German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 42 (1999) [1 ed.] 9783428502165, 9783428102167

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GERMAN YEARBOOK OF I N T E R N A T I O N A L LAW

V O L U M E 42 • 1999

DUNCKER

& HUMBLOT

• BERLIN

GERMAN YEARBOOK OF INTERNATIONAL Volume 42 • 1999

LAW

Founders: Rudolf Laun • Hermann von Mangoldt Editors: Jost Delbrück and Rainer Hofmann Assistant E d i t o r : Nicolas C.Johnson Co-Assistant Editors: Anne Peters, Christian Tietje Walther-Schücking-Institut für Internationales Recht an der Universität Kiel A d v i s o r y Board of the Institute: Daniel Bardonnet TUniversite de Paris I I Rudolf Bernhardt Heidelberg Lucius Caflisch Institut Universitaire de Hautes fitudes Internationales, Geneve Antonius Eitel Münster Luigi Ferrari Bravo Universita di Roma Louis Henkin Columbia University, New York Tommy T. B. Koh Singapore John Norton Moore University of Virginia, Charlottesville

Fred L. Morrison University of Minnesota, Minneapolis Albrecht Randelzhofer Freie Universität Berlin Krzysztof Skubiszewski Polish Academy of Sciences, Warsaw; The Hague Christian Tomuschat Humboldt-Universität zu Berlin Sir Arthur Watts London Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 42 • 1999

DUNCKER & HUMBLOT / BERLIN

Beginning in 1995, the Institut für Internationales Recht an der Universität Kiel has changed its name to Walther-Schücking-Institut für Internationales Recht an der Universität Kiel.

The views presented are those of the contributors and do not reflect or represent the Views of the Editors , Assistant Editor, or Walther-Schücking-Institut für Internationales Recht

This Yearbook may be cited: GYIL 42 (1999)

Please address communications to: Editors German Yearbook of International Law Walther-Schücking-Institut für Internationales Recht an der Universität Kiel Olshausenstrasse 40, D-24098 Kiel fax 49 431 880-1619 email [email protected]

All rights reserved © 2000 Duncker & Humblot GmbH, Berlin Printed by Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 0344-3094 ISBN 3-428-10216-9 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706©

Contents In memoriam Abram Chayes (1922-2000)

9

Focus Section: The Law of International Treaties in the 21st Century

Rudolf Bernhardt: Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights 11 Christian Tietje: The Changing Legal Structure of International Treaties as an Aspect of 26 an Emerging Global Governance Architecture Henry G. Schermers: International Organizations and the Law of Treaties

56

Stefan Kadelbach: International Law and the Incorporation of Treaties into Domestic Law 66

Articles Hanspeter Neuhold: The Foreign-Policy "Cost-Benefit-Analysis" Revisited Jill M. Sears: Confronting the "Culture of Impunity": Immunity of Heads of State from Nuremberg to ex parte Pinochet

84

125

Sienho Yee: Forum Prorogatum in the International Court Martin Mennecke/Christian Tarns: The Right to Consular Assistance Under International Law: The LaGrand Case Before the International Court of Justice 192 Michael Dottridge/David Weissbrodt: to the Conventions on Slavery

Review of the Implementation of and Follow-up 242

Patricia Wouters: The Legal Response to International Water Conflicts: The U N Watercourses Convention and Beyond 293

147

6

Contents

Boris V. Nevelev: The Soviet Union's Seizure and Removal of "objets d'art" from Germany in 1945-1948: Evaluating the Conflicting Claims to Legal Authority over Occupied Territory 337 Volker Röben: International Internet Governance

400

Reports Britta Buchenau: Die Rechtsprechung des Internationalen Gerichtshofes im Jahr 1999

438

Natalie Kauther/Tilmann Laubner: The Activities of the International Criminal Tribu481 nal for the Former Yugoslavia in 1999 Christoph Hermes: Die Rechtsprechung des WTO-Streitbeilegungsgremiums in den Jahren 1995-1999 530 Christian J. Tams: Die Tätigkeit der International Law Commission im Jahr 1999 . . . .

552

Julia Friedland/Monika Heymann: Die Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte im Jahre 1999 569 Janine Schlichte/Christiane Wandscher: Die Tätigkeit des Ministerkomitees und der Parlamentarischen Versammlung des Europarates im Jahre 1999 607

Book Reviews Jutta Brunnée/Ellen Hey (eds.): Yearbook of International Environmental Law, Volume 8 {Riedinger) Michael Byers: Rules, Power, and the Power of Rules (Peters) Boris Dzida: Zum Recht der Repressalie im heutigen Völkerrecht (Tams)

629 630 635

Christian Feldmüller: Die Rechtsstellung fremder Staaten und sonstiger juristischer Personen des ausländischen öffentlichen Rechts im deutschen Verwaltungsprozeß (Tietje) 637 Wolfram Hertel: Supranationalität als Verfassungsprinzip: Normativität und Legitimation als Elemente des Europäischen Verfassungsrechts (Peters) 639 Knut Ipsen/Christian Raap/Torsten Stein/Armin A. Steinkamm (Hrsg.): Wehrrecht und Friedenssicherung, Festschrift für Klaus Dau zum 65. Geburtstag (Kessler) 644

Contents Matthias Koehler: Das Allgemeine Ubereinkommen über den Handel mit Dienstleistungen (GATS) (Tietje) 646 Juliane Kokott: The Burden of Proof in Comparative and International Human Rights Law. Civil and Common Law Approaches with Special Reference to the American 648 and German Legal Systems, Volume 3 (Nowrot) Theodor Meron: War Crimes Law Comes of Age, Essays (Kessler)

651

Anne Peters: Women, Quotas and Constitutions: A Comparative Study of Affirmative Action for Women under American, German, European Community and International Law (Williams) 653 Alan Redfern/Martin tration (Happ)

Hunter: Law and Practice of International Commercial Arbi655

Cairo A. Robb (ed.): International Environmental Law Reports, Volume 1: Early Decisions (Bloch)

657

Danesh Sarooshi: The United Nations and the Development of Collective Security. The Delegation by the U N Security Council of its Chapter V I I Powers (Nowrot) 659 Helmut Volger (Hrsg.): Lexikon der Vereinten Nationen (Tietje)

662

Books Received

664

List of Contributors

668

Erratum

670

In memoriam Abram Chayes (1922-2000) Felix Frankfurter, Professor of Law Emeritus, Harvard Law School

In the late afternoon of Sunday, 16 April 2000, Abram Chayes died in a Boston Hospital at the age of 77. His death ends the life of a most distinguished international legal scholar, brilliant and inspiring academic teacher as well as a dedicated public servant. He was a citoyen in the best sense of the word. But most importantly, Abe - the nickname that he let his family and his great number of personal friends use - was a wonderfully warmhearted and humane person, full of energy and a contagious enthusiasm and optimism. A l l those who were fortunate to learn to know him feel a deep sense of loss and share in the grief with his family. Abram Chayes was born in Chicago in 1922. After graduating from Senn High School, he entered Harvard University in 1939, the place that - as he himself said he never left. After receiving his A.B. degree in 1943, he served in the United States A r m y in both Europe and Asia and was discharged with the rank of Captain in 1946. He returned to Cambridge and entered Harvard Law School. His brilliance and intellectual force put him at the top of his class and was reflected in his term as President of the Harvard Law Review. Upon graduation, he served in various administrative positions in Connecticut and Washington, D.C. Later on, he clerked with Supreme Court Justice Felix Frankfurter and then worked w i t h the law firm of Covington & Burling. He returned to Harvard and was appointed assistant professor in 1955 and became professor of law there in 1958. His only major break in serving Harvard Law School came about when he joined the Kennedy Administration where he served in the Department of State as Legal Adviser and became one of the most influential advisers of President Kennedy. His experience in Washington, which he enjoyed immensely, was recorded by him in his widely known book "The Cuban Missile Crisis," published in 1974. In 1976 he was appointed Felix Frankfurter Professor of Law at Harvard Law School. Generations of students have benefitted from his practical experience as well as from his vast scholarly work that ranged from Civil Procedure to the Law and Politics of Arms Control, International Environmental Law, the Law and Procedure of International Dispute Settlement, and new modes of international law enforcement - a concern that most

10

In memoriam Abram Chayes (1922-2000)

clearly evidenced his understanding of the very nature of the law as a means for non-violent peace-making and securing justice. Impressive illustrations of his approach are found in his book "International Legal Process" (co-authored) and the more recent book "The N e w Sovereignty. Compliance w i t h International Regulatory Agreements" (1995/1998) that he wrote together with his wife, Antonia Handler Chayes , with whom he also taught many inspiring courses at Harvard. But it was not only Abram Chayes ' brilliant command of the law and his experience that fascinated his students. It was the impact of his humane personality and his dedication towards implanting a deep sense of values embodied in the law that molded the minds of his students and made them cherish him as the great academic teacher he was and w i l l be always remembered. It was this very same commitment to basic human values that guided Abram Chayes in his scholarly writings and his teaching and that made him represent Nicaragua in the famous case Nicaragua v. United States . Called "America's Accuser" in a profile published by the New York Times, Abram Chayes responded "that he was simply continuing his job as Legal Adviser of the State Department - trying to ensure that his country abided as faithfully as possible by the rules of the international system."1 During the years 1995 to 1999, I was fortunate enough to work w i t h Abram Chayes in the preparation of the last case - the Kasikili/Sedudu Island case (Namibia v. Botswana) - he argued before the International Court of Justice. A l l I had heard about him was manifest in our meetings and private conversations. These qualities included his admirable command of the law and of the facts of the case, his untiring energy, his enthusiasm, and, of course, his humane leadership of the team of counsels. We became very close. It is rare that one wins such a great friend at a rather late stage in life. A l l the greater is the sense of loss that I share w i t h all his friends and his family. Jost Delbrück

1 Related by Anne Marie Slaughter , Tribute to Professor Abram Chayes, delivered at the HLSA Award Ceremony, 24 April 1999, available at: http://www.law.harvard.edu/news/slaughterchayes.html.

FOCUS SECTION: T H E LAW OF I N T E R N A T I O N A L TREATIES I N T H E 21st C E N T R U R Y

Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights By Rudolf Bernhardt

I. The Problem The interpretation of legal texts is the daily business of jurists. In the internal legal order, unilaterally enacted laws and contracts concluded between private persons are the main texts to be interpreted and applied. In public international law, treaties concluded between sovereign States are one of the main sources, or even the main source, of rights and obligations of the subjects of international law, and these subjects are primarily the same sovereign States that have concluded the agreements. The special and unique characteristics of the international legal order have had and still have the consequence that the principles and rules of treaty interpretation are to a considerable extent different from the rules applied in the internal legal order of States. From Hugo Grotius to the modern treatises, textbooks on public international law have discussed and developed a canon of rules for treaty interpretation. International courts and tribunals have sometimes expressly stated what rules and principles they are applying when construing treaties, 1 and the Vienna conventions on the law of treaties 2 have tried to codify the applicable principles and rules. The 1

1 have tried to describe the relevant rules of treaty interpretation in different publications: Die Auslegung völkerrechtlicher Verträge insbesondere in der neueren Rechtsprechung internationaler Gerichte, 1963; Interpretation in International Law, in: R. Bernhardt (ed.), Encyclopedia of Public International Law (EPIL), vol. II, 1995, 1416-1426 (with an extensive bibliography). 2 Vienna Convention on the Law of Treaties (between States) of 23 May 1969,1155 U N T S 331 (hereinafter referred to as 1969 Convention); Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986, 25 I L M 543.

12

Rudolf Bernhardt

author w i l l try to give a condensed survey of the general rules applicable in the field of treaty interpretation in the next section. During the previous decades, a more or less new problem has become relevant, namely the importance of the time factor in the process of treaty interpretation. Among the great variety of treaties in our time, concluded in nearly all fields of human and State activities, some, mainly multilateral, treaties or conventions lay down general rules for the behavior of States and their organs. These treaties are intended to remain valid and applicable over longer periods of time, and they concern a great number of individuals, their legal rights and the respect of these individual rights by all State authorities. These are in first line the human rights conventions concluded on the universal as well as the regional level. A n d it is primarily - but not exclusively - in this area, that the problem of an "evolutive" (or "dynamic") interpretation 3 has gained importance. The problem can be circumscribed in the following manner. Must these conventions and their clauses be interpreted and applied as understood at the time of the conclusion of the relevant treaty, or is the treaty a "living instrument" which can change its meaning in accordance with developments in State and society? For several reasons, the European Convention on Human Rights might be a good example for answering these questions. The Convention contains human rights guarantees, which are phrased in broad and general terms ("inhuman or degrading treatment or punishment," "slavery or servitude," "security of person," "private and family life," "home," "correspondence," "freedom of thought, conscience and religion," "freedom of expression," "freedom of peaceful assembly," "freedom of association," "peaceful enjoyment of possessions," etc). These notions are capable of different interpretations, and the interpretations may vary and develop in time and in line w i t h the developments in States and societies. Another aspect permitting or requiring an evolutive interpretation is contained in the second paragraphs of Articles 8 through 11 of the European Convention on Human Rights. These paragraphs permit certain restrictions of the rights guaranteed by the first paragraphs of the same articles if such restrictions are "necessary in a democratic society." The necessity of restrictions can only be determined in view of actual circumstances and not by reference to the situation when the Convention was adopted several decades ago. The guarantees contained in the Convention are now valid for up to 800 million citizens in 41 States, and all State authorities must respect these guarantees. Unlike many other treaties (the great majority), an international organ, the European Court of Human Rights, has the task and the competence to supervise State activities in this field and to render binding decisions. The Court has a similar position as constitutional courts in some States with respect to human rights guarantees. In the

3

The word "evolutive" is preferable since it better indicates that the interpretation can or should follow evolving tendencies in State and society.

Evolutive

Treaty Interpretation

13

meantime, the European C o u r t has addressed the relevance of the t i m e factor i n treaty i n t e r p r e t a t i o n i n m a n y decisions; therefore, w e have n o w a considerable a m o u n t of case law t o illustrate the situation. T h i s does n o t dispense f r o m a critical analysis and an investigation w h e t h e r solutions found for the European C o n v e n t i o n o n H u m a n Rights can be generalized and also applied i n other fields of treaty interpretation.

I I . Treaty Interpretation i n General I t is w i d e l y accepted that the V i e n n a C o n v e n t i o n o n the L a w of Treaties, adopted i n 1969 and i n force since 27 January 1980, reflects t o a large extent customary international law. T h i s has also been answered i n the affirmative for the rules o n treaty i n t e r p r e t a t i o n (Articles 31, 32), i n spite of the fact that these provisions are neither precise n o r unambiguous. I n order t o facilitate the understanding i n the present context, the relevant provisions m a y be quoted verbatim: 4 Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

4

We leave aside the special rules for the interpretation of treaties with more than one authentic language in Art. 33 of the 1969 Convention.

14

Rudolf Bernhardt (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

The basic rule, and the starting point in treaty interpretation, is contained in § 1 of Article 31. The ordinary meaning of the relevant text, seen in the context and "in the light of its object and purpose," is normally decisive. The other paragraphs of Article 31 circumscribe additional factors that may be taken into account in order to clarify the context and the intention of the authors of the treaty. Article 32 describes the preparatory work as one of the "supplementary means of interpretation." These articles of the Vienna Convention are remarkable in several respects. Firstly, one principle of treaty interpretation, which was often invoked in older text books, is not even mentioned. Namely, the principle that treaties should be interpreted restrictively and in favor of State sovereignty, in dubio mitius. This principle is no longer relevant, it is neither mentioned in the Vienna Convention nor has it ever been invoked in the recent jurisprudence of international courts and tribunals. Treaty obligations are in case of doubt and in principle not to be interpreted in favor of State sovereignty. It is obvious that this conclusion can have considerable consequences for human rights conventions: Every effective protection of individual freedoms restricts State sovereignty, and it is by no means State sovereignty which in case of doubt has priority. Quite to the contrary, the object and purpose of human rights treaties may often lead to a broader interpretation of individual rights on the one hand and restrictions on State activities on the other. Second, it is to be noted that the original intentions of the authors of a treaty are taken into account only in a subsidiary way in the relevant articles of the Vienna Convention. § 2 of Article 31 refers to agreements or instruments related to the treaty. This provision obviously means only texts adopted (formally or informally) by all parties "in connection with the conclusion of the treaty." Art. 32 attributes a much more restricted relevance to the travaux preparatoires . Also in this respect, the older rules of treaty interpretation have been modified in our times. For very good reasons, preparatory work always has had a doubtful place in treaty interpretation. Often, the preparatory work is not recorded in a reliable manner, and more often available records are in no way clear and unambiguous. For instance, it often remains open whether unilateral statements made by one side or delegate really reflect the opinion of or are approved by other actors. Another aspect also requires attention. Multilateral treaties, especially human rights treaties, are often elaborated and initially adopted by a smaller number of States. Over the years, new parties may have ratified the treaty. Are these newcomers bound by the original intentions of the original parties, by intentions that may remain unclear and controversial? Some 50 States initially enacted the United Nations Charter, and it now binds more than 180 States. The European Convention on Human Rights came into force in 1953 for 10 States, and it now binds 41 States. These and other considerations lead to the result

Evolutive Treaty Interpretation

15

that the original opinions and intentions of the parties at the time of the elaboration and adoption of a treaty are often of secondary importance in the process of treaty interpretation. Finally, it is to be noted that the rules on treaty interpretation in the Vienna Convention take account of possible dynamic or progressive developments in the life of a treaty. § 3 of Article 31 refers to subsequent agreements and subsequent practice. Even if only to a limited extent, further developments of a treaty regime are recognized as elements of treaty interpretation. The jurisprudence of the International Court of Justice contains a number of statements on treaty interpretation, which underline certain basic rules, but they also demonstrate at the same time the need for some flexibility. The basic rule and starting point in the process of treaty interpretation is always the "natural and ordinary meaning" of treaty provisions "in the context in which they occur." If this basic rule leads already to clear results, no other and no supplementary means of treaty interpretation must be consulted. O n the other hand, such means may help in case of doubt, or they may confirm the result already reached or indicated by the "natural and ordinary meaning" of the words used in the treaty. In its judgment of 12 November 1991, the International Court of Justice made the following statement:5 An arbitration agreement (compromis d'arbitrage) is an agreement between States which must be interpreted in accordance with the general rules of international law governing the interpretation of treaties. In that respect "the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavor to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter. If, on the other hand, the words in their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only, must the Court, by resort to other methods of interpretation, seek to ascertain what the parties really did mean when they used these words." (Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, ICJ Reports 1950, p. 8) The rule of interpretation according to the natural and ordinary meaning of the words employed "is not an absolute one. Where such a method of interpretation results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, no reliance can be validly placed on it." (South West Africa, Preliminary Objections, Judgment, ICJ Reports 1962, p. 336). These principles are reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary international law on the point.

Here, as well as in other judgments and advisory opinions, it was not necessary to discuss whether there was a difference or even a contradiction between the original understanding of treaty clauses at the time of their adoption and later developments 5

Case concerning the Arbitral Award of 31 July 1989 (in respect of the Maritime Boundary between Guinea-Bissau and Senegal), 1991 ICJ Reports 53, 69 et seq., 72.

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Rudolf Bernhardt

possibly affecting the understanding of these clauses. O n the other hand, it is also beyond doubt that the practice of States and the organs of an international organization can and must be taken into account when the constitutive text is to be interpreted. In this way, a dynamic element is introduced into the process of interpretation. This can be shown by several pronouncements of the International Court of Justice, for instance in the Certain Expenses Advisory Opinion. A n interesting general statement can be found in the Namibia Advisory Opinion of 1971, which stated that "an international instrument has to be interpreted and applied within the entirely legal system prevailing at the time of the interpretation." 6 In general, it cannot be denied that there is a certain dynamism that is relevant in treaty interpretation because later statements and practices of the parties to a treaty and of the organs of an international organization are relevant elements of interpretation. Even if one can hardly find express statements that every treaty is a living instrument and has to be interpreted accordingly, it is also obvious that in substance this is and must be accepted. N o t the existence, but the extent of the evolutive or dynamic element in any treaty interpretation is the real problem. Many other considerations could be added. Distinctions can be drawn between bilateral and multilateral treaties, between regional and universal multilateral treaties, between treaties concluded for a limited period or even for the solution of one single problem and conventions adopted for the behavior of actors in a longer period of time. We w i l l address these aspects again later. It seems that textbooks and treatises on public international law still primarily refer to the traditional or conservative rules of treaty interpretation, and they stress the view that the original intentions and the understanding of treaty clauses at the time of the conclusion of the treaty are in principle decisive. As an example, we may quote a few passages from the 9th edition of Oppenheims International Law: 7 There is however room for the view that a treaty of a "constitutional" character should be subject to somewhat different rules of interpretation so as to allow for the intrinsic evolutionary nature of a constitution. Nevertheless, in some respects the interpretation of a treaty's provisions cannot be divorced from developments in the law subsequent to its adoption ... the concepts embodied in a treaty may not be static but evolutionary ...

Another general remark might be relevant in this context. The object and purpose of a treaty plays, as shown in previous quotations, a central role in treaty interpretation. This reference to object and purpose can be understood as entry into a certain dynamism. If it is the purpose of a treaty to create longer lasting and solid relations between the parties or to guarantee personal freedoms to citizens as well as 6 7

1971 ICJ Reports 31.

Oppenheims International Law (Sir Robert Jennings/Sir vol 1/2-4, 1992, 1268, 1282.

Arthur Watts

eds.), 9th ed.,

Evolutive Treaty Interpretation

17

foreigners, it is hardly compatible w i t h this purpose to eliminate new developments in the process of treaty interpretation. Multilateral treaties creating international organizations and human rights conventions are outstanding examples for the need of evolutive treaty interpretations.

I I I . The European Convention on Human Rights The European Convention on Human Rights is an ideal example for the problems discussed in this paper. It was signed and concluded half a century ago, and it was elaborated by a minority of the present States parties. It is designed to protect individuals against State power and misuse of State power. The protection of individuals is secured by international institutions and organs, such as by the permanent and full-time European Court of Human Rights at present. As underlined in the introductory chapter above, the Convention contains many general provisions like private and family life, and it protects individual positions, which have changed over years and decades in all modern societies. Static or evolutive interpretation? Conservation of the original intentions of the drafters of the Convention or relevance of changing conditions and opinions in State and society? These questions need a basic answer. The answer has been given by the European Court of Human Rights in many judgments, and only a few of them can be summarized here. In the Golder judgment of 21 February 1975,8 the Court had to answer the question whether Art. 6 of the Convention did contain and secure only guarantees for national court proceedings when such proceedings are admitted and opened in and by national law, or whether the Convention also requires an effective access to a court. A restrictive interpretation would strive for the first alternative, and the object and purpose of the relevant provision could be invoked for the second alternative. In its judgment, the European Court made some general remarks on the proper interpretation of the Convention. It declared its willingness to "be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties," and it referred to several provisions in these articles. The Court finally stated: It would be inconceivable, in the opinion of the Court, that Article 6 § 1 should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings. Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by Article 6 § 1. This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 § 1 read in its context and having regard to

8 Eur. Court H.R., Golder v. United Kingdom , Judgment of 21 February 1975, Series A, No. 18, 14, 18.

2 G Y I L 42

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Rudolf Bernhardt the object and purpose of the Convention, a lawmaking treaty (see the Wemhoff judgment of 27 June 1968, Series A, no. 7, p. 23, § 8), and to general principles of law.

This judgment neither describes the Convention as a "living instrument" nor does it invoke any evolutive interpretation. Rather, it deduces the broader interpretation from the object and purpose of the Convention. In the Tyrer case before the European Court of Human Rights, the central question was whether corporal punishment of juveniles ordered by a local juvenile court on the Isle of Man violated Art. 3 of the Convention, regarding the prohibition of inhuman treatment or punishment. The birching of juveniles who had committed certain unlawful acts had a long tradition on the Isle of Man, and it was pleaded before the Strasbourg Court that the punishment "did not outrage public opinion in the Island." The Court did not accept these arguments and declared: 9 The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field. Indeed, the Attorney-General for the Isle of Man mentioned that, for many years, the provisions of Manx legislation concerning judicial corporal punishment had been under review.

In this judgment, we find for the first time the characterization of the Convention as a living instrument that must be interpreted in line with modern conditions and opinions. The legal situation of unmarried mothers and their children born out of wedlock is another example for profound changes in society and family relations. When the European Convention on Human Rights entered into force, many European States made rigid distinctions between children of married parents and children born out of wedlock in their legal order, the latter and their mothers legally had an unfavorable status. This was also the situation in Belgium in the 1970s, when the Marckx case came to Strasbourg and mother and daughter Marckx complained, inter alia , of violations of their family rights and of still existing discriminations. The Court accepted the complaints and declared: 10 It is true that, at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the "illegitimate" and the "legitimate" family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions (Tyrer judgment of 25 April 1978, Series A no. 26, p. 15, § 31). In the instant case, the Court cannot but be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant

9

Eur. Court H.R., Tyrer v. United Kingdom, Judgment of 25 April 1978, Series A, No. 26,

15. 10

Eur. Court H.R., Marckx v. Belgium , Judgment of 13 June 1979, Series A, No. 31, 19.

Evolutive Treaty Interpretation

19

international instruments, towards full juridical recognition of the maxim "mater semper certa est."

The Court found violations of Articles 8 and 14 of the Convention and of Article 1 of Protocol N o . 1. Another example for changing developments in modern societies is the situation of homosexuals and their criminal prosecution. The relevant legislation prohibiting and punishing homosexual relations in Northern Ireland was contained in Acts of 1861 and 1885, and it was still in force when the Dudgeon case came to the European Court of Human Rights in 1980. It can be assumed that, at the time when the Convention was adopted, such legislation would have been considered compatible w i t h the Convention. D i d it remain compatible with the Convention over the 3 decades in the second half of the 20th century? The legal problem was whether the interference w i t h the right to respect for private life as guaranteed by Article 8 of the Convention could still be considered necessary in a modern society under the second paragraph of that article. The Court came to a negative result, giving La. the following reasons: 11 As compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behavior to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States (see, mutatis mutandis , the above mentioned Marckx judgment, p. 19, § 41, and the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 15-16, § 31). In Northern Ireland itself, the authorities have refrained in recent years from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years capable of valid consent ( see paragraph 30 above). N o evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has been any public demand for stricter enforcement of the law.

The special problems of transsexuals, who had undergone some surgery in order to bring their appearance in line with their sexual feelings and orientation, have been discussed in several reports of the European Commission and in several decisions of the European Court of Human Rights. A majority of the members in the European Commission found a violation of the Convention, insofar as the law in the United Kingdom did not permit some changes or additions in the birth register and the marriage between a transsexual with another person of the sex the transsexual originally had. In the Court, a majority of the judges denied a violation. It is remarkable that

11 Eur. Court H.R., Dudgeon v. United Kingdom , Judgment of 22 October 1981, Series A, No. 45, 23.

2*

20

Rudolf Bernhardt

in the first judgment in the matter, the majority decision in the Rees judgment expressly addressed the possibility of further developments in these words: 12 However, the Court is conscious of the seriousness of the problems affecting these persons and the distress they suffer. The Convention has always to be interpreted and applied in the light of current circumstances (see, mutatis mutandis , amongst others, the Dudgeon judgment of 22 October 1981, Series A no. 45, pp. 23-24, § 60). The need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal developments.

It is correct that in later judgments, in the Cossey case of 199013 and the case of Sheffield and Horsham of 1998,14 the majority of judges still found that the United Kingdom was not in breach of Article 8 of the Convention, but strong minorities disagreed. The jurisprudence of the Court in this field is a good example for the fact that there might be a consensus about a principle and disagreement in respect of the application of the principle in the concrete circumstances. Consensus existed insofar as an evolutive interpretation of the Convention is required, but no agreement existed regarding whether, under the existing circumstances, a State is obliged to change the law and the administrative practices. Many other examples of an evolutive interpretation of the European Convention on Human Rights can be quoted. Sometimes old problems need new answers or at least new considerations, and modern developments sometimes require the application of human rights guarantees to the new developments. Examples for the first category "new answers for old problems" are the situation of unmarried mothers and their "illegitimate" children or the position of homosexuals. Examples for the second category "new developments under old norms" are the protection of immigrants or guest workers against expulsion when their families are living in the same country from where the persons concerned are ordered to leave. As said before, widespread agreement that the European Convention on Human Rights permits and requires an evolutive interpretation seems to exist. This does not exclude divergent opinions regarding whether and how far such evolutive interpretation is required or adequate and should be practiced in the concrete circumstances.

12

Eur. Court H.R., Rees v. United Kingdom , Judgment of 17 October 1986, Series A, No. 106,

19. 13

Eur. Court H.R., Cossey v. United Kingdom , Judgment of 27 September 1990, Series A, No. 184. The majority denied significant new developments by ten votes to eight. 14 Eur. Court H.R., Sheffield and Horsham v. United Kingdom , Judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, No. 84 (eleven votes to nine).

Evolutive Treaty Interpretation

21

I V . Necessary Distinctions and Critical Questions The possibility and the necessity of an evolutive treaty interpretation must be accepted in principle, but a number of problems remain which should be briefly addressed. Bilateral treaties or treaties with only a few parties should not be excluded from an evolutive interpretation, but clear indications that all partners are in agreement that the original intentions should be substituted by new considerations and solutions are probably needed. This is indicated in Art. 31 § 3 of the Vienna Convention where it is said that any subsequent agreement between the parties should be taken into account as well as any subsequent practice "which establishes the agreement of the parties regarding its interpretation." The main area in which an evolutive interpretation is indicated is in the field of multilateral treaties. Among the multilateral conventions two types of subject matter are especially qualified for this kind of interpretation: human rights conventions and constitutive charters or statutes of international organizations. For human rights conventions, we have already given a considerable number of examples drawn from the case law of the European Court of Human Rights. For the basic documents of international organizations, the Charter of the United Nations provides probably the best example for the necessity of an evolutive interpretation. It can hardly be doubted that some parts and provisions of the Charter require and permit different interpretations in the 1990's than those envisaged and practiced in the 1950's and 1960's. It is now firmly established that an abstention in the Security Council by a permanent member does not prevent a valid decision (if the necessary number of positive votes is attained). A n d the broad interpretation of Chapter V I I as practiced since the early 1990's regarding the powers of the Security Council (e.g. for the setting up of compensation schemes at the end of an armed conflict) seems also to be accepted and provides another example of evolutive interpretation. In these fields, what seems to be the decisive mechanism is a more or less uniform and continuous practice of the organs of the organization and the absence of strong and persistent opposition from member States. The considerations valid for human rights conventions are to a certain extent exceptional. It is not so much the international or inter-State practice than the developments inside the participating States and in their societies that are decisive. The internal laws and the opinions in the society in the field of homosexual relations, on the status of unmarried mothers and their children might have changed, and these changes are decisive indicators for the adequacy of an evolutive interpretation of the relevant human rights convention. If resolutions and agreements on the international level exhibit similar developments, these factors may support the trends found inside States and societies, but such additional means of evidence are not absolutely necessary.

22

Rudolf Bernhardt

If all States parties to a multilateral treaty are in agreement with respect to the necessity of following changing circumstances or if they have adopted more or less similar rules and practices in their internal order, an evolutive interpretation might be easily acceptable to all parties. However, real problems are posed in other situations, namely if some general tendencies can be detected, but not all States have acted or reacted in the same manner. This was the situation in all the cases before the European Court of Human Rights as quoted above. In Belgium, the legal situation of unmarried mothers and their children had not been improved in line w i t h new trends in other States, in Northern Ireland homosexuals were still living under the threat of criminal punishment, etc. The Strasbourg Court found violations of the Convention in both cases. The relevant decisions give no further and detailed information beyond the general statement that conditions and practices in modern societies have changed and are reflected in State practice (and sometimes also in international documents). H o w many States must participate in a widespread practice, or how many "persistent objectors" are sufficient for denying new tendencies? N o clear answers are given, and this is because of good or at least understandable reasons. Neither unanimity nor a simple majority of participating States is decisive; the tendencies in member States, as seen and reflected by the judges in Strasbourg and their collaborators and assistants, will finally decide whether an evolutive interpretation can take place. Also in this respect, jurisprudence is required, and not mathematics or pure logic. The whole topic of evolutive treaty interpretation is also closely connected w i t h the proper understanding of the role of international judges in the area of human rights protection. The reports and decisions of the European Commission and the European Court of Human Rights concerning transsexuals may serve as examples for different approaches. The majorities in the Rees and the Cossey judgments quoted above found no violation of the Convention since they were unable to detect uniform or widespread practices and tendencies in the member States. It can be assumed that several judges in the respective majority were personally and politically in favor of improvements in the situation of transsexuals, but they felt unable to find violations of the Convention without clear indications for changing rules and practices in the member States and in their societies. More "progressive" judges may follow their personal convictions more closely, i.e. what should be the situation of human beings in modern societies, irrespective of the unchanged realities in some States. The author admits that he felt obliged, as an international judge, to be more conservative than progressive. I n 19981 personally voted w i t h the minority in the case of Sheffield and Horsham 15 finding a violation of the Convention. This decision was based on the assumption that further changes in the relevant societies had taken place over time, and that it was now necessary to also accept in this area an evolutive interpretation.

15

See note 14 above and the joint partly dissenting opinion, 2037.

Evolutive Treaty Interpretation

23

It must also be recognized that international judges on the one side and State representatives on the other side may have different functions and competencies in respect of treaty interpretation. Judges are bound to interpret and apply existing law, and they are in general not empowered to change the law. Representatives of States, when acting with the consent of all other State representatives, can also change the law. There is no exact borderline between interpreting and changing treaty law, and while judges have at least the duty to seek and to respect the borderline, representatives have more freedom in this respect. I n the same context another problem has only recently attracted more interest, and this is apparently true more in Germany than in many other countries. 16 It is more a problem of constitutional law than of international law, and it concerns the participation of other State organs than the executive in the conclusion and development of treaties. Treaties are, according to the rules of many State constitutions, often subjected to parliamentary approval before they can be ratified by the head of State or another high official. If a treaty has been concluded in this manner, after the formal approval of the national parliament, the problem arises whether it can be changed, amended or informally further "developed" by the participating States without any new parliamentary mandate or consent. I n international law, the situation seems to be not so difficult. It is prevailing doctrine that the States parties to a treaty are the "masters" of the treaty, endowed w i t h the competence to change and to abrogate the treaty and to interpret it in a manner unforeseeable at the time of the conclusion. Since the participating States are normally represented by the executive and not by the parliament, the further development of any treaty, including an evolutive interpretation, remains mainly in the hands of the executive. If some other institution has the competence to interpret a treaty, like the European Convention on Human Rights, with binding force, it then should be asked whether the original understanding of the treaty at the time of its approval by the involved parliaments remains valid and whether it can only be substituted by a new interpretation after a new parliamentary approval. Only tentative answers can be given here. As far as international organs, like the European Court of Human Rights, have the right and the duty to interpret a treaty with binding force, an evolutive interpretation must be possible since it normally corresponds to the object and purpose of the treaty. Human rights treaties in particular intend an effective and not only theoretical protection of the individual, and this aim can only be reached if the interpretation takes account of changing conditions in State and society. It can be added that even 16

Cf the Decision of the Federal Constitutional Court of 12 July 1994 concerning the participation of German Military Forces in certain N A T O Activities, Entscheidungen des Bundesverfassungsgerichts, vol. 90,286,359 et seq. ; Christian Hillgruber, Die Fortentwicklung völkerrechtlicher Verträge als staatsrechtliches Problem, in: Josef Isensee/Helmut Lecheler (eds.), Freiheit und Eigentum, Festschrift für Walter Leisner, 1999, 53.

