words. Although Pettit and Braithwaite discuss rectification in practice, it does not become clear which requirements have to be met. However, the authors do recognize that perfect rectification is not realistic.
Comparing the republican approach of rectification with utilitarianism (consequentialism)
To point out some of the traits of utilitarianism that I have noticed while reading Pettit and Braithwaite:
1. "For something to be criminalised, it must be the sort of challenge that can be criminalised with profit: it must not be the sort of challenge whose criminalisation is likely to do more harm than good."
This phrase obviously carries out a trait of utilitarianism: as one would have noticed, it is one of Bentham's principles as presented in his book "The Principles of Penal Law" (Chapter "Cases where punishment is unjustified");
2. "Measures will vary with different sorts of offences, depending on the relationship between offender and victim and depending on the kind of offence. The offender may be a hardened character in whom it is difficult to render any act of apology or reconciliation, or any commitment not to offend again, credible."
To quite an extent, offences are to be categorized under retributivism. In applying the principle of perfect proportionality, talio, offences must be answered alike: "An eye for an eye". The measure thus depends on the sort of offence, but that is where the comparison between retributivism and rectification stops at this point. As circumstances are to be taken in consideration by the court, before imposing any penal measures, the republican/ rectification theory gets closer to utilitarianism.
3. "In any case, both capital punishment and imprisonment, by the evidence of criminology, are dubious means of securing the sort of reassurance sought. Because prisons embitter offenders and introduce them to criminal values and skills, they provide a false assurance."
As an example of the consequentialist approach, this statement could not be any more concise. In presenting this utilitarian argument against capital punishment and imprisonment, Pettit and Braithwaite do not seem to neglect the nature of any offence; rather, they question whether punishment, in general, will succesfully outweigh crimes committed. The advantage of the rectification model is that it pays attention to reality.
Similarities and differences between rectification approach and retributivism
Some authors have compared the republican theory with retributivism. Pettit and Braithwaite themselves list one similarity and three main differences between rectification and retributivism as follows:
One feature in common between republican theory and retributivism, is that they would each have the courts look backwards to the offence in determining the sentence; they would each reject the licence-to-optimise approach, where optimising is thought of as a forward-looking activity. This common point leaves room for three major differences:
1. Retributivist theory cannot go deep in motivating the sort of response which it would have the courts display. The crime cannot go unpunished and that is the end of the matter. In the republican approach, there is no quick end of matter: the promotion of dominion serves as an independent yardstick for the appropriateness of the court's response.
2. Retributivists look in general for some way of repaying the offence, seeking a penalty that is proportionate to it. Republican theorists look to what is required by way of rectifying the offence. The point is not to repay the offence. Whereas the retributivist concentrates on the offence in abstraction, the republican will look to the harm done to victims and communities and will consider how best that harm may be put right in the sentence imposed on the offender.
3. There is a great difference between the predisposition of the retributivist and the republican when it comes to the question what kind of penalty and what degree of penalty ought to be imposed. Retributivists generally look for hard treatment and seek proportionality between the offence and punishment in how hard this treatment is delivered. "Punishment consistis in hard treatment, in a manner that conveys disapproval of the actor for his conduct".
Republicans acknowledge that the matter of what rectification requires, is dependent of the case. They recognize that in many cases what is sufficient for rectification may fall well below what is required on the account of retributivist metric of punishment.
Conclusion
From this, I draw the conclusion that the republican approach can be positioned between the classic utilitarianism and retributivism approaches of penal law. It shares with utilism the features of consequentialism; to some extent, the republican approach is forward-looking, in that it takes the reality of capital punishment into consideration. Some of the arguments used are even derived from Bentham' utilitarian principles.
With retributivists, the republicans have in common the feature of a backward-looking approach, rejecting the licence-to-optimise approach that some authors have "convicted" Pettit and Braithwaite of.
The advantage of the republican model is that it seeks to provide the courts with a rather non-biased, independent yardstick in considering which punishment to impose on an offender; moreover, it does not hold one from being aware of all circumstances involved.
woensdag 19 april 2017
Dispute Settlement beyond borders: GATT-WTO procedure within Trade Law
1. GATT: Fundamental principles
The predecessor of WTO, GATT, aims at the reduction of tariffs and the elimination of discriminatory treatment in international commerce (Preamble GATT 1994). Note that parties to the WTO have given their consent to be bound by the treaty; therefore, it is only logical that GATT imposes obligations on these state parties.
