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.
Posts tonen met het label Public International Law (PIL). Alle posts tonen
Posts tonen met het label Public International Law (PIL). Alle posts tonen
woensdag 19 april 2017
vrijdag 17 februari 2017
Use of force as a means of self-defence
1.1. Letter from Mr. Webster to Lord Ashburton, 6 August 1842
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
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).
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").
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