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Rudolf Bernhardt

if some States have occasionally criticized the competent international institutions, they have finally accepted the evolutive interpretation, either by acting in conformity w i t h the pronouncement of the Court or by ratifying additional protocols like Protocol N o . 11 to the European Convention on Human Rights. We can leave open the question whether there are inherent limits to any evolutive interpretation, insofar as acts or decisions clearly ultra vires are not binding. As far as evolutive interpretation is effected by the State governments, through consensus without further participation of the parliaments, the limits of such an interpretation are less fixed by international law than by constitutional law. Since we find many different rules for the participation of parliaments in the treaty-making process in State constitutions, we must leave it to these constitutions and their interpretation how far an evolutive interpretation on the international level is permissible without parliamentary approval. V . Concluding Remarks The evolutive interpretation of treaties requires further investigation, further theoretical as well as practical considerations. We have tentatively made some general remarks and explained the relevant tendencies under the European Convention on Human Rights. It is understandable that this Convention and the jurisprudence of the European Court of Human Rights are the best examples for an evolutive treaty interpretation up to now. The Convention is designed to protect individuals against abuse of State power, an area that was a matter of exclusive domestic jurisdiction for a long time. The Convention has created independent institutions for the protection of human rights, which are institutions that render binding decisions when interpreting and applying the Convention. It may also be mentioned that a considerable number of the persons working and deciding in the European Court are not specialists in international law and are often more familiar w i t h State constitutions, with the internal legal order of States and the fundamental human rights which need protection. These factors may have contributed to the acceptance of the notion "living instrument" for the European Convention on Human Rights and the connected acceptance of an evolutive interpretation. But these peculiarities of the Human Rights Convention do not exclude the application of an evolutive interpretation to other treaties as well. "Constitutions" of international organizations come to one's mind at first, and examples for an evolving interpretation of these constitutions can be found. Is the evolutive treaty interpretation confined to these two types of treaties concluded under international law? I do not think so. In our time we find many more treaties concluded with the aim of laying down basic rules for longer periods of time

Evolutive Treaty Interpretation

25

binding a great number of States. The Law of the Sea Convention, and the rules for World Trade 17 are examples. In addition, the Additional Protocols to the Hague Conventions (and the Conventions themselves) are other examples, as well as double taxation agreements, conventions on private law and private international law questions to which can be added treaties on environmental problems, etc. A n evolutive treaty interpretation is the adequate and necessary response to the changing character of international law and the intensified cooperation between States. This kind of interpretation requires careful consideration and, sometimes, restrictive application. But it should be considered an adequate response to modern questions and problems.

17 Under the relevant rules of the World Treaty Organization, a panel as well as an apellate body discussed the question whether Panel Reports in former and different cases, adopted by the G A T T Contracting Parties, constituted "subsequent practice" under Art. 31 of the Vienna Convention; the Panel answered this question in the affirmative, the Appellate Body in the negative. See Japan-Taxes on Alcoholic Beverages , Panel Report of 11 July 1996 (WT/DS8/R) and Report of the Appellate Body of 4 July 1996 (WT/DS8/AB/R). There may be better reasons for the opinion of the Appellate Body, but this does not exclude an evolutive interpretation of the relevant treaty provisions if it is supported by consistent practices.

The Changing Legal Structure of International Treaties as an Aspect of an Emerging Global Governance Architecture By Christian Tietje

I. Introduction - Compliance and Governance Strategies as Part of the Changing Structure of International Treaties Public international law, as students learn and know it today, is different from what has been taught at universities and elsewhere for many generations. The growing complexity of international relations, the move from internationalization towards globalization, 1 is not only a sociological phenomenon but implies dramatic challenges for international lawyers and the international legal system in toto. International treaties are at the center of this development from the legal perspective. They are among the recognized sources of public international law, as stipulated in Article 38 of the Statute of the International Court of Justice,2 and are the most important instruments used to shape the face of an ever growing and developing international regulatory system. International organizations are created by treaties; rights and duties are granted to States and individuals by treaties; disputes are settled by treaties; the results of complex negotiations on social, environmental, economic, security and other issues are laid down in treaties. It is, thus, the international treaty that is used increasingly as the basic international "legislative" instrument. Abram Chayes and Antonia Handler Chayes have clearly - and correctly - stressed this in their influential and most important book on "The New Sovereignty," stating that "in complex regulatory regimes, the armature on which the whole is constructed is commonly an act of formal lawmaking - a treaty." 3 However, the nowadays increasingly seen importance of treaties is contrasted by a missing specific interest of international legal scholars on the law of treaties in its 1 For a description of the differences between internationalization and globalization see Jost Delbrück , Globalization of Law, Politics, and Markets - Implications for Domestic Law - A European Perspective, Indiana Journal of Global Legal Studies, vol. 1, 1993, 9, 10 et seq.; on globalization and public international law see Stephan Hobe, Die Zukunft des Völkerrechts im Zeitalter der Globalisierung, Archiv des Völkerrechts (AVR), vol. 37, 1999, 253-282. 2

Statute of the International Court of Justice, 26 June 1945, 15 U N C I O 355.

3

Abram Chayes/Antonia Handler Chayes, The New Sovereignty, 1995, 2.

The Changing Legal Structure of International Treaties

27

overall complexity. Mainstream public international law theory still focuses on legal questions surrounding the Vienna Convention on the Law of Treaties (VCLT). 4 Even though the V C L T is certainly the single most important international instrument governing the law of treaties, 5 it can not be understood as a comprehensive source of law dealing w i t h all aspects of the general concept on the function of treaties in the international system.6 O n the contrary, the V C L T provides only rules on, inter alia, the conclusion, effect and termination of treaties, but not on their content; with the exception of Article 53 V C L T (ius cogens) the content of a treaty and its substantial impact on international relations can be freely determined by the contracting parties as part of their contractual autonomy. 7 A n y attempt to understand the substantive impact - the concept - of treaties must focus on the question of the substantive structure of legally binding agreements. Therefore the notion of "concept," as used in this article, differs from the meaning that Jan Klabbers has given to it in his book on "The Concept of Treaty in International Law." Whereas Klabbers' main concern is the (limited) question of "what constitutes a legally binding agreement," 8 a more comprehensive approach towards the concept of treaties in the international system has to address the issue of the legal structure of treaties in general, its position and legal setting in an international system of increasing interdependence. 9 Even though the scholarly interest on the importance of treaties in the international system is increasing in recent times, a certain shortfall remains because of a concentration on compliance issues. Chayes and Handler Chayes have published the most comprehensive analysis of the state of art of compliance structures in international regulatory - treaty based - agreements; 10 similar studies have been provided by other authors. 11 The overall conclusions of those authors is straightforward and 4

U N Doc A / C O N F . 3 9 / l l / A d d . 2 , 287; for such a mainstream approach see, e.g., Ian Brownlie , Principles of Public International Law, 5th ed., 1998,607 et seq.; Karl Doehring, Völkerrecht, 1999, 141 et seq. 5

Brownlie (note 4), 608.

6

O n the notion "international system" see Georg Dahm/Jost Delbrück/Rüdiger Völkerrecht, vol. 1/1, 2nd ed., 1989, 2 et seq. 7

Doehring (note 4), 141.

8

Jan Klabbers, The Concept of Treaty in International Law, 1996, 9.

Wolfrum,

9

The meaning of the often used notion of interdependence is comprehensively described by Karl Zemanek , Interdependence, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law (EPIL), vol. II, 1995, 1021-1023. 10 11

Chayes/Handler

Chayes (note 3), passim.

See, e.g., Thomas Franck, The Power of Legitimacy among Nations, 1990; Harold H. Koh , Why Do Nations Obey International Law?, Yale Law Journal, vol. 106,1997,2599; Hanspeter Neuhold , The Foreign-Policy "Cost-Benefit-Analysis" Revisited, German Yearbook of International Law (GYIL), vol. 42,1999 (this volume); Rüdiger Wolfrum , Means of Ensuring Compli-

28

Christian Tietje

convincing: The realist perspective of compliance, as an exclusively within the Nation-State's discretion based aspect of international relations, is no longer - if it ever was - supported by persuasive arguments when one takes an in-depth look at the current structure of the international legal system. International law has developed various cooperative compliance structures based on the idea of active management, supporting in legal terms a phenomenon clearly articulated by Louis Henkin: "[AJlmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." 1 2 Today's students of public international law have a deep understanding of different non-adversarial, management oriented approaches of international regulatory regimes towards compliance; in fact, "the dominant approach [of compliance strategies] is cooperative rather than adversarial. w 1 3 Compliance w i t h international law based on cooperative strategies, however, is only one aspect giving us a deeper understanding of the current global legal system of interdependence. Another issue related herewith concerns the architecture, the structure of international regimes 14 based on treaties from a broader perspective. Even though, because of their interlinkage, the two issues can not be separated, a differentiation for analytical purposes is possible. Compliance aspects are resultoriented: Their main interest rests on the question of how international regulatory regimes are and have to be created in order to sufficiently pursue the goal of compliance. Analyzing the issue of the changing concept of international treaties takes a broader perspective, focusing on the substantial aspects of mechanisms established by treaties in order not only to ensure compliance, but to take part in what is ance with and Enforcement of International Environmental Law, Recueil des Cours (RdC), vol. 272, 1998, 11-154; Paul C. Szasz (ed.), Administrative and Expert Monitoring of International Treaties, 1999, passim ; Winfried Lang, Compliance Control in International Environmental Law: Institutional Necessities, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), vol. 56,1996, 685-695; George W Downs , Enforcement and the Evolution of Cooperation, Michigan Journal of International Law (MJIL), vol. 19, 1998, 319-344; Benedict Kingsbury , The Concept of Compliance as a Function of Competing Conceptions of International Law, MJIL, vol. 19 (1998), 345-372; Harold K Jacobson , Conceptual, Methodological and Substantive Issues Entwined in Studying Compliance, MJIL, vol. 19, (1998), 569-579; Roger Fisher , Improving Compliance with International Law, 1981; Edith Brown Weiss/Harold K. Jacobson (eds.), Engaging Countries: Strengthening Compliance with International Environmental Accords, 1998, passim ; Edith Brown Weiss (ed.), International Compliance with Nonbinding Accords, 1997, passim. 12 Louis Henkin , How Nations Behave, 2nd ed., 1979, 47; see also Jose E. Alvarez , Why Nations Behave, MJIL, vol. 19, 1998, 303-317. 13 14

Chayes/Handler

Chayes (note 3), 109.

For a classic definition of international regimes from a political science perspective see Stephen D. Krasner (ed.), International Regimes, 1983, 2: "[s]ets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given area of international relations."

The Changing Legal Structure of International

Treaties

29

known nowadays as global governance. The Commission on Global Governance defines global governance as the sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co-operative actions may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest. 15

In line w i t h this definition, fames Rosenau, the most influential author on global governance, describes it as a concept that "is conceived to include systems of rule at all levels of human activity - from family to the international organization - in which the pursuit of goals through the exercise of control has transnational repercussions."16 Even though Rosenau identifies global governance in a somehow unclear way as "governance without government," as "regulatory mechanisms in a sphere of activity which function effectively even though they are not endowed with formal authority," 1 7 one must recognize that from an empirical point of view most governance-processes w i l l include some governmental involvement; global governance is, thus, most of the time governance with governments. However, it is not the governmental involvement as a form of hierarchical enactment and enforcement of law as known from classic State-centered perspectives, but rather a complex cooperative strategy in a multi-level system of interrelated legal orders involving State and nonState actors. 18 The O E C D has convincingly defined global governance "as the process by which we collectively manage and govern resources, issues, conflicts and values in a world that is increasingly a 'global neighbourhood."' 19 Assessing the changing legal structure, the current concept of treaties in international law, is an attempt to analyze the mechanisms that the international law of treaties uses in order to realize what is known as global governance. Since treaties are at the heart of international regulatory regimes, their function in a global society characterized by increasing regulatory challenges in fields of, inter alia y social, environmental, economic and cultural policies is the focus of this article. In order to better understand the different ways international treaty regimes form part of global governance, a short historical perspective on the general development of the structure of treaties in the international system will be provided (II.). The following part 15 Our Global Neighbourhood, The Report of the Commission on Global Governance, 1995, 2. 16

James N. Rosenau, Governance, Order, and Change in World Politics, in: James N. Rosenau/Ernst-Otto Czempiel (eds.), Governance Without Government: Order and Change in World Politics, 1992, 1, 5. 17

Id.

18

Michael Zürn, Regieren jenseits des Nationalstaates, 1998, 169 et seq. and 204.

19

O E C D , Globalisation: What Challenges and Opportunities for Governments?, 1996 (available at: http://www.oecd.org/puma/gvnance/strat/pubs/glo96).

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Christian Tietje

of the article w i l l highlight some characteristics of governance structures of modern treaty-based international regimes (HI.). This is the starting point for a more indepth analysis of two substantial areas of national and international concern regulated by treaties in various forms: international economic law and international environmental law (IV.). In the concluding section of the article, the main aspects of the changing structure of international treaties and their significance for global governance w i l l be summarized (V.).

I I . The Changing Structure of International Treaties in Historical Perspective From the earliest days in the history of international law, treaties have always been the primary source of legal relations between entities today known as States. One of the oldest known documents in terms of treaty is an agreement between the Kings of Ebla and Ashur on friendship and commerce, dating back to the middle of the third century B.C. 20 It is safe to say, therefore, that certain issues of common concern for two or more - usually neighboring - States have always been regulated by treaties in human history. As the quoted treaty on friendship and commerce indicates, treaties were already used for regulatory issues of general concern for society, such as commerce, in the earliest days of ancient times of the orient. 21 The content of treaties changed, however, with the establishment of the classic system of public international law as the law governing the relationship between sovereign entities of law, commonly seen as the most important result of the Westphalian Peace Treaties (1648).22 Even though numerous treaties between the sovereign emperors of Europe have been concluded after 1648, going hand in hand with a more and more sophisticated technique of treaty-drafting in the 17th and 18th centuries, 23 a certain restriction on the content of those treaties has to be noticed. The vast majority of treaties concluded in the time after 1648 regulated reciprocal, quid pro quo, issues, such as peace, determination of frontiers or transfer of territories. The also possible non-reciprocal, in modern terms, "lawmaking" function of treaties 24 was almost unknown. Treaties stipulating principles or rules on abstract future 20 Karl-Heinz Ziegler , Völkerrechtsgeschichte, 1994, 15; see also Arthur Nussbaum, A Concise History of the Law of Nations, 2nd ed., 1954, 4: "Treaties, invariably surrounded by religious symbols, mark the earliest period of documentary Oriental history; in fact, as was pointed out, documentary history begins with a treaty." 21

For details see Ziegler (note 20), 99, 128 and 155.

22

Dahm/Delbrück/Wolfrum

23

(note 6), 5.

Ziegler (note 20), 186 et seq.; Wilhelm 1984, 420 et seq. 24

G. Grewe , Epochen der Völkerrechtsgeschichte,

For the concept of lawmaking treaties see Dahm/Delbrück/Wolfrum

(note 6), 51.

The Changing Legal Structure of International

Treaties

31

conduct, as known today in the environmental, economic or social field, did not exist. 25 Overall, the period following the Westphalian Peace can be characterized as a productive time of treaty making with, however, a limited scope on political issues of a reciprocal nature. In 1785 the German scholar von Ompteda summarized that "the treaties among nations... usually concern peace agreements and treaties regulating war and peace."26 A similar assessment was made in 1874 by Ernst Meier. After a careful analysis of available treaty collections, he pointed out that the overall majority of treaties up to the end of the 18th century concerned military questions in a broad sense.27 The situation changed dramatically in the 19th century as the original age of internationalization. Technological, economic and social developments, commonly referred to as industrialization, imposed new challenges on international relations among States. Moreover, after the Vienna Peace Conference of 1814/15, Europe experienced a 40 year long peace period; and the following wars between 1845 and 1878 were only of a limited regional scope and lasted only a short time. This period of stability, unknown in European history until then, made it possible to concentrate on technical-administrative issues as a concern of international legal relations based on treaties. 28 Treaties concerning postal, telegraphic and railway communication, health, extradition, monetary matters, fishing, copyrights and patents, trade and numerous other "administrative" issues were concluded among European and other States in order to fulfill needs of societies being more and more involved in transborder, inter-national activities. It is estimated that between 1815 and 1924 about sixteen thousand treaties were concluded; approximately ten thousand treaties were in force in 1917.29 In total, the 19th century was a new era in the international legal system, an era of impressive growth of written law. 30

25

See the comprehensive analysis from Grewe (note 23), 420 et seq.

26

D. H L. v. Ompteda , Literatur des gesamten natürlichen und positiven Völkerrechts, 1785, 583: "Die Verträge der Völker bestehen gewöhnlich in Friedensschlüssen und solchen Tractaten, welche sich auf Krieg und Frieden beziehen." 27

Ernst Meier, Der Abschluss von Staatsverträgen, 1874, 18: "Noch zu Ende des vorigen Jahrhunderts bezog sich die grosse Mehrzahl der Staatsverträge auf den Abschluss und die Erneuerung von Allianzen, auf Subsidien und Hülfstruppen, auf Durchmärsche, Besatzungen und Einquartierungen, auf die Behandlung von Deserteuren, die Ranzonirung von Gefangenen, endlich auf Waffenstillstände und Frieden." 28

For a comprehensive analysis of this development see Winfried Baumgart, Europäisches Konzert und nationale Bewegung - Internationale Beziehungen 1830-1878, Handbuch der Geschichte der Internationalen Beziehungen, vol. 6, Heinz Duchhardt/Franz Knipping (eds.), 1999, 146 et seq.; see also Nussbaum (note 20), 186 et seq. 29

Nussbaum (note 20), 196 et seq.

30

Nussbaum (note 20), 196.

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Christian Tietje

However, the growth of treaty-law in the 19th century was not only a quantitative phenomenon but also had a significant impact on the structure of international treaty regimes. T w o interrelated aspects underline this development and are still influential today. Afirst aspect concerns the well-known establishment of international organizations through treaties. The first organization coming close to an institutionalized form of cooperation was established with the Rhine-Shipping Octroi of 15 August 1804 granting to a directorate general the right to collect certain shipping fees. 31 The first so-called administrative union - the 19th century legal term for what is today known as international organization 32 - was established in 1831 on the basis of the final document of the Vienna Conference of 1815 with the inauguration of the "Central Commission for the Rhine-Shipment." The organization had significant powers with regard to quasi legislative and administrative issues concerning the navigation on the river Rhine. 33 A similar administrative union was created for the river Danube with the peace treaty of Paris in 1856. The Danube Commission possessed powers namely in the legislative and enforcement fields that were quite similar to what is known today as a supranational organization. 34 Thus, for the first time in the history of international law, a treaty regime was established that was authorized by the contracting parties to pursue its own legal life in terms of authoritative powers. Moreover, a development in international law towards the creation of an increasing number of international organizations was initiated by the experience w i t h the river regimes. Due to the rapid development in the technological field and thus new possibilities for cross-border communication, international organizations were created to administer the emerging problems. The International Telegraph-Union was established in 1865 and after several changes in its treaty-based constitution still operates today. 35 The Universal Postal Union (UPU) followed in 1874.36 Interna31

Ulrich Scheuner, Rhein, in: Karl Strupp/Hans-Jürgen Völkerrechts, vol. 3, 1960, 117.

Schlochauer (eds.), Wörterbuch des

32 O n the origin of the term "international organization" see Pitman B. Potter , Origin of the Term International Organization, American Journal of International Law (AJIL), vol. 39, 1945, 803 et seq. 33

For details see Friedrich ment 12, 1990, 310-316.

Meißner , Rhine River, in: Rudolf Bernhardt (ed.), EPIL, Instal-

34

Heribert Franz Köck/Peter Fischer, Grundzüge des Rechtes der Internationalen Organisationen, 1981, 86; Ignaz Seidl-Hohenveldern, Danube River, in: Rudolf Bernhardt (ed.), EPIL, vol. I, 1992, 934-937. 35

For details on the I T U see Alfons Noll , International Telecommunication Union, in: Rudolf Bernhardt (ed.), EPIL, vol. II, 1995, 1379-1385; Andreas Tegge , Die Internationale Telekommunikations-Union, 1994, passim. 36

For details on the U P U see Ludwig Weber , Universal Postal Union, in: Rudolf Bernhardt (ed.), EPIL, Instalment 5, 383-386.

The Changing Legal Structure of International

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33

tional unions not only came into existence in the field of communication, but also in several other areas of administrative concern. 37 A l l these administrative unions, of course, were based on international treaties. W i t h the recognition of the international legal personality of international organizations at the time of the League of Nations, 38 a new - yet unknown - function of international treaties was established: Treaties no longer regulated only quid pro quo issues of reciprocal interests of the States concerns but objectively created new subjects of international law that have to be recognized by all States.39 This legal development not only paved the way for - more recent - discussions on the possibility of binding effects of treaties on third States not being a party to the respective treaty 40 but highlights also the actual ratio of the concept of international organization based on treaties from a historical perspective. Clearly following a functional approach, 41 treaties establishing an international organization serve the basic need of international cooperation namely in technical, administrative matters. 42 International organizations, international institutionalized treaty regimes possessing legal personality, are of major importance for the concept of global governance in this respect, as their cooperative and objective structure satisfies not only an individual State's interest but moreover the interest of the world community as a whole. It is the latter aspect that is seen by some authors as the prerequisite of a "common goal to be achieved" by an organization in order to gain the status of an international organization in terms of public international law. 43 A second aspect related to the development of treaty-based administrative unions in the 19th century was the growing awareness among scholars that administrative

37

For historical aspects on this development see Rudolf L. Bindschedler , International Organizations, General Aspects, in: Rudolf Bernhardt (ed.), EPIL, vol. II, 1995, 1289, 1292 et seq.; Albrecht Weber , Geschichte der internationalen Wirtschaftsorganisationen, 1983. 38 See Henry G. Schermers/Niels M. Blokker, International Institutional Law, 3rd ed., 1995, §§ 1562 et seq.; Bardo Faßbender, Die Völkerrechtssubjektivität internationaler Organisationen, Österreichische Zeitschrift für öffentliches Recht und Völkerrecht (ÖZöRV), vol. 37, 1986, 17-49. 39

O n the objective legal personality of universal international organizations also vis-a-vis non-member-States see Schermers/Blokker (note 38), §§ 1567 et seq. 40 For detailed discussions see Eckhard Klein, Statusverträge im Völkerrecht, 1980; Jost Delbrück, "Laws in the Public Interest" - Some Observations on the Foundation and Identification of erga omnes Norms in International Law, in: Volkmar Götz/Peter Selmer/Rüdiger Wolfrum (eds.), Liber amicorum Günther Jaenicke, 1998, 17-36. 41

O n functionalism see, e.g., Douglas M. Johnston, Functionalism in the Theory of International Law, Canadian Yearbook of International Law, vol. 26, 1988, 3-59. 42

Klaus Dicke, Effizienz und Effektivität internationaler Organisationen, 1994, 324 et seq.

43

Ignaz Seidl-Hohenveldern/Gerhard Loibl, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften, 6th ed., 1996, marginal note 0105.

3 GYIL 42

34

Christian Tietje

structures w i t h yet unknown impacts on national legal orders had emerged. Based on early writings of the German scholars Robert von Moht" and Lorenz von Stein, 45 the term "international administrative law" became popular in order to describe the interrelationship between treaty based international administrative regimes and national administrative authorities. In 1909, PaulS. Reinsch described this phenomenon as follows: The body of law which is thus being created by the action of the authoritative organs of public international unions, and by cooperation among governments, is distinguished from general international law in that it not merely regulates the relations between national states, but undertakes to establish positive norms for universal action. We may tentatively apply to it the designation of international administrative law, defining it as that body of laws and regulations created by the action of international conferences or commissions which regulates the relations and activities of national and international agencies with respect to those material and intellectual interests which have received an authoritative universal organization. 46

One can see from these words how carefully scholars studied the new structure of the international legal system at the end of the 19th and at the beginning of the 20th century as it emerged out of the changing structure of treaties. The administrative character of the content of most treaties and treaty-based unions radically questioned the former exclusively political oriented perspective of international law. Public international law became part of administrative concerns of society because of the changing - now increasingly technical - content of international treaties and growing autonomous activities of administrative unions. The age of written law in the 19th and the beginning of the 20th century thus demonstrated a first dramatic change in the structure of international treaties in the history of public international law and can be described as a move towards administrative concerns and contents. However, most of the thoughts that have been published in those times did not last for long. The upcoming doctrine of a strict separation of international and national law, commonly known as dualism, 47 obviously contradicted ideas of an interrelated international administrative law as, e.g., formulated by Reinsch. With few excep-

44

See, e.g., Robert von Mohl , Staatsrecht,Völkerrecht und Politik, 1860, 579 et seq.

45

See, e.g., Lorenz von Stein, Einige Bemerkungen über das internationale Verwaltungsrecht, Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich, vol. 6, 1882, 395-442. 46 PaulS. Reinsch, International Administrative Law and National Sovereignty, AJIL, vol. 3, 1909, 1, 5. 47 The most influential thoughts in this regard have been formulated by Heinrich Triepel, see Heinrich Triepel, Völkerrecht und Landesrecht, 1899; id., Les Rapports entre le Droit Interne et le Droit International, RdC, vol. 1, 1923, 73-121; for an overview see Brownlie (note 4), 31 et seq.

The Changing Legal Structure of International

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35

tions 48 it took almost a century before the notion of administrative structures in international treaty regimes saw a renaissance among international lawyers. 49 I I I . Common Characteristics of Governance Structures of Modern Treaty-Based International Regimes Global governance serves as an analytical model for a better understanding of the mechanisms of cooperative, multi-level approaches toward the management of common concerns of societies. Opposite to traditional government structures of hierarchical lawmaking and enforcement in the domestic and international legal order, governance is a broader approach towards regulatory mechanisms. Based on the empirically undisputable presumption of a growing complexity of human relations in societies in the national and international system, governance structures focus on effective legal settings to cope w i t h the problems caused by globalization. A n important underlying idea of this concept is flexibility with regard to the actors involved and the mechanisms applied. As governments more and more reach the limit of effective lawmaking and law enforcement in the domestic and international system, the involvement of private actors is becoming an increasingly important aspect of effective and flexible management of societies' needs. This phenomenon can be seen both in the national and the international legal order. 50 This aspect of global governance w i l l not be further studied in this article. Instead the second element of flexibility, its content related part, shall be the article's concern. 48

Eberhard Menzel, Nationale und internationale Verwaltung - Vom Wandel des Verhältnisses zwischen nationaler und internationaler Regelungszuständigkeit, Die öffentliche Verwaltung 1969,1-24Jost Delbrück, Internationale und nationale Verwaltung - Inhaltliche und institutionelle Aspekte, in: Kurt G. A.Jeserich/Hans Pohl/Christoph von Unruh (eds.), Deutsche Verwaltungsgeschichte, vol. 5, 1987, 386-403. 49 See, e.g., Eric J. Pan, Authoritative Interpretation of Agreements: Developing more Responsive International Administrative Regimes, Harvard International Law Journal, vol. 38, 1997, 503-535; Szasz (note 11). 50 For an analysis of the increasing importance of private actors in national administrative law and changing perspectives of the traditional public/private distinction see Alfred C. Aman, The Globalizing State: A Future-Oriented Perspective on the Public/Private Distinction, Federalism, and Democracy, Vanderbilt Journal of Transnational Law, vol. 31,1998,769-870; id., Administrative Law For a New Century, in: Michael Taggart (ed.), The Province of Administrative Law, 90-117; for an analysis of the increasing importance of private actors (NGOs) in the international legal system see Stephan Hobe, Global Challenges to Statehood: The Increasingly Important Role of Non-Governmental Organizations, Indiana Journal of Global Legal Studies, vol. 5,1997,191-209; id., Der Rechtsstatus der Nichtregierungsorganisationen nach gegenwärtigem Völkerrecht, AVR, vol. 37,1999,152-176; Karsten Nowrot, Legal Consequences of Globalization: The Status of Non-Governmental Organizations Under International Law, Indiana Journal of Global Legal Studies, vol. 6, 1999, 579-645; Michael Hempel, Die Völkerrechssubjektivität internationaler nichtstaatlicher Organisationen, 1999.

3*

36

Christian Tietje

The complexity of problems to cope with has substantial and time related impacts as ever growing regulatory challenges are increasing due to technological and other developments. In areas such as, e.g., environment and communication technology rapid developments occur almost daily. Setting up regulatory systems in these areas thus faces time and content related problems of flexible adjustment that are, from an international legal perspective, at the center of the issue of the changing legal structure of international treaties. 51 This is mainly due to the fact that the international treaty-making process is inherently inflexible and cumbersome. Based on the well established sovereign right of States to freely decide whether or not to be bound by a treaty, 52 not only the treaty-making but also the treaty adjustment process in the international system lacks flexibility. A typical illustration of this problem can be taken from Articles 39 et seq. V C L T , providing essentially that any amendment or modification of a treaty has to be based on the consent of the States concerned in order to create binding effects. The international legal system is, therefore, faced w i t h two prima facie contradictory assumptions: flexible management of global concerns and respect for State sovereignty. It is at this point that various new structures of international treaties have emerged. They can be best described as follows: 1. A first instrument ensuring flexibility with regard to the entire treaty-making process can be seen in the emerging use of so-called framework agreements. Usually only referred to as an instrument of international environmental law, 53 framework agreements are also used as a means to start off with at least some basic and usually broad legal principles for further regulations in the future in other areas of international law. 54 The structure of framework agreements is straightforward especially when they are explicitly drafted this way. The framework treaty only provides some basic principles as to the undisputed overall future goals to be achieved by the newly established treaty regime. A n y further action regarding concrete rules on specific issues is left open and is subject to further negotiations. Examples of these kinds of framework conventions are the United Nations Framework Convention

51

Chayes/Handler Chayes (note 3), 7; Pan (note 49), 503; Geoffrey Palmer , New Ways to Make International Environmental Law, AJIL, vol. 86, 1992, 259, 264; see also Christian Tomuschat, Obligations Arising for States Without or Against their Will, RdC, vol. 241, 1993, 195,264 et seq.; Bruno Simma , From Bilateralism to Community Interest, RdC, vol. 250,1994, 221,322 et seq. 52

See, e.g., Article 11 VCLT; on the notion of sovereignty and its implications for consent to be bound by a treaty see, e.g.. Palmer (note 51), 270 et seq. 53

See, e.g., Ulrich Bey erlin/Thilo Marauhn, Rechtssetzung und Rechtsdurchsetzung im Umweltvölkerrecht nach der Rio-Konferenz 1992, 1997, 30 et seq.; Hermann E. Ott, Umweltregime im Völkerrecht, 1998, 286 f.; Palmer (note 51), 274 ("technique of slicing the salami thinly"). 54

See infra , note 106 et seq. and accompanying text.

The Changing Legal Structure of International

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37

on Climate Change55 and the European Framework Convention for the Protection of National Minorities. 56 However, the typical characteristics of framework conventions can not only be found in treaties having this title, but they may also be part of other "ordinary" treaties. Examples of this mixed strategy can be found in international economic law. For example, the General Agreement on Trade in Services (GATS) provides in its Article X V certain basic principles on the treatment of subsidies in international trade in services. However, as no agreement on specific rules on this problem could be reached by the end of the Uruguay Round in 1993, Article X V GATS stipulates that WTO-Members shall enter into negotiations w i t h a view to developing the necessary multilateral disciplines. Some basic outlines for the content of these negotiations are given in Article X V GATS. Thus one may see in Article X V GATS an in-built framework provision. The legal relevance of framework conventions has been disputed by some authors classifying them as a kind of "soft law." 5 7 This point of view is not convincing and disregards the possible structure of legal norms and the distinction between principles and rules. Principles are understood as "normative propositions of such a high level of generality that they can as a rule not be applied without the addition of further normative premises and are usually subject to limitation on account of other principles." 58 Principles are, thus, normative propositions that are essential for a legal order even though their mere existence does not provide concrete solutions for a given case; this task can only be fulfilled by rules. However, what is essential for principles is their character as legal obligations to optimize. Principles are legal obligations towards the fulfillment of stated goals, subject to given legal and factual restrictions. 59 Taking into account this theoretical concept clarifies the legal relevance of framework conventions. Their essential characteristic is the principle structure of their substantial legal norms. The contracting States are obliged to pursue the formulated goals in accordance with formulated procedures in order to come up w i t h concrete rules on the given problem in the future. This is not at all a new concept in international law. Namely international human rights instruments have already known the distinction between concrete rules and standards or promotional obliga55

Reprinted in: 31 I L M 849 (1992).

56

ETS No. 157; see, e.g., Rainer Hof mann, Das Uberwachungssystem der Rahmenkonvention des Europarates zum Schutz nationaler Minderheiten, Zeitschrift für Europarechtliche Studien, vol. 2, 1999, 379-392. 57 Patricia Birnie, The Role of International Law in Solving Certain Environmental Conflicts, in: John E. Caroll (ed.), International Environmental Diplomacy, 1988, 95, 100. 58

Robert Alexy, A Theory of Legal Argumentation, 1989, 260 (R. Adler & N. MacCormick trans.); for a general discussion on the concept of principles see also Ronald Dworkin, Taking Rights Seriously, 1977, 22-32. 59

Robert Alexy, Theorie der Grundrechte, 1985, 75 et seq.

38

Christian Tietje

tions as future oriented goals to be achieved for a long time. 60 W i t h regard to the necessity for flexibility and the changing structure of international treaties, the drafting of framework conventions fulfills a similar objective as known from this area of international law: A first objective of framework conventions is the possibility to enter into a dynamic legal process, to take the first step in what is aimed at to be a more concrete and complex legal setting in the future. Given problems imposing the need for legal regulation are not left unregulated because of political, technical or other difficulties in the process of drafting the relevant treaty, but are made subject to a controlled, and w i t h regard to basic goals, defined legal process. Thus, one may describe framework conventions as a "set-up of a learning treaty management system" 61 or as the establishment of "dynamic regimes." 62 The overall goal to be achieved by framework conventions and provisions of a framework character in "ordinary" treaties is the possibility to flexibly cope with increasing challenges of a regulatory nature. 63 Therefore, framework conventions are an important part of global governance structures. 2. A second emerging element in international regulatory regimes is known as the simplified amendment procedure. Without going into detail, one may distinguish consent-based, opting-out and majority-based simplified amendment procedures, combined w i t h ratification or non-ratification prerequisites in order to have binding effects. Just a few examples for these different strategies in international treaty regimes may suffice as an illustration: A consent-based amendment procedure without reference to ratification requirements is laid down in Article 2 para. 9 of the Montreal Protocol on Substances that Deplete the Ozone Layer. 64 The more common amendment procedure of (1.) majority voting of the contracting parties, (2.) entry into force without ratification requirements, and (3.) the possibility of opting-out for individual States, is contained, e.g., in Article X V of the Convention on Interna60 For details see Jost Delbrück, Die Rassenfrage als Problem des Völkerrechts und nationaler Rechtsordnungen, 1971, 108 et seq.; Eibe Riedel, Theorie der Menschenrechtsstandards, 1986, 260 et seq. and 297 et seq.; id., International Environmental Law - A Law to Serve the Public Interest? - An Analysis of the Scope of the Bindung Effect of Basic Principles (Public Interest Norms), in: Jost Delbrück (ed.), New Trends in International Lawmaking - International 'Legislation' in the Public Interest, 1997,61,84 et seq. (applying the concept of 'standards' to framework conventions and other instruments of flexibility in international environmental law). 61

Wolfrum

(note 11), 144.