Among the fundamental legal principles of GATT are the most-favoured nation clause (MFN, Article I GATT), the National Treatment clause (NT, Article III GATT), the General Elimination of Quantitative Restrictions (Art. XI (1) GATT) and Anti-dumping and Countervailing Duties (Art. VI GATT).
1.1. Non-discrimination
Taken together, the MFN (Art. I GATT) and NT (Art. III GATT) underlie the non-discrimination principle.
Art. I (1) GATT provides that any advantage granted by any contracting party to any product originating or destined for any other country, shall be accorded immediately and unconditionally to the like product originating or destined for the territories of all other contracting parties.
Art. III (2) GATT provides that the products of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied to like domestic products; moreover, the products imported into the territory of another contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin (only differential charges may be applied, based on the means of transport and not nationality of the product).
1.2. Market liberalization
Aiming at the liberalization of the global trade, tariffs need to be reduced and consolidated, Article II GATT (Schedules of Concessions). For the conditions of liberalization to be satisfied, Article III GATT is as necessary as it is for realizing the non-discrimination principle. Without the provisions of Art. III GATT, Article II GATT would be rendered of its practical value.
An example to explain this. State Q. confines itself to the reduction and consolidation of the tariff on imported cigarettes- the tariff is 10%. State R. imports cigarettes into the territory of State Q.
State Q. lower the tariff on domestic cigarettes (which would be considered like products by the Dispute Body) to 5%.
Should Article III GATT not be applicable, then it would be possible for State Q. to ultimately render the Schedules of Consessions from their effect; it could simply do so by favouring its internal market. From this example, it should be clear that provisions on market liberalization cannot do without the principle of non-discrimination (not without reason, MFN and NT are fundamental principles).
1.3. Exceptions
A state member to the WTO, restricting the import of products by another state member, could invoke exeptions to justify the application of restrictive measures. General exceptions are found in Article XX GATT; important exceptions are, for example, the protection of human, animal and plant life or health (b) and the conservation of exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption.
Is the restrictive measure jusitified, the measure needs to meet the requirements under the "Chapeau", the Introductory Clause to Article XX GATT. Measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.
Thus, assuming that a measure is related to one of the purposes of the general or specific exceptions, any discriminating application of the measure is a violation of the exceptions provided.
2. WTO Dispute Settlement Understanding (WTO-DSU)
Before bringing a dispute before the Panel, Members should utilize diplomatic means, the first of these being consultations (Article 4 DSU). If the consultations fail to settle a dispute within sixty days after the date of receipt of the request for consultations, the establishment of an ad hoc panel may be requested (Art. 4(7) DSU). The Procedures before the Panel are set out in Article 12 DSU.
The Appellate Body hears appeals from panel cases (Appellate review, Art. 17 DSU). Only parties to the dispute may appeal a panel report, but third parties which have notified the DSB of a substantial interest in the matter, pursuant to Article 10(2) DSU, may make submissions to and be given an opportunity to be heard by the AB (Art. 17(4) DSU). The appeal shall be limited to issues of law, covered in the panel report and legal interpretations developed by the panel (Art. 17(6) DSU).
Both the panel procedure and appellate review work on a system of negative consensus: the DSB panel report will be adopted, unless all member decide by consensus not to adopt the report (Article 17 DSU). Following the appellate review, an AB report shall be adopted by the Dispute Settlement Body, consisting of all WTO Members. Again, the report shall be adopted by negative consensus (Art. 14 DSU). This mechanism is often referred to as "quasi-automatic", as a decision by one or more, but not all Members, cannot affect the adoption of the report.
The predecessor of WTO, GATT, aims at the reduction of tariffs and the elimination of discriminatory treatment in international commerce (Preamble GATT 1994). Note that parties to the WTO have given their consent to be bound by the treaty; therefore, it is only logical that GATT imposes obligations on these state parties.
Among the fundamental legal principles of GATT are the most-favoured nation clause (MFN, Article I GATT), the National Treatment clause (NT, Article III GATT), the General Elimination of Quantitative Restrictions (Art. XI (1) GATT) and Anti-dumping and Countervailing Duties (Art. VI GATT).
1.1. Non-discrimination
Taken together, the MFN (Art. I GATT) and NT (Art. III GATT) underlie the non-discrimination principle.
Art. I (1) GATT provides that any advantage granted by any contracting party to any product originating or destined for any other country, shall be accorded immediately and unconditionally to the like product originating or destined for the territories of all other contracting parties.
Art. III (2) GATT provides that the products of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied to like domestic products; moreover, the products imported into the territory of another contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin (only differential charges may be applied, based on the means of transport and not nationality of the product).