62

Ott (note 53), 268; Thomas Gehring, Dynamic International Regimes - Institutions for International Environmental Governance, 1994; Stefan Schuppert, Neue Steuerungsintrumente im Umweltvölkerrecht am Beispiel des Montrealer Protokolls und des Klimaschutzrahmenübereinkommens, 1998,30; Beyerlin/Marauhn (note 53), 34; Winfried Lang, Diplomacy and International Environmental Law-Making, Yearbook of International Environmental Law, vol. 3, 1992, 108, 117 et seq. 63

Chayes/Handler

64

Done at Montreal, 16 September 1987, reprinted in: 26 I L M 1550 (1987).

Chayes (note 3), 226; Riedel (note 60), 84 et seq.

The Changing Legal Structure of International

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39

tional Trade in Endangered Species of Wild Fauna and Flora of 1973,65 Article 90 of the Convention on International Civil Aviation, 6 6 and Article 21 et seq. of the Constitution of the World Health Organization. 67 Finally, majority voting amendment procedures with individual States' ratification requirement are contained in, e.g., Article 19 para. 1 and para. 5 Constitution of the International Labour Organization. 68 Even though certain differences exist in simplified amendment procedures in international treaty regimes, namely with regard to ratification requirements and opting-out possibilities, a common feature of these structural elements of regulatory treaty regimes is the modification of the rigid consent oriented requirements imposed on amendment procedures in Articles 39 et seq. V C L T in light of increasingly used majority voting schemes. This opens the door to flexible and effective lawmaking procedures that reach beyond the cumbersome consensus approaches based on strict notions of State sovereignty. Moreover, as simplified amendment procedures are usually applied to protocols or annexes to existing treaties, they are closely related to the above mentioned strategy of framework conventions in a broader sense. Finally, as Chayes and Handler Chayes have demonstrated, the often remaining opting-out possibility proves to be of a rather theoretical than of a significant practical impact, as the political pressure in the international system usually prevents opting-out activities of individual States.69 In sum, simplified amendment procedures are an important and increasingly used part of global governance strategies. 3. A third aspect of new structures of international treaty regimes that has gained some attention in scholarly writing is the emerging possibility of authoritative interpretation of treaty provisions by organs responsible for the performance of treaty regimes in force. 70 One of the first organizations provided with the power of authoritative interpretation of "open" treaty provisions was the International Monetary Fund (IMF). Article X X I X of the I M F Agreement 71 provides that a [a]ny question of interpretation ... shall be submitted to the Executive Board for decision ... w The decision takes the legal effect of an authoritative interpretation, as it is assumed to be final according to Article X X I X unless overruled by an eighty-five percent 65

Done at Washington, 3 March 1973, entered into force 1 July 1975, reprinted in: 993 U N T S 243; 12 I L M 1085 (1973). 66

1 5 U N T S 295.

67

1 4 U N T S 185.

68

Reprinted in: G. A. Johnston, The International Labour Organisation, 1970, 285-304.

69

Chayes/Handler Chayes (note 3), 21 et seq., 130 and 266 et seq.; see also Tomuschat (note 51), 265; Simma (note 51), 329. 70 71

For a comprehensive assessment see Pan (note 49), 503 et seq.

Articles of Agreement of the International Monetary Fund, 27 December 1945, 2 U N T S 39.

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Christian Tietje

majority of the total voting power of the Board of Governors. Some major economic questions have authoritatively been decided by the Executive Board of the I M F . 7 2 A similar power of authoritative interpretation in international economic law is provided in Article IX:2 of the Agreement Establishing the World Trade Organization (WTO). 7 3 The Article grants the Ministerial Conference and the General Council of the W T O the power to interpret provisions of the W T O Agreement and the annexed Multilateral Trade Agreements by a three-quarters majority. However, some restrictions apply, as the procedure for authoritative interpretation "shall not be used in a manner that would undermine the amendment provisions in Article X " of the W T O Agreement (see Art. IX:2, last sentence W T O Agreement). Possibilities for authoritative interpretation are also known in several specialized agencies of the United Nations, e.g., I L O , U P U and UNESCO, and other international organizations. 74 Even though they sometimes differ from the interpretation possibilities described above because they do not necessarily have a strict legal standing, in practice they prove to be effective and seldom challenged.75 In sum, authoritative interpretation by treaty bodies comes close to simplified amendment procedures, even though interpretation applies to existing - however "open" - rules, whereas amendment creates new law, not necessarily related to existing rules. This legal differentiation might, of course, in practice raise the question of "when is an amendment not an amendment." 76 Due to constitutional restraints on separation of powers in national legal orders, informal amendment procedures based on executive authoritative interpretation might be challenged by the uninvolved legislator. 77 However, from an international law perspective, authoritative interpretation is an effective and necessary tool for treaty performance under rapidly changing circumstances and thus is essential for the successful work of international organizations as part of global governance. 4. A further, fourth, changing structural aspect of international treaty regimes has not yet gained much attention. It may be described as the legal incorporation of decisions of private or public international executive organs of different origin into the treaty regime. Examples for this strategy can be taken, e.g., from international economic law with regard to standard setting bodies. The W T O Agreement on 72

Pan (note 49), 519; Chayes/Handler

Chayes (note 3), 210 et seq.

73

G A T T Secretariat (ed.), The Results of the Uruguay Round of Multilateral Trade Negotiations, The Legal Texts, 1994. 74

Schermers/Blokker

75

For details see Chayes/Handler

(note 38), §§ 1355 et seq. Chayes (note 3), 215 et seq.

76

David A. Koplow , When is an Amendment not an Amendment, University of Chicago Law Review, vol. 59, 1992, 981-1072. 77

O n this debate see, e.g., W. MichaelReisman, Necessary and Proper: Executive Competence to Interpret Treaties, Yale Journal of International Law, vol. 15, 1990, 316-330.

The Changing Legal Structure of International

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Technical Barriers to Trade (TBT Agreement) 78 provides in its Article 2.4 that WTO-Members shall use appropriate technical norms as set up by international standardization organizations. This refers to such standardization organizations as ISO (International Organization for Standardization) and IEC (International Electrotechnical Commission); both are non-governmental international organizations. 79 A similar, even more far-reaching provision is contained in Article 3.2 of the W T O Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) 80 providing that "[s]anitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent w i t h the relevant provisions of this Agreement and of G A T T 1994." The international standards mentioned are mainly those being created by the Codex Alimentarius Commission of the F A O and W H O , the International Plant Protection Convention and the International Office of Epizootics. 81 Other schemes of incorporation of different international standards, regulations, practices etc. as mainly technical regulations set up by different bodies of international organizations can be found beyond international economic law in several provisions of the United Nations Convention on the Law of the Sea (UNCLOS). 8 2 A common characteristic of incorporation provisions in international treaty regimes is the deviation from the State-centered principle of international law that the contracting parties to a treaty are "the masters of the treaty." Substantial obligations imposed by one treaty are no longer created by the respective treaty itself, but instead they result from activities of other international bodies. Ratification require-

78

G A T T Secretariat (ed.), The Results of the Uruguay Round of Multilateral Trade Negotiations, The Legal Texts, 1994, 138 et seq. 79 For an overview on all international and regional standardization organizations see ISO/ IEC, Directory of international standardizing bodies, 7th ed., 1995. 80

G A T T Secretariat (ed.), The Results of the Uruguay Round of Multilateral Trade Negotiations (note 78), 69 et seq. 81

See Annex A, para. 3 SPS Agreement; for details see Terence P. Stewart/David S. Johanson, The SPS-Agreement of the World Trade Organization and International Organizations: The Roles of the Codex Alimentarius Commission, the International Plant Protection Convention, and the International Office of Epizootics, Syracuse Journal of International Law and Commerce, vol. 26, 1998, 27-53. 82

See U N Convention on the Law of the Sea of 10 December 1982, reprinted in: 21 I L M 1261 (1982), Articles 21 (2) and (4), 39 (2), 41 (3), 53 (8), 60 (3), (5) and (6), 94 (2) and (5), 208 (3), 210 (6), 211 (2) and (6), 226 (1); for detail see Bernhard H. Oxman , The Duty to Respect Generally Accepted International Standards, New York University Journal of International Law and Politics, vol. 24, 1991, 109-159; see also Tomuschat (note 51), 348 et seq. ("legislation by reference") with further references; Julia Sommer , Environmental Law-Making by International Organisations, ZaöRV, vol. 56, 1996, 628, 655 et seq.

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Christian Tietje

ments do not apply to the extension of legal obligations under the treaty; the consent principle does not necessarily have to be applied. Moreover, similar to simplified amendment procedures, incorporation schemes are used for technical purposes, e.g., specific health, environmental, safety or traffic regulations. As the regulatory problems in these areas are subject to rapid changes and expert knowledge, any attempt to include them into the original treaty would fail. Thus, reference to expert bodies of a technical nature provides the possibility for dynamic treaty improvement if necessary. Taking account of this, the impact of incorporation schemes on global governance structure is evident. 5. A final, fifth, element of the changing structure of international treaty regimes can be seen in the increasingly used mechanisms of cooperation between national and international executive agencies. As it has already been pointed out some 25 years ago, international relations are more and more influenced by transgovernmental activities as "sets of direct interactions among sub-units of different governments that are not controlled or closely guided by the policies of the cabinets or chief executives of those governments." 83 Today, transgovernmental relations are provided for in an increasing number of international treaties in order to dynamically improve the respective regulatory regime by means of executive cooperation. T o give just a few examples, several environmental treaties include obligations concerning executive cooperation with regard to the exchange of information, recognition of licenses and nomination of competent national administrative authorities. 84 Similar provisions on the exchange of technical information exist in several agreements on international watercourses. 85 Even though most of these provisions do not explicitly refer to administrative activities, executive agencies w i l l fulfill the obligation to exchange information because of the highly technical nature of the material concerned in practice. Further rules on executive cooperation can be found in international labor law. Several conventions of the International Labour Office (ILO) contain provisions that impose an obligation on the contracting parties to nominate a national authority to be responsible for the implementation of the respective

83 Robert O. Keohane/Joseph S. Nye , Transgovernmental Relations and International Organizations, World Politics, vol. 27, 1974/75, 39, 43. 84

See, e.g., Article 7 IAEA Convention on Early Notification of a Nuclear Accident, reprinted in: 24 I L M 1391 (1986); Article 4 IAEA Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, reprinted in: 24 I L M 1391 (1986); Article 6 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, reprinted in: 28 I L M 657 (1989). 85

For details see Stephen C. McCaffrey , 4th Report on the Law of the Non-Navigational Uses of International Watercourses, U N Doc. A/CN.4/412 (1988), para. 15-27; Christian Vie, Die garantierte Wasserzufuhr des Nils nach Ägypten - Nichtschiffahrtliche Nutzungsrechte an internationalen Wasserläufen, 1998, 186; Andreas Torka, Nichtnavigatorische Wassernutzungen, 1999, 61 et seq.

The Changing Legal Structure of International Treaties

43

international legal obligation. 86 Finally, international economic law increasingly uses schemes of executive cooperation in order to improve global governance structures. The TBT Agreement, for example, obliges States to set up an administrative unit as an enquiry point for information on technical regulations or standards and other details such as conformity assessment procedures (Article 10 T B T Agreement). Extensive international executive cooperation is also known among competition authorities, e.g., in compliance with the respective O E C D Recommendations. 87 It is important to note that international regulatory regimes increasingly provide for executive cooperation in order to more effectively respond to actual problems. "Bureaucratic alliances," as they are called by Chayes and Handler Chayes,** are by way of definition competent to deal with rapidly changing technological and other modern developments. Moreover, executive cooperation by administrative bodies has the advantage of likely being unpolitical, thus being able to concentrate on effective technical solutions for given problems. I V . Regulatory Approaches in Different International Treaty Regimes The growing body of existing written international law is a response to the increasing complexity of international relations and the State's insufficiency to regulate issues being subject to global governance. Therefore, international treaty regimes have been developed in several areas of global social concern. I n the following section of this article, two of these treaty regimes w i l l be analyzed in order to obtain a better understanding of how the described elements of the changing structure of international treaties are used for global governance purposes. The analysis w i l l concentrate on two increasingly important regulatory areas, namely international economic law and international environmental law. A comprehensive assessment of all treaty regimes w i t h global governance implications can not be given in this article. In this regard, the reader is referred to important works on, e.g., international regulatory regimes for transportation and communication, 89 interna-

86

Florian Wild , Flexibilität in multilateralen Instrumenten, 1992, 155 et seq.

87

See Revised O E C D Recommendation Concerning Co-operation Between Member Countries on Restrictive Business Practices Affecting International Trade of 27/28 July 1995, O E C D Doc. D A F F E / C L T / W P 3 / (94/5); for details see, e.g., Thomas Lantpert, International Co-operation among Competition Authorities, Europäische Zeitschrift für Wirtschaftsrecht (EuZW), vol. 10, 1999, 107-114. 88 89

Chayes/Handler

Chayes (note 3), 278.

See, e.g., Mark W. Zacher/Brent A. Sutton, Governing Global Networks - International Regimes for Transportation and Communications, 1996.

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Christian Tietje

tional health law, international labor law, and international law on cultural and educational issues.90 A. International Economic Law

In the history of international relations, international economic law has always been an important regulatory issue.91 W i t h the establishment of the Bretton Woods Institutions after World War I I 9 2 and, more recently, w i t h the entry into force of the Agreement Establishing the W T O , the impact of international economic law on the everyday life of traders and consumers has increasingly gained public awareness. Today, the major regulatory instruments of international economic law are the IMF, the World Bank and the W T O . Other international organizations of importance are several specialized agencies of the United Nations (UN) 9 3 and the OECD. Some of the different approaches of global governance through changing structures of the relevant treaties shall be examined in the following paragraphs. Both the I M F and the World Bank possess the power of authoritative interpretation of the provisions of their constituent documents. The relevant Article X X I X of the I M F Agreement has already been mentioned. Concerning the World Bank, a similar power has been granted to the executive directors of the Bank in Article I X of the World Bank Agreement. 94 A n y interpretation made by the executive directors that has been approved by the Board of Governors is final. The farreaching effect of these mechanisms of authoritative interpretation in the I M F and the World Bank are demonstrated by several interpretative decisions that have been taken on issues of national economic policy. 95 The most famous of those interpreta-

90

See, e.g.y the contributions by Virgina A. Leary , Stephen P. Marks and Katarina Tomasevski, in: Oscar Schachter/Christopher C. Joyner (eds.), United Nations Legal Order, vol. 1 and 2, 1995, 473 et seq., 577 et seq. and 859 et seq. 91

O n the evolution of international trade theory and policy see, e.g., Michael J. Trebilcock/Robert Howse, The Regulation of International Trade, 2nd ed., 1999, 1-24. 92 Helmut Coing y Bretton Woods Conference (1944), in: Rudolf Bernhardt (ed.), EPIL, vol. I, 1992, 494-495. 93

For details on economic activities within the U N family see Stephen Zamora y Economic Relations and Development, in: Oscar Schachter/Christopher C. Joyner (eds.), United Nations Legal Order, vol. 1, 1995, 503 et seq. 94

Articles of Agreement of the International Bank for Reconstruction and Development of 22 July 1944, 2 U N T S 39, 134 and 606 U N T S 295. 95

Pan (note 49), 519; Chayes/Handler Chayes (note 3), 211; a more restrictive point of view is taken by Zamora (note 93) 503, 556 et seq.

The Changing Legal Structure of International

Treaties

45

tive decisions were probably those giving effect to the shift from fixed exchange rates to floating exchange rates in the beginning of the 1970's.96 The Agreements on the I M F and the World Bank, however, do not only provide possibilities for executive authoritative interpretation, but also provide for simplified amendment procedures. According to Article X X V I I I lit. a) I M F Agreement and Article V I I I lit. a) World Bank Agreement amendments are possible, subject to certain restrictions on some Articles, by a three-fifths majority vote of the members having eighty-five percent of the total voting power (IMF), respectively three-fifths of the members having four-fifths of the total voting power (World Bank). Amendments accordingly approved enter into force for all members three months after a formal communication by the respective organization (see Art. X X V I I I lit. c) I M F and Art. V I I I lit. c) World Bank). 97 These two traditional Bretton Woods institutions provide for interesting possibilities of flexible treaty adjustment without consent or ratification requirements. However, as the relevant Articles demonstrate, those legal possibilities are restricted to rather administrative issues not affecting the core rights and obligations of Member States. Therefore, one may say that a balance between necessary flexibility in technical, administrative matters of the functioning of the organizations on the one hand and non-derogative rights and obligations of the members on the other hand has been struck. The essential safeguard for members with regard to legal adjustments made without their consent is contained in Article X X V I : 1 I M F Agreement, giving each member the right to withdraw from the Fund without further restrictions. 98 Moreover, the right to withdraw from an organization changing its legal setting is - subject to some limitations - recognized on the ground of the clausula rebus sic stantibus ." Numerous important elements of flexible adjustment are also contained in the W T O Agreements. The possibility of authoritative interpretation, restricted to issues not amounting to a disguised amendment (Article IX:2 W T O Agreement), has already been mentioned. Other interesting new structural treaty elements have been indicated too: the incorporation of standard setting decisions of international governmental and private organizations and the framework character of certain provisions of the W T O Agreements. 100 Another aspect worth mentioning is the in96

For the legally disputed mechanism used by the I M F see Hugo J. Hahn, Elemente einer neuen Weltwährungsordnung, in: Wilhelm A. Kewenig (ed.), Völkerrecht und internationale wirtschaftliche Zusammenarbeit, 1978, 215, 218 et seq. 97

See Joseph Gold, Voting and Decisions in the International Monetary Fund, 1972, 162 et

seq. 98

For details see Gold (note 97), 163 et seq.

99

Schermers/Blokker

100

(note 38), § 135 (5).

See supra, note 78 et seq. and accompanying text.

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Christian Tietje

creasingly used technique of imposing strict obligations on Member States w i t h regard to national administrative procedures. Article VI:3 GATS, for example, obliges Member States to establish certain minimum standards for an administrative review of decisions on the application for authorization on the supply of a service. Even more detailed regulations on civil and administrative court and other proceedings are contained in Articles 42 et seq. TRIPS. A l l these provisions indicate that one aspect of the global governance architecture is a structure of decentralization. The means to effectively regulate international concerns are not only provided by international institutions, but also by way of reference towards national administrative and civil procedures and organs. This is also true w i t h regard to directly imposed obligations on the Member States to appoint national administrative organs for certain purposes of international concern. 101 A similar idea of decentralization can be taken from the aforementioned mechanism that incorporates decisions of competent international institutions within a given legal order, such as the W T O . This regulatory structure becomes increasingly important w i t h regard to highly complex technical issues. A closer look at, e.g., the SPS Agreement of the W T O demonstrates that complex issues of governmental regulations concerning the protection of human, animal or plant life or health through sanitary and phytosanitary measures can not be addressed exclusively in a single international treaty. As the scientific and technical circumstances determining the appropriate level of governmental protection rapidly change, new ways of flexible adjustment have to be found. The SPS-Agreement of the W T O solves this problem by referring to international standards, guidelines or recommendations adopted within the Codex Alimentarius Commission of the F A O and W H O , the International Plant Protection Convention and the International Office of Epizootics. 102 The interesting legal aspect of this mechanism of flexibility is that the standards mentioned by those international organs are not legally binding by themselves. Their legal relevance changes, however, by way of incorporation via Article 3.2 of the SPS Agreement. Thus, a formerly non-binding instrument being adopted as a recommendation by an international organ has significant legal impacts through incorporation within the legal framework of a legally binding treaty. The far-reaching effects of this technique are known from the hormone dispute between the US and the E U that had been subject to a decision of the Appellate Body of the W T O . 1 0 3

101

See supra, note 83 et seq. and accompanying text.

102

See Annex A, para. 3 SPS-Agreement; for details see Stewart/Johanson

103

(note 81), 27-53.

For details of the case see Vern R. Walker , Keeping the W T O from Becoming the "World Trans-science Organization": Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute, Cornell International Law Journal, vol. 31,1998,251-320; M. M. Slotboom , The Hormones Case: An Increased Risk of Illegality of Sanitary and Phytosanitary Measures, Common Market Law Review, vol. 36,1999,471-491; Dale E. McNiel , The First Case Under the WTO's Sanitary and Phytosanitary Agreement: The European Union's

The Changing Legal Structure of International Treaties

47

As already indicated, 104 a further element of flexibility within the W T O system is the use of framework provisions. One type of framework provisions are those rules within certain W T O Agreements that are not yet complete. In order to become operative, certain further decisions by W T O organs or the contracting parties have to be made. Examples for this framework strategy demanding further work of the WTO-Members can be found, e.g., in the following provisions of W T O Agreements: Art. 10.2 (future disciplines on export credits etc.) and Art. 20 Agreement on Agriculture (continuation of the reform process); Art. XIIL2, X V , X I X : 1 GATS ("unfinished business" and progressive liberalization); Art. 24.1 TRIPS (negotiations on increasing the protection of individual geographical indications). The common feature of these framework provisions is the establishment of obligations for the WTO-Members for further negotiations on different liberalization commitments. As possible successful results of such negotiations are subject to the formal amendment procedure of Art. X:1 of the Agreement Establishing the W T O , 1 0 5 ratification requirements under national constitutional law apply. Thus, the mentioned rules fulfill the classic definitions of a pactum de contrahendo and z pactum de negotiando. 106 Even though a clear cut distinction between the two types of pacta is not possible, 107 the substantial obligations arising out of such treaty provisions for States has been clearly articulated by the ICJ in the North Sea Continental Shelf case. The Court held that ... the parties are under an obligation to enter into negotiations with the view of arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior conditions for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modifications of it ... 1 0 8

A n even more precise description of the nature of a pactum de negotiando was given by the German External Debts Arbitration Tribunal in a decision of 26 January 1972. The Tribunal ruled as follows: However, a pactum de negotiando is also not without legal consequences. It means that both sides would make an effort, in good faith, to bring about a mutually satisfactory Hormone Ban, Virginia Journal of International Law, vol. 39, 1998, 89-134; Meinhard Hilf/ Barbara Eggers, Der WTO-Panelbericht im EG/USA Hormonstreit, EuZW, 1997, 559-566. 104

Supra, m . l .

105

For a description of the different amendment procedures of Art. X of the Agreement Establishing the W T O see John H. Jackson, The World Trade Organization - Constitution and Jurisprudence, 1998, 44 et seq. 106

O n these concepts see Ulrich Beyerlin, Pactum de Contrahendo, Pactum de negotiando, in: Rudolf Bernhardt (ed.), EPIL, vol. m , 1997, 854 et seq. 107

Beyerlin (note 106), 858.

108

1969 ICJ Reports 3, 47.

48

Christian Tietje solution by way of a compromise, even if that meant the relinquishment of strongly held positions earlier taken. ... An undertaking to negotiate involves an understanding to deal with the other side with a view to coming to terms ... To be meaningful, negotiations have to be entered into with a view to arriving at an agreement. ... Though ... an agreement to negotiate does not necessarily imply an obligation to reach an agreement, it does imply that serious efforts towards that end will be made. 109

The main obligation arising out of a pactum de negotiando is, thus, to make substantially good faith efforts on the subject concerned. This is more than an obligation to simply negotiate, but rather it is a far-reaching obligation for international cooperation w i t h the aim of achieving a mutually satisfactory solution. Thus, the good faith induced cooperative element of a pactum de negotiando (and similarly a pactum de contrahendo) is of major importance. 110 A second type of framework provisions within the W T O system refers to further amendment activities of the W T O Ministerial Conference based upon a clearly defined work program (see Art. 9.4 Agreement on Rules of Origin). The final decision of the Ministerial Conference in this case is binding upon WTO-Members without further procedural requirements. This lawmaking power of the Ministerial Conference of the W T O is similar to its power to amend and modify the TRIPS Agreement in certain cases (see Art. 71 para. 2 TRIPS), the Dispute Settlement Understanding and the Trade Policy Review Mechanism without internal acceptance procedures by the WTO-Members (see Art. X:6 and Art. X:8 Agreement Establishing the W T O ) . Finally, the W T O Council for Trade in Services (see IV:5 Agreement Establishing the W T O ) has the obligation to develop and enact certain rules on technical issues in trade in services (see Art. VI:4, XXL5) that w i l l become binding upon all W T O Members without further procedural requirements. In sum, the W T O Agreements provide for a variety of different procedural mechanisms securing a flexible adjustment of the given rules to changing circumstances. In this regard one may say that the more technical the given or to be negotiated rules are, the more power is granted to the W T O Bodies and related bodies of other international institutions to amend or modify existing rules or to enact new rules without the necessity of an individual Member State's acceptance. This clearly evidences the need for a flexible treaty structure in certain subject matter areas.

109 110

47 ILR 418, 453 et seq. (1974); see also Beyerlin (note 106), 857.

See also Art. X GATS providing a pactum de negotiando on rules for emergency safeguard measures. The rules being negotiated should have been in force without ratification requirements for all members three years after the entry into force of the W T O . However, no result has been reached yet.

The Changing Legal Structure of International Treaties

49

Another important institution w i t h interesting structures of flexibility, at least for industrialized countries, is the O E C D . 1 1 1 According to its Constitution, the Council of the O E C D may take decisions binding upon the Member States (Art. 5 lit. a) O E C D Convention). However, this does not mean that the decisions are not subject to possible ratification procedures according to constitutional requirements of Member States (Art. 6 para. 3 O E C D Convention). Taking account of the respective Articles might lead to the conclusion that no specific aspects of flexible treaty structures are included into the O E C D Convention. This, however, would disregard the fact that Art. 5 lit. a) and Art. 6 para. 3 of the O E C D Convention both establish a rule-exception relationship usually unknown in international law. As the two Articles indicate, it is presumed that a decision by the Council of the O E C D is binding upon the Member States. Only in exceptional cases concerning the specific matter being regulated may a Member State refer to its internal constitutional law. This mechanism is in line w i t h a general tendency in international institutional law to deviate from ratification or other internal procedures of national approval of a substantial decision of an international organization. 112 The O E C D is also an organization that depends on intensive administrative cooperation w i t h national bureaucracies. Most of the issues discussed within the O E C D are of a technical nature not directly involving political disputes. Therefore, agents of national administrative organs usually represent their Member States. The importance of such administrative cooperation is shown by the wide range of areas discussed by the O E C D according to its treaty-based competencies (see Articles 1 and 2 OECD-Constitution). Subjects covered by the O E C D today are food, agriculture and fisheries; money laundering; initiatives to fight corruption; public management; science, technology and industry; statistics; territorial development; trade; transport; sustainable development; aging society; regulatory reform; electronic commerce; education, employment, labor and social affairs; energy; environmental issues; finance, investment, taxation and competition. 113 It is evident that the subjects being under discussion within the O E C D cover almost all aspects of national administrative concern. Based on the broad competencies laid down in the OECDConstitution, the organization develops increasing activities referring to global governance and multi-level regulatory approaches within national and the international legal order. Administrative cooperation is an important aspect of this approach. This is in line with increasing administrative cooperation schemes based on

111 Convention on the Organization for Economic Cooperation and Development, 88 U N T S 179. 112

For this tendency see Schermers/Blokker (note 38), § 895; for the O E C D procedure of decision-making see Hugo J. Hahn/Albrecht Weber , Die O E C D - Organisation für Wirtschaftliche Zusammenarbeit und Entwicklung, 1976, 106 et seq. 113

For details see the O E C D website: http://www.oecd.org.

4 G Y I L 42

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Christian Tietje

agreements concerning, e.g., cooperation of competition authorities 114 and double taxation. 115 B. International Environmental Law

Whereas the changing structure of international treaties with regard to global governance aspects of flexibility in international economic law has not gained much attention so far, similar, and even more advanced developments in the field of international environmental law have already been analyzed by some scholars. 116 Some of the basic structural changes shall be discussed in the following section of this article. International environmental law is probably the most important regulatory area for framework conventions. The notion of a framework convention has indeed been introduced in international law by the F A O in 1974 concerning the draft of a convention on regional marine environmental protection. 117 Numerous framework conventions have been drafted so far in international environmental law; the most famous today being the U N Framework Convention on Climate Change of 9 May 1992.118 However, a similar framework character can be found in the Vienna Convention for the Protection of the Ozone Layer, 119 and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. 120 Framework provisions can also be found in Articles 15 and 16 of the Convention on Biological Diversity. 121 It is a common element of international environmental framework convention to set up the legal basis for further cooperative efforts of the contracting parties. Therefore environmental framework conventions are usually 114

Supra , note 87.

115

See Article 26 of the Articles of the O E C D Model Tax Convention on Income and on Capital (available at: http://www.oecd.org/daf/fa/material/mat_07.htm ). 116

See, e.g., Peter H. Sand , Lessons Learned in Global Environmental Governance, 1990; Peter S. Thacher , Alternative Legal and Institutional Approaches to Global Change, Colorado Journal of International Environmental Law and Policy, vol. 1, 1990, 101-126; Ott (note 53); Palmer (note 51); Editors of the Harvard Law Review, Trends in International Environmental Law, 1992, 53 et seq.y 69 et seq. 117

Jean Carroz of the F A O is usually referred to as the initiator of the notion, see Peter H. Sand, Marine Environment Law in the United Nations Environment Programme. An Emergent Eco-Regime, 1988, DC; Ott (note 53), 268; Thacher (note 116), 104. 118

Reprinted in: 31 I L M 851 (1992).

119

Reprinted in: 26 I L M 1516 (1987).

120

Reprinted in: 28 I L M 657 (1989); see, e.g., Katharina Kummer , International Management of Hazardous Wastes - The Basel Convention and Related Legal Rules, 1995; Ott (note 53); Susanne Rublacky Der grenzüberschreitende Transfer von Umweltrisiken im Völkerrecht, 1993. 121

Wolfrum

(note 11), 113 et seq.

The Changing Legal Structure of International

Treaties

51

primarily concerned w i t h procedural questions, rather than regulations on substantial issues.122 In other words, they pave the way that still has to be taken by using the classic idea of a pactum de contrahendo or apactum de negotiando. 123 Even though one might argue that framework conventions are not a very convincing approach towards environmental regulation, their importance with regard to cooperative global governance can not be denied. Due to the complexity and consensus oriented nature of the process of international treaty drafting, framework conventions have the advantage of establishing procedural and sometimes certain substantial principles and rules for further lawmaking. This is more than just an alibi for States they can refer to in response to public pressure, but implies - according to the already mentioned substantial impacts of a pactum de negotiando 124 - legal obligations for serious good faith efforts for further regulations. Another increasingly used structural element in international environmental treaties concerns simplified amendment procedures by majority vote within an organ of the treaty corresponding to opting-out possibilities. Numerous international environmental treaties include such simplified amendment procedures w i t h regard to technical and environmental standards. 125 Even though the specific procedural requirements for simplified amendment procedures vary, one of their common aspects is that once the technical amendment has been adopted by the competent organ, no additional ratification or other internal acceptance procedure within the Member 122 Martii Koskenniemi , Peaceful Settlement of Environmental Disputes, Nordic Journal of International Law, vol. 60, 1991, 73 et seq.; Ott (note 53), 269. 123

See Alexandre C. Kiss , Environnement et developpement ou environnement et survie?, Journal du Droit International, 1991, 263, 278, who refers to a pactum contrahendi or pactum cooperandi. 124 125

Supra , note 107 et seq. and accompanying text.

See Art. 18 para. 2 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 932 U N T S 3, reprinted in: 11 I L M 262 (1972); Art. XV:2 International Convention on the Prevention of Marine Pollution by Dumping of Wastes, 1046 U N T S 120; reprinted in: 18 I L M 510 (1979); Art. X V et seq. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 993 U N T S 243; reprinted in: 12 I L M 1085 (1973); Art. 16 para. 2 lit. f) iii) International Convention for the Prevention of Pollution from Ships, reprinted in: 12 I L M 1319 (1973) and 17 I L M 546 (1978); Art. 24 Convention on the Protection of the Environment of the Baltic Sea Area, reprinted in: 13 I L M 546 (1974); Art. 17 Convention for the Protection of the Mediterranean Sea against Pollution, reprinted in: 15 I L M 290 (1976); Art. X I Convention on the Conservation of Migratory Species of Wild Animals, reprinted in: 19 I L M 15 (1980); Art. 17 Convention on the Conservation of European Wildlife and Natural Habitats, ETS No. 104; Art. 10 Vienna Convention for the Protection of the Ozone Layer, reprinted in: 26 I L M 1516 (1987); Art. 18 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, reprinted in: 28 I L M 657 (1989); Art. 16 Convention on Climate Change, reprinted in: 31 I L M 851 (1992); Art. 30 Convention on Biological Biodiversity, reprinted in: 31 I L M 822 (1992); Art. 26 Convention on Transboundary Effects of Industrial Accidents, reprinted in: 31 I L M 1330 (1992).

4*

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Christian Tietje

States is necessary. The only possibility for a State not to become bound by amendment is to opt out according to the different opting-out procedures that have been created. Beside the classical opting-out possibility - the respective amendment does not apply to a State that has objected sometimes forms of a collective opting-out are used. This means that the amendment w i l l not enter into force at all, once a certain number of States has objected to it. The different opting-out procedures are sometimes combined with provisions extending the time-limit for opting-out once one State has objected. 126 A l l in all, simplified amendment procedures combined w i t h opting-out possibilities are a common regulatory instrument in current international environmental law. They apply to specific questions of technical and environmental standards in order to put rather general obligations of the respective treaty in more concrete terms. In this regard, they are the most important structural element in international regulatory regimes for adjustments according to changing environmental and technological circumstances, bypassing national ratification requirements. 127 Even though most simplified amendment procedures are combined w i t h optingout possibilities, the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) provides an interesting majority vote scheme without a safeguard resort for Contracting States. Article 2 para. 9 of the Montreal Protocol stipulates that adjustments to the ozone depleting potentials specified in Annex A of the Protocol shall be made "if all efforts at consensus have been exhausted and no agreement reached" by a decision of "a two-third majority vote of the Parties present and voting representing at least fifty per cent of the total consumption of the controlled substances of the Parties." 128 The decision taken shall be binding on all Parties and will, unless otherwise provided, enter into force six months after it has been communicated to the Parties. 129 Adjustments to the substances controlled by the Montreal Protocol have been successfully made several times in the past using the Article 2 para. 9 procedure. 130 Several other structural aspects of modern environmental treaties that ensure flexibility have been analyzed in academic writing. They include means for authentic interpretation, increased use of secondary lawmaking by treaty bodies, the growing

126

For details and further references on the different opting-out procedures see Ott (note 53), 161. 127

Sand (note 116), 17; Ott (note 53), 162 et seq.\ for further details see also Sommer (note 82). 128

Art. 2 para. 9 lit. c) Montreal Protocol, reprinted in: 26 I L M 1550 (1987).