1.2. Market liberalization
Aiming at the liberalization of the global trade, tariffs need to be reduced and consolidated, Article II GATT (Schedules of Concessions). For the conditions of liberalization to be satisfied, Article III GATT is as necessary as it is for realizing the non-discrimination principle. Without the provisions of Art. III GATT, Article II GATT would be rendered of its practical value.
An example to explain this. State Q. confines itself to the reduction and consolidation of the tariff on imported cigarettes- the tariff is 10%. State R. imports cigarettes into the territory of State Q.
State Q. lower the tariff on domestic cigarettes (which would be considered like products by the Dispute Body) to 5%.
Should Article III GATT not be applicable, then it would be possible for State Q. to ultimately render the Schedules of Consessions from their effect; it could simply do so by favouring its internal market. From this example, it should be clear that provisions on market liberalization cannot do without the principle of non-discrimination (not without reason, MFN and NT are fundamental principles).
1.3. Exceptions
A state member to the WTO, restricting the import of products by another state member, could invoke exeptions to justify the application of restrictive measures. General exceptions are found in Article XX GATT; important exceptions are, for example, the protection of human, animal and plant life or health (b) and the conservation of exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption.
Is the restrictive measure jusitified, the measure needs to meet the requirements under the "Chapeau", the Introductory Clause to Article XX GATT. Measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.
Thus, assuming that a measure is related to one of the purposes of the general or specific exceptions, any discriminating application of the measure is a violation of the exceptions provided.
2. WTO Dispute Settlement Understanding (WTO-DSU)
Before bringing a dispute before the Panel, Members should utilize diplomatic means, the first of these being consultations (Article 4 DSU). If the consultations fail to settle a dispute within sixty days after the date of receipt of the request for consultations, the establishment of an ad hoc panel may be requested (Art. 4(7) DSU). The Procedures before the Panel are set out in Article 12 DSU.
The Appellate Body hears appeals from panel cases (Appellate review, Art. 17 DSU). Only parties to the dispute may appeal a panel report, but third parties which have notified the DSB of a substantial interest in the matter, pursuant to Article 10(2) DSU, may make submissions to and be given an opportunity to be heard by the AB (Art. 17(4) DSU). The appeal shall be limited to issues of law, covered in the panel report and legal interpretations developed by the panel (Art. 17(6) DSU).
Both the panel procedure and appellate review work on a system of negative consensus: the DSB panel report will be adopted, unless all member decide by consensus not to adopt the report (Article 17 DSU). Following the appellate review, an AB report shall be adopted by the Dispute Settlement Body, consisting of all WTO Members. Again, the report shall be adopted by negative consensus (Art. 14 DSU). This mechanism is often referred to as "quasi-automatic", as a decision by one or more, but not all Members, cannot affect the adoption of the report.
zondag 26 maart 2017
A closer reading of Rousseau. Du Contrat Social ou Principles du droit politique (1780)
1. Rousseau. Du Contrat social ou Principles du droit politique
In Chapitre deux, Rousseau illustrates "des premières sociétés": the ancient and only natural of all forms of society is that of a family. Speaking of "a primitive community in which people live in harmony with each other and in which they enjoy freedom and happiness", Rousseau seems to be opposed to Hobbes and Locke in that the latter theorists stress the egoistic character of the individual, stemming from his self-centered nature.
In the following chapters, Rousseau elaborates on the work of Grotius. Among the most relevant chapters are Chapitre VI, Du pacte social, and Chapitre VII, Du souverain. I paraphrased [re-wrote] the most important parts of Livre Premier and Livre Deux, the underlined phrases show my personal interpretation of Rousseau's original manuscript.
1.1 Livre premier, Chapitre VI: Du pacte social
In Rousseau's view, the State of Nature prompts men to unite: "Je suppose que les hommes parvenus à ce point oú les obstacles qui nuisent à leur conservation dans l'état de nature, l'emportent par leur résistance, sur les forces que chaque individu peut employer pour se maintenir dans cet état. Alors, cet l'Etat primitif ne peut plus subsister et le genre-humain périroit s'il ne changeoit de maniére d'être".
Rousseau recognizes that mankind will cease to exist if it does not adjust its mode of existence to the "obstacles" that have come to impede the State of Nature.
"..comme les hommes ne peuvent engendrer de nouvelles forces, mais seulement unir et diriger celles qui existent, ils n'ont plus d'autre moyen pour se conserver, que de former [..] une somme de forces. Cette somme de forces ne peut naître que du concours de plusieurs, mais la force et la liberté de chaque homme étant les premiers instruments de sa conservation, comment les engagera-t-il sans se nuire?"
This difficulty can be reduced to the subject of his thesis:
"Trouver une forme d'association qui défende et protège de toute la force commune la personne et les biens de chaque associé et par laquelle chacun s'unissant à tous, n'obéisse pourtant qu'à lui-même et reste aussi libre qu'auparavant? Tel est le problème fondamental dont le contrat social donne la solution".
A social contract is presented as the solution to this difficulty ("giving up initial freedom in order to retain freedom by means of the social contract"). Once the social contract is established, to what extent are its provisions binding upon its members? How tacit is such agreement?
"Les clauses de ce contrat sont tellement déterminées par la nature de l'acte, que la moindre modification les rendoit vaines et de nul effet. Elles sont par-tout tacitement admises et reconnues, jusqu'à ce que, le pacte social étant violé, chacun rentre alors dans ses premiers droits et reprenne sa liberté naturelle, en perdant la liberté conventionelle pour laquelle il y renonça".
The social contract should entirely carry out the principle of reciprocity:
"Ce clauses se réduisent toutes à une seule savoir, l'aliénation totale de chaque associé avec tous ses droits à toute la communauté:
[1] Car premièrement, chacun se donnant tout entier, la condition étant égale par tous et la condition étant égale par tous, nul n'a intérêt de la rendre onéreuse aux autres;
[2] De plus, l'aliénation se faisant sans réserve, l'union est aussi parfaite qu'elle peut l'être, et nul associé n'a plus rien à réclamer. S'il restoit quelques droits aux particuliers, comme il n'y auroit aucun supérieur commun qui pût prononcer entr'eux et le public, chacun, étant en quelque point son propre juge, prétendroit bientôt l'être en tous, l'état de nature subsisteroit et l'association deviendroit nécessairement tyrannique ou vaine;
[3] Enfin, chacun se donnant à tous, ne se donne à personne et comme il n'y a pas un associé sur lequel on n' acquière le même droit qu'on lui cede sur foi, on gagne l'équivalent de tout ce qu'on perd et plus de force conserver ce qu'on a".
Hence, the essence of the social contract is, according to Rousseau:
"Chacun de nous met en commun sa personne et toute sa puissance sous la suprême direction de la volonté générale et nous recevons en corps chaque membre comme partie indivisible du tout".
"A l'instant, au lieu de la personne particulière de chaque contractant, cet acte d'association produit un Corps moral et collectif composé d'autant de membres que l'assemblée a de voix".
1.2. Chapitre VII: Du Souverain
"Cette formule que l'acte d'association renferme un engagement réciproque du publie avec les particuliers et que chaque individu contractant, pour ainsi dire, avec lui-même, se trouve engagé sous un double rapport; savoir, comme membre du Souverain envers les particuliers et comme membre de l'Etat envers le Souverain".
"On ne peut appliquer ici la maxime du droit civil, que nul n'est tenu aux engagements pris avec lui-même; car il y a bien de la différence entre s'obliger envers soi, ou envers un tout dont on fait partie".
The relationship between the Sovereign and its members cannot give rise to conflicting interests, as we understand the very character of the sovereign:
"Or, le Souverain, n'étant formé que les particuliers qui le composent, n'a, ni ne peut avoir, d'intérêt contraire au leur. Par conséquent, la puissance souveraine n'a nul besoin de garant envers les sujets; parce qu'il est impossible que le corps veuille nuire à tous ses membres et nous verrons ci-après qu'il ne peut nuire à aucun en particulier. Le Souverain, par cela seul qu'il est, est toujours tout ce qu'il doit être".
Always keep in mind that the one and only interest of the Sovereign is the general will, "volonté générale", rather than the sum of all individual interests. The relationship between the subjected individuals and the Sovereign (Rousseau has drawn a distinction between subjects, civilians and members of the Sovereign), however, could give rise to conflicting interests, which could eventually result in the destruction of the Corps politique, provided that these subjects do not observe their obligations:
"Il n'en est pas ainsi que des sujets envers le Souverain, auquel malgré l'intérêt commun, rien ne répondroit de leurs engagements, s'il ne trouvoit des moyens de s'assurer de leur fidélité. En effet, chaque individu peut, comme homme avoir une volonté particulière, contraire ou dissemblable à la volonté générale qu'il a comme citoyen. Son existence absolue et naturellement indépendante peut lui faire envisager ce qu'il doit à la cause commune comme une contribution gratuite, dont la perte sera moins nuisible aux autres que le payement n'en est onéreux pour lui".