129

Art. 2 para. 9 lit. d) Montreal Protocol (note 128).

130

For details see Ott (note 53), 61 et seq. and 155 et seq.

The Changing Legal Structure of International Treaties importance of "soft law" within existing treaty regimes, 131 and finally far-reaching obligations for administrative cooperation among competent national and international organs. 132 Without going into further details, one may conclude that today environmental treaty making is inspired by the idea of necessary flexibility and cooperation. This can be described as a form of the creation of "dynamic international regimes." 133 If one takes a closer look at the different elements that characterize dynamic international environmental regimes, one can see two specific structural aspects: First, international environmental treaties are increasingly drafted as framework conventions or as conventions that include certain provisions of a framework character. 134 Second, technical questions subject to rapidly changing technological or environmental developments are often regulated by simplified amendment procedures bypassing national ratification requirements. These two structural aspects of modern treaty making indicate that international lawmaking distinguishes the formulation of core rights and obligation of States on the one hand and more administrative regulations of day-to-day problems on the other hand.

V . Conclusion: Global Governance and International Treaty Regimes The described changing structure of international regulatory regimes has significant effects on several aspects of interest for international law. As already indicated, most scholars refer to the new compliance strategy that is usually linked to treaty instruments providing for flexibility. 135 Taken in a broader perspective, however, one can also see global governance perspectives of the changing structure of international treaties. Treaties are usually seen as a source of international law, no more and no less. Article 38 para. 1 lit. a) of the Statute of the ICJ is evidence of this understanding on 131 For a detailed analysis see Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, MJIL, vol. 12, 1991, 420 et seq.; Ott (note 53), 166 et seq.; Beyerlin/Marauhn (note 53), 7 et seq. 132 See, e.g., Peter-Tobias Stoll, Die Effektivität des Umweltvölkerrechts, Die Friedens-Warte, vol. 74, 1999, 187, 193, 196 et seq. 133

A comprehensive analysis of dynamic international environmental regimes is given by Gehring (note 62); see also Ott (note 53), 268; Wolfrum (note 11), 151; Schuppert (note 62), 30; Beyerlin/Marauhn (note 53), 34. 134

Similar Stoll (note 132), 192; Michael Bothe, The Evaluation of Enforcement Mechanisms in International Environmental Law, in: Rüdiger Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means?, 1996,13,16; PeterM. Haas/Robert O. Keohane/Marc A. Levy , Improving the Effectiveness of International Environmental Institutions, in: ibid, (eds.), Institutions for the Earth - Sources of Effective International Environmental Protection, 1994, 412 et seq. 135

See, e.g., supra , note 13.

5

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Christian Tietje

the role of treaties in the international legal system. Treaties are the classic lawmaking instrument for States and international organizations. The problem of this approach is its static conception, however. Analyzing the international law of treaties - mainly laid down in the V C L T - one realizes that it only focuses on the creation and possible termination of a source of international law. With the exception of aspects of dynamic treaty interpretation according to changing circumstances, 136 international law is usually not concerned w i t h specific aspects of the day-to-day life of a treaty regime. However, as we have learned from the above assessment, the need for flexibility in international treaty regimes has resulted in emerging legal phenomena that address questions of the interrelationship between the act of lawmaking - the enactment of a treaty - and corresponding aspects of the daily management of the treaty regime in existence. In this regard, not only the growing body of rules on simplified amendment procedures and cooperation between national and international administrative authorities is of interest, but also the changing structure of the lawmaking process itself. Thus, the structure of a treaty as a source of law - the lawmaking side - and the management of the established treaty regime - the administrative side - can be seen as the two core elements of modern law of treaties forming part of an emerging global governance architecture. W i t h regard to the structure of a treaty as a source of law, the emerging use of framework conventions or framework provisions within a treaty provides evidence of an increasing awareness among governments of the necessity of international cooperation. Whereas for a long time treaties had only been concluded once a consensus among the negotiating States had been reached, today at least in some areas of international relations it is more important to enact a treaty in a fairly short period of time although specific substantial questions to be regulated may be left open for further negotiations. 137 Even though the reasons for this approach may vary, in all cases of the use of framework conventions and framework provisions States indicate that they are willing to establish "a learning treaty management system." 138 The process thus set up is not subject anymore to exclusive particular States' discretion and consent, but it develops its own dynamic based upon cooperative duties of States.139 The emerging administrative structure of international regulatory regimes as the second aspect is even more important. Similar to developments in national legal orders, the complexity of subjects that must be regulated in the international system imposes inherent restrictions on the scope of the lawmaking process itself. Whereas traditionally the law - respectively the treaty - was drafted in a manner so as to 136

See Article 31 VCLT; Brownlie (note 4), 635.

137

For details see also Beyerlin/Marauhn

138

Wolfrum

139

Ott (note 53), 275; Beyerlin/Marauhn

(note 53), 30 et seq.

(note 11), 144. (note 53), 34.

The Changing Legal Structure of International

Treaties

55

comprehensively regulate a given problem, today more and more authority is given to administrative bodies in order to effectively cope with changing circumstances due to rapidly changing technological and other developments. This phenomenon is well known in national legal orders, 140 and it is also part of the changing structure of international regulatory regimes. W i t h regard to international law, it demonstrates that the challenge of global governance does not only demand governance structures exclusively on the level of formal lawmaking. Rather, effective administrative actions are necessary in order to cope with a quantitatively and qualitatively growing complexity of regulatory issues. Similar to national legal orders, the function of an administrative organ is not restricted to the execution of a formal (parliamentary) law - a treaty in the international system. Instead it is recognized that administrative organs are only guided by legislative orders, thus giving more administrative discretion, the more complex the given problem is. 141 The same idea applies to the international legal system. Even though the States remain the primarily responsible actors in the international lawmaking process, the necessity of flexibility in global governance demands certain administrative procedures that can cope w i t h rapidly changing situations of a rather technical nature. A response thereto can be seen in the different mechanisms of simplified treaty amendment, incorporation of external technical standards of other institutions, authoritative interpretation, or cooperation of national and international administrative authorities. Thus, international treaty law is not restricted to directly and comprehensively regulating bi- or multilateral concerns between States anymore. O n the contrary, part of a global governance strategy is the interrelationship between treaty-making by States - as "legislators" - and effective implementation and evolution by treaty organs - as "administrative bodies."

140

For German administrative law see, e.g., Eberhard Schmidt Aßmann, Zur Reform des Allgemeinen Verwaltungsrechts - Reformbedarf und Reformansätze, in: Wolfgang HoffmannRiem/Eberhard Schmidt-Aßmann/Gunnar Folke Schuppert (eds.), Reform des Allgemeinen Verwaltungsrechts - Grundfragen, 1993,11,48 et seq.; Horst Dreier, Hierarchische Verwaltung im demokratischen Staat, 1991,164 et seq.; for the USA see, e.g., Aman, Administrative Law For a New Century (note 50). 141

Eberhard Schmidt-Aßmann, Das allgemeine Verwaltungsrecht als Ordnungsidee, 1998,43 et seq.

International Organizations and the Law of Treaties By Henry G. Schermers

I. Introduction The present issue of the Yearbook focuses on the law of treaties. International organizations are closely linked to the law of treaties in two ways: (1) they are themselves created by treaties, and (2) they produce treaties. A t present, virtually all important treaties are drafted in international organizations, but treaties remain poor instruments of lawmaking. They are slow, they are difficult to amend when changing circumstances require adaptation and they are binding only upon States that have expressly accepted them. Therefore the international community looks for other sources of law, especially for universally applicable law. Those other sources are also developed in international organizations and only in those organizations. In this article we w i l l draw attention to them. We shall see that these sources of law have tried to create rules of international law which (1) are generally binding, which (2) can be amended when that is needed and which (3) can enter into force at short notice. O n l y rarely can all conditions be fulfilled. Once binding rules of law have been created we are faced with the problem of their implementation. H o w can governments be forced to apply legal rules, even when they never expressly agreed to them? This w i l l be our last subject.

I I . Law Stemming from Necessity A t the beginning of the 20th century international contacts were scarce. For example, people in Europe did not know what happened in Africa and Asia, international tourism and commercial travel were limited and it did not really matter that railway tracks in Spain and Russia differed from those of other countries in Europe. Mainly during our century the enormous increase of international communications increasingly required uniform rules applicable throughout the world. In many fields we see such rules developing. They first came where technical need required them. The prescriptions of the Universal Postal Union, the International Telecommunications Union and the International Civil Aviation Organization are universally applied even if States have never formally ratified them because there can be no com-

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munication without such rules. The need for these kinds of uniform technical rules grows rapidly w i t h increasing relations between States and between individuals of different States. The Universal Postal Union (UPU) originally laid such rules down in treaties, but the postmasters agreed to apply them as from a certain date irrespective of the question whether the treaties had been ratified. Many treaties made within the U P U are generally applied even though many States never ratified them. 1 The need for uniform rules is so strong that practical need overruled the formal requirements of international law. We may speak of law from necessity. These rules can be made fast, they can be easily amended and usually they are generally applied. Normally, practice requires their application which means that problems of implementation rarely arise, but if a State (or any other community) refuses to apply them, sanctions other than isolation are usually not available. A weakness of laws arising from necessity is the absence of any democratic controls. Neither governments nor parliaments are involved. The rules are made by the technicians who need the rules and who apply them. When interests other than those of the technicians are involved, problems may be created. The delimitation of this kind of needed supranational rules is vague. When in the sixteenth century an entire tribe in Africa was killed nobody in Europe would be bothered, simply because nobody knew of the event. N o w killing and torture anywhere in the world can be observed almost everywhere. Other people become worried, protests and pressures arise and a need to do something about it is felt, a need for world law to prevent such atrocities. With increasing communications the desire to protect fundamental rights has increased as well. Could this lead to law stemming from necessity? I I I . Law Directly Stemming from Agreement I n other cases, national governments or national parliaments want to be involved. Official agreement is needed. Then new rules must be laid down in treaties. Originally, treaties were drafted by ad hoc conferences. Later, when they were more frequently required, international organizations were charged w i t h their drafting. This made drafting a bit faster and amendment a bit easier as no special conferences needed to be organized and convened. The secretariat of the organization concerned could do most of the preparatory work. Still treaty making remains to be a slow process, amendments are difficult and applicability is restricted to the consenting States. A faster procedure which some constitutions of international organizations created is a negative ratification procedure for treaties created within the organization. Texts are then adopted in the organization. They enter into force at a particu1 See Henry G. Schermers/Niels § 1295, 798.

M. Blokker , International Institutional Law, 3rd ed., 1995,

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lar date for all Member States of the organization which did not expressly indicate their wish not to be bound. 2 Thus the slowness of lawmaking by treaty is partially overcome. A disadvantage is that States may be bound, which do not really want to be bound, which may lead to problems of implementation. Again another possibility is that those who drafted a rule within an international organization agreed to apply it provisionally as from a particular date. Formally, the rule may then not be binding until the ratification has followed, but in practice the provisional application fulfils the same purpose. 3 In a previous paragraph we saw that U P U has followed this procedure already for a long time. So far this caused no problems. W i t h their voting right in the organization, national governments (and through them to a lesser extent also national parliaments) had some control which made it possible for them to accept such kinds of weakening of the requirement of previous ratification. The defects of lawmaking by treaty are still such that other ways of international lawmaking are sought.

I V . Law Indirectly Stemming from Agreement A n important contribution made to international lawmaking by many international organizations is lawmaking by decision. In the treaty establishing the constitution of the international organization the participating States may empower the organization to take binding decisions. Because of their treaty basis, such decisions w i l l have the same binding force as the constitutional treaties themselves. This kind of international legislation is reasonably fast, amendment is possible and all Member States are normally bound. Through their voting rights the participating governments preserve control, in particular when decision-making is by unanimity, which is the usual situation. 4 Only a few international organizations can take binding decisions by majority vote. 5 Even when decision making, by unanimity control by the participating governments, is limited, the pressure of a conference may be such that a negative vote is difficult. Sometimes delegates have insufficient time to consult their governments on compromise solutions and vote in favor without the full support of their nation-

2

See, e.g.y W H O Art. 22, I C A O Arts. 54-90, 37-38 and Schermers/Blokker (note 1), § 1288-1294. 3 See Vienna Convention on the Law of Treaties, 1969, Art. 25. 4 E.g. N A T O , Art. 9; Benelux, Art. 19(a); EFTA, Art. 32(4); OECD, Art. 6; OPEC, Art. 11c; most Commodity Councils, e.g. 1992 Sugar Agreement, Art. 13.3. See Schermers/ Blokker (note 1), § 788, 1323. 5 The European Communities and to some extent the Security Council of the U N , see Schermers/Blokker (note 1), § 788, 1323.

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al government. The fact that control by governments over such legislation is limited means that governments are usually reluctant to empower international organizations to take binding decisions. V . Law from Sources other than Express Agreement Apart from treaties, Article 38 of the Statute of the International Court of Justice also mentions international customs and general principles of law as sources of international law. These sources of law are not stable. They change w i t h the changes in society. A l l law evolves w i t h the changes and development of society, but international law evolves more than any other legal system for two reasons. First, international law is an underdeveloped legal system which needs a great deal of catching up. Second, international law is changing - and must be changing - from an interstate system to a generally applicable system of law. The world increasingly needs generally binding rules rather than rules that regulate relations between States. Instead of international law, we need supranational law. We have already noticed that in fact supranational rules exist and are in force. Such force must, however, be derived from another source. Most law stemming from necessity can be seen as customary law when it has been in force for a considerable time. Supranational law is only seldomly created by treaties. The treaties establishing the European Communities are rare examples. In some cases it grows out of general principles of law. A good example of supranational law as general principles of international law is the field of fundamental human rights. Before World War I I it was a matter of solely national law. During World War I I protection of fundamental human rights increasingly became an issue of concern to the Allied Powers. In the Charter of the United Nations respect for human rights and for fundamental freedom for all without distinction as to race, sex, language or religion was mentioned as one of the purposes and principles on which the United Nations were to achieve international cooperation. 6 The General Assembly of the U N was empowered to initiate studies for the purpose of assisting in the realization of these human rights and fundamental freedoms, 7 and the Economic and Social Council was empowered to make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. 8 For further studies the Economic and Social Council was ordered to set up a commission for the promotion of human rights. 9 6 7 8 9

UN UN UN UN

Charter Charter Charter Charter

Art. Art. Art. Art.

1 (3). 13 (1) b. 62 (2). 68.

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N o t only did the U N Charter mention the promotion of universal respect of human rights and fundamental freedoms for all as one of the purposes and principles, it was also provided that the United Nations themselves shall promote such respect.10 However, none of these provisions restricted the powers of governments over their own citizens. N o right was given to the individual to bring an action against a government which infringed his fundamental rights. Governments still had full sovereignty over their subjects. In 1948 the Universal Declaration of Human Rights was adopted. It was not a legally binding document which could be invoked by individuals. It was not even an international treaty which one State could invoke against another. Rather it should be seen as a recommendation to States of how they should arrange their internal legislation. But it was a further step in making human rights an issue of international concern. The first breakthrough came in Europe when, under the European Convention of Human Rights, States did not only undertake to respect certain fundamental rights but also permitted their subjects to invoke these rights against their own governments before an international institution. Subsequently, also under the International Covenant on Civil and Political Rights governments of States accepted an international legal obligation to respect fundamental rights and in some cases also a right of individuals to bring infringements before an international institution. These treaties have influenced legal thinking and the general principles of law, perhaps in the long run also customary law, but they alone could make neither general principles nor customary law. Therefore additional support was needed. This support was obtained from a series of non-binding resolutions of the General Assembly of the U N . When this organ repeats an opinion over a substantial number of years, that opinion tends to become a general principle of law. In resolutions of the General Assembly the international community increasingly accepts that the protection of human rights is no longer a purely domestic matter. When in the General Assembly of the U N the first accusations were made against States for violation of human rights, the reply usually was that this matter could not be discussed in the General Assembly as it was a matter essentially within the domestic jurisdiction of the States themselves. Gradually this defense disappeared, and in later cases accusations of infringements of human rights were denied but no longer was the argument heard that this was a matter solely of domestic concern. A good example is offered in the issue of apartheid. Before World War II, and even some time thereafter, the policy of apartheid in South Africa was a domestic af-

10

U N Charter Art. 55 c.

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fair. When the issue was first raised in the General Assembly of the U N , several States supported the position of South Africa that this was a matter essentially within the South African domestic jurisdiction. 11 Many others abstained.12 Governments found it morally difficult, however, to be seen as supporting apartheid. They had little argument against the pleadings of black African countries considering apartheid as criminal. Over the years the counterarguments diminished. When in 1973 an International Convention on the Suppression and Punishment of the Crime of Apartheid was established by the General Assembly of the U N , only Portugal voted against. Twenty-four states abstained.13 In 1988 on a further resolution on this Convention, only the US voted against (27 States abstained).14 The argument that this was an internal matter for the States concerned was no longer used. Finally, the criminal nature of apartheid has been generally recognized. During a period of some 40 years the policy of apartheid developed from a matter of domestic jurisdiction which meant in South Africa a lawful matter - into an international crime. A similar development can be seen with respect to torture and disappearances. Through long debates in the General Assembly of the U N , these issues became a matter of international concern on which the General Assembly could adopt resolutions. It is hardly disputed nowadays whether severe infringements of human rights of this nature can and should be discussed in international fora. It is no longer a matter of choice for every government whether or not they want to torture their own subjects. O n issues like torture and disappearances, the General Assembly has appointed rapporteurs and by now it is generally accepted that such issues are of international concern. International concern leads to international debate, and international debate turns these issues into international crimes. N o express acceptance by any type of national ratification is required. A t the same time this development changes the scope of international law. It becomes concerned with individuals. By now, we may safely conclude that international law is no longer purely a legal system regulating the relations between States but that it also imposes obligations on the States and on their governments w i t h respect to their domestic policy. Gradually international law is developing into

11

In 1953 seven out of 56 States (Australia, Belgium, Colombia, France, Greece, South Africa, United Kingdom). For the interest of Western States in South Africa, see Antonio Cassese, Human Rights in a Changing World, Polity Press 1990, 114-120. 12 In 1953 seven out of 56 States (Argentina, Canada, Netherlands, New Zealand, Peru, Turkey and Venezuela). See 8 U N G A O R Annexes No. 21, 2 and 8 U N G A O R Plenary 24-28 and 432-436; U N Yearbook 1953, 190. 13 See U N Yearbook 1973, 103. 14 See U N Yearbook 1988, 558.

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a supranational legal system of world law binding everybody, governments and individuals alike. V I . The Role of International Organizations Looking closer at the present situation we may conclude that international organizations have taken over international lawmaking. They draft most of the treaties and through their discussions general principles of law - and in the long run customary law is developed. Since international organizations are composed of States, the change is not fundamental. These are still the States that regulate the world, but there is a change. Within international organizations the pressure to cooperate increases, and methods other than treaty making are developed. Particularly of interest is the continuous growth of general rules of law. When comparing the legislation by international organizations with that of individual States, one still notices important shortcomings in international law. International organizations develop rules, but they have no power to guarantee their execution w i t h only a few exceptions. H o w is modern international law to be implemented, and how, in particular, should the implementation be of rules directly addressed to individuals?

V I I . Implementation Law without power is weak. A n effective legal system, therefore, requires provisions for enforcement. In international law such provisions are often lacking. This does not mean that international law is defective but rather that its realization is insufficiently guaranteed. O n l y a few international organizations provide for sanctions enforcing the implementation of some of their rules. A good example is Chapter V I I of the Charter of the United Nations which empowers the Security Council to enforce their most important decisions. Generally, however, international organizations just make the rules and leave it up to the States to implement them. Sometimes an enforcement mechanism is not necessary because the interest of all participants is such that they voluntarily obey the international legal rules. Rules on the maximum and minimum measures of letters which are made by the Universal Postal Union are applied because of the need for letters to easily move between countries. International rules on air navigation are obeyed because everyone's safety is at stake. International rules on how to measure temperature and rainfall are followed because all meteorological institutions need data that are compatible and mutually comparable. In the field of the protection of human rights no such interdependency exists. Governments can continue functioning even if they infringe upon their obligations

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w i t h respect to the human rights of their own citizens. The question then arises of how the protection of fundamental rights can be enforced. V I I I . Enforcement In many cases where individual governments infringed upon fundamental human rights the international community has not acted at all. In Bosnia, the United Nations intervened. Yet because they had no military force, they then accepted military support from N A T O . As the international community had no experience w i t h respect to this kind of humanitarian intervention, it should not be of any great surprise that the U N intervention was not very efficient nor effective. When in Kosovo the Milosevic government initiated a policy which contained grave violations of the fundamental rights of the Albanian population, the international community did not act for a considerable period of time. It later exerted pressure in order to obtain an improvement, but when such pressure failed, other means were needed. However, no means to enforce this kind of modern international law has been developed. This means that international law only has the means existing in the traditional legal system of relations between states. As an ultimum remedium an unwilling State could be attacked by military force. In the Kosovo matter the United Nations was unable to use such force, and N A T O , therefore, decided to take action. When after great pressure and strong threats the Milosevic government refused to give in, N A T O started bombing Serbia causing enormous economic losses and infringements upon the rights of innocent individuals, even the right of life of a substantial number of people. This leads us to the question of how the implementation of fundamental human rights should be guaranteed. Even if the use of military force were the only possibility in the case of Serbia, it cannot, and should not, become a normal means for enforcing fundamental human rights. We must develop a better system for the future. I X . The System Developed in Western Europe T o some extent we can find precedent in Western Europe with regard to law created by treaty. The treaties establishing the European Communities also granted rights to individuals which have to be somehow implemented. Like the United Nations, the European Community has no executive force of its own. In one of the most famous cases of the European Court of Justice this Court considered that the objective of the EEC Treaty implied that this treaty is more than an agreement which merely created mutual obligations between the contracting States. One of the arguments used by the Court for this submission is the preamble of the EEC Treaty which referred not only to governments but to peoples. It is an interesting precedent because also the preamble of the U N refers to peoples. In van Gend&Loos the

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European Court goes on to confirm that the States have acknowledged that Community law has an authority which can be invoked by their nationals before the national courts and tribunals. The Court then holds that the conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. The Court then finally holds that Article 12 of the Treaty establishing the European Economic Community produces a direct effect and creates individual rights which national courts must protect. 15 This system of enforcement by the national courts in Europe, incorporated in the Community treaties and further explained by the Court of Justice, has worked well. Whenever Community law offers rights to individuals the national courts are obliged to implement these rights setting aside, if necessary, conflicting national legal rules. In the beginning some national courts refused to give priority to European obligations over express national laws, but gradually all European courts have demonstrated their willingness to apply Community law even if it conflicted w i t h express provisions of national law. 16 Thus European citizens can effectuate their European rights through their domestic courts, independently of their governments. This seems to be the best way of implementing supranational rights. It first requires, however, an independent judiciary whose decisions can be implemented even against the wishes of the domestic government. This is possible within the democratic structure of European States which apply the rule of law. It may be a reason to develop similar structures elsewhere, but we still have a long way to go before all national courts w i l l be willing and able to directly apply the rules of international law even if they conflict with national provisions. It may even require a change of national constitutional structures before an individual w i l l be able to go to his national court in order to obtain an effective court decision prohibiting national governmental authorities from committing torture or ethnic cleansing. Still it seems the best path to follow. When a government initiates actions contrary to fundamental human rights, those who suffer from these actions should be able to obtain an order requiring that such actions be stopped. Again Europe has made an important step forward by allowing its individual subjects to lodge a complaint to the European Court of Human Rights when it is impossible to achieve an effective court decision for the protection of their fundamental rights under national law. Traditional respect for the courts usually assures the implementation of court decisions. Somehow, along these lines, the law must be further developed. Military actions, such as bombing a whole State, including those individuals who suffer from 15

Case 26/62, van Gend & Loos, 1963 ECR 1, 11, 12, 16 (Italics added). See, e.g., Schermers/Waelbroeck , Judicial Protection in the European Communities, 5th ed, 1992,115-138, and the many comments on the Factortame Case of the European Court of Justice, Case C- 213/89, 1990 ECR 1-2433. 16

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the infringement of their rights, can not be the correct approach even if it may be the only answer available under the present status of the law. It is a challenge to all lawyers and legal scholars to develop an effective system of implementing generally binding rules of international law in the national legal order in order to avoid the need of using of international force in the future. X . Conclusion Increasingly, the world needs supranational rules applicable everywhere. Almost all such rules are developed in international organizations. As instruments, treaties are still used but are defective as being too slow, too inflexible and hardly ever generally binding. Other instruments for creating generally binding supranational law are still underdeveloped. International organizations try to create general principles of law or customary international law by repeating recommendations. More and more, we feel a need to grant stronger legal force to recommendations of universal organizations, in particular when they have been adopted unanimously. The necessity of having universal rules may strengthen development in this direction. The implementation of universal rules is not too difficult when all States accept the need for universal rules, such as in air navigation. The need for universal law w i t h respect to minimum standards of human rights protection is not generally accepted. Increasingly, the world community considers itself responsible for a minimum protection of human rights everywhere. Nowhere on this planet should genocide, serious torture or ethnic cleansing be tolerated. The world community has to act when a state does not apply the minimum standards of fundamental human rights. However, the world community has no proper means to enforce universal human rights. The traditional means of forcing a failing government is to punish the state with economic or even military sanctions. This indirect pressure leads to great suffering of innocent people, and we should look for other means to curb illegally acting governments. When States possess institutions which are independent of the government, such as an independent judiciary, such institutions may be used to control the government. States that have no independent control over their government should establish such control. Legal education may help to convince national populations of the need of establishing such independent control. Control by an independent institution of the States themselves is the only possible alternative to control by international institutions. As long as there are no national enforcement measures against governments possible, the only alternative is enforcement against the whole State by the international community. The undesirability of such enforcement measures should be the incentive to create legal remedies within the national communities.

5 G Y I L 42

International Law and the Incorporation of Treaties into Domestic Law By Stefan Kadelbach

I. Introduction The transformation of international treaties is traditionally a matter of domestic law, and so they are ranked within the respective national legal order. It is typically the states' constitutions that claim to decide on how treaties are incorporated into national law and which treaties require particular procedural steps, the most important step being assent by parliament. 1 The basic principles found in national law are simple: Under a dualist constitution, treaties are not conceived to be applied unless they are expressly or implicitly declared to take direct effect. 2 Legal systems which adhere to the monist concept do not take an entirely different approach in demanding that international law, in order to apply domestically, must be adopted through a measure taken by a national authority, and this is done at least once under the constitution itself. 3 From both perspectives, the idea that international treaties impose an obligation on state parties to provide for specific measures of incorporation would come as a surprise.

1

See Art. 52 of the Constitution of the French Republic, 4 October 1958, which requires a law of ratification for peace treaties, treaties of commerce, treaties on the international order (organisation internationale ) as well as treaties which entail budgetary obligations, change national laws, concern the status of persons or involve a change in territory. Art. 59 para. 2 of the German Grundgesetz , 23 May 1949, demands a formal statute for treaties of a political nature and for treaties which fall within the powers of the federal legislature. Similar catalogues are found in Art. 80 of the Italian Constitution, 27 December 1947; Art. 164 lit. j of the Portuguese Constitution, 2 April 1976; Art. 94 of the Spanish Constitution, 29 December 1978. Further examples are easy to add, cf. Kaye Holloway , Modern Trends in Treaty Law. Constitutional Law, Reservations and the Three Modes of Legislation, 1967, 151 et seq. 2

The United Kingdom is the standard example for a dualist concept. See the observations by Lord Arnold Duncan McNair , The Law of Treaties, 1962, 81 et seq. 3 This is the approach taken by, e.g.f the US Constitution, 17 September 1787, Art. V I para. 2.

International Law and the Incorporation of Treaties into Domestic Law Consequently, the Vienna Convention on the Law of Treaties remains silent on the matter. 4 The same is true of the standard handbooks on international treaty law. Although most of these texts deal w i t h ratification, no author seems to suggest that the contents of a treaty should have an impact on its transposition into the domestic sphere. 5 The distinction commonly drawn between traite contrat and traiteloi does not seem to have any bearing in this respect. 6 Thus the example of the European Union points into a direction departing from traditional trends. The jurisprudence of the European Court of Justice shows that there are international norms which take precedence over conflicting domestic laws. According to the ECJ these laws impose obligations on states not simply to provide for their transformation but also to guarantee their direct and unimpeded effect, irrespective even of conflicting constitutional law. 7 The reason given by the Court for this concept basically is that European Community law constitutes an independent legal order of international law. State parties have conferred sovereign powers and have founded an organization with legal personality and institutions of its own, w i t h not only states as its legal subjects but also individuals and even a constitution on top of its hierarchy against which EC norms are measured.8 The idea that certain elements of international law form independent legal orders or even a constitution is not an altogether new one. Some writers have seen the United Nations to have formed the constitution of the world. 9 The founding treaty of the International Labour Organization, by its title, claims to be a constitution. 10 Therefore it would not seem entirely unsound to suggest that such conventions had their impact on the domestic plane. There is yet another reason to raise this question. Some trends in both international practice and in legal writings induce us to assume that the legal order has changed. Whereas in the past the municipal sphere was beyond the reach of the international community, it appears now that there are international minimum re4

Vienna Convention on the Law of Treaties (hereinafter referred to as VCLT^, 23 May 1969,1155 U N T S 331. 5 As to treaties in domestic law cf McNair (note 2), 130 et seq.; Adolfo Maresca , II diritto dei trattati, 1971, 39 et seq.; T. O. Elias , The Modern Law of Treaties, 1974, 144; Ian Sinclair , The Vienna Convention on the Law of Treaties, 2nd ed., 1984, 41, 171. 6 See, e.g., McNair (note 2), 749 et seq.; Paul Reuter, Introduction au droit des traites, 3rd ed., 1995, 23 et seq. 7 Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratsstelle fur GetreideFuttermittely 1970 ECR 1125, para. 3; Case 106/77, Staatliche Finanzverwaltung v. Spa. v. Simmenthal (Simmenthai II)y 1978 ECR 629, paras. 14-23. 8 Opinion 1/91, Draft Treaty on the establishment of a European Economic Area (re EEA), 1991 ECR 1-6079, para. 21. 9 See Alfred Verdross/ Bruno Simma , Universelles Völkerrecht, 3rd ed., 1984, 69 et seq. 10 Constitution of the International Labour Organization, 9 October 1946, 15 U N T S 40; 191 U N T S 143; 466 U N T S 323.

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quirements concerning the internal legal order of states. The question whether or not a state subscribes to fundamental human rights, to the rule of law and even to democracy no longer seems to be an exclusively domestic affair. 11 O n the contrary, today non-observance of these principles is likely to be seen as a threat to international peace and security, as a policy that undermines the legitimacy of a government and, if displayed by a non-state entity, it might prevent such an entity from being recognized as a state. Should treaties containing elements of such a fundamental character then impose the duty on states to attribute a higher rank to their contents than to other treaties of a so to speak more "ordinary" nature? T o answer these questions, five different types of treaties will be analyzed in the following sections. The concept that international law is governed by an international constitution has become familiar recently. Such constitutional content might, if at all, be found in treaties that contain obligations to which a higher rank is attributed in the international legal hierarchy (II.). Other treaties are considered to be constitutions as they establish legal orders of their own (Ed.). A third category of treaties purport to set common international standards and might therefore demand their member states to ensure that they take a particular effect (IV.). Fourthly, there are agreements which make provision for matters commonly embodied in state constitutions and thereby require amendments to constitutional law (V.). A fifth type of international convention is likely to affect the ranking of international treaties within the national legal hierarchy in an indirect way. This holds for treaties that demand a certain standard of transposition for reasons derived from state constitutions (VI.). I I . Treaties which Establish a Hierarchy of Norms A. International Ius Cogens

International ius cogens, according to the definition found in Art. 53 of the V C L T , is a body of norms which is recognized by the community of states as norms from which no derogation by treaty is permitted. 12 The International Law Commission's draft on state responsibility expands this concept. Accordingly, consent, self-defense, necessity and prior breaches of international obligations by other states can not serve as an excuse for wrongful behavior when the rule violated is of ius cogens} 1 The reason 11

Thomas M. Franck , The Emerging Right to Democratic Governance, American Journal of International Law (AJIL), vol. 86,1992,46 et seq.; Sean Murphy, Democratic Legitimacy and the Recognition of States and Governments, International and Comparative Law Quarterly, vol. 48, 1999, 545 et seq. 12 See generally Lauri Hannikainen , Peremptory Norms of Public International Law (Jus Cogens), 1988; Stefan Kadelbach , Zwingendes Völkerrecht, 1992, 160 et seq. 13 Report of the International Law Commission, Yearbook of the International Law Commission (YILC), 1979, vol. II, Part II, 109 et seq.