The independency of the individual, inherent to his nature, might make him compare himself to other and come to the conclusion that the social contract forces him to face a heavier burden than other individuals do. This is why the state of nature puts society at risk.
"Afin donc que le pacte social ne soit pas un vain formulaire, il renferme tacitement cet engagement qui seul peut donner de la force aux autres, que quiconque refusera d'obéir à la volonté générale y sera contraint par tout le corps; ce qui ne signifie autre chose, sinon qu'on le forcera d'etrê libre: car telle est la condition qui donnant chaque citoyen à la patrie le garantit de toute dépendance personnelle; condition qui fait l'artifice et le jeu de la machine politique et qui seule rend légitimes les engagements civils, lesquels sans cela seroient absurdes, tyranniques et sujets aux plus énormes abus".
1.3. Livre Deux. Chapitre premier. Que la Souveraineté est inaliénable
"La première et plus importante conséquence des principles ci-devant établis est, que la volonté générale peut seule diriger les forces de l'Etat selon la fin de son institution, qui est le bien commun: car si l'opposition des intérêts particuliers a rendu nécessaire l'établissement des sociétés c'est l'accord de ces mêmes intérêts qui l'a rendu possible. C'est ce qu'il y a de commun dans ces différens intérêts qui forme le lien social et s'il n'y avoit pas quelque point dans lequel tous les intérêts s'accordent, nulle société ne sauroit exister. Or c'est uniquement sur cet intérêt commun que la société doit être gouvernée".
"Je dis donc que la souveraineté n'étant que l'exercice de la volonté générale, ne peut jamais s'aliéner et que le Souverain, qui n'est qu'un être collectif, ne peut être représenté que par lui-même, le pouvoir peut bien se transmettre, mais non pas la volonté".
1.4. Chapitre II. Que la Souveraineté est indivisible
"Par la même raison que la souveraineté est inaliénable, elle est indivisible. Car la volonté est générale, ou elle ne l'est pas; elle est celle du Corps du Peuple, ou seulement d'une partie. Dans le premier cas, cette volonté déclarée est un acte de souveraineté et fait loi. Dans le second, ce n'est qu'une volonté particulière, ou un acte de magistrature; c'est un décret tout au plus".
1.5. Chapitre III. Si la volonté générale peut errer
"Il s'ensuit de ce qui précede que la volonté générale est toujours droite et tend toujours à l'utilité publique: mais il ne s'ensuit pas que les délibérations du peuple aient toujours la même rectitude. On veut toujours son bien, mais on ne le voit pois toujours: jamais on ne corrompt le peuple, mais souvent on le trompe et c'est alors seulement qu'il paroît vouloir ce qui est mal". The general will and the sum of all individual wills are compared and contrasted, as follows:
"Il y a souvent bien la différence entre la volonté de tous et la volonté générale: celle ci ne regarde qu'à la intérêt commun, l'autre regarde à l'intérêt privé, n'est qu'une somme de volontés particulières; mais ôtez de ses mêmes volontés les plus et les moins qui s'entre-détruisent, reste pour somme des différences la volonté générale".
"Si, quand le peuple suffisamment informé délibère, les citoyens n'avoient aucune communication entr'eux, du grand nombre de petites différences résulteroit toujours la volonté générale et la délibération seroit toujours bonne".
"Il importe donc, pour avoir bien l'énoncé de la volonté générale qu'il n'y ait pas de société partielle dans l'Etat et que chaque citoyen n'opine que d'après lui. Que s'il y a des sociétés partielles, il en faut multiplier le nombre et en prévenir l'inégalité".
Rousseau borrows this idea from Lycurgus and inserts a statement made by Machiavelli; by doing so, he emphasizes the similarities between the postulates of the classic Social Contract theorists and those of himself.
In Chapitre deux, Rousseau illustrates "des premières sociétés": the ancient and only natural of all forms of society is that of a family. Speaking of "a primitive community in which people live in harmony with each other and in which they enjoy freedom and happiness", Rousseau seems to be opposed to Hobbes and Locke in that the latter theorists stress the egoistic character of the individual, stemming from his self-centered nature.
In the following chapters, Rousseau elaborates on the work of Grotius. Among the most relevant chapters are Chapitre VI, Du pacte social, and Chapitre VII, Du souverain. I paraphrased [re-wrote] the most important parts of Livre Premier and Livre Deux, the underlined phrases show my personal interpretation of Rousseau's original manuscript.
1.1 Livre premier, Chapitre VI: Du pacte social
In Rousseau's view, the State of Nature prompts men to unite: "Je suppose que les hommes parvenus à ce point oú les obstacles qui nuisent à leur conservation dans l'état de nature, l'emportent par leur résistance, sur les forces que chaque individu peut employer pour se maintenir dans cet état. Alors, cet l'Etat primitif ne peut plus subsister et le genre-humain périroit s'il ne changeoit de maniére d'être".
Rousseau recognizes that mankind will cease to exist if it does not adjust its mode of existence to the "obstacles" that have come to impede the State of Nature.
"..comme les hommes ne peuvent engendrer de nouvelles forces, mais seulement unir et diriger celles qui existent, ils n'ont plus d'autre moyen pour se conserver, que de former [..] une somme de forces. Cette somme de forces ne peut naître que du concours de plusieurs, mais la force et la liberté de chaque homme étant les premiers instruments de sa conservation, comment les engagera-t-il sans se nuire?"
This difficulty can be reduced to the subject of his thesis:
"Trouver une forme d'association qui défende et protège de toute la force commune la personne et les biens de chaque associé et par laquelle chacun s'unissant à tous, n'obéisse pourtant qu'à lui-même et reste aussi libre qu'auparavant? Tel est le problème fondamental dont le contrat social donne la solution".
A social contract is presented as the solution to this difficulty ("giving up initial freedom in order to retain freedom by means of the social contract"). Once the social contract is established, to what extent are its provisions binding upon its members? How tacit is such agreement?
"Les clauses de ce contrat sont tellement déterminées par la nature de l'acte, que la moindre modification les rendoit vaines et de nul effet. Elles sont par-tout tacitement admises et reconnues, jusqu'à ce que, le pacte social étant violé, chacun rentre alors dans ses premiers droits et reprenne sa liberté naturelle, en perdant la liberté conventionelle pour laquelle il y renonça".
The social contract should entirely carry out the principle of reciprocity:
"Ce clauses se réduisent toutes à une seule savoir, l'aliénation totale de chaque associé avec tous ses droits à toute la communauté:
[1] Car premièrement, chacun se donnant tout entier, la condition étant égale par tous et la condition étant égale par tous, nul n'a intérêt de la rendre onéreuse aux autres;
[2] De plus, l'aliénation se faisant sans réserve, l'union est aussi parfaite qu'elle peut l'être, et nul associé n'a plus rien à réclamer. S'il restoit quelques droits aux particuliers, comme il n'y auroit aucun supérieur commun qui pût prononcer entr'eux et le public, chacun, étant en quelque point son propre juge, prétendroit bientôt l'être en tous, l'état de nature subsisteroit et l'association deviendroit nécessairement tyrannique ou vaine;
[3] Enfin, chacun se donnant à tous, ne se donne à personne et comme il n'y a pas un associé sur lequel on n' acquière le même droit qu'on lui cede sur foi, on gagne l'équivalent de tout ce qu'on perd et plus de force conserver ce qu'on a".
Hence, the essence of the social contract is, according to Rousseau:
"Chacun de nous met en commun sa personne et toute sa puissance sous la suprême direction de la volonté générale et nous recevons en corps chaque membre comme partie indivisible du tout".
"A l'instant, au lieu de la personne particulière de chaque contractant, cet acte d'association produit un Corps moral et collectif composé d'autant de membres que l'assemblée a de voix".
1.2. Chapitre VII: Du Souverain
"Cette formule que l'acte d'association renferme un engagement réciproque du publie avec les particuliers et que chaque individu contractant, pour ainsi dire, avec lui-même, se trouve engagé sous un double rapport; savoir, comme membre du Souverain envers les particuliers et comme membre de l'Etat envers le Souverain".
"On ne peut appliquer ici la maxime du droit civil, que nul n'est tenu aux engagements pris avec lui-même; car il y a bien de la différence entre s'obliger envers soi, ou envers un tout dont on fait partie".
The relationship between the Sovereign and its members cannot give rise to conflicting interests, as we understand the very character of the sovereign:
"Or, le Souverain, n'étant formé que les particuliers qui le composent, n'a, ni ne peut avoir, d'intérêt contraire au leur. Par conséquent, la puissance souveraine n'a nul besoin de garant envers les sujets; parce qu'il est impossible que le corps veuille nuire à tous ses membres et nous verrons ci-après qu'il ne peut nuire à aucun en particulier. Le Souverain, par cela seul qu'il est, est toujours tout ce qu'il doit être".