International Law and the Incorporation of Treaties into Domestic Law why ius cogens brings about these effects is to be sought in its subject matter. Peremptory norms embody the conditions on which the international legal order operates and the framework within which further law can be created. The concept as such is widely recognized in state practice, by courts and among legal writers. 14 Does it not follow from the very notion of international rules, from which agreements must not deviate, that these rules are superior to treaties? A n d if so, does this not mean that domestic law must reflect their priority? 15 Before giving an answer to the affirmative, two objections must be anticipated. The first objection might be that ius cogens obligations do not necessarily derive from treaties. In case such a peremptory rule is found in an agreement, it may well only restate custom. If this is the case, states live up to their obligations as long as they adhere to peremptory customary law, and no particular duty as to the treaty w i l l be involved. The second objection may point to the abstract nature of the concept of ius cogens. Its particular content, apart from the formal description found in Art. 53 of the V C L T , is defined nowhere in an authoritative manner and remains disputed. As long as it is not sufficiently clear which international rules form part of ius cogens it seems to be necessary, in order to take a position, to look at every single rule that is said to be of a peremptory character. Taking into consideration the way ius cogens comes about, both objections can be overcome. A peremptory norm, in order to be a rule from which no derogation is accepted, is very likely to be found in both custom and international conventions at the same time. General and unconditional acceptance entails reiteration in treaties almost necessarily. The non-derogation criterion is best ascertained when found in express language, and this in return presupposes a treaty. Thus the peremptory character of a rule is the least controversial, when it is found in customary law as well as in international conventions. This holds true, for example, for the prohibition of the use of force and of the most fundamental human rights standards such as the outlawing of genocide, slavery and torture. 16 14

But see the criticism of the concept brought forward by Prosper Weil , Towards Relative Normativity in International Law?, AJTL, vol. 77, 1983, 413 et seq.; contra Ulrich Fastenrath, Towards Relative Normativity in International Law, European Journal of International Law (EJIL), vol. 4, 1993, 305 et seq. 15 For suggestions to this extent see Kadelbach (note 12), 340; OndolfRojahn , Article 25, in: Ingo von Münch/Philip Kunig (eds.), Grundgesetz Kommentar, vol. II, 3rd ed., 1995, note 37; IngolfPernice , Article 25, in: Horst Dreier (ed.), Grundgesetz, vol. II, 1999, note 7. 16 Exceptions from the prohibition of the use of force are found in the U N Charter (Arts. 51, 42, 53 U N C ) ; whether additional derogations are permitted is a matter of dispute. For international human rights, derogations are possible under Art. 4 of the International Covenant on Civil and Political Rights, 19 December 1966, 999 U N T S 171; Art. 15 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U N T S 221; Art. 27 of the American Convention on Human Rights, 22 November

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Since in many constitutions the question of internal applicability of treaty law and custom is dealt with in a different way, it is difficult to ascertain what the consequences are for treaty provisions containing peremptory obligations. For even if the treaty occupies the rank of an ordinary statute, there are still rules which provide for a different incorporation of custom. 17 Suppose for the sake of the argument, ius cogens is required by international law to supersede a statute; then, states can still be seen to be discharged of such an obligation by granting peremptory custom priority over statutory law. This position, however, would evoke contradictory consequences. Treaty and custom are interdependent in that treaties may specify customary law, since the latter by its very nature is diffuse and ill-defined. Furthermore, ius cogens might be superseded in domestic law by other customary rules of a non-peremptory character, and this would contradict the priorities found in the international sphere. Therefore, once it is recognized that ius cogens holds a higher rank within the hierarchy of international law than other rules, it follows that states are under an enhanced duty to implement norms of this kind. Pertinent state practice is sparse at first sight. Considering that state constitutions form part of state practice and also express a state's opinio juris, 18 however, evidence may be easier to find. One of the most fundamental rules of international law is the outlawing of aggression. Its peremptory nature is almost beyond dispute. Drafters of many constitutions apparently shared this view and made express provision for the unlawful resort to force. Article 26 of the German Grundgesetz , imposing on the state the obligation to make the preparation of an aggressive war a punishable offense, is but one example. Similarly, the Japanese and the Italian constitutions stress that maintenance of international peace be one of the supreme obligations as do many other constitutional documents. 19 W i t h regard to the most fundamental human rights, the argument appears to be more difficult to sustain. O n the one hand, there are constitutions w i t h fundamental rights catalogues, but those were not adopted in order to transform international conventions. The prominent example of Austria, having enacted the law transforming to the European Convention on Human Rights by means of a constitutional

1969, 36 OASTS 1. These exceptions do not extend to the rights to life, the freedom from torture and inhuman or degrading treatment, the prohibition of slavery, and the freedom from ex post facto penal laws. 17 Under the German Grundgesetz , treaties ratified by parliament are placed on the same level as parliamentary legislation (Art. 59 para. 2), whereas general rules of international law take priority over statute law (Art. 25). 18 See Oscar Schachter, International Law in Theory and Practice, Recueil des Cours (RdC), vol. 178, 1982-V, 9, 334. 19 The most famous example is Art. 9 of the Japanese Constitution, 3 November 1946; cf also Art. 11 of the Italian Constitution, 27 December 1947; Art. 29 of the Irish Constitution, 1 July 1937; Art. 7 para. 2 of the Portuguese Constitution, 25 November 1976.

International Law and the Incorporation of Treaties into Domestic Law statute, 20 seems to have remained erratic to date. O n the other hand, there are states who participate in important human rights treaties without referring to the basic rights settled down in their constitutions. The fact that not all parts of the pertinent conventions form ius cogens could certainly be an explanation. However, some of them are of ius cogens, as the derogation clauses show by providing that core protection standards may not be suspended even in a situation of state necessity.21 The significance of these provisions is most easily explained if they are considered to imply that their fundamental guarantees supersede national law. The Swiss Federal Supreme Court expressly stated this in a series of cases concerning extradition of aliens to states where the detained persons were likely to face torture. 22 The Court held that the European Convention on Human Rights was of a peremptory nature, so that bilateral treaties were not to be interpreted in a way to admit extradition under these circumstances; otherwise they would have to be deemed null and void. Support for this position, admittedly more of a reluctant kind, can also be found in US law and political practice. 23 The Pinochet case might serve as another example in which international rules of a fundamental, arguably ius cogens character were held to take priority over national law, namely the British Foreign Immunity Act. 2 4 Hence it is submitted that treaty obligations embodying ius cogens as a category can be said to produce the effect of imposing particular duties regarding their transformation. 20

Cf Michael Holoubek, Grundrechtliche Gewährleistungspflichten, 1997, 19 et seq. Supra , note 16. See TheodoreMeron, Human Rights and Humanitarian Norms as Customary Law, 1989,215 et seq. For references as to practice of the competent institutions cf. Manfred Nowak, UNO-Pakt über bürgerliche und politische Rechte und Fakultativprotokoll, 1989, Art. 4, notes 13 and 23; Jochen Ahr. Frowein/Wolfgang Peukert, Europäische MenschenrechtsKonvention, 2nd ed., 1996, Art. 15, notes 6 et seq. 22 Bundesgericht, Bufano et al. v. Ministere public federal et department federal de justice police , D B G 108 Ib, 408,411; Senerv. Bundesanwaltschaft und Eidgenössisches Justiz• und Poliz department , BGE 109 Ib, 64, 72. 23 Committee of United States Citizens in Nicaragua v. Reagan, 859 F 2d 925 (D.C. Cir.), 940-941, 953 (obiter); see also Jules Lobel y The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, Virginia Law Review, vol. 71,1985,1071, 1142, 1149; Louis Henkln, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, Harvard Law Review, vol. 100,1987, 853, 873. In Bruce Smith etal. v. Socialist People's Libyan Arab Jamarhiriya , U.S. Court of Appeals for the 2nd Circuit, 36 I L M 100, the US Foreign Sovereign Immunities Act (FSIA) was seen to grant no implied waiver of immunity in cases where the state concerned has violated a ius cogens norm, in the case at hand the prohibition of certain terrorist attacks. Shortly thereafter, however, the FSIA was amended with respect to terrorism. 24 United Kingdom House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others ex parte Pinochet , 38 I L M 581, 594; for the significance of ius cogens in this respect see Michel Cosnard , Quelques observations sur les decisions de la Chambre des Lords du 25 Novembre 1998 et du 24 Mars 1999 dans 1'affaire Pinochet , Revue Generale de Droit International Public (RGDIP), vol. 103, 1999, 309, 319. 21

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Erga omnes obligations are binding not only vis-a-vis particular state parties on the basis of reciprocity, but against all other states.25 The concept is frequently identified w i t h ius cogens but not invariably so. If erga omnes rules are breached, the rights of the whole state community are considered to be violated. Ius cogens, by contrast, entails the invalidity of conflicting legal acts. Although the effects of both principles are different, their particular subject matter is an element they partly have in common. Rulings of the International Court of Justice can be cited to support this view. 26 The concept of erga omnes obligations, however, appears to be wider in scope than ius cogens. Classically, erga omnes norms define the objective status of protected persons, of territories or of waterways. 27 These obligations are mostly treaty-based. They are not of a merely reciprocal nature, but go beyond and demand a higher degree of solidarity between the parties. 28 It appears appropriate to speak of "self-existent" obligations.29 Typically, third party states owe respect to these rules, but have no duty to implement them actively. Consequently, third party states are not expected to transform these rules into internal law at all. The states which have entered into such a type of treaty are under an obligation to ensure the integrity of its provisions. This duty does not necessarily entail specific measures on the domestic plane. T o sum up, as to erga omnes obligations it largely depends on the subject matter whether special measures of transposition have to be taken or not. C. Hierarchy of Treaties

Traditionally, no distinction is drawn between treaties with regard to their rank within the international legal order. 30 Accordingly, the question whether a possible

25 See Jochen Abr. Frowein , Obligations Erga Omnes, in: Rudolf Bernhard (ed.), Encyclopedia of Public International Law (EPIL), vol. ID, 1997, 757 et seq.; Maurizio Ragazzi , The Concept of International Obligations Erga Omnes, 1997. 26 See Case Concerning the Barcelona Traction , Light and Power Company , Ltd. (Belgium SpainA 1970 ICJ Reports 2, 32. 27 See Shabtai Rosenne, Developments in the Law of Treaties 1945-1986, 1989, 74. 28 Giuseppe Sperduti , Les obligations solidaires en droit international, in: /. Makarczyk (ed.), Essays in Honor of Judge Manfred Lachs, 1988, 271 et seq.; D. N. Hutchinson , Solidarity and Breaches of Multilateral Treaties, British Yearbook of International Law, vol. 59,1988,151,155. 29

Sir Gerald Fitzmaurice, Second Report on the Law of Treaties, YILC, 1957, vol. II, 54, para. 126; see also Paul Reuter , Droit international public, 1973, 106, speaking of "obligations integrales." 30 Ignaz Seidl-Hohenveldern , Hierarchy of Treaties, in: Jan Klabbers/Rene Lefeber (eds.), Essays on the Law of Treaties. A Collection of Essays in Honor of Bert Vierdag, 1998, 7 et seq.

International Law and the Incorporation of Treaties into Domestic Law hierarchy between treaties must be reflected within the internal legal systems has not been raised. O n the other hand, some types of treaties appear to establish hierarchies of their own. 3 1 It is recognized that there are basic treaties and other agreements which, with respect to the former, have an ancillary character. Furthermore, international organizations derive from constituent treaties serving as their constitutions. Treaties concluded under the auspices of such an organization must comply w i t h their respective founding treaties. 32 A number of multilateral treaties make provisions for the case of conflict w i t h other agreements. The most prominent example is Art. 103 of the U N C which provides that the Charter shall prevail over any conflicting obligation. The N A T O Treaty forbids conflicting agreements of the contracting parties inter se. Other instruments, like Art. 307 (formerly Art. 234) of the EC Treaty, demand that the member states take all appropriate steps to eliminate contradictions w i t h derogating obligations, yet others declare that they replace older treaties w i t h concurring contents. 33 However, there is not much of an argument that induces us to assume that these clauses are meant to supersede any other international obligation entered into by a state party. To begin with, derogation clauses can not automatically preclude a state's responsibility vis-a-vis another state with which it had concluded a conflicting agreement that it is now no longer willing to perform. The state party concerned seems to have a choice as to which treaty to breach. From this perspective, both obligations seem to be equally weighted. In the case of Art. 103 of the U N C , some authors hold the view that an agreement in conflict with the Charter is null and void and thus evade these consequences.34 Others consider this clause as a mere rule on the conflict of laws. 35 How31

Manfred Zuleeg , Vertragskonkurrenz im Völkerrecht. Teil I: Verträge zwischen souveränen Staaten, German Yearbook of International Law, vol. 20, 1977, 246 et seq.; Jan B. Mus, Conflicts Between Treaties in International Law, Netherlands International Law Review, vol. X L V , 1998, 208 et seq. 32 Rene-Jean Dupuy, L'application des regies du droit international general des traites aux accords conclus par les organisations internationales, Annuaire de Plnstitut de Droit International, vol. 55, 1973, 257 et seq. 33 Art. 82 of the Chicago Convention on Civil Aviation, 7 December 1944, 15 U N T S 289; Art. 311 of the Convention on the Law of the Sea, 10 December 1982, U N Doc. A/Conf.62/ L.78, 122. 34 McNair (note 2), 217, 222; Oppenheim's International Law (Sir Hersch Lauterpacht ed.), vol. I, 8th ed., 1955, 895; more reluctantly Rudolf Bernhardt , Article 103, in: Bruno Simma (ed.), Charter of the United Nations, 1994, note 17 et seq. 35 LelandM. Goodrich/Edvard Hambro/Anne Patricia Simons, Charter of the United Nations, 3rd ed., 1969, 614 et seq.; Thiebaut Flory, Article 103, in: Jean-Pierre Cot/Alain Pellet (eds.), La Charte des Nations Unies, 2nd ed., 1991, 1381, 1384.

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ever this may be, it does not follow that collision norms of this kind as such have a bearing on the domestic plane. Usually, treaties of the category at issue are transformed into internal law through acts of ratification by the responsible institution, mostly the parliaments of the member states. As a rule, such laws take the rank of statutes. In this way conflicts of treaties are at the same time conflicts of statute law. By domestic standards, such a conflict, if not provided for otherwise, is resolved by the last in time rule (lex posterior derogat legi priori). Accordingly, the solution of the conflict does not depend on the content of a treaty but on the point of time when it was ratified. The application of the last in time rule can thus lead to results contrary to those of a treaty which contains a derogation clause. Domestic courts tend to harmonize conflicts between treaties and statutes by means of interpretation in choosing the meaning of national law which is least disadvantageous to international law. But not all conflicts can be solved in this way. 36 One might therefore be inclined to conclude that a higher rank must be attributed to treaties within internal law expressly claiming priority. O n the other hand, derogation clauses can equally be seen as rules which have nothing but the effect to replace a conflict rule, stating the priority of the more recent law over the older, by another special one. Thus it does not follow that hierarchical relationships between treaties automatically elevate the treaty, where evidence in that direction is found, onto a higher category. This would have to be reflected in municipal law. O n the other hand, this is not to imply that treaties equipped with collision norms can never be of the nature to demand particular obligations regarding the hierarchy of incorporation into domestic law. This again is a matter of contents rather than of rules on the conflict of laws. I I I . Treaties Establishing a Constitution A. The Charter of the United Nations

From the very beginning, the Charter of the United Nations was seen as being of a constitutional character, 37 or even as forming the constitution of the community

36 A good example taken from US practice is the Breard case where the Vienna Convention on Consular Relations was in effect overruled by domestic standards of criminal procedure. See Breard v. Greene , United States Supreme Court, 37 I L M 824; for a discussion see Michel Sastre , La conception americaine de la garantie judiciaire de la superiorite des traites sur les lois, RGDIP, vol. 103, 1999, 147 et seq. 37 Hans Kelsen , Law of the United Nations. A Critical Analysis of Its Fundamental Problems, 1951, 85-86, 106-107; Florence Ellinwood Allen, The Treaty as an Instrument of Legislation, 1952, 10; McNair (note 2), 216.

International Law and the Incorporation of Treaties into Domestic Law of states.38 A t least some of its components such as the prohibition of the use of aggressive force, the right to self-determination of states and peoples, and the subscription to international human rights can be perceived as the framework of international constitutional law. Furthermore, from a formal point of view the term "constitution" seems to be justified since the Charter is the standard of reference for law produced by the U N institutions. So far, however, this particular character of the Charter does not appear to have had consequences on the domestic plane. I n state practice, the Charter as a whole does not seem to have required specific methods of incorporation. A different observation has to be made with respect to particular Charter obligations. As noted earlier, many states acknowledge the fundamental character of the outlawing of aggressive wars by specific references in their constitutions. Again enhanced standards of incorporation are dependent on substance rather than on the particular treaty in which the subject matter is found. B. Regional Constitutional Systems

I n European public international law the term constitution is frequently used in order to underline the adherence of a member state to common values such as democracy, the rule of law and fundamental rights of the individual. It has already been noted above that the European Court of Justice considers the EC Treaty to be the constitutional instrument of the European Community. 3 9 The Court has interpreted its role as a constitutional court of the Community and developed general principles of a constitutional nature to fill gaps in Community law. The commitment of the member states to common constitutional traditions is also manifested in Art. 3 of the founding treaty of the Council of Europe, in the European Convention on Human Rights, and in a series of articles, notably Art. 6 of the Treaty of Amsterdam on the European Union (TEU). Many cross references between these treaties set up a framework which is treated as the constitutional basis of all European law. Article 7 of the T E U empowers the Council of the European Union to take sanctions against state parties that depart from common European constitutional principles as enumerated in Art. 6 of the TEU. Thus it does not seem to be entirely out of place to speak of European Constitutional Law. The fact that EC law requires the member states to take specific actions w i t h a view to its domestic implementation can thus be explained by the constitutional character of its legal basis.

38 Henri Rolin , Les principes de droit international public, RdC, vol. 77, 1950-11, 303, 434; Benedetto Confortid Lezioni di diritto internazionale, 1982, 147 et seq.; Verdross/Simma (note 9). 39 Supra , note 8.

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The question remains whether this model has parallels in other regions of the world. The ComunidadAndina can be named as an example. Early decisions of the Court of the Andean Community have taken up the rationale leading the European Court of Justice in the Costa v. ENEL case, ruling that community law takes precedence over national law. 40 MERCOSUR, another competing organization of economic integration on the South American sub-continent has not yet reached a state of integration as advanced as the European Community. Nevertheless, the founding treaties set a standard for implementation, stating that national transformation requires interpretation of national law oriented to the common objectives. As to the incorporation of common decisions, the treaties demand that states take all necessary means to incorporate them and report them to the MERCOSUR Administrative Secretariat. 41 Decisions made by the competent institutions are to be incorporated into municipal law by the legislative process in pursuance of the applicable procedure.

C. Constitutional Treaties: General Observations

Whereas on the universal level the contention that the international community of states shares a common constitution does not have much impact on domestic law, there are developments on the regional level which indicate that transformation of international law into municipal law is not always an exclusively domestic affair. The need to coordinate economic policies and to allocate resources in order to enhance the common well-being has induced many states to accept cessions of sovereignty. In these systems states are generally not entitled to check law derived from the respective constitutions against the constitutive treaty since conferring upon them such a power would mean endangering the authority of the entire system. But this phenomenon reinforces the observation just made rather than it advocates against it. The reasons why the U N Charter does not benefit from this development are manifold. The first reason certainly is that this document stems from a time in which treaty transformation was an internal affair. Secondly, the U N Charter is too wide in scope as to make it acceptable for state parties to tolerate enhanced standards of incorporation which would threaten to intrude into sovereignty to an unforeseeably extensive degree. Thirdly, the areas where the U N has powers are often sensitive, most obviously, of course, in the field of collective security. Article 2 40

For further reference see Pedro Nikken/Joerg Polakiewicz , Andean Common Market, Court of Justice, in: Rudolf Bernhardt (ed.), EPIL, vol. I, 1992, 159, 163. 41 See Art. 4 of the Treaty Establishing a Common Market Between Argentina, Brazil, Paraguay and Uruguay (Treaty of Asuncion), 26 March 1991, English translation in: 30 I L M 1041; Arts. 40 and 42 of the Additional Protocol to the Treaty of Asuncion on the Institutional Structure of Mercosur (Protocol of Ouro Preto), 17 December 1994, 34 I L M 1244.

International Law and the Incorporation of Treaties into Domestic Law para. 7 of the U N C therefore reassures the member states of their integrity in domestic matters. But times have changed. In the framework of regional integration, states now appear to be more willing to cede sovereign powers to supranational institutions. Additionally, it is worth examining the question whether the same is true of sectoral cooperation in areas where common strategies promise advantages which outweigh the loss of exclusive sovereignty. I V . Treaties Which Demand Changes in Domestic Law Whether or not treaties involve changes in national law depends, as a matter of fact, not only on the content of their provisions, but also on the national law itself. Specific duties with respect to standards of incorporation may therefore be the result of conflicts between treaty and municipal law. They vary by degrees from one state to another. These cases w i l l not be considered in the following sections. Instead, the question w i l l be addressed whether some treaties by the nature of their subject matter require particular methods of incorporation. Such obligations may result from international efforts to arrive at common standards, be it by way of positive standard-setting, harmonization, deregulation or enforcing specific notions of economic or legal necessities. A. International Standard-Setting

In the era of so-called globalization, standard-setting seems to be a necessary correlative to losses of regulatory functions with respect to the economy. These functions have so far rested with the states.42 The discussion on a social clause in the framework of the World Trade Organization illustrates the issue.43 Prophecies as to whether or not the process of loss of state control over the market w i l l lead to an enhanced significance of standard-setting organizations like the International Labour Organization (ILO) would by now seem premature. It suffices to recall that the I L O has remained the only organization of this kind to date. The I L O Constitution 44 sets up rules on how further law is to be produced. In a formal sense it has rightly deserved its title. It provides the procedure for how treaties, designed to pursue the objectives of the Organization, are to be negotiated and 42

Cf Peter Malanczuk , Globalization and the Future of Sovereign States, in: F. Weiss et al. (eds.), International Economic Law with a Human Face, 1998,45 et seq.; Jean Touscoz , Mondialisation et securite economique internationale, RGDIP, vol. 102, 1998, 623 et seq. 43 See Virginia Leary , The W T O and the Social Clause: Post-Singapore, EJIL, vol. 8, 1997, 118 et seq. 44 Supra , note 10.

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implemented. For the acceptance of a new convention, Article 19 para. 2 requires a quorum of two thirds of the delegates to be present at the International Labour Conference. Article 19 para. 5 obliges all member states to refer adopted conventions to the institutions responsible for ratification within a period of one year after the end of the Conference. States are under the duty to render a report on the progress made. The I L O Constitution does not, however, interfere with the methods of incorporation, nor does it require the I L O conventions to take a certain rank in municipal law. Despite these features, which were innovative at the time the Constitution was concluded, the I L O does not depart from classical international law when it comes to transformation. Furthermore, even if the Constitution is thought to possess a higher rank compared to the conventions which were derived from it, it does not follow from the text of the I L O Constitution, nor from state practice or from judicial decisions, that the Constitution demands that member states have to provide for a similar hierarchy in internal law. Establishing such a priority is not necessary since questions concerning the interpretation of the Constitution and of the conventions are referred to the International Court of Justice.45 Globalization might be a reason to call for more powers for organizations which guard the minimum social standards. The present structure of the I L O , however, does not require a defined quality of incorporation measures. B. Harmonization and Unification

Another category of agreements which might entail specific standards of transformation are the so-called regulatory treaties. They aim at the harmonization or unification of certain subject matters, such as the law of bills of exchange and cheques and conflict of law rules regarding the law of contractual obligations. Whether these conventions prescribe the method of their implementation is controversial. Some hold the view that autonomous incorporation into internal law frustrates the object and purpose of these instruments and that it is not permitted as a method. These authors advocate instead direct application of the treaty. 46 State practice, however, is not uniform in this respect, so this contention seems hard to defend. 47 The most 45

Article 37 of the I L O Constitution. For the discussion on the incorporation of the Rome Convention on the Law Applicable to Contractual Obligations, 9 June 1980, Official Journal Eur. Comm., No. L 266/1, 1980, into German law see Christian Kohler, Kein Weg zur Rechtsvereinheitlichung - Zur Übernahme des EG-Übereinkommens vom 19. Juni 1980 über das auf vertragliche Schuldverhältnisse anzuwendende Recht, Europa-Recht, 1984, 155 et seq. 47 Cf. Jost Delbrück, Multilaterale Staatsverträge erga omnes und deren Inkorporation in nationale IPR-Kodifikationen - Vor- und Nachteile einer solchen Rezeption, in: Berichte der Deutschen Gesellschaft für Völkerrecht, vol. 27, 1986, 147, 151. 46

International Law and the Incorporation of Treaties into Domestic Law that can be said is that there are some treaties which expressly set out the method of their implementation. 48 But this appears to be the exception rather than the rule. In the absence of such provisions, no general standard can be defined. C. Deregulation

Treaties which aim at the prohibition of trade barriers demand changes in national law from their member states. The most prominent example of an institution producing such law is the World Trade Organization (WTO). From the beginning on, the objectives were eliminating national laws which maintain or introduce nontariff barriers and encouraging the continuous reduction of tariffs. In many provisions the EC Treaty serves the same purposes as G A T T . Analogous to the principles of the application valid for the EC Treaty, the easiest solution would be to grant direct effect and priority to the G A T T rules. Practice, however, has not taken up this approach. Even where the doctrines of priority and direct effect have been accepted in the European Community, they have not been extended to G A T T . Despite the fact that, according to Art. 300 para. 7 of the EC Treaty, treaties concluded by the Community form part of Community law, the European Court of Justice has declined to attribute direct effect to G A T T provisions so far. 49 Its reasoning points basically to the flexible nature of the G A T T , documented by the numerous exceptions to its obligations and the fear that other parties would not guarantee the same standard of application on the basis of reciprocity. In short, the rationale of the Court rests on the character of the G A T T as a traditional instrument of public international law. Thus the obligations of W T O member states are understood to bring about specific effects rather than demanding enhanced standards of incorporation.

D . Conditionality

Loan agreements concluded by the International Monetary Fund (IMF) lead to an interesting practice regarding state obligations with a view to restructuring domestic 48

Examples are the Geneva Convention Providing a Uniform Law for Bills of Exchange and Promisory Notes, 7 June 1930, 143 LNTS 317, and the Geneva Convention Providing a Uniform Law for Cheques, 19 March 1931, 143 LNTS 355; see Franz Matscher, Multilaterale Staatsverträge erga omnes und deren Inkorporation in nationale IPR-Kodifikationen - Vorund Nachteile einer solchen Rezeption, in: Berichte der Deutschen Gesellschaft für Völkerrecht, vol. 27, 1986, 11,21. 49 Joined Cases 21-24/72, International Fruit Company NVet al. v. Produktschap voorgroenten en fruit, 1972 ECR 1219, paras. 19-28; reaffirmed in Case C-280/93, Germany v. Council (Banana Market), 1994 ECR 1-4973, para. 109; Case C-469/93, Amministrazione delle Finanze dello Stato v. Chiquita Italia SpA, 1995 ECR 1-4533, para. 37, still concerning G A T T 1948; left open in Case C-53/96, Hermes International v. FHT Marketing Choice, 1998 ECR 1-3603, para. 35, with regard to TRIPS.

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law. The I M F grants credits on the condition that "adequate safeguards" for repayment are made. To ensure the credibility of recipient states, changes in economic policy are often necessary which may involve budgetary discipline, increase of taxes, reduction of inflation rates, combatting corruption and the like. This basis forms Art. V para. 3 of the I M F agreement which is seen to be specified in detail by the Guidelines on Conditionally adopted in 1979 and the Guidance Note on Governance Issues of 1997.50 Particular adaptation programs built on these principles are developed in cooperation w i t h the recipient state. The I M F guidelines claim that a decision "should not be influenced by the nature of a political regime of a country, nor should it interfere in domestic or foreign politics of any member." 51 Nevertheless, arguably, the resulting agreement might force a change in administrative functions, at times even changes of a constitutional character. 52 These agreements are likely to be influenced by the principles of an economy based on a free market and thereby aim at fostering development towards a "western" style legal system. Influential as this trend in present international law w i l l be for the future, the technique by which it is implemented rests on bilateralism and thus follows a classical pattern. These IMF agreements pose enhanced obligations with respect to the incorporation of the conditions. The latter are not, as in the case of the European Community, due to transfers of sovereignty, but to a promise made on a bilateral basis. The sanction the IMF imposes if the agreement's conditions are not met is the denial or withdrawal of payment, just as in any other bilateral loan agreement. E. Interim Conclusions

Notwithstanding a certain demand for new minimum standards capable of replacing lost state powers, states do not seem to be willing yet to accept the idea of shared sovereignty or similar concepts on a global scale. Here again, another development may emerge on a bilateral or regional basis. Unification projects in private international law have reached a degree of such intensity that they have induced some observers to note that the object and purpose can be achieved only by incorporation of these bodies of law en bloc . The IMF has brought about such intense interference w i t h national legal systems in bilateral agreements.

50

Articles of Agreement of the International Monetary Fund, 1-22 July 1944, 2 U N T S 39, 134; as amended 1 April 1976,726 U N T S 266; for the 1979 Guidelines on Conditionally with commentary see Joseph Gold , Conditionally, I M F Pamphlet Series, No. 31, 1979; the 1997 Guidelines Regarding Governance Issues are found as a guidance note to I M F News Brief, No. 97/15, 4 August 1997. 51 1997 Guidelines, para. 7. 52 See Erik Denters , New Challenges to I M F Jurisdiction, N Y I L , vol. 29, 1998, 3, 32 et seq.

International Law and the Incorporation of Treaties into Domestic Law V . Treaties With a Constitutional Subject Matter International human rights conventions deal with a subject matter which is placed on the constitutional level in many states. Many constitutions have adopted fundamental rights catalogues which enshrine guarantees similar to those formulated in the Universal Declaration of Human Rights. 53 The Universal Declaration was certainly inspired by national bills of rights, and it has been the point of reference for all human rights instruments which followed. These, in return, have influenced state constitutions. O n the other hand, not all constitutions of states participating in these treaties expressly subscribe to fundamental rights. Others provide for individual rights only on the level of statutory law. State practice as to the measures to take for incorporation is diverse, ranging from acceptance of the E C H R as a constitutional statute by Austria 54 to refusal of transformation which was for a long period of time the stand taken by the United Kingdom. 55 Nonetheless, some of these conventions contain provisions which have an impact on the internal structure of states, so that compliance can only be verified on the constitutional plane. In Art. 3 of the First Additional Protocol to the European Human Rights Convention 56 and in Art. 25 of the International Covenant on Civil and Political Rights the state parties enter into the obligation to hold free elections of the legislature within a reasonable period of time. 57 Article 25 of the Covenant even grants the right to vote and to be elected. Under the ECHR, intrusions into privacy, into freedom of thought and religion, into freedom of speech and freedom of assembly can be justified only on grounds provided for by law and if they are necessary in a democratic society. 58 In effect, a state that does not subscribe to a democratic system can not but violate these Conventions. The constitutional impact of these obligations is of an indirect nature. The conventions as such do not compel the member states to amend their constitutions. This consequence follows only if the constitutions do not live up to the standards. 53 Universal Declaration of Human Rights, G A Res. 217 A (ED) of 10 December 1948, U N Doc. A/810,71. 54 Supra , note 20. 55 The Human Rights Act, 24 November 1998, S.I. 1998/2882, will enter into force on 2 October 2000; see Editorial - Looking forward to incorporation, European Law Review Human Rights Survey 1999, HR/1-2. 56 Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, 213 U N T S 262. 57 See supra, note 11; also James Crawford , Democracy in International Law, Inaugural Lecture, delivered 5 March 1993. 58 See Arts. 8, 9, 10 and 11 ECHR, respectively. The practice of the institutions does not, however, inquire into the democratic legitimacy of measures under review, see Ronald St. J. Macdonald , The Margin of Appreciation, in: Franz Matscher et al. (eds.), The European System for the Protection of Human Rights, 1993, 83 et seq.

6 G Y I L 42

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The responsibility of the states to meet these standards, however, extends to constitutional law, not simply because domestic law, regardless of which nature, can never serve as an excuse for treaty violations, but also and foremost because of the essence of the obligation itself. V I . Treaties With Indirect Effects on the Method of Incorporation We have so far examined treaties with regard to the particular weight of their obligations, the importance of their uniform application or their purpose to modify domestic law. The following class of agreements might entail specific incorporation standards because of the role their content plays in municipal law. This is, above all others, true in the area of international criminal law. Most criminal law conventions focus on a particular offense and intend to reach a high degree of participation in order to make a certain crime punishable all over the world. Examples are the numerous conventions to combat piracy, slavery and the slave trade, the convention on genocide, and the provisions on grave breaches of the four Geneva Conventions of 1949 for the protection of war victims. N o t much attention was paid to the measures states are to take in these agreements, however. A closer look into the matter will reveal the problem. Since most of the legal systems in the world acknowledge by now the principle of nulla poena sine lege , almost invariably a statute is necessary to implement a criminal law treaty of the just referred to class. Simple assent by parliament w i l l hardly suffice since none of the classical agreements provide for sanctions to be imposed on the offender. A n additional law becomes necessary if such law does not yet exist. Meanwhile this standard of incorporation has reached the level of international law. The major human rights conventions contain the nulla poena principle as one of their core guarantees. The U N Convention against torture takes this development into account and demands from the state parties to incorporate the prohibition of torture into their penal law. 59 Whether this is achieved by a change of the criminal code or by a special statute does not appear to be decided. However, any measure less than the enactment of a statute does not meet international standards anymore. V I I . Concluding Observations International law in the 21st century will continue to take over functions traditionally fulfilled by state law. There is a clear trend in this direction. However, the

59

Art. 4 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, U N GAOR, 39th Session, Suppl. 51, U N Doc. A/39/51 (1985).

International Law and the Incorporation of Treaties into Domestic Law continuing decrease of the states' regulatory power has not led to an increase of powers of the competent international institutions so far. Only a limited set of supranational organizations have the capacity to demand enhanced standards of incorporation of their laws into the domestic sphere. The prophecy that organizations of this class w i l l be viable on a global scale appears to be a far cry from reality. Growing concern of the international community for the internal political systems of states is a development which proceeds parallel in time to globalization. It has materialized in human rights treaties which were inspired by certain notions on how a state ought to operate. For some state parties the obligation to adhere to the rule of law and to democratic governance triggers changes in their constitutions. But it appears that most of them do not make the appropriate adjustments. Apart from the most fundamental obligations of public international law embodied in ius cogens, it is difficult to contend that treaties require more than an obligation of effect from state parties at present. To proceed towards an obligation maintaining defined minimum standards would be a step forward. The ground has been prepared, and the path is paved to reach this goal.

ARTICLES

The Foreign-Policy "Cost-Benefit-Analysis" Revisited B y Hanspeter N e u h o l d

I . T h e C h a n g i n g International System M o r e t h a n t w e n t y years ago, this author published an article i n w h i c h he argued i n favor of the effectiveness of international l a w i n political practice. 1 T h e p o i n t was made that, as a rule, the subjects of international law, first and foremost sovereign states, c o m p l y w i t h the rules of their legal system, even i n cases where such observance evidently entails disadvantages for t h e m . 2 H o w e v e r , public perception o f this state o f affairs was said t o be distorted b y media coverage guided b y the p r i n c i p l e

1 Hanspeter Neuhold , Die Einhaltung des Völkerrechts in einer außenpolitischen "KostenNutzen-Analyse,w German Yearbook of International Law (GYIL), vol. 19,1976,317-351; see also Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed., 1979. 2 A distinction can be made between the compliance with and the effectiveness of international law. For instance, the contracting parties may fully comply with a treaty, but the treaty may nonetheless be ineffective in attaining its objectives and/or in addressing the problems that led to its conclusion. Cf. Harold K. Jacobson/ Edith Brown Weiss , Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project, Global Governance 1, No. 2, May-August 1995, 119-148. The two authors give the example of a treaty on the cessation of an activity that contributed to pollution; compliance with it might, however, even lead to an overall increase of pollution by encouraging other, still permissible activities as substitutes having even worse consequences.

Furthermore, one may even suspect that at times an inverse relationship between compliance and effectiveness exists. Especially in politically or economically sensitive areas, states may scrupulously live up to their obligations to a low common denominator which imposes only rather light burdens on the parties and therefore produces only very modest practical results. Yet, this assumption is too simplistic; see infra , Section IL The distinction is not crucial, however, for the purposes of this article, so the two terms "effectiveness" and "compliance," as well as the word "observance," will be used interchangeably. O n the problems of defining compliance within the framework of different theories about the role of law in international relations, see Benedict Kingsbury , The Concept of Compliance as a Function of Competing Conceptions of International Law, Michigan Journal of International Law, vol. 19, 1998, 345-372.