Always keep in mind that the one and only interest of the Sovereign is the general will, "volonté générale", rather than the sum of all individual interests. The relationship between the subjected individuals and the Sovereign (Rousseau has drawn a distinction between subjects, civilians and members of the Sovereign), however, could give rise to conflicting interests, which could eventually result in the destruction of the Corps politique, provided that these subjects do not observe their obligations:
"Il n'en est pas ainsi que des sujets envers le Souverain, auquel malgré l'intérêt commun, rien ne répondroit de leurs engagements, s'il ne trouvoit des moyens de s'assurer de leur fidélité. En effet, chaque individu peut, comme homme avoir une volonté particulière, contraire ou dissemblable à la volonté générale qu'il a comme citoyen. Son existence absolue et naturellement indépendante peut lui faire envisager ce qu'il doit à la cause commune comme une contribution gratuite, dont la perte sera moins nuisible aux autres que le payement n'en est onéreux pour lui".
The independency of the individual, inherent to his nature, might make him compare himself to other and come to the conclusion that the social contract forces him to face a heavier burden than other individuals do. This is why the state of nature puts society at risk.
"Afin donc que le pacte social ne soit pas un vain formulaire, il renferme tacitement cet engagement qui seul peut donner de la force aux autres, que quiconque refusera d'obéir à la volonté générale y sera contraint par tout le corps; ce qui ne signifie autre chose, sinon qu'on le forcera d'etrê libre: car telle est la condition qui donnant chaque citoyen à la patrie le garantit de toute dépendance personnelle; condition qui fait l'artifice et le jeu de la machine politique et qui seule rend légitimes les engagements civils, lesquels sans cela seroient absurdes, tyranniques et sujets aux plus énormes abus".
1.3. Livre Deux. Chapitre premier. Que la Souveraineté est inaliénable
"La première et plus importante conséquence des principles ci-devant établis est, que la volonté générale peut seule diriger les forces de l'Etat selon la fin de son institution, qui est le bien commun: car si l'opposition des intérêts particuliers a rendu nécessaire l'établissement des sociétés c'est l'accord de ces mêmes intérêts qui l'a rendu possible. C'est ce qu'il y a de commun dans ces différens intérêts qui forme le lien social et s'il n'y avoit pas quelque point dans lequel tous les intérêts s'accordent, nulle société ne sauroit exister. Or c'est uniquement sur cet intérêt commun que la société doit être gouvernée".
"Je dis donc que la souveraineté n'étant que l'exercice de la volonté générale, ne peut jamais s'aliéner et que le Souverain, qui n'est qu'un être collectif, ne peut être représenté que par lui-même, le pouvoir peut bien se transmettre, mais non pas la volonté".
1.4. Chapitre II. Que la Souveraineté est indivisible
"Par la même raison que la souveraineté est inaliénable, elle est indivisible. Car la volonté est générale, ou elle ne l'est pas; elle est celle du Corps du Peuple, ou seulement d'une partie. Dans le premier cas, cette volonté déclarée est un acte de souveraineté et fait loi. Dans le second, ce n'est qu'une volonté particulière, ou un acte de magistrature; c'est un décret tout au plus".
1.5. Chapitre III. Si la volonté générale peut errer
"Il s'ensuit de ce qui précede que la volonté générale est toujours droite et tend toujours à l'utilité publique: mais il ne s'ensuit pas que les délibérations du peuple aient toujours la même rectitude. On veut toujours son bien, mais on ne le voit pois toujours: jamais on ne corrompt le peuple, mais souvent on le trompe et c'est alors seulement qu'il paroît vouloir ce qui est mal". The general will and the sum of all individual wills are compared and contrasted, as follows:
"Il y a souvent bien la différence entre la volonté de tous et la volonté générale: celle ci ne regarde qu'à la intérêt commun, l'autre regarde à l'intérêt privé, n'est qu'une somme de volontés particulières; mais ôtez de ses mêmes volontés les plus et les moins qui s'entre-détruisent, reste pour somme des différences la volonté générale".
"Si, quand le peuple suffisamment informé délibère, les citoyens n'avoient aucune communication entr'eux, du grand nombre de petites différences résulteroit toujours la volonté générale et la délibération seroit toujours bonne".
"Il importe donc, pour avoir bien l'énoncé de la volonté générale qu'il n'y ait pas de société partielle dans l'Etat et que chaque citoyen n'opine que d'après lui. Que s'il y a des sociétés partielles, il en faut multiplier le nombre et en prévenir l'inégalité".
Rousseau borrows this idea from Lycurgus and inserts a statement made by Machiavelli; by doing so, he emphasizes the similarities between the postulates of the classic Social Contract theorists and those of himself.