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"(only) bad news is good news." Violations of international law, in particular breaches of the prohibition of the use of force and large-scale violations of international humanitarian law, make headlines in newspapers and are shown on T V . By contrast, few people, including the persons directly affected, notice the smooth functioning of international legal norms, be it the activities of diplomats or consuls or international trade, transport and communication that take place day in and day out within the framework defined by international law. One is indeed reminded of Moliere's Monsieur Jourdain , the Bourgeois Gentilhomme who, upon learning the meaning of the word "prose," all of a sudden realizes that he has been speaking prose for forty years without being aware of it. 3 Since there are no central agencies endowed with a quasi-monopoly on power to enforce international law, it may be surprising that compliance w i t h it extends to situations in which violations seem to result in tangible gains. Examples of cases where such breaches apparently "pay off" include the refusal to honor debts to another state or an international organization or the annexation of another state's territory by force resulting in the control over additional resources there. However, an assessment which only focuses on the response of the direct victim of the breach in a short-term perspective fails to take account of a reality that is more complex. A n adequate cost-benefit analysis of the consequences of an internationally wrongful act includes numerous other aspects that are often hard to measure and take a longer time to materialize. As a result, rational foreign-policy decision makers generally conclude that, more often than not, the disadvantages of non-compliance w i t h an international legal norm outweigh the gains. It is tempting to take another look at this cost-benefit-analysis almost a quarter of a century later. 4 Far-reaching, political as well as technological, changes have occurred 3

"Par ma foi! Ii y a plus de quarante ans que je dis de la prose sans que j'en süsse rien." Cf. Henkin (note 1), 22. 4 All the more so since explanations of compliance with international law are receiving increasing attention in the context of interdisciplinary approaches to international problems. See, for example, Harold Hongju Koh, Why Do Nations Obey International Law?, Yale Law Journal, vol. 106,1997,2599-2659. Koh's up-to-date survey of compliance theories places particular emphasis on two recent works by Abram Chayes/ Antonia Handler Chayes and Thomas M. Franck , who adopt a "managerial" and a "fairness" approach, respectively. Koh adds his own approach which focuses on the transnational legal process; see below (note 55) and (note 20). See also Anthony Clark Arend , Do Legal Rules Matter? International Law and International Politics, Virginia Journal of International Law, vol. 38, 1998, 107-153; Kingsbury (note 2). O n the broader interdisciplinary context, set Anne-Marie Slaughter/Andrew S. Tulumello/ Stepan Wood , International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, American Journal of International Law (AJIL), vol. 92, 1998, 367-397; on methodological diversity in international law, see the contributions to the Symposium on Method in International Law, edited by Steven R. Ratner and Anne-Marie Slaughter , AJIL, vol. 93, 1999, 291-423.

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in the international system over the past decades. Many of these transformations and innovations should have a positive impact on the effectiveness of international law; unfortunately, however, this is not always the case. Most importantly, the East-West conflict which had overshadowed world politics for decades came to a swift and mostly non-violent end w i t h the collapse of communist regimes and Soviet domination in Eastern Europe beginning in 1989. That conflict was a confrontation about the "correct" organization of society between two mutually exclusive systems on a global scale. It also produced different concepts of international law which pitted the two camps against each other. After the fundamental changes, the countries of the former Soviet bloc and many of its "clients" in the "Third World" embraced Western values, first and foremost pluralist democracy, the rule of law, individual-oriented human rights and market economies. This broad common platform ought to provide a solid foundation for peaceful relations among the states subscribing to these values. Revolutionary technological progress, in particular in the areas of transport and communication, has triggered the process of globalization. 5 Global factories w i t h production units all over the world, global markets and global stock exchanges have emerged. Financial market forces and not military forces have toppled apparently powerful dictatorships and oligarchies, such as in Indonesia. Worldwide television networks, the Internet, and the fax have transformed the world into Marshall McLuhan's "global village." Growing international interdependence has made disruptive behavior increasingly costly for deviant actors. These and other developments, like growing insight by governments into the need for international cooperation in an interdependent world and the pressure of public opinion, have spawned the creation of additional rules of international law. This development includes treaties in politically sensitive areas, such as genuine disarmament, where this was hardly possible in the past. As will be shown below, these innovations may also be expected to enhance compliance w i t h international legal rules. 6 However, the balance sheet of recent international trends also comprises several negative developments. Unfortunately, the world has not only witnessed the "end of history" in the sense that liberal democracy and market economy have proven their superiority over other political and economic systems in the course of this cen-

5

See, for example, Ulrich Beck, Was ist Globalisierung? Irrtümer des Globalismus - Antworten auf Globalisierung, 3rd ed., 1997. 6 Among the positive developments, one should also note the progress made in the two disciplines of International Law and International Relations - not only by North American but also by other scholars, especially Europeans. It permits a better understanding of the functioning of the international political as well as legal system, including compliance with international law; see above (notes 2 and 4). Practitioners would benefit from taking these findings into account in their work.

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tury. 7 A t the same time, a "return of history" has also occurred: Traditional ethnic, religious and territorial conflicts, which had merely been suppressed but not settled by communist and Soviet rule in what was then the "Second World" and by superpower rivalry in the "Third World," have erupted again - sometimes w i t h disastrous consequences. The Western value system is not universally accepted. It has been challenged on religious grounds, for instance by Islam, as well as on the basis of differing socio-philosophical traditions, such as Confucianism - although claims to the superiority of those Asian values have become somewhat muted in the wake of the economic crisis in the Far East. However, Samuel Huntington has predicted that the "clash of civilizations" w i l l become the Leitmotiv of world politics in the near future. 8 Another disturbing phenomenon is the emergence of "rogue states." Their governments even disregard the very principles of the international legal order and are ready to face the sanctions for the illegal use of force against other states or for large-scale atrocities. In "failed states," massive violations of basic human rights may be committed because the government lost control over the country. 9 Moreover, the West's victory in the East-West conflict and the resulting end of the bipolar structure of the international system have also had a consequence which is not regarded as positive by all observers, at least not by all international lawyers. 10 The military dominance enjoyed at present by the West, in particular by the United States, has led Western states to resort to armed force in order to enforce their political interests and values against "rogue states," namely Iraq and the Federal Republic of Yugoslavia (FRY), without authorization by the U N Security Council. 11 I I . Factors Influencing Decisions to Comply with or to Violate International Law When attempting a calculation of the "costs" of a deliberate breach of international law, decision makers are likely to take the following three variables into account: 7

Francis Fukuyama , The End of History?, The National Interest, No. 16, Summer 1989, 3-18; Francis Fukuyama , The End of History and the Last Man, 1992. 8 See Samuel Huntington, A Clash of Civilizations, Foreign Affairs 72, No. 3, Summer 1993, 22-49 (and the debate in the following two issues of Foreign Affairs); Samuel Huntington, The Clash of Civilizations and the Remaking of World Order, 1997. 9 Daniel Thürer/ Matthias Herdegen/Gerhard Hohloch , Der Wegfall effektiver Staatsgewalt (The Failed State), Berichte der Deutschen Gesellschaft für Völkerrecht (BDGVR), vol. 34, 1996,9-133. 10 For a recent criticism of the United States as "the rogue superpower" by a leading political scientist, see Samuel P. Huntington , The Lonely Superpower, Foreign Affairs, vol. 78, No. 2, March/April 1999, 35-49. 11 See infra , Section V.

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1) the magnitude and consequences of possible sanctions; 2) the probability of these sanctions12 being imposed on them; and 3) the likelihood of the detection of the violation. 1 3 Rational governments w i l l try to assess as precisely as possible the material and immaterial damage which could be inflicted on their state and perhaps also on their members personally as a response to an internationally wrongful act. 14 The severity of a sanction does not necessarily go hand in hand with the probability of its actual application - quite on the contrary: Retaliatory measures which go beyond merely verbal protests and condemnation may not only hurt the perpetrator of an international delict but also the state or states taking them. This is particularly true of resorting to armed force as a reaction to illegal behavior, which is bound to entail casualties and other costs not only for the side against which such force is used. Similarly, a trade boycott not only affects the economy of the target country but also the economic interests of the state(s) which interrupts) commercial relations w i t h the former. Such a step becomes even less attractive if it could lead to the loss of the lawbreaker's market to competitors who do not associate themselves with the boycott. There may also be situations in which a government may hope that its breach of an obligation w i l l not be noticed, at least for some time. This prospect could be particularly tempting in the field of disarmament and arms control. The characteristics of a norm also have an impact on its observance or breach. The decisive factor for compliance with legal and other rules in a decentralized system is the acceptance of the balance of interests struck by them by the parties concerned. The norms of international law require the free consent of sovereign states. They will only agree to a rule if they see their interests reflected in it. The resulting balance may be symmetrical reciprocity in the sense that the subjects bound by the rule find themselves, roughly to the same extent, both at the "giving" and the "receiving ends" over time. Thus in the field of diplomatic and consular relations each state is both a sending and a receiving state, granting as well as benefitting from the privileges and immunities conferred on diplomatic and consular personnel and premises. Reciprocity

12 The term "sanction" is used in a broad sense in this article and is not restricted to measures adopted by international organizations. 13 The approach chosen for this article is not the only explanation of compliance or noncompliance with international law. It postulates the existence of rational governments which weigh and correctly assess the pros and cons of a long list of the consequences of their decisions; this is an assumption which is often only partly or not all borne out by political reality. Other theories which focus on a state's domestic political system or international interaction processes also provide useful insights but seem in general complementary to the cost-benefit-analysis applied here. Moreover, they also explain only part of reality. 14 The political leaders of "rogue states," like Saddam Hussein or Slobodan Milosevic\ are guided by a different kind of rationality.

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therefore has a mutually beneficial effect and assures behavior in conformity w i t h the law. 15 However, the normative balance may also be lopsided and reflect, at times rather crudely, the underlying power relations. A n obvious example is the privileged position of the five permanent members of the U N Security Council - as a result of their permanent membership in this body as well as their "veto" power - under the U N Charter. Yet the other member states agreed to this inequality when ratifying the Charter. A similarly far-reaching discrimination in favor of the same five great powers, which, until recently, were the only declared nuclear-weapon states,16 is laid down in the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. The nuclear test bans - the 1963 Partial and the 1996 Comprehensive Test-Ban Treaties - result in a similar regime which perpetuates the superiority of the nuclear "haves" over the "have-nots." T o give a third example, the Consultative Parties, i.e., the contracting states traditionally interested in and/or sufficiently active on the Sixth Continent, enjoy a privileged position with regard to the "administration" of Antarctica under the 1959 Antarctic Treaty. 17 These and other "unequal" treaties are complied with, on the one hand, because of the advantages the more powerful parties derive from them; on the other hand, the weaker parties also feel they can live w i t h them, since they cannot expect a more favorable deal under the given circumstances. It is only when the underlying power relationship changes substantially that such discriminatory regulations are challenged by parties finding themselves in the ascendancy. It may of course be that, in spite of considerable international pressure, some key states refuse to become parties to such treaties in the first place, thus undermining the resulting regime, as for instance India and Pakistan did with respect to prohibitions of nuclear weapon tests. A n increasing number of international legal norms are characterized not by conflicting but by parallel community interests, especially in the field of human rights and environmental protection. 18 These norms are not based on mutual concessions but on common values that point in the same direction. If such rules are violated, then retaliation in kind does not make sense because it w i l l hurt those whom the norms are designed to protect. Moreover, it may at first sight be tempting to relate compliance to the level at which the normative balance between the interests of the parties is struck. If this level

15

Bruno Simma , Reciprocity, Encyclopedia of Public International Law (EPIL), vol. 7,1984, 400-404. 16 In May 1998, India and Pakistan conducted underground nuclear weapon tests. 17 Art. I X of the Treaty; F. M. Auburn , Antarctic Law and Politics, 1982, 147-183; Philippe Gautier , Institutional Developments in the Antarctic Treaty System, in: Francesco Francioni/ Tullio Scovazzi (eds.), International Law for Antarctica, 2nd ed., 1996, 31-47. 18 See infra. Section IE. 3.

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is low, the resulting rule imposes on the states concerned but a marginal deviation from the behavior they would have followed in the absence of the rule, for example w i t h respect to pollution standards. The benefits derived from a violation of such a lowest common denominator norm would similarly be negligible. Conversely, a breach of a "high-lever - or "deep cooperation" 19 - rule may be expected to entail substantial advantages. However, the equation: the higher the level of the balance of interests, the more likely non-compliance, appears too simplistic. The cost factor must also be taken into account. If the negative consequences for breaching a "highlevel" norm are equally or even disproportionally high and seem rather likely, these effects ought to have a strong deterrent effect. Furthermore, the overall quality of the relations among the parties and the congruence of their interests are other relevant variables in this context. For instance, it is not a foregone conclusion that the more demanding disarmament agreements (INF, START, CFE) concluded after the end of the East-West conflict are more likely to be violated than the Cold War arms control treaties (above all, SALT). The degree of precision of the norm and the evidence of its existence as a rule of international law also come into play. 20 Ambiguous wording may be the price paid for the agreement on treaty provisions. However, in this case there is at least no doubt that the parties to the treaty in question are bound by the norm(s) concerned. By contrast, the well-known difficulties of proving sufficient practice and opinio juris - at least if these requirements are taken seriously - frequently lead to controversies not only about the exact contents but also about the very existence of rules of customary international law. A state may, therefore, act in good faith, truly believing that its contested behavior conforms to its international legal obligations, until the opposite is authoritatively established by an international court or arbitral tribunal - provided the dispute ever reaches this stage because - the necessary consent of all parties involved to the jurisdiction of a judicial or arbitral body is still lacking more often than not. Further complications arise if two legal rules, both of which command support and call for observance as a matter of principle, clash in a given situation. For example, prior to the end of the Cold War the "great debate" on campaigns for the respect for human rights v. non-intervention in internal affairs overshadowed East-West relations, especially within the framework of the CSCE process. After the end of the East-West conflict, the tension between the principle of self-determination of peoples and the territorial integrity of states, within which the former right was claimed, caused similar difficulties. In such cases, one rule can only be implemented at the 19

George W. Downs/David M. Rocke/PeterN. Barsoom , Is the good news about compliance good news about cooperation?, International Organization, vol. 50, 1996, 379-406, 383. 20 See also the concept of the legitimacy of the rules of international law developed by Thomas M. Franck , Legitimacy in the International System, AJIL, vol. 82, 1988, 705-759; Thomas M. Franck , The Power of Legitimacy among Nations, 1990.

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expense of the other, w i t h both sides possibly really convinced of the justice and legality of their respective cause in the normative zero-sum game. Recently in the Kosovo crisis, the prohibition of the threat or use of force without authorization by the U N Security Council had to be weighed against the prevention of a humanitarian catastrophe. 21 O n the other hand, the fact that a rule is not legally binding because it does not stem from one of the recognized sources of international law, but merely belongs to the realm of "soft law," does not really seem to reduce its effectiveness. 22 As w i l l be argued below, the specific legal consequences of violating a "genuine" legal obligation - notably the availability of reprisals (or, according to the more recent terminology, countermeasures) and the possibility of invoking the breach in judicial or arbitral proceedings - only have limited practical effects. As a rule, reciprocity also makes the parties concerned abide by "soft law." Such merely political commitments may even carry greater weight in practice than "fully binding" legal rules due to the impact of other factors, such as their publicity. Moreover, the difference between "hard" and "soft international law" may not be known to politicians and the media to begin with. For instance, the human rights provisions of the Helsinki Final Act and other CSCE documents, as compared w i t h legally binding treaties such as the U N Covenants, played a more important role in toppling the communist regimes of Eastern Europe than their "hard law" counterparts. I I I . International Costs Against this background, the following survey will deal with the costs of violations of international law, since, as a rule, the decision makers concerned tend to focus on the expected gains. It is suggested to first discuss the international and then the domestic aspects and then to move from the bilateral to the multilateral dimension, as well as from the more tangible short-term to the long-term consequences which are particularly difficult to assess.

21

See infra, Section V. Prosper Weil , Toward Relative Normativity in International Law?, AJIL, vol. 77, 1983, 413-442; Ignaz Seidl-Hohenveldern , International Economic "Soft Law," Recueil des Cours (RdC), vol. 163, 1979, 173-246; Winfried Lang, Die Verrechtlichung des internationalen Umweltschutzes: Vom "soft law" zum "hard law," Archiv des Völkerrechts (AVR), vol. 22, 1984, 283-305; C. M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, The International and Comparative Law Quarterly (ICLQ), vol. 38,1989, 850-866; Wolfgang Heusei, Weiches Völkerrecht - Eine vergleichende Untersuchimg typischer Erscheinungsformen, 1991; Ulrich Fastenrath, Relative Normativity in International Law, European Journal of International Law (EJIL), vol. 4,1993,305-340; KarlZemanek, Is the Term "Soft Law" Convenient?, in: Gerhard Hafner et alii (eds.), Liber Amicorum: Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday, 1998, 843-862. 22

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A potential lawbreaker w i l l first try to gauge the response of the direct victim of his breach. The latter may either resort to a reprisal or a retorsion. A reprisal - or, as the I L C decided to call it, a countermeasure - is a retaliation in (legal) kind in the sense that the injured state's reaction also consists in a wrongful act. 23 However, such measures have become an increasingly toothless instrument due to the numerous prerequisites that have to be met. It makes sense that diplomatic means ought to be tried first, in order to bring about the state of affairs required by international law, before embarking on "the escalation of illegality" that results from reprisals. 24 What an injured state is not required to do, is to announce the countermeasure(s) that it intends to take if negotiations with the (alleged) perpetrator fail, so as not to make it easier for the latter to thwart the measures(s).25 Moreover, traditionally - and also logically, because, in principle, reprisals are also wrongful acts - they must conform to the principle of proportionality. 26 In the words of the ILC, countermeasures must not be out of proportion of the degree of gravity of the internationally wrongful act and the effects thereof on the injured state. 27 This rule is easy to apply if, and only if, the targets of the initial violation of an obligation under international law and the corresponding countermeasure(s) are identical and can be measured, in particular in terms of money. Otherwise, also these vague criteria offered by the I L C (the degree of gravity of the breach and its effects on the injured state) are likely to cause more problems than they would solve.28 Furthermore, reprisals are not ends in themselves but are designed to make the perpetrator of a breach live up to his obligations. They need to be terminated, there23

Karl Zemaneky The Legal Foundations of the International System: General Course on Public International Law, RdC, vol. 266,1997, 316-334, 323-334; Winfried Fiedler and Eckart Klein , Gegenmaßnahmen (Counter Measures), BDGVR, vol. 37,1998,9-28, and 39-66, and the literature quoted by these authors. 24 According to Art. 47 of the ILC's draft on State Responsibility, the objective of countermeasures is to induce the wrongdoing state to comply with ist secondary law obligations under Arts. 41-46, i.e., the cessation of wrongful conduct and reparation in its various forms, and hence primarily not to punish it. U N GAOR, 51st Session, Supp. 10, U N Doc. A/51/10 (1996). 25 Klein (note 23), 58. 26 This principle was already clearly stated in the Naulilaa arbitral award between Portugal and Germany in 1928, the locus classicus concerning reprisals; Reports of International Arbitral Awards, vol. E, 1012-1033, 1026, 1028. 27 Art. 49. 28 It has therefore been proposed to enlarge the group of norms protected from countermeasures and to abandon the proportionality requirement for the rest. Zemanek (note 23), 334.

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fore, once this objective is achieved and must not cause irreversible damage. The principle that reprisals must not infringe on the rights of third states also stands to reason. 29 In addition, reprisals must not be in contravention of jus cogens. This means in concrete terms that countermeasures involving the threat or use of force as prohibited by the U N Charter are illegal. That this prohibition bans resorting to the use of armed force is beyond dispute; whether it also includes political or economic coercion is, by contrast, still controversial. The advocates of a broad definition argue that nonmilitary pressure is less risky than, but frequently as effective as, armed force, especially in today's interdependent world. The opponents of such a comprehensive notion of force point to the difficulty of drawing a line between reprehensible and acceptable pressure in international relations and the controversies to which this difficulty is bound to give rise. The ILC attempted to strike a balance between these positions, both of which are tenable, by proposing to outlaw the resort by way of countermeasures to extreme economic or political coercion designed to endanger the territorial integrity or political independence of the wrongdoing state.30 One may wonder whether the Commission was well-advised to include this provision in its draft. In a concrete situation, the parties involved would most likely tend to disagree on whether the non-military pressure exerted by the injured state is "extreme" or remains below this threshold. The word "designed" implies the subjective element of intention which would be difficult, if not impossible, to prove in many cases. Moreover, the injured state may deny that the coercion applied by it is designed to endanger the territorial integrity or political independence of the perpetrator of the breach of international law, although it may in fact have such an effect. Furthermore, it is submitted that this additional dimension should be covered by the principle of proportionality; if, and only if, the initial wrongful act poses a major threat to the victim's territorial integrity and political independence, then similarly massive counter-pressure ought to be permissible. The ILC's list of prohibited countermeasures also mentions any conduct which derogates from basic human rights. 31 This formulation raises the thorny issue of drawing the line between human rights which are "basic" and those which are not. 32 Moreover, it may be argued that, in any event, the reference to fundamental human rights is not really necessary because it is covered by the prohibition to take countermeasures contrary to jus cogens.

29

Art. 47 para. 3 of the I L C s draft. Id ., Art. 50 para, (b); emphasis added by the author. 31 Id., Art. 50, para. (d). 32 Eckart Klein includes all human rights obligations accepted by the injured state, arguing that the ultimate objective of international law is to serve individual human beings. Klein (note 23), 55. 30

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Finally, the Commission's draft excludes any conduct infringing the inviolability of diplomatic or consular agents, premises, archives and documents from the realm of permissible countermeasures. This provision achieves, without mentioning the term, what the ICJ aimed at by putting forth the controversial concept of selfcontained regimes in the Case Concerning United States Diplomatic and Consular Staff in Tehran, 33 The sanctions regime developed by the I L C is further complicated by the injured state's right to take interim measures which are necessary to preserve its rights. They may be adopted immediately, without waiting for the fulfillment of the obligation to negotiate under Arts. 54 of the draft. Understandable as this exception may be, it once again suffers from the lack of clear criteria. To make matters worse from a legal point of view, interim measures of protection, unlike countermeasures, are not subject to compulsory arbitration according to the Commission's concept. However, from the political viewpoint underlying this article, they could slightly raise the costs of an internationally wrongful act and thus have a positive dissuasive effect. The ultimate fate of the ILC's draft, which contains not only customary lex lata but also provisions resulting from progressive development, is still uncertain. Even if it is transformed into a convention and this treaty enters into force, it remains to be seen upon how many and which states it will become binding. Another open question concerns the eventual regulation of the right to make reservations to the convention. 34 In any case, existing customary law already considerably restricts the scope for reprisals or countermeasures. It is true that there still remains some leeway for such measures because they need not be directed against the same target which the perpetrator chose for his breach. For instance, the expropriation of foreign investors by a developing country may, therefore, be countered by their home state with the freezing of development assistance that it is obligated to render the former country by virtue of an international treaty. Moreover, the injured party w i l l probably choose for its countermeasure an area where it considers the other side to be particularly vulnerable. This discretion may have a certain, albeit limited, effect on the decision to commit a wrongful act. Whether the probability of "parallel" temporary or definitive non-compliance, especially with a bilateral treaty, by the victim of an internationally wrongful act has much of a dissuasive effect is a fine question. The decision to commit a breach is often motivated by a change in the underlying balance of interests which makes the continued application of the norm less attractive for the perpetrator. In such a situation, reciprocal non-compliance primarily serves the interests of the injured state by estab33

Zemanek (note 23), 332. This is particularly relevant to Part Three of the draft on dispute settlement, which provides for arbitration of disputes concerning countermeasures in Art. 58, para. 2. 34

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lishing a new balance of interests at a lower level, at the "zero level." Such protective measures under primary law, as provided for in Art. 60 of the Vienna Conventions on the Law of Treaties, should not be confused with interim measures of protection in the ILC's draft. 35 Although the above-mentioned restrictions may be understandable and justified, they have made reprisals an increasingly blunt political weapon, so that the achievement of their objectives has become more and more problematic. It is worth mentioning that experts in the German foreign ministry could not recall a single case in which the Federal Republic of Germany - a major power and not a small and weak state - resorted to reprisals in recent years. 36 By contrast, retorsions are "unfriendly" acts which, however, are not contrary to international law. The traditional examples of this type of response to an internationally wrongful act are the withdrawal of the head of the diplomatic mission from the offender state or the severance of diplomatic relations with it. These illustrations are in line w i t h the perspective adopted by many international lawyers, according to whom reprisals are severer sanctions than retorsions, because they are also, in principle, violations of international legal obligations. What counts from a political viewpoint is the effectiveness of a victim's reaction to a breach of international law. In this respect, retorsions may hurt more than reprisals or countermeasures, since they are not subject to the prerequisites of proportionality 37 and reversibility. For instance, an industrialized state, whose nationals have been expropriated without compensation by a developing country, and which has no treaty obligations to this effect to the latter, may indefinitely withhold badly needed development assistance and successfully urge other potential donor states to treat the confiscating country in the same manner. However, the most fundamental problem with responses to breaches of international legal obligations at the bilateral level does not stem from legal technicalities but from the power relationship between the parties concerned. Great powers that have the necessary resources for taking effective action usually do not need to resort to countermeasures or retorsions, because weak countries generally think twice before committing an internationally wrongful act in their relations with stronger states. It is the latter that usually violate their obligations vis-a-vis the former, and w i t h impunity: The weaker victims are not likely to exercise their right to countermeasures or retorsions. Instead of inducing the wrongdoing state to live up to its obligations, they must fear a further escalation of the conflict resulting in additional losses 35

Zemanek (note 23), 325. * Klein (note 23), 45. 37 Unless proportionality is regarded as a general principle permeating international law as a whole. Cf Jost Delbrück , Proportionality, EPIL, vol. IE, 1997, 1140; see also Klein (note 23), 44.

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and disadvantages for them; the fact that this may mean more breaches of international law w i l l hardly dissuade a more powerful adversary from having its way. B. The Costs of Resorting to Illegal Force

It is appropriate to now deal separately w i t h the possible - both bi-, but above all, multilateral - costs of violations of the most important principle of modern international law, the prohibition of the threat or use of force. It is enshrined in Art. 2 para. 4 of the U N Charter and undoubtedly has evolved into a rule of "general," or rather "universal," international law, which is also binding on those few states that are not members of the United Nations. In the age of weapons of mass destruction, whose proliferation can obviously not be prevented, in spite of bans by treaties, a violation of this prohibition may lead to horrific consequences.38 Even a potential aggressor, that enjoys clear-cut military superiority over a state against which it is planning an armed attack, is well-advised not to limit his calculations of the costs to those needed to overcome the victim's resistance. The latter may exercise its right of collective self-defense under Art. 51 of the U N Charter. It may have done so in institutionalized form by entering into an alliance w i t h other states. The allies' combined military potential should make a would-be aggressor think twice in many, if not most cases, even though actual military assistance to an attacked member by its allies is never absolutely certain. Undoubtedly, non-compliance w i t h a collective defense commitment would be a severe breach of a major international legal obligation; however, allied governments might not be ready to incur the costs - especially in terms of human casualties - which honoring their assistance pledge is likely to entail against a powerful aggressor in a concrete casus foederis situation. Moreover, the alliance duty may be loosely formulated so as to give the member states considerable discretion, such as in the case of N A T O . Under Art. 5 of the 1949 Washington Treaty establishing the Atlantic Alliance, each contracting party agrees to take "such action as it deems necessary, including the use of armed force" in order to assist other N A T O members that become the victims of an armed attack. By contrast, the mutual assistance pledge in Art. V of the W E U Treaty is couched in categorical language: In the event of an armed attack, members of this West European alliance are to provide "all the military and other aid and assistance in their power" to each other. However, a comparison of these legal provisions without taking military and political realities into account would lead to an erroneous conclusion. O n the one hand, in practice N A T O membership offers a high degree of protection because of the 38 John F. Sopko y The Changing Proliferation Threat, Foreign Policy, No. 105, Winter 1996/1997, 3-20; Richard K. Betts , The New Threat of Mass Destruction, Foreign Affairs, vol. 77, No. 1, January-February 1998, 26-41.

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Atlantic Alliance's integrated military structures and the presence of at least allied "tripwire" forces on the territories of member states. I n particular, the participation of the United States assures an effective collective response to an armed aggression against a N A T O member state. O n the other hand, the W E U is still widely regarded as a military "paper tiger." If a state against which illegal armed force is used does not belong to an alliance, for example because it has opted for the status of permanent neutrality, it may still invoke its right to ad hoc collective defense. However, such a request for help is, in general, less likely to receive a positive response than in cases of mutual alliance pledges where preparations for collective defense have been made in advance. This is particularly true if the isolated victim of an armed attack has neglected its military defense so that its territory can completely be occupied within a few days. After the end of the bipolar East-West system w i t h its heavy reliance on nuclear deterrence, the scope for resorting to armed force, which can be limited both w i t h respect to geographical extension and weapons used, has increased. T o some "rogue states," or rather to some reckless political leaders, conventional war which w i l l not inevitably lead to nuclear escalation may again appear as a practicable continuation of politics by other means. The armed conflicts in the former Yugoslavia provide particularly dramatic and depressing illustrations of this "return of military history." Potential aggressors ought to take a second category of costs, those arising within the framework of collective security, more seriously than they have in the past. During the East-West conflict, even economic sanctions were adopted only in exceptional cases. They were limited to threats to international peace resulting from racial discrimination as practiced by Southern Rhodesia and South Africa. After the end of the Cold War, during which fundamental disagreements between the Western permanent members, on the one hand, and the Soviet Union and China, on the other hand, had paralyzed the Security Council, the Council still has not imposed mandatory military enforcement action as provided for under Chapter V I I of the Charter; no agreements under Art. 43 have yet been concluded to set the stage for such military sanctions. The Council has merely authorized states ready to use force to do so in situations covered by Art. 39 of the Charter. "Operation Desert Storm," a "coalition of the willing" led by the United States against the invasion of Kuwait by Iraq in 1991, furnished the most spectacular example for this variant, to which the Council had already once resorted during the Cold War in the Korean conflict of the early 1950s.39 However, non-military sanctions, i.e. embargoes of one type or another, have been adopted more frequently than in the era of the East-West conflict, against such "rogue states" as Iraq, Libya, Haiti or the FRY.

39 For the purposes of the present article, there is no need to dwell on the issue of the legal basis - Art. 48 or Art. 51 of the U N Charter - of "Operation Desert Storm." See Zemanek (note 23), 299-300, and the literature quoted there.

7 G Y I L 42

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Some response by the United Nations is, therefore, more probable than in the bipolar past, not only to armed aggression against another state but also to activities within a state's borders, especially large-scale violations of basic human rights. Recent practice shows that the Security Council may qualify intra-state conflicts as threats to the peace under Chapter V I I of the Charter, even if there is no evident danger of their internationalization because of a transborder spillover or the involvement of other states.40 The problem with sanctions is, of course, that they usually do not hurt the political leaders responsible for the actions that triggered the measures. Instead, the innocent population of the country as a whole, which had no say in the decisions taken, is affected; moreover, such sanctions are slow in producing their desired effects. N o r are economic sanctions equally effective against all states. Their impact varies according to the degree of the target country's economic development and its dependence on international economic cooperation as well as on its political system. States having a high level of autarky, which enables them to satisfy the most basic needs of their population on the basis of national production and to produce substitutes for goods affected by an embargo, coupled with an authoritarian regime, are less vulnerable than democracies that are highly dependent on foreign trade and investment. 41 Moreover, as recent practice shows, a state that commits not only aggression against another state but also serious violations of humanitarian law within its borders or is suspected of producing weapons of mass destruction may face military strikes by other states even without the authorization of the U N Security Council. 42 The dubious legality of such armed attacks evidently does not restrain states that enjoy military superiority and strongly believe in the moral justice of their cause against outlaws in the international system. One of the corollaries of the gradual ban on the use of force under international law is designed to preclude states from enjoying the fruits of illegal coercion. In the wake of the 1928 Briand-Kellogg Pact, under which the contracting parties renounced war as an instrument of national policy in their relations with one another, the United States put forth the so-called Stimson Doctrine on the occasion of the invasion 40

As already in Southern Rhodesia after the unilateral declaration of independence in 1965 and more recently in Bosnia-Herzegovina, Somalia and Rwanda. For a detailed analysis, see Heike Gading , Der Schutz grundlegender Menschenrechte durch militärische Maßnahmen des Sicherheitsrates - das Ende staatlicher Souveränität?, 1996. 41 Makio Miyagawa , Do Economic Sanctions Work?, 1994; John Stremlau, Sharpening International Sanctions: Towards a Stronger Role for the United Nations, 1996; Margaret Doxey, United Nations Sanctions: Current Policy Issues, 1997; see also the debate between Robert A. Pape, Why Economic Sanctions Do Not Work, International Security, vol. 22, No. 2, Fall 1997, 90-136; id ., Why Economic Sanctions Still Do Not Work, International Security, vol. 23, No. 1, Summer 1998,66-77; KimberlyAnn Elliott , The Sanctions Glass: Half Full or Completely Empty?, 50-65; on some legal considerations, see Serena Forlati , Sanzioni economiche et tutela umanitaria, Rivista di diritto internazionale, vol. 80, 1997, 705-739. 42 See infra , Section V.

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of Manchuria by Japan in 1932. Secretary of State Henry Lewis Stimson announced that the American Government would not recognize any situation, treaty, or agreement brought about by means contrary to that Pact. 43 The Assembly of the League of Nations followed suit and adopted this principle in the same year. The duty not to recognize any territorial acquisition resulting from the threat or use of force was reconfirmed in the "Friendly Relations Declaration" adopted by the U N General Assembly in 1970, as well as on the regional European level in the Helsinki Final Act of the CSCE in 1975. Logical and laudable as this principle may be, it may conflict w i t h the "normative force of reality" (normative Kraft des Faktischen): Ex factis jus oritur. That facts created by illegal means may still prevail over the rules of international law was regrettably also demonstrated after the end of the East-West conflict. Despite lip service to the non-recognition of the results of the illegal use of force, the international community resigned itself to the faits accomplis brought about by "ethnic cleansing" in BosniaHerzegovina. The Dayton/Paris agreements in fact sanctioned the resulting partition of this former Yugoslav Republic among its three ethnic components, with the Serbs receiving the lion's share. Along the same lines of the prohibition of the threat or use of force as laid down in Art. 2 para. 4 of the U N Charter, a treaty is void if a state's consent to be bound by it has been procured either by coercion of its representative or of the state as a whole. Such invalidity is provided for in Arts. 51 and 52 of the 1969 Vienna Convention on the Law of Treaties. The problem with this rule may be that a weaker state, forced to conclude a treaty by a more powerful party, may hesitate to invoke the invalidity of the treaty. The side which had resorted to coercion is not likely to be impressed by the claim and may even bring further - also illegal - pressure to bear on the weaker party. Moreover, treaties entered into under military coercion, which is generally regarded as illegal, have become rather rare. By contrast, there is still no agreement on the inclusion of economic or political pressure, which is much more relevant in treaty practice, in the prohibitions of Art. 2 para. 4 of the Charter and Arts. 51 and 52 of the Vienna Convention. These two costs are by now well-established but somehow abstract and may be eroded over time, whereas recent developments in the realm of the law of responsibility are more important. Under traditional international law, the consequences of an internationally wrongful act, such as reparations, have to be borne by the population of the state concerned as a whole and not only and directly by the individuals who took and implemented the decision to commit a breach of international law. Such collective responsibility has also applied to the illegal use of force. The precedent set by the Nuremberg and Tokyo tribunals after World War II, established in order to deal with crimes against the peace and crimes against humanity during that war, 43

7*

AJIL, vol. 26, 1932, 342.