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.
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").
zaterdag 4 februari 2017
Nemo tenetur: J.B./ Switzerland and Saunders/ UK comparison
Case- J.B./ Switzerland, application 31827/ 96
Has there been a violation of Article 6 paragraph 1 of the Convention?
Regarding the applicability of Article 6, paragraph 1 of the Convention, the Court's assessment is, as follows (read my summary):
5.
The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. Three criteria are to be taken into account. These are the classification of the offence under national law (1); the nature of the offence (2) and the nature and degree of severity of the penalty (3).
13
Applicant contented that the right to remain silent in criminal proceedings was breached.
24
Rather, the Court is called upon to examine whether or not the imposition of a fine on the applicant for having failed to provide certain information, complied with the requirements under the Convention.
25
The right to remain silent and the privilege not to incriminate oneself lie at the heart of the notion of a fair procedure under article 6 paragraph 1 of the Convention. The right not to incriminate oneself presupposes that the authorities seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the person “charged”.
29
In the Court’s opinion, the present case differs from such material, which, as the Court found in the Saunders case, had an existence independent of the person concerned and was not, therefore, obtained by means of coercion and in defiance of the will of that person.
30
The Government have submitted that the applicant had not been obliged to incriminate oneself since the authorities were already aware of the information concerned and he had admitted the amounts concerned. The Court remains unconvinced by this argument, in view of the persistence with which the domestic tax authorities attempted to achieve their aim (reference to paragraph 26).
Saunders/ UK, application 43/1994/490/572
67
The Court’s sole concern is with the use made of the relevant statements at the applicant’s trial.
68
The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to fulfillment of the aims of Art. 6.
69.
The right not to incriminate oneself is primarily concerned, however, with respecting the will of the accused to remain silent. It does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers, but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to warrant, breath, blood, DNA [..]
71
The Court does not accept the Government’s premise [..] since some of the applicant’s answers were in fact of an incriminating nature in the sense that they contained admissions to knowledge of information which intented to incriminate him. It follows that what is of essence in this context, is the use to which evidence obtained under compulsion is made in the course of the criminal trial.
74
The fact that statements were made by the applicant prior to his being charged, does not prevent their later use in criminal proceedings from constitutinf an infringement of the right.
81
In conclusion the applicant was deprived of a fair hearing in violation of Art. 6 paragraph 1 of the Convention.
Has there been a violation of Article 6 paragraph 1 of the Convention?
Regarding the applicability of Article 6, paragraph 1 of the Convention, the Court's assessment is, as follows (read my summary):
5.
The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. Three criteria are to be taken into account. These are the classification of the offence under national law (1); the nature of the offence (2) and the nature and degree of severity of the penalty (3).
13
Applicant contented that the right to remain silent in criminal proceedings was breached.
24
Rather, the Court is called upon to examine whether or not the imposition of a fine on the applicant for having failed to provide certain information, complied with the requirements under the Convention.
25
The right to remain silent and the privilege not to incriminate oneself lie at the heart of the notion of a fair procedure under article 6 paragraph 1 of the Convention. The right not to incriminate oneself presupposes that the authorities seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the person “charged”.
29
In the Court’s opinion, the present case differs from such material, which, as the Court found in the Saunders case, had an existence independent of the person concerned and was not, therefore, obtained by means of coercion and in defiance of the will of that person.
30
The Government have submitted that the applicant had not been obliged to incriminate oneself since the authorities were already aware of the information concerned and he had admitted the amounts concerned. The Court remains unconvinced by this argument, in view of the persistence with which the domestic tax authorities attempted to achieve their aim (reference to paragraph 26).
Saunders/ UK, application 43/1994/490/572
67
The Court’s sole concern is with the use made of the relevant statements at the applicant’s trial.
68
The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to fulfillment of the aims of Art. 6.
69.
The right not to incriminate oneself is primarily concerned, however, with respecting the will of the accused to remain silent. It does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers, but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to warrant, breath, blood, DNA [..]
71
The Court does not accept the Government’s premise [..] since some of the applicant’s answers were in fact of an incriminating nature in the sense that they contained admissions to knowledge of information which intented to incriminate him. It follows that what is of essence in this context, is the use to which evidence obtained under compulsion is made in the course of the criminal trial.
74
The fact that statements were made by the applicant prior to his being charged, does not prevent their later use in criminal proceedings from constitutinf an infringement of the right.
81
In conclusion the applicant was deprived of a fair hearing in violation of Art. 6 paragraph 1 of the Convention.
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