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seemed of no practical consequence, although individual responsibility for wars of aggression has subsequently been reaffirmed, in particular by the U N General Assembly. 4 4 A new page has been turned by the U N Security Council with the establishment of the international tribunals for the prosecution of persons responsible for serious violations of international humanitarian law in the former Yugoslavia in 1993 and in Rwanda in 1994.45 The statutes of both tribunals provide that the official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 46 The author was among those who initially regarded the two tribunals as a political fig leaf and did not expect any defendants ever to appear before them. He gladly admits that he was wrong, as the first sentences have indeed already been handed down by both courts in the meantime. Granted, the "masterminds" responsible for the atrocities in the former Yugoslavia are still at large; however, Mr. Karad£ö and Mr. Mladic are enjoying rather limited freedom of movement and cannot be sure that they too w i l l not wind up at the Hague one day. 47 Once the International Criminal Court (ICC), whose Statute was adopted in 1998, comes into being, it will add a general dimension to individual responsibility for particularly grave violations of international law. The ICC's jurisdiction w i l l not be restricted to specific conflicts and territories; however, it w i l l only apply to the contracting parties. 48 The Court should, therefore, be more effective in deterring or dissuading political leaders from committing the criminal acts covered by its Statute49 than ad hoc tribunals. Art. 27 of the Statute also provides for the irrelevance of official capacity, expressly mentioning again, inter alia , Heads of State or Government or members of a Government. The ICC will exercise its jurisdiction not only if the state

44

For instance already in Res. 95 (I). In Res. 827, 1993, and Res. 955, 1994. O n the controversies concerning the authority of the Security Council to set up these tribunals, see Zemanek (note 23), 204-205, and the literature quoted there. 46 Art. 7 of the Statute of the International Criminal Tribunal for the Former Yugoslavia and Art. 6 of the Statute of the International Criminal Tribunal for Rwanda. 47 O n Security Council action on the arrest warrants for Karad£c and Mladic issued by the International Criminal Tribunal for the Former Yugoslavia in 1995, see International Legal Materials (ILM), vol. 36, 1997, 92-99. 48 Andreas Zimmermann, Die Schaffung eines ständigen Internationalen Strafgerichtshofes. Perspektiven und Probleme vor der Staatenkonferenz in Rom, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 58,1998,47-108; Philippe Kirsch/John T. Holms, The Rome Conference on an International Criminal Court: The Negotiating Process, AJIL, vol. 93, 1999, 2-12; Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 12-43. 49 Genocide, crimes against humanity, war crimes and - subject to a later agreement on a definition - aggression. 45

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of which the person accused of the crime is a national, but also if the state on whose territory the conduct in question occurred has accepted its jurisdiction. 50 One inevitable structural deficiency of the Court, w i t h its jurisdiction based on an international treaty, is the more than probable reluctance of those states which must reckon w i t h trials against their nationals to become parties to the Statute. It also remains to be seen how long it w i l l take for the Statute to enter into force, 51 for which the expression of consent by 60 states is needed. Another possible weakness of the I C C is due to its dependence on the cooperation of the contracting parties. N o genuine sanctions are provided if these parties fail to live up to their obligation to cooperate w i t h the Court. 5 2 The net result of this evolution 53 should be a warning to political leaders that they may face severe personal consequences - although not the death penalty - for ordering armed aggression or other major breaches of international law, especially international humanitarian law. The negative effect of this prospect could be a senseless continuation of wrongful acts, especially military hostilities, in order to delay personal punishment as long as possible.54 C. The Multilateral Dimension Less serious violations of international law below the threshold of illegal force and other forms of large-scale inhumane action may also entail multilateral costs which could well outweigh the expected gains.55 Some of these consequences have been put 50

Or, if the crime was committed on board a vessel or aircraft, the state of registration of that vessel or aircraft (Art. 12, para. 2 of the Statute). 51 I C C Statute, Art. 126. 52 Id., Arts. 86-102. 53 To which the eventual denial of immunity, however limited it may be, to Senator Augusto Pinochet , the former head of state of Chile, by the House of Lords in their Judgment of 24 March 1999, has also contributed. 54 However, the reaction of the President of the FRY, Slobodan Milosevic, shows that this is not necessarily the case. O n 3 June 1999, a week after his indictment by the International Criminal Tribunal for the Former Yugoslavia was announced, he accepted the Kosovo peace plan drawn up by the G 8. 55 The various "exclusion costs" discussed below are the principal causal factor accounting for compliance with international law in the process-oriented "management" model developed by Abram Chayes/ Antonia Handler Chayes. In their opinion, sovereignty in today's interdependent world is less a state's freedom from external interference than its right to participate in international cooperative regimes. Compliance with international legal obligations is therefore less assured by fear of coercive sanctions but mainly by concerns about the loss of status and the reputation of reliability and about the resulting marginalization in the international policy-making process in case of a breach. This development can at least be traced back to the early days of the ILO. Abram Chayes/ Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, 1995,230-249; see also Abram Chayes/

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forth as explicit rules of treaty law. According to Art. 60 para. 2(a) of the Vienna Convention on the Law of Treaties, a party which violates its obligations under a multilateral treaty runs the risk of losing - temporarily or permanently - the advantages accruing to it under the treaty, provided that two conditions are met. The application of Art. 60 is limited to material breaches of a treaty; they are defined either as a repudiation of the treaty not sanctioned by the Vienna Convention or the violation of a provision essential to the accomplishment of the object and purpose of the treaty (Art. 60 para. 3). Moreover, all the other parties need to agree to the suspension (in whole or in part) or the termination of the treaty in their relations w i t h the defaulting state. They may also agree - without requiring that party's consent either - to suspend or terminate the treaty between all the parties. 56 In its 1997 judgment on the Gabdikovo-Nagymaros Project, the ICJ recalled that it had on several occasions held that some of the rules laid down in the Vienna Convention, in particular Art. 60 to Art. 62, might be considered as a codification of existing customary law. 57 This view was shared by the two parties before the court, Hungary and Slovakia. 58 The principle laid down in Art. 60 is of particular relevance to treaties establishing international organizations. Some of these constituent instruments expressly provide for the suspension or exclusion of members that do not abide by their membership obligations, even without the unanimous agreement of the other member states. For instance, under Art. 5 of the U N Charter, a member of the world organization against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership. According to Art. 6, persistent violation of the Charter principles may even lead to expulsion from the United Nations. In both cases, a decision by a (mere) two-thirds majority of the members present and voting in the General Assembly upon a recommendation of the Security Council is needed. Similar provisions can be found in the constituent treaties of the W H O (Art. 7) or the Council of Europe (Art. 8). Recent developments are worth mentioning in this regard, especially in the European context. One of the innovations in the Amsterdam Treaty, which entered into force on 1 May 1999, is the introduction of sanctions against E U member states that consistently ignore the basic political values on which the Union is founded (Art. 7 of the TEU). 5 9 Antonia Handler Chayes, O n compliance, International Organization 47,1993,175-205; for a critical discussion of the approach adopted by the two authors in this article, see Downs/ Rocke/Barsoom (note 19). 56 In case of non-agreement, Art. 60, paras. 2 (b) and (c) are applicable. 57 1997 ICJ Reports 7, para. 46. 58 Id., paras. 42-43. 59 Christoph Thun-Hohenstein, Der Vertrag von Amsterdam. Die neue Verfassung der EU, 1997, 23-25; Waldemar Hummer, Der Schutz der Grund- und Menschenrechte in der Europäischen Union, in: Waldemar Hummer (ed.), Die Europäische Union nach dem Vertrag von Amsterdam, 1998, 71-101 (92-94).

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The implementation of sanctions has to follow a somewhat complicated procedure, in which several E U organs and possibly member states participate. First, the Council, meeting in the composition of the Heads of State or Government, acting on a proposal by one third of the member states or by the Commission and w i t h the assent of the European Parliament, must determine unanimously the existence of a serious and persistent breach by a member state of principles mentioned in Art. 6 para. 1 of the Treaty (liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law). After such a determination, the Council may, by a qualified majority, suspend certain membership rights, including voting rights in the Council, of the member concerned, on which membership obligations remain binding. The Council has, thus, a broad range of sanctions at its disposal so that it can adapt its response to the specific violation. 60 When these decisions are taken, the vote of that member state is not taken into account. A t least to some extent, similar sanctions were already agreed to within the larger framework of the CSCE/OSCE in 1992 shortly after the end of the East-West conflict, at the Prague Meeting of the CSCE Council. 61 In cases of clear, gross and uncorrected violations of relevant CSCE/OSCE commitments in the areas of human rights, democracy and the rule of law, the OSCE's Ministerial Council or Senior Council may take appropriate action without the consent of the participating state concerned ("consensus minus one"). Such actions are limited, however, to political declarations or other political steps that apply outside the territory of the state concerned. This provision was used against the FRY which was suspended from participation in CSCE/OSCE activities. The decision highlighted the dilemma to which suspension or permanent exclusion from international institutions and treaty regimes gives rise. O n the one hand, some steps beyond purely verbal criticism of major breaches of membership obligations must be taken in order to deter similar violations in the future. O n the other hand, the other members lose instruments and channels of control and influence, which can be used to bring the "black sheep" back into the fold and into compliance w i t h membership duties. As a result of this consideration, this type of sanction has rarely been resorted to, even if the necessary majority of the members of the organization condemned the wrongdoing member state in principle. In addition, internationally wrongful acts may entail substantial costs which, from a normative perspective based on the categories of international law and on international institutions, are hard to grasp. They may be termed the loss of international good will; its duration is usually difficult to determine. For instance, if a state fails to pay back a credit or a loan, it is unlikely to receive funds in the future not only from the creditor concerned, but from other sources as well. If foreign property is

60 61

Thun-Hohenstein, (note 59), 25. 31 I L M 987-996, 989, 990 (1992).

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confiscated without "adequate" or "appropriate" compensation, 62 foreign investors from states, other than those whose nationals are directly affected by the expropriation, will also hesitate to invest in the confiscating country and run a similar risk. The need for further investments obviously was one of the main reasons w h y some of the most radical partisans of the N e w International Economic Order eventually settled for a compromise solution under which some compensation is due for expropriation. T o give a third example, a government that is unable to afford sufficient protection for foreigners or otherwise violates their rights cannot expect many tourists to visit that country. Foreign visitors w i l l be unwilling to spend their money there, even if the country has spectacular sights and events as well as high-quality facilities to offer. I n all these cases, the states directly affected by breaches of international law do not need to urge others to refrain from similar activities with the state which committed the violation. W i t h modern communication technologies, information about such breaches spreads more and more quickly. A t the same time, growing international interdependence makes collective responses, which need not be coordinated and are "mere" retorsions, increasingly harmful to the state responsible for the wrongful act. If illegal behavior is not limited to occasional acts by a single or a few countries but becomes the common practice of numerous states in various areas, such a practice may add up to a qualitative change in the international "climate" which was referred to as the Cold War in the bipolar era. I n such a situation, general distrust prevails, and further breaches of international law and other hostile acts are likely. By contrast, international cooperation w i l l probably decline. Since international law only distinguishes between the states of peace, war and neutrality, its categories again fail to take account of this "gray area" phenomenon. The precedent set by a breach of international law might also be invoked by another state, primarily but not exclusively against the initial perpetrator of the wrongful act, in a situation in which that state hopes to benefit from the violation. Other states could follow suit, until the very existence of the violated rule is called into question. Admittedly, in most cases the victims, if not other states, are expected to object to such repetitions of a breach, so that the opinio juris , necessary to bring about the desuetudo of the norm concerned, w i l l not develop. However, even if the continued validity of the rule is merely in doubt and further non-observance seems more likely because of repeated breaches in the past, the international community as a whole could once again be worse off. Another type of multilateral cost hard to quantify is the loss of international prestige. Governments want to be perceived as law-abiding members of the international community and not as outlaws. States therefore try to avoid being denounced for violating their international legal obligations. Even great powers do not simply ignore

62 Or "just* compensation, according the Final Document of the CSCE Conference on Economic Cooperation in Europe in Bonn, 11 April 1990; 29 I L M 1054-1069, 1059 (1990).

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such accusations, let alone accept them as well-founded. Governments rather call on their legal advisers to devise more or less plausible arguments in order to justify their countries' foreign policy activities. In this context, international institutions, both universal and regional, play an important role, especially if the public is admitted to their debates. First and foremost, U N bodies, above all the General Assembly as the "town meeting of the world," serve as fora where member states are faced w i t h the international community's response to their foreign and increasingly also to their domestic policies, notably in the field of human rights. Governments resent "the mobilization of shame," when one delegate after the other takes the floor in order to point an accusing finger - at least verbally - at them for alleged illegal acts. Such criticisms may receive instant worldwide publicity if observed by the global media networks and by N G O s active in the area concerned. These costs may further increase if a state has submitted to international arbitration or adjudication, be it by virtue of a clause in an international treaty w i t h respect to disputes on the interpretation or application of the treaty, or by concluding an arbitration treaty or accepting the general jurisdiction of an international court for all future legal disputes in advance, for instance under Art. 36 para. 2 of the Statute of the ICJ. By contrast, a state which must reckon w i t h a negative decision stating it is responsible for an internationally wrongful act is, as a rule, reluctant to agree to such a third-party procedure after the occurrence of the dispute. After an arbitral award or court judgment has authoritatively determined a violation of international law, it is more difficult for the party concerned to claim that its behavior is in accordance w i t h the law. For other states, the costs of continuing to support one of their peers whose responsibility for an internationally wrongful act has been established by a tribunal or court also increase, at least politically if not legally. The actual enforcement of an award or judgment is another matter which remains one of the principal weaknesses of the international legal system. Non-compliance w i t h a binding third-party decision of a legal dispute is a violation of international law that gives rise to the various problems mentioned in this article. N o centralized international enforcement regime exists to uphold such decisions. In practice, Art. 94 of the U N Charter is only an apparent exception to this principle. Under this provision, if any party to a case fails to perform its obligations under a judgment rendered by the ICJ, the other party may turn to the Security Council. The latter may, if it deems necessary, recommend or decide upon measures to give effect to the judgment. Action by the Council against one of its permanent members which refuses to abide by a judgment of the World Court is out of the question since the "veto" also applies to this decision. 63 To make matters worse, other U N members might also be encour-

63 Although this is not beyond dispute. See Hermann Mosler , Article 94, in: Bruno Simma et alii (eds.), The Charter of the United Nations: A Commentary, 1995, 1003-1007, 1006.

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aged to ignore an unfavorable ICJ judgment if they can expect a permanent member of the Security Council that supports them to block a decision. Consequently, not only a superpower and permanent member of the Security Council like the United States, but also small or medium-sized countries, like Albania - in the very first case decided by the ICJ - vis-a-vis the United Kingdom, a major power at the time, have not, or at least not immediately, complied with judgments of the Court. The higher degree of integration within the supranational EC has made it possible to provide for specific sanctions in cases of non-compliance with the judgments of the European Court of Justice by member states in Art. 228 of the TEC. 6 4 If a member fails to take the necessary compliance measures within the time-limit laid down by the Commission, the Commission may bring the case before the Court, specifying the lump sum or penalty payment to be paid by the member state concerned. The decision on non-compliance w i t h the judgment and payment of such a fine then rests w i t h the Court.

D . The Emergence of the Community Dimension in International Law

The recent development of community elements should also have an impact on the effectiveness of international law, since they are aimed at strengthening the sanctions for the violations of certain key norms and extend the right to invoke the breach beyond the direct victims. 65 However, the three relevant concepts have reached different stages of "legal crystallization." Jus cogens was already placed on firm legal foundations in Arts. 53 and 64 of the 1969 Vienna Convention on the Law of Treaties and of the "parallel" 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. 66 According to these provisions, a treaty which conflicts with a peremptory norm is void. Moreover, there seems to be general agreement that the scope of jus cogens is not limited to the law of treaties, but also includes, for instance, unilateral legal acts.67 64 This provision was added at a later stage of the integration process, in Art. 171 of the 1992 Maastricht Treaty, and not yet contained in the 1957 Rome Treaty establishing the EC nor in the 1986 Single European Act. See also the sanctions already provided for in Art. 88 of the ECSC Treaty in 1951. 65 Christian Tomuschat , Die internationale Gemeinschaft, AVR, vol. 33, 1995, 1-20; Bruno Simma , From Bilateralism to Community Interest in International Law, RdC, vol. 250,1994, 229-384. 66 Jerzy Sztucki , Jus Cogens and the Vienna Convention on the Law of Treaties: A Critical Appraisal, Österreichische Zeitschrift für öffentliches Recht, Supplementum No. 3, 1974. 67 Giorgio Gaja, 'Jus Cogens' beyond the Vienna Convention, RdC, vol. 172,1981,275-331, 297; Stefan Kode Ibach, Zwingendes Völkerrecht, 1992, 335-337; Lauri Hannikainen, Peremp-

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One of the obvious main deficiencies of jus cogens in international law is the lack of sufficiently clear-cut criteria for identifying such peremptory norms. The circular definition in the two Vienna Conventions - acceptance and recognition by the international community of states as whole as a norm from which no derogation is permitted - raises more questions than it answers. 68 Another shortcoming of particular relevance to the effectiveness of peremptory norms is the restriction on the right to invoke their violation laid down in the two Vienna Conventions. Only a contracting party is authorized under Art. 65 to trigger the procedure that has to be followed w i t h respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty. If invalidity because of a violation of jus cogens is claimed, and the parties to the dispute are states, then this procedure leads to a decision by the ICJ, unless the parties agree to arbitration (Art. 66). 69 However, the parties to a treaty that conflicts with a norm juris cogentis are unlikely to raise the issue themselves. The following example is unfortunately not completely hypothetical and absurd. Imagine a treaty under which two or more States agree to eliminate a troublesome minority whose members live on their respective territories, if need be, killing them should they refuse to emigrate. The prohibition of genocide belongs to the hard core of those basic human rights norms that are generally regarded as international jus cogens. Yet the parties to that treaty w i l l in all likelihood fulfill their "contractual obligations" and w i l l not call for its invalidity. For jus cogens to make sense, all states (and probably all international organizations) - and not only the contracting parties, and even not just the parties to the Vienna Conventions of 1969 and 1986 - must have the right to invoke a breach of peremptory norms. In this connection, the concepts of obligations erga omnes and international crimes are useful. A l l jus cogens rules are widely regarded as having erga omnes effects, which means that - in the words of the ICJ's well-known obiter dictum in the Barcelona Traction Case - they are of concern to all states so that all states have a legal interest in their protection. 70 However, the notion of erga omnes obligations is even less well

tory Norms (Jus Cogens) in International Law, 1988,6-7; see also Art. 7, para. 6 of the Second Report on Unilateral Acts of States submitted by the ILC's Special Rapporteur Victor Rodriguez CedenOy U N Doc. A/CN.4/500/Add.l. 68 Above all, concerning the form of the required acceptance and recognition and whether the "international community of states as a whole" means all or only an "overwhelming" majority of states. Hanspeter Neuhold, Völkerrechtlicher Vertrag und "Drittstaaten," BDGVR, vol. 28,1988,51-99, 62-63. 69 For the procedure in the 1986 Convention focusing on an advisory opinion of ICJ to be accepted as binding by all the parties to the dispute or arbitration, see its Art. 66, para. 2(b). 70 1970 ICJ Reports 1-51, para. 33.

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established and defined than jus cogens J 1 In particular, it raises the issues of whether states injured by a breach of such an obligation may either only jointly or also individually claim reparations from and take countermeasures against the state(s) committing the violation. T o require joint action would more often than not allow the author of the breach to get away with it w i t h impunity. The alternative of permitting a unilateral response could give rise to conflicting claims and controversial enforcement measures. The inclusion of the breach of erga omnes obligations under a multilateral treaty, which are defined as expressly stipulated for the protection of the collective interests of the states concerned, 72 in Art. 40 para. 2 lit. (f) of the 1996 I L C draft on State Responsibility has added to the headaches of international lawyers. This is also true of the controversial concept of "international crimes of State" introduced by the ILC in Art. 19 of its draft as an element of "progressive development" and not just codification of undisputed lex lata. 75 In another variation on the community theme, these crimes are defined as violations of "an international obligation so essential to the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole." The Commission went beyond the provisions on jus cogens in the two Vienna conventions on the law of treaties by adding to the general definition a non-exhaustive list of international crimes: a major breach of international peace and security, such as aggression; a far-reaching denial of self-determination of peoples, e.g. forcible colonial domination; a serious violation of essential human rights, for instance slavery, genocide and apartheid; a grave breach of fundamental ecological rules, such as massive pollution of the atmosphere or the seas. T o make the distinction between "normal" internationally wrongful acts and the more serious international crimes relevant, the latter must entail specific legal consequences: Above all, according to Art. 40 para. 3 of the I L C draft, if such a crime is committed, all other states are "injured states." The injured states are obligated, under Art. 53, not to recognize the situation created by the crime as lawful; they must not 71 Jochen A. Frowein , Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung, in: Rudolf Bernhardt et alii (eds.), Völkerrecht als Rechtsordnung - Internationale Gerichtsbarkeit - Menschenrechte. Festschrift für Hermann Mosler, 1983, 241-262; Claudia Annacker, The Legal Regime of erga omnes Obligations in International Law, Austrian Journal of Public and International Law (AJPIL), vol. 46, 1994, 131-166; Simma (note 65), 293-301. 72

In addition to rights for the protection of human rights and fundamental freedoms arising from a multilateral treaty or from a rule of customary international law (ILC draft, Art. 40, para. 2 [e] [iiij. 73 Pierre-Marie Dupuy, Observations sur le crime international de l'Etat, Revue Generale de Droit International Public, vol. 84,1980,449-486-JosephH. H. Weiler/Antonio Cassese/Marina Spinedi (eds.), International Crimes of State: A Critical Analysis of the ILC's Draft Art. 19 on State Responsibility, 1989; Robert Rosenstock, Crimes of States - an Essay, in: Konrad Ginther et alii (eds.), Völkerrecht zwischen normativem Anspruch und politischer Realität. Festschrift für Karl Zemanek zum 65. Geburtstag, 1994, 319-334.

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help the perpetrator of the crime to maintain this situation; they must cooperate with other states in carrying out these two obligations and in the application of measures designed to eliminate the consequences of the crime. 74 A t the same time, injured states are entitled to reparations and to resort to countermeasures (Arts. 42-50). The eventual wording and the ultimate fate of the ILC draft on State Responsibility, especially its transformation into a legally binding convention remains undecided.75 That community rules characterized by a superior legal rank and a higher degree of protection have developed around three particular normative clusters in international law makes sense, since they have one crucial feature in common: A l l these groups of norms are aimed at countering existential threats to human beings. Thus the prohibition of the use of force is more important than ever in the nuclear age, where an armed conflict may annihilate mankind as a whole. Basic human rights are designed to protect the physical integrity and fundamental dignity of human beings from such unacceptable encroachments and abuses as murder, slavery or torture. The core principles of environmental protection are meant to assure healthy and decent living conditions not only for the present but also for future generations. The general thrust of the three interrelated concepts of jus cogens, obligations erga omnes and international crimes, 76 regardless of the degree of their specification and "hardening" into binding international law, is evident. In an age of an ever increasing international interdependence and the growth of a global value platform, they are the legal expressions of the common basic values and interests of the international community. They tend to further raise the costs of their violation, since a state that acts contrary to these values and interests must reckon not only w i t h the response of its victim but also of some, if not all, other states. These negative consequences will not be limited to the refusal to recognize as legal the resulting situation in line w i t h the Stimson Doctrine. Indeed these effects could include more substantive collective countermeasures and sanctions by international organizations, especially if the ILC's concept of international crimes were eventually adopted. 77 74

See also Art. 52 of the I L C draft, excluding certain restrictions on restitution in kind and satisfaction in the event of the commission of an international crime. 75 The concept of international crimes in Art. 19, in particular, has been criticized by quite a few states, including the United States, the United Kingdom, France and Germany. See First report on State responsibility by the Special Rapporteur James Crawford , U N Doc. A / C N . 4 / 490/ Add.l, 6-9. In light of these objections, the Special Rapporteur himself has recommended the deletion of Arts. 19 and 51-53 from the draft articles. U N Doc. A/CN.4/490/Add.3. The inclusion of international crimes in the Commission's final draft is therefore an open question. 76

Erga omnes seems to be the broadest, and that of international crimes the narrowest, of the three concepts. A.J.J. deHoogh , The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective, AJPIL, vol. 42, 1991, 183-214; Simma (note 65), 293-294, 300, 309; Zemanek (note 23), 257. 77 The community idea (or ideal) is also reflected in the concept of the "common heritage of mankind," which has been applied to the seabed and ocean flow under the 1982 U N Con-

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A comprehensive discussion of the special regimes w h i c h are already i n place i n some sectors of international law and include specific sanctions i n areas such as intern a t i o n a l e n v i r o n m e n t a l l a w 7 8 o r economic law, i n particular w i t h i n the f r a m e w o r k of the G A T T / W T O , 7 9 is b e y o n d the scope of this discussion. B y contrast, the author intends t o add a few remarks o n one of the above-ment i o n e d k e y factors that is considered w h e n decision makers grapple w i t h a breach of i n t e r n a t i o n a l law, namely the p r o b a b i l i t y of the eventual detection of the v i o l a t i o n . Some progress has been accomplished i n this respect. I t shall be briefly illustrated i n t w o i m p o r t a n t legal fields, the respect for h u m a n rights and security p o l i c y . A n increasingly dense n e t w o r k of mechanisms designed t o assure compliance w i t h h u m a n rights accords has been established, b o t h at the global and regional levels. T h e y can be systematized according t o different criteria. W h a t is of p r i m a r y interest i n the present context is n o t the question w h e t h e r the agreement concerned is a bindi n g treaty o r "soft l a w ; " 8 0 w h e t h e r these regimes are obligatory o r o p t i o n a l for the parties; w h e t h e r a t h i r d - p a r t y procedure is restricted t o the inter-state level or is also

vention on the Law of the Sea and to the moon and other celestial bodies under the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. 78 What is particularly interesting about compliance mechanisms in the environmental field is their emphasis on "carrots" rather than on "sticks." The observance of the rules of international environmental law is to be assured through financial and technological assistance and encouragement instead of deterrence and punishment. In this field, non-compliance may mainly be due to the lack of the necessary resources and not to deliberate bad faith. Oran R. Young, International Governance: Protecting the Environment in a Stateless Society, 1994; Jacobson/Brown Weiss (note 2); Rüdiger Wolfrum (ed.), Enforcing Environmental Standards: Economic Measures as Viable Means, 1996; Ulrich Beyerlin/Thilo Marauhn , Law Making and Law-Enforcement after the 1992 Rio Conference, 1997; Cord Jakoheit , Wirksamkeit in der internationalen Umweltpolitik, Zeitschrift für Internationale Beziehungen, vol. 5, 1998, 345-366; Detlef Sprinz/Tapani Vaahtoranta , The Interest-Based Explanation of International Environmental Policy, International Organization, vol. 48,1998,77-105; David G. Victor/Kai Raustiala/Eugene B. Skolnikoff (eds.), The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice, 1998; Rüdiger Wolfrum , Means of Ensuring Compliance with and Enforcement of International Environmental Law, RdC, vol. 272, 1998, 25-154; Michael Zürn , The Rise of International Environmental Politics: A Review of Current Research, World Politics, vol. 50,1998,617-649; Peter-Tobias Stoll , Die Effektivität des Umweltvölkerrechts, Die Friedens-Warte, vol. 74,199 187-203; OranR. Young/Marc A. Levy (eds.), The Effectiveness of International Environmental Regimes: The Causal Connections and Behavioral Mechanisms, 1999; Gerhard Loibl , Völkerrechtliche Regelungen zum Schutz der Umwelt und ihre Durchsetzimg (forthcoming). 79

Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern G A T T Legal System, 1993; MichaelJ. Hahn, Die einseitige Aussetzung von GATT-Verpflichtungen als Repressalie, 1996; Edmond McGovern, International Trade Regulation 1995, 1997. 80 As in the case of CSCE/OSCE agreements.

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open to individuals; whether such a procedure may exceptionally also be imposed on states that are not parties to the agreement concerned; 81 or whether the system results in a binding decision or a "soft law" pronouncement. What counts here, first and foremost, is the degree of intrusiveness allowed to a third (or second) party which scrutinizes the implementation of a state's human rights commitments, as well as the publicity third-party statements on compliance with these commitments receive: Must these assessments remain confidential, or may they be publicized? The system of inquiry by a committee of independent experts, whose members may, in addition to periodical visits, visit at any time any location where individuals are deprived of their freedom by the authorities of a contracting state, under the 1987 European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment deserves particular attention in this regard. 82 The same is true of the activities of N G O s in this field. For instance, many governments realize that they cannot afford to simply shrug off their negative human rights records as regularly reported by Amnesty International. The end of the East-West conflict has affected security policy and made possible genuine disarmament, i.e., the elimination of militarily significant numbers of militarily significant weapons, whereas previously the two superpowers at best agreed on arms control, namely measures designed to limit but not to reverse their arms race. 83 Moreover, verification of disarmament agreements is now assured by on-site inspection; by contrast, during the East-West conflict parties to arms control treaties usually had to rely on their "national technical means," i.e., above all, satellites, outside the territories of the other parties. 84 The safeguard system with which

81

As in the case of U N "Charter-based" systems. Antonio Cassese, A New Approach to Human Rights: The European Convention for the Prevention of Torture, AJIL, vol. 83, 1989, 128-153; Malcolm Evans/Rod Morgan, The European Convention for the Prevention of Torture: Operational Practice, ICLQ, vol. 41, 1992,590-614; Jim Murdoch, The Work of the Council of Europe's Torture Committee, EJIL, vol. 5, 1994, 220-248; on the important preventive dimension in the field of human rights in general, see Ursula Kriehaum, Prevention of Human Rights Violations, Austrian Review of International and European Law, vol. 2, 1997, 155-190. 83 Cf JohnH. Barton , Disarmament, EPIL, vol. 1,19,1072-1076; Hans-Joachim Schütz , Arms Control, EPIL, vol. I, 1982, 259-263. 84 Gloria Duffy , Conditions That Affect Arms Control Compliance, in: Alexander L. George/Philip J. Farley/Alexander Dallin (eds.), U.S.-Soviet Security Cooperation: Achievements, Failures, Lessons, 1988, 270-292. The international law of arms control and disarmament poses a particularly acute dilemma. O n the one hand, the stakes - the physical survival and independence of entire nations may be affected - are extremely high, so that optimal transparency and strict verification are desirable. O n the other hand, since the hard core of sovereignty is involved, states are reluctant to provide the necessary information and accept intrusive inspections on their territories. 82

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the I A E A monitors compliance with the 1968 Non-Proliferation Treaty may be mentioned as an exception. 85 A rather modest step in the new direction was already taken in the 1986 CSCE Document of the Stockholm Conference on Confidence- and Security-Building Measures and Disarmament in Europe (CDE), where the "Gorbachev factor" was beginning to have an impact. Under the Stockholm Document, each participating state, whose compliance w i t h the agreed confidence and security building measures is doubted by another participating State, must accept an inspection on its territory by the latter. However, the annual number of such inspections was limited to three and to one by the same participating state, the number of inspectors on a team to four and the duration of an inspection to 48 hours. Yet only one year later, comprehensive on-site inspection was agreed to by the United States and the Soviet Union for the verification of the I N F Treaty. This has become standard practice, adopted, for example, for the 1990 CFE Treaty, the 1992 CFE-1A Agreement and the 1999 Agreement on Adaptation of the CFE Treaty, the 1991 and 1993 START Treaties, the 1993 Chemical Weapons Convention, the 1996 CTBT 8 6 , and the 1997 Landmines Convention. 87 The net result of the developments in these two and other areas should be that at least gross violations of international legal obligations are less and less likely to go unnoticed. A t least temporary cheating may be particularly tempting with respect to disarmament accords. A party may try to catch up w i t h or achieve superiority over its rival(s) surreptitiously and then confront the latter with its political demands. The accusation and the proof that such a position of strength has been achieved through internationally wrongful acts w i l l not be very helpful to the deceived side confronting the fait accompli. That even the most sophisticated means of surveillance are anything but perfect was rather emphatically demonstrated in 1998 by India. It managed to evade detection of its preparations by US reconnaissance satellites, which overfly its territory day by day, so that the C I A learned about the Indian nuclear tests through the media and not from its 27 billion-a-year intelligence apparatus. 88

85

The relevant provisions of this treaty and the other treaties and "soft law" agreements entered into until 1993, which are mentioned below, can be found in: Jozef Goldblat , Arms Control: A Guide to Negotiations and Agreements, 1994. 86 35 I L M 1439-1478 (1996). 87 36 I L M 1507-1519 (1997). As in international environmental law, a shift to positive incentives and cooperative mechanisms can recently also be noted in the legal regime of arms control and disarmament. However, most of them, such as security guarantees or assistance clauses, have remained rather modest so far. See Thilo Marauhn y Die Durchsetzung von Rüstungskontroll- und Abrüstungsvereinbarungen. Zugleich ein Beitrag zur Effektivität des Vertragsvölkerrechts in Fragen der internationalen Sicherheit, Die Friedens-Warte, vol. 74, 1999, 159-186. 88 For details, see Time Magazine, 25 May 1998.

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I V . Domestic Costs I n addition to the above-mentioned international consequences, a breach of international law may also entail domestic costs. Decision makers are well-advised to take them into account as well, especially if their principal goal is, as may be safely assumed, to remain in power. T o begin with, internationally wrongful acts are usually grist to the mill of the political opposition in a country, whose main aim is to replace the ruling political leaders. A violation of an international legal obligation by a government becomes a particularly useful political weapon in the hands of its opponents if the breach fails to produce the gains hoped for, be it because the international costs turn out to be higher than initially calculated, or because the desired results - for instance, the defeat of the victim chosen for armed aggression and the occupation of its territory - have not been achieved at all. In such a situation, the opposition w i l l hardly fail to point out that the government, in addition to demonstrating its political incompetence, made matters worse by violating international law and thereby tarnished the country's international reputation. Opposition leaders w i l l therefore call for a rapid changing of the political guard. Political opposition also exists in dictatorships and states with a one-party system and not only in pluralistic democracies. Even within an apparently monolithic leadership, there are political forces which are bent on ascending to the pinnacle of the power pyramid, without openly revealing their ambitions, at least not in public. Efforts of the "number two or three" (and persons on rungs further down the ladder) to oust the supreme leader are less visible than in a multi-party democracy. But this does not signify that these individuals have resigned themselves to their subordinate positions. They w i l l similarly exploit blunders committed by the "number one" and his unwavering supporters, especially if the leadership fails to reach its declared objectives and this failure is aggravated by an undeniable violation of international law which meets with negative international responses as outlined above. However, pluralistic democracy still is the legal and political system which constitutes the safest guarantee for the respect of a State's international obligations. This applies, above all, to compliance with the prohibition of the threat or use of force. In this connection, a theory, which is currently en vogue among political scientists, is worth mentioning: Democracies do not wage offensive wars, at least not against other democracies. 89 The reasons given for this pacific orientation are manifold. As 89 According to Jack Levy , this principle "is the closest thing we have to a law in international politics." Jack S. Levy , Domestic Politics and War, Journal of Interdisciplinary History, vol. 18, 1988, 653-673. Among those in favor of this view, see Michael Doyle , Liberalism and World Politics, American Political Science Review, vol. 80, 1986, 1151-1169; Bruce Russett, Grasping the Democratic Peace, 1993\JohnM. Owen , How Liberalism Produces Democratic Peace, International Security, vol. 19, No. 2, Fall 1994, 87-125; for qualified

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Immanuel Kant already argued, if those who suffer the negative consequences of armed hostilities directly, i.e., the average citizens, have at least an indirect say on the decision to go to war, they will opt for peace. Democratically elected governments enjoy sufficient legitimacy, so that they do not have to seek armed confrontations in order to rally their population against a common enemy. Democracies tend to transfer the peaceful settlement of disputes which they practice internally to their conflicts at the international level. In democracies the degree of militarization is low, since the military - assumed to be more war-prone - is under firm civilian control, and only a small part of the population serves permanently in the armed forces. Pressure groups whose economic interests require cooperative relations w i t h other states are said to be particularly influential in democracies and to see to it that their governments refrain from resorting to force. Even if this theory, which is by and large supported by empirical evidence, may have to be qualified somewhat, it appears correct in general terms. 90 The shift to pluralistic democracy after the end of the East-West conflict, not only in the former Soviet bloc in Europe but also on other continents, is indeed reassuring in this regard. True enough, democratic principles solemnly proclaimed on paper in the form of constitutional law do not suffice. It will take some time to make liberal democracy and civil society a living reality, which is rooted in the minds and hearts of the citizens in the countries concerned. One corollary of democracy is particularly relevant in the context of the domestic costs to which internationally wrongful acts give rise. As a result of the freedom of the media, such acts are likely to receive rather prominent and detailed coverage in at least some instances. Furthermore, public opinion is not only influenced by national but also by foreign newspapers, radio and, above all, television broadcasts easily accessible through satellite communication systems.91 Technological innova-

support, see Edward D. Mansfield/Jack Snyder , Democratization and War, Foreign Affairs, vol. 74, No. 3, May/June 1995,79-97, and International Security, vol. 20, No. 1, Summer 1995, 5-38; Ernst-Otto Czempiel , Kants Theorem. Oder: Warum sind die Demokratien (noch immer) nicht friedlich? Zeitschrift für Internationale Beziehungen, vol. 3, 1996, 79-101; among the critics, see Christopher Layne , Kant or Cant: The Myth of Democratic Peace, International Security, vol. 19, No. 2, Fall 1994,5-49; David E. Spiro , The Insignificance of the Liberal Peace, 50-86. 90 The assumption that democracies, apart from not fighting each other, comply with international law may be correct as a rule of thumb, but it is not "watertight" either. For instance, the United States, widely considered as a model democracy, repeatedly skates on thin legal ice when considering or actually resorting to the use of armed force; moreover, no - even unconvincing but somehow tenable - legal arguments can be advanced for the failure to honor its financial obligations to the United Nations. See infra , Section V. 91 However, these trends are not universal. Thus the fundamentalist Talibans prohibited television and video cassettes in Afghanistan in July 1998, claiming that their programs and contents were immoral and caused mental disorder.

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tion and increasingly inquisitive journalism have further strengthened the hand of the fourth power, the media, which tends to escape the traditional trilateral system of checks and balances. Domestic pressure groups, (transnational) companies, chambers of commerce, trade unions, etc., whose business and other interests are threatened by strains on their country's relations with other states caused by breaches of international law, have an impact as well. The opposite phenomenon, the so-called military-industrial complex, received a great deal of attention by "critical" peace research which was rather fashionable in the late 1960s and the early 1970s.92 This "unholy alliance" composed of high-ranking members of the military, industrialists, technicians, politicians and trade union leaders is said to be motivated by the desire to maintain and increase their power and profits. The "complex" benefits from international tension, to which breaches of international law are apt to contribute considerably. International conflicts and crises allow it to mobilize nationalistic sentiments and chauvinistic stereotypes about the enemy. They can be used as arguments that justify high defense expenditures which serve the interests of these "hawks." However, it is not a foregone conclusion that they w i l l prevail over the "doves," whose interests are diametrically opposed to those of the military-industrial complex, primarily not because of lofty moral or legal convictions but due to down-to-earth reasons of material gains. A n actor that did not seem to deserve a specific entry in the cost-benefit ledger for fulfillment vs. breach of international legal obligations some 20 years ago is the N G O . 9 3 Although their precise legal status including the issue of responsibility is still unclear and their legitimacy may be doubtful, these organizations have come to play a role which even the governments of powerful states today ignore at their risk and peril. Some of them operate merely at the national level, although their activities may be imitated by similar organizations in other countries. Many of them, however, have joined forces across state borders under a central institutional roof as INGOs, thus increasing their political clout. True enough, their material resources may be negligible; like the Vatican, to recall Stalin's question, not commanding a single armed division. However, their activists have developed remarkable ingenuity and skills in launching spectacular initiatives, such as chaining themselves to nuclear plants or trying to penetrate off-limits maritime zones where nuclear weapon tests are to be conducted. N G O s have become directly involved in domestic political and international diplomatic processes, for example, as members of delegations representing states at international conferences. 94 They also know how to attract the at92

Cf Dieter Senghaas, Abschreckung und Frieden: Studien zur Kritik organisierter Friedlosigkeit, 1972, 130-145. 93 Chayes/Handler Chayes (note 55), 1995, 250-270; John Boli/George M. Thomas (eds.), Constructing World Culture: International Nongovernmental Organisations Since 1875,1999. 94 The conference in Rome which adopted the Statute of the I C C in 1998 is a case in point.

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tention of the media, so that they can even embarrass mighty transnational corporations or governments of great powers. Internationally wrongful acts may also have negative precedent effects domestically. For instance, orders contrary to the law of war or international humanitarian law could erode the discipline within the armed forces to which they are given. The negative example set by such superiors may undermine their authority, so that their orders may not be obeyed in the future. Breaches of international law could also cause tension and strain in a state's foreign policy apparatus, notably within the foreign ministry itself. Ministries for foreign affairs normally have a special institution, the legal department or section (Völkerrechtsbüro - Office of International Law - in the Austrian terminology) which ensures that the foreign policy of the state concerned remains in conformity w i t h international law. The influence of this agency varies from country to country. Its impact also depends on the personality of the chief legal adviser and the competence of his/her staff. Moreover, top decision makers use their legal advisers in two different ways, either as consultants or as advocates. They may either ask for legal expertise before choosing between the options available to them and may be ready to renounce an otherwise attractive option if they are told that it is not in line w i t h their state's legal obligations; or they may take a decision first and then call on their legal experts to provide whatever arguments these lawyers can devise in order to justify the chosen course of action, even if its legality is dubious. Furthermore, important matters may be decided without involving the legal department at all. Yet even in foreign ministries where the legal advisers play the role of attorneys at the higher bureaucratic levels, they usually have a real say as respected or sometimes even feared technocrats on issues dealt with in the lower echelons. Sometimes the author of a proposal is not aware that the suggested action is contrary to international law. Even legal experts find it increasingly difficult to keep abreast of the state of international law in its various, expanding and rapidly changing fields. The average foreign ministry officials, whose legal training is often rudimentary and/or dates back to their university years, are even more at a loss. They w i l l usually prefer to conform to the position of the legal department instead of raising the matter for a decision at a higher level; for they may not wish their superiors to learn that they overlooked or were wrong about the legal aspects of the matter at hand. Finally, there is a psychological barrier to conscious violations of international law. Individuals involved in foreign-policy decision-making have internalized international legal norms. 95 During their formative years, they have learned that law 95

Internalization in a broader sense is the key explanation for why states obey international law according to the transnational legal process approach adopted by Harold Hongju Koh. He distinguishes three types of internalizing an international legal norm into a state's domestic structures. Social internalization means that the rule concerned acquires so much public legitimacy that there is widespread obedience to it. Through political internalization political

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like religion or social and moral rules - is part of that body of prescriptions one simply follows without much question. Moreover, it is difficult to prove that one and the same person scrupulously observes all other norms including those of domestic law but, as a practitioner of foreign policy, easily disregards the rules of international law, because these rules are not "real law" and the raison d'etat prevails over right in international relations. Such a differentiating attitude is all the more unlikely as international treaties, which represent the increasingly dominant source of international law, are published in the same official instruments - law gazettes, official journals, etc. - as the acts of national legislation. Regardless of whether the relevant psychological mechanism is called conscience, super-ego (Über-Ich ) or whether another term is used: A deliberate violation of a norm makes a normal individual feel ill at ease, if not guilty, and not proud and happy.

V . Reasons for Violating International Law What remains to be explained - at least briefly - is the undeniable fact that international law continues to be violated in spite of the above-mentioned costs. However, internationally wrongful acts do not disprove the theory restated in this article. A cost-benefit-analysis may simply lead decision makers to the - frequently erroneous - conclusion that the expected advantages of a breach of international law exceed the calculated drawbacks. For instance, if national security seems at stake, a government may resort to the illegal use of force, especially to preventive self-defense, although the legality of this type of self-defense remains widely disputed. Similarly, the confiscation of foreign property without compensation may be seen as vital to a country's economic survival. Conversely, there are situations in which the costs of violating an international legal obligation appear negligible. A t the bilateral level, the weaker victim of the

elites accept and apply a norm as government policy. Legal internalization incorporates an international legal norm into the system of domestic law through executive action, judicial interpretation or legislative action. In due course, initial grudging compliance ought to become habitual obedience, which may in turn lead to a redefinition of national interests and the establishment of the identity as a law-abiding state. Koh (note 4), 2645-2659. One of the problems with this basically attractive theory is the possibility of internalizing, in different countries, divergent interpretations of a norm, which cannot be eliminated in the transnational legal process, so that they trigger conflicts between the states involved. Such disputes may even be exacerbated by the inclusion of these interpretations in the actors' value systems through their internalization. Nor is internalization a panacea against fundamental changes in the interests of the parties concerned or the accession to power in a state by a less law-abiding regime, ready to disregard norms hitherto complied with.

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breach may be expected to renounce reprisals or retorsions in order to avoid an escalation of the conflict which may only entail further losses for it. Decision makers may also assume that the international community as a whole or the other parties to a multilateral treaty w i l l not be able to agree on the sanctions to be taken against a decision to commit an internationally wrongful act. Moreover, it is conceivable that the state which violates a norm of international law does not mind setting in motion a process of further breaches of the same norm by other states because it may want its derogation. This would result in the familiar paradox of terminating or changing a rule through the emergence of new customary law: The first acts which lead to a divergent practice constitute breaches of the still existing older norm, until sufficiently frequent divergent behavior supported by opinio juris , by virtue of a qualitative jump, establishes the new rule, whereas its predecessor fades into obsolescence. A t the domestic level, weak governments, in particular, may be tempted to disregard their state's international legal obligations and engage in conflicts w i t h other states in order to divert attention from their internal difficulties and bolster national unity in the struggle w i t h a common external adversary. In a situation of national emergency, nationalistic passions can be whipped up, control of the media tightened and political opponents denounced as traitors. Such - in the terminology of sociology - "unrealistic" conflicts are particularly dangerous. For, unlike "realistic" conflicts which are means to an end, the "unrealistic" variant is an end in itself; it serves the release of internal tension and aggressiveness.96 Therefore, this type of conflict permits only alternatives w i t h respect to its objects but not resort to other, nonconflictual means. If the initial target of aggression disappears or becomes too strong for further confrontation, the party which started the "unrealistic" conflict w i l l direct its hostility at another, more convenient, adversary. If, as is currently the case in the United States, the government faces a majority of the opposition party in the legislature, the latter may prevent compliance w i t h the state's international obligations in order to score political points w i t h public opinion favorable to such a violation. For example, the United States Congress has refused to authorize full payment of dues to the U N budget. Moreover, there are situations in which actions to stop and prevent further violations of key obligations under international law are urgently needed. The legality of the measures envisaged may be dubious, however, especially if they include resorting to armed force. It is proposed to deal w i t h this problem in more detail, since it arose at the time this article was drafted w i t h regard to two "rogue states," Iraq and the FRY.

96

Lewis A. Coser , The Functions of Social Conflict, 1956, 48-55.

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I n early 1998, i g n o r i n g its duties under Security C o n t r o l Res. 687 (1991), the I r a q i g o v e r n m e n t refused U N S C O M inspectors access t o Saddam Hussein's palaces. T h e U n i t e d States, supported b y Great Britain, prepared air strikes t o enforce c o m p l i ance b y Iraq, arguing that the above-mentioned resolution p r o v i d e d a sufficient legal basis for the envisaged " O p e r a t i o n Desert T h u n d e r . " H o w e v e r , the w o r d i n g of Res. 687 (1991) e v i d e n t l y requires an additional mandate f r o m the C o u n c i l for such m i l i t a r y measures, a v i e w shared b y m o s t o t h e r states, i n c l u d i n g permanent members of the Security C o u n c i l w h i c h opposed the operation.97 T h i s d i d n o t prevent the U n i t e d States and Great Britain f r o m finally i m p l e m e n t i n g their threats b y launching " O p e r a t i o n Desert F o x " i n December 1998, after I r a q had once again obstructed c o n t r o l b y U N S C O M . I t was argued o n the U S side that Iraq's non-compliance w i t h its obligations under Res. 687 suspended this resolution, so that the t w o Western powers were entitled t o base their air strikes o n Res. 678 (1990) w h i c h had authorized " O p e r a t i o n Desert S t o r m " against I r a q i n 1991. 98 T h e legality of " O p e r a t i o n A l l i e d Force" launched b y N A T O m e m b e r states o n 24 M a r c h 1999 against the F R Y i n order, above all, t o prevent a h u m a n i t a r i a n disaster i n K o s o v o is even m o r e p r o b l e m a t i c . 9 9 T h e A t l a n t i c Alliance c o u l d n o t justify

97 Para. 34 of Res. 687 (1991) reads as follows: "[The Security Council] Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area." 98

A "Legal Assault:" Experts Cite U N and U.S. Resolutions, International Herald Tribune, 18 December 1998; see also Ruth Wedgwood , The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq's Weapons of Mass Destruction, AJIL, vol. 92, 1998, 724-728; Jules Lobel/Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-fires and the Iraqi Inspection Regime, AJIL, vol. 93,1999,124-154. 99 Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, EJIL, vol. 10, 1999, 23-30-Jonathan I. Charney , Anticipatory Humanitarian Intervention in Kosovo, AJIL, vol. 93, 1999, 834-841; Christine M. Chinkin , A "Good" or "Bad" War?, AJIL, vol. 93, 1999, 841-847; Jost Delbrück, Effektivität des UN-Gewaltverbots. Bedarf es einer Modifikation der Reichweite des Art. 2 (4) UN-Charta?, Die Friedens-Warte, vol. 74,1999,139-158;RichardA. Falk, Kosovo, World Order, and the Future of International Law, AJIL, vol. 93,1999, 847-857; Peter Fischer, Der gerechte Krieg im Kosovo, Die Universität, June 1999, 15; Thomas M. Franck, Lessons of Kosovo, AJIL, vol. 93, 1999, 857-860; Jochen Ahr. Frowein, Der Schutz des Menschen ist zentral. Der Krieg im Kosovo und die völkerrechtliche Regelung der Gewaltanwendung, Neue Zürcher Zeitung, 17 July 1999; Michael J. Glennon, The New Inverventionism: The Search for a Just International Law, Foreign Affairs, vol. 78, No. 3, July/August 1999, 2-7; Catherine Guicherd, International Law and the War in Kosovo, Survival, vol. 41, No. 2, Summer 1999, 19-33; Louis Henkin , Kosovo and the Law of "Humanitarian Intervention," AJIL, vol. 93,1999, 824-828; Peter Hilpold, Auf der Suche nach Instrumenten zur Lösung des Kosovo-Konfliktes: Die trügerische Faszination von Sezession und humanitärer Intervention, in: Joseph Marko (ed.), Gordischer Knoten Kosovo/a: Durchschlagen oder entwirren?, 1999,157-189; Margit Hinter-

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its air attacks i n terms o f either of the t w o exceptions t o the p r o h i b i t i o n i n A r t . 2 para. 4 o f the U N Charter. Its members d i d n o t exercise t h e i r inherent r i g h t o f collective self-defense under A r t . 51 of the Charter, since none of t h e m was the v i c t i m o f an armed attack b y Yugoslavia; n o r had the U N Security C o u n c i l authorized the resort t o m i l i t a r y force. T h e a u t h o r is n o t convinced b y any of the arguments advanced i n favor of the lawfulness of " O p e r a t i o n A l l i e d Force." T h e so-called h u m a n i t a r i a n i n t e r v e n t i o n , u n d e r t a k e n i n order t o stop h u m a n rights violations i n another state, has n o sufficient basis i n any of the sources of international law, especially n o t i n customary law, above all w i t h respect t o the required broad opinio juris.

10

° A n Ersatzvornah-

steininger y Der Kosovo-Konflikt und die Renaissance der Bellum Iustum-Doktrin, Wiener Blätter zur Friedensforschung, 2/1999, 24-41; Knut Ipsen t Der Kosovo-Einsatz - Illegal? Gerechtfertigt? Entschuldbar?, Die Friedens-Warte, vol. 74,1999,19-23; Heribert Franz Köck, Legalität und Legitimität der Anwendimg militärischer Gewalt. Betrachtungen zum Gewaltmonopol der Vereinten Nationen und seinen Grenzen, Zeitschrift für öffentliches Recht, vol. 54, 1999, 133-160; Nico Krisch, Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council, Max Planck Yearbook of United Nations Law, vol. 3, 1999, 59-103, 79-86; Peter Mayery War der Krieg der N A T O gegen Jugoslawien moralisch gerechtfertigt? Die Operation "Allied Force" im Lichte der Lehre vom gerechten Krieg, Zeitschrift für Internationale Beziehungen, vol. 6,1999,287-321; Hanspeter Neuhold y Die "Operation Allied Force" der N A T O : rechtmäßige humanitäre Intervention oder politisch vertretbarer Rechtsbruch?, in: Erich Reiter (ed.), Der Krieg um das Kosovo 1998/99, 1999, 193-208; Pierre Pescatore, Die N A T O war in Kosovo aktionsberechtigt, Neue Zürcher Zeitung, 5 August 1999; W Michael Reisman, Kosovo's Antinomies, AJIL, vol. 93,1999,860-862; AdamRoberts y N A T O ' s Humanitarian War, Survival, vol. 41, No. 3, Autumn 1999, 102-123; Natalino Ronzittiy Lessons of International Law from N A T O ' s Armed Intervention Against the Federal Republic of Yugoslavia, The International Spectator, vol. 34, No. 3, July-September 1999,45-54; Christoph Schreuer, Is there a Legal Basis for the N A T O Intervention in Kosovo?, International Law F O R U M du droit international, vol. 1,1999,151-154; Bruno Simmay N A T O , the U N and the Use of Force: Legal Aspects, EJIL, vol. 10,1999,1-22; Sigmar Stadlmeier t Völkerrechtliche Aspekte des Kosovo-Konfliktes, Österreichische Militärische Zeitschrift, vol. 37, 1999, 567-574; Daniel Thür er, Die NATO-Einsätze in Kosovo und das Völkerrecht, Neue Zürcher Zeitung, 9 April 1999; Christian Tomuschat, Völkerrechtliche Aspekte des Kosovo-Konflikts, Die Friedens-Warte, vol. 74,1999,33-37; Ruth Wedgwood , N A T O ' s Campaign in Yugoslavia, AJIL, vol. 93, 1999, 828-834. 100

Ulrich Beyerlin , Humanitarian Intervention, EPIL, vol. IE, 1982,926-930; Michael Bothe, The Legitimacy of the Use of Force to Protect Peoples and Minorities, in: Catherine Brölmann/Rene Lefeber/Marjoleine Zieck (eds.), Peoples and Minorities in International Law, 1993,290-299; Christopher Greenwood , Gibt es ein Recht auf humanitäre Intervention?, EuropaArchiv, vol. 48,1993,93-106; Peter Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force, 1993; Hermann-Josef Blanke, Menschenrechte als völkerrechtlicher Interventionstitel, AVR, vol. 36, 1998, 257-284; Karl Doehring, Völkerrecht. Ein Lehrbuch, 1998, 431-436; Dino Kritsiotis, Reappraising Policy Objections to Humanitarian Intervention, Michigan Journal of International Law, vol. 19, 1998,1005-1050; Fernando R. Teson , Humanitarian Intervention: An Inquiry into Law and Morality, 1998; Francis KofiAbiew y The Evolution of

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me by N A T O , i.e., action by N A T O members instead of the Security Council, which had affirmed, in Res. 1199 (1998) and Res. 1203 (1998),101 that the situation in Kosovo constituted a threat to peace and security in the region, also meets with serious objections. It is one thing for the Council to state the existence of one of the situations listed in Art. 39 of the Charter, but it is quite another thing to agree on the necessary action, in particular the use of armed force. The members of the Security Council may disagree bonafide as to whether all possibilities for settling a conflict peacefully are exhausted and what type of enforcement measure is necessary. 102 Since N A T O does not want the Kosovo Albanians to form a state of their own, it did not invoke the controversial right to provide military assistance to them in their struggle as a "people" for self-determination. 103 Whether the Security Council legalized "Operation Allied Force" ex post by adopting Res. 1244 (1999) remains open to question. In the preamble, the Council welcomed the acceptance by the FRY of the G 8 principles for a political solution of the Kosovo crisis, which was brought about by the N A T O air attacks. But the Security Council refrained from taking a position on the legal aspects of the resort to armed force by the Atlantic Alliance. N A T O ' s view on the need for the authorization of future humanitarian interventions by the Council is similarly unclear. Is such an authorization regarded as necessary or merely desirable, but not indispensable? Ambiguous formulations in the new Strategic Concept adopted at the Washington summit of the Atlantic Alliance of 23/24 April 1999 and statements by leading N A T O politicians also permit the second conclusion. 104 The Kosovo conflict has highlighted the dilemma of a conflict between two key principles of contemporary international law, the prohibition of the threat or use of

the Doctrine and Practice of Humanitarian Intervention, 1999; Danish Institute of International Affairs , Humanitarian Intervention: Legal and Political Aspects, 1999. 101 In these two and the earlier Res. 1160 (1998) on Kosovo the Council also stated that it was acting under Chapter V E of the Charter. 102 In its Res. 1160 and 1199, but not in Res. 1203, the Security Council stated that it would consider additional measures if the measures demanded by it were not taken. However, it was clear that the two permanent members China and the Russian Federation would veto the authorization to resort to military action against the FRY. 103

Doubts prevail as to the economic viability of Kosovo as an independent state; ambitions concerning the creation of a "Greater Albania" meet with widespread objections. Moreover, unfortunately for the Albanian Kosovars, the definition of a people entitled to self-determination according to the principle uti possidetis was applied to the former Yugoslav Republics, whereas Kosovo merely was an Autonomous Province within Serbia. Finally, the West had opposed the construction of wars of national liberation as a form of self-defense, in the exercise of which peoples may receive help - including military aid - from other states. 104 For details, see Neuhold (note 99), 207-208.

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force and respect for human rights, which ceased to be a matter within the exclusive jurisdiction of states. Both rules are regarded as jus cogens, as having erga omnes effects and have been included by I L C in the category of norms whose violation constitutes an international crime. In this "legal zero-sum game," priority ought still to be given to the non-use of force in this age of weapons of mass destruction, apart from the unwelcome precedent effects the legalization of humanitarian intervention could have. The author thus concludes that "Operation Allied Force" was contrary to international law as it stands today. A t the same time, he is of the opinion that N A T O ' s air raids against the FRY were morally acceptable and politically necessary. This view is easier to live with if one does not consider compliance w i t h the law - not only international law, for that matter - as the supreme value. Law and justice do not always coincide. If they conflict with each other, it may be wiser to call illegal behavior a breach of the law instead of opening the Pandora's box of trying to somehow squeeze the violation into lex lata . "Operation Allied Force" epitomizes the new political developments outlined in the introduction. The FRY, a "rogue state," committed large-scale atrocities, ignoring unanimous condemnation, growing isolation and repeated warnings that N A T O would not sit idly by. The media, especially T V reports, mobilized public opinion which called for action to halt "ethnic cleansing" in Kosovo. W i t h the shift from a bipolar to a unipolar system, the West led by the USA could exploit its superiority by resorting to armed force to this end without having to fear nuclear escalation in an eventual confrontation w i t h an equally powerful opponent. The future w i l l tell whether "Operation Desert Fox" and "Operation Allied Force" w i l l remain atypical incidents or lead to a pattern for the use of force whose legal basis w i l l remain dubious for some time. N A T O ' s new Strategic Doctrine does not exclude the role of "global policeman" for the Atlantic Alliance. It is also worth noting that in the two above-mentioned crises no serious in-depth debate on the legal aspects took place, at least not publicly. Sweeping contentions and brief, unsubstantiated references to Security Council resolutions, self-defense or humanitarian considerations certainly did little to convince public opinion of the relevance of international law in situations in which the political stakes are high. V I . Conclusions The record of compliance w i t h international law in the post-Cold War era has been mixed so far. One the one hand, several positive factors which contribute to the observance of international legal norms by making their violation more costly have undoubtedly been strengthened. The end of the East-West conflict eliminated the main cause of the paralysis of the U N system of collective security. Governments must reckon at least with non-military sanctions, and not only if they

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commit large-scale armed aggression against another state. The U N Security Council has adopted a broad notion of threats to the peace which also includes the internal situation within a state. Growing international interdependence on a global scale increases the vulnerability to sanctions of states that disregard their duties under international law. The media and improved verification procedures and mechanisms in various fields make it more difficult to conceal violations of international law over a longer period of time. N G O s and the media combine their efforts with those of states and IGOs to mobilize domestic and international public opinion and exert political pressure on lawbreakers to an unprecedented degree. The gradual "communitization" of international law (jus cogens, obligations erga omnes, the concept of international crimes) has broadened the scope for collective responses to internationally wrongful acts. In the future, individual decision makers may not be able to shield themselves behind the collective responsibility of the whole population of their state if they order severe breaches of the key rules of international law. O n the other hand, the observer of international events is confronted w i t h grave breaches of international law, especially with violations of human rights, almost daily. Today, it is not so much the great powers but rather less powerful "rogue states" that are nevertheless not inhibited from committing internationally wrongful acts. Their regimes are not impressed by the "mobilization of shame." They hardly care about the hardships inflicted on their populations through economic and other sanctions. International isolation is used by them to whip up nationalistic feelings and to appeal to chauvinistic sentiments against an allegedly unjust and hostile world. The leaders of such outcast states are ready to engage in "unrealistic" conflicts in order to preserve and strengthen their grip on domestic power. The governments of "failed states" have lost control over their country and people. The central authorities are unable to cope w i t h the outbreak of violence which may spread rapidly and lead to massive human rights violations. Despite the withering away of the previously dominant ideological and political conflict, the great powers still fail to agree, especially on their appropriate joint reaction to major breaches of international law. As a result, the U N system of collective security still does not live up to the expectations of its founding fathers, above all with regard to military enforcement measures. Ideological convictions and religious beliefs continue to divide mankind. As the only remaining superpower, the United States may be tempted to enforce its values and interests as the "global policeman," even if the legality of its actions is doubtful. This is a temptation that this idealistic nation, which at the same time practices hard-nosed Realpolitik , could find hard to resist in a unipolar world. The problems inherent in the cost-benefit approach re-examined here remain all too obvious. The various items enumerated in the previously mentioned balance sheet are hard to evaluate correctly, above all in quantitative terms. N o hard and fast

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rules can be offered, since national interests and priorities - which are elusive concepts anyway - are defined differently by different governments and in different situations. Expected gains are difficult to measure and compare against likely losses, especially since the probability variable further complicates the assessment. Quite clearly, not all decision makers consider all the items listed above every time they envisage a breach of international law. It is submitted that the effectiveness of international law would benefit considerably if they did so in the future. Political leaders ought to be aware of the truism that human beings are known to overrate the short-term benefits and to underestimate the long-term disadvantages of their deviant behavior. They ought to realize that, on balance, the costs of internationally wrongful acts have been rising, as this article was intended to demonstrate. More than ever, governments should, therefore, heed Edmund Burke's pertinent advice that the statesman should be in nothing as economical as in the production of evil, 105 and breaches of international law fall under this category.

105

Karl W. Deutsch , The Analysis of International Relations, 1968, 85.

Confronting the "Culture of Impunity": Immunity of Heads of State from Nuremberg to ex parte Pinochet By Jill M. Sears*

I. Introduction That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. ... Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. 1

The sun is setting on the "culture of impunity" which has typified transitions from military dictatorships to democracies in South America. 2 The traditional concept of sovereign immunity, once absolute and inviolable, has given way to a more restrictive view. Similarly, developments since World War I I in extradition law and, especially, the international human rights movement have eroded the immunity afforded to individuals accused of committing "international crimes." The list of actions comprising international crimes has, itself, undergone phenomenal expansion since the Nuremberg and Tokyo tribunals first sat in judgment of defeated German and Japanese military officers. While once the law of war was novel, and even Nuremberg prosecutors could indict only for the broad (and at the time, illdefined) categories of war crimes, crimes against peace, and crimes against humanity associated w i t h the War, today international law recognizes a plethora of acts as * The author would like to thank Professor Dr. Jost Delbrück for his support and assistance. This article is dedicated to Andrew Koniers , for his patience. This article covers events up to and including 15 January 2000. 1

Final Judgment of the Nuremberg Tribunal (hereinafter Nuremberg Judgment), 1 October 1946, reprinted in: American Journal of International Law (AJIL), vol. 41,1947,172,220-221. 2 The expression "culture of impunity" refers to the process of effectively granting immunity to individuals in high office of an outgoing military dictatorship, shielding them from individual liability for international crimes. This phenomenon began with the fall of military juntas in the Southern Cone nations, but has since emerged in other parts of Latin America, the republics comprising the former Soviet Union, as well as parts of Asia and Africa. See Richard Falk , Telford Taylor and The Legacy of Nuremberg, Columbia Journal of Transnational Law, vol. 37, 1999, 693, 718-719.

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separate crimes, including genocide, apartheid, slavery and slave trading, torture, unlawful human experimentation, piracy (the first crime subject to universal jurisdiction), hijacking, and taking of hostages.3 Moreover, in addition to the responsibility of states to protect aliens, long regarded the only valid stake a state might have in the actions of another state, international law now requires that a state guarantee a certain standard of treatment to its own citizens. Since the time of Grotius , the argument has been advanced that some acts place an obligation on states either to prosecute those who violate international law where they are found or to extradite them to a third state.4 This argument found a willing audience in the aftermath of World War II. The consent of states to the U N Charter, followed by numerous multilateral conventions protecting individuals from mistreatment at the hands of their own states,5 confirmed the desire to protect the rights of individuals under international law. Despite the gradual evolution of these concepts, and the more than fifty years of practice which illustrates the consent to these principles by states, the international system has been plagued by a loophole that could allow high-ranking officials who commit international crimes to go unpunished. The "Pinochet paradox" that results in the case of alleged torture is particularly troubling: International law requires that to constitute a crime, torture be committed by a public official acting in his official capacity, but also provides that the official who is most responsible - the head of the state directing the unlawful torture - enjoys immunity for his official conduct. The issue then presented is whether conduct that is criminal under international law can ever properly be considered "official conduct." The decision of the British House of Lords in the case against General Pinochet held that such a result cannot be permitted. While not an attempt to answer all questions emerging from this Pandoras' box, this author w i l l evaluate the Pinochet decision in an effort to draw out the issues remaining for the international community of states to resolve.

I I . The Development of the Law of Immunity Traditionally, sovereign states have been the sole subjects of international law. Immunity of states from claims by other states was presumed and widely considered a matter of customary international law. United States Supreme Court Chief Justice John Marshall summarized this notion in the Schooner-Exchange case, wherein the Court held that a French warship in a United States port enjoyed immunity from

3

M. CherifBassiouni , The Proscribing Function of International Criminal Law in the Processes of International Protection of Human Rights, Yale Journal of World Public Order, vol. 9, 1982, 193, 197. 4

See the discussion infra , Section IV. B.

5

See list of representative conventions infra. Section IE. A.

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U.S. jurisdiction. 6 Chief Justice Marshall's opinion held that no state would subject itself to the authority of another without an implied understanding that entry into a foreign territory included a grant of immunity from the territorial sovereign's power. 7 Immunity for heads of state8 grew as a natural extension of sovereignty, exempting government officials from responsibility for acts conducted in their official capacity.9 After all, why should the legal entity remain immune from suit, while the individual leader is dragged from his post to account for his actions in any court? The first exception to absolute state immunity concerned treatment by one state of citizens of another state present in its territory. The law of state responsibility for injuries to aliens, going back to the earliest period of modern international law, imposed liability on a state for injuries to foreigners in its territory when the wrongful act or omission causing the injury was attributable to that state.10 This included liability for actions of government bodies and officials acting within the scope of their authority. 11 But international law at that time did not go so far as to recognize injured aliens as subjects of international law; rather, it viewed them as holders of rights belonging to their governments. U n t i l this century, a [s]ummary execution, torture, conviction without due process (or any process, for that matter) were legal6

Schooner-Exchange v. MTaddon , 11 U.S. (7 Cranch) 116 (1812).

7

Id. At that time, the majority of states considered such immunity absolute. The modern trend of Western states has been to support a practice of restrictive immunity, under which states engaging in private conduct (notably, commercial activities) do not enjoy immunity with respect to those acts. E.g. , the U.S. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1605(a)(2). See GeorgDahm/JostDelbrück/Rüdiger Wolfrum , Völkerrecht, vol. 1,2nd ed., 1989, 456-462. 8

Immunity ratione personae normally applies to a government official's (or diplomat's) private conduct while in a foreign territory. See Dahm/Delbrück/Wolfrum (note 7), 453-454. Immunity ratione materiae applies to a head of state's conduct in carrying out his official duties. The Act of State doctrine often referred to in common law countries indicates the state's "adoption" of the actions of another legal person (individual or corporation) as its own, thus affording retroactive immunity to that person, often a head of state or other government official. 9

Exemplary cases in the United States include Hatch v. Baez, 7 Hun. 596 (N.Y.App.Div. 1876) and Underbill v. Hernandez , 168 U.S. 250 (1897). The U.S. application of this doctrine has also been limited in recent years. See the opinion of the Chief Judge of the Eleventh Circuit Court of Appeals in Nelson v. Saudi Arabia, 923 F.2d 1528 (1991), citing Supreme Court Justice Scalia ys opinion in W. S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400 (1990). 10

See, e.g., the International Law Commission's (ILC) Draft Articles on State Responsibility, Report of the International Law Commission, 1996, U N Doc. A/51/10,125 et seq., especially Articles 41-46. 11

See Thomas Buergenthal/Harold 1990, 152.

G. Maier, Public International Law in a Nutshell, 2nd ed.,

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ly significant only if the victim of such official eccentricities were the citizen of another state." 12 While the law concerning treatment of aliens was important for recognizing some limits on state sovereignty, the real shift to limiting immunity came about in great part through the recognition of individuals as bearers of rights and obligations under international law. The notion that individuals had inherent rights that were fundamental, while rooted in earlier thought, became a matter for international concern in the late 19th and early 20th centuries, in discrete areas:13 developments in humanitarian law leading to the Hague Conventions; the anti-slavery movement which resulted in the 1926 Slavery Convention; the expression of international concern for the treatment of Jews in Russia and Armenians in the Turkish Empire; post-World War I efforts to include protection of minorities in peace treaties; the League of Nations mandates; the establishment of the International Labor Organization; and the Institute of International Law's adoption of the Declaration of the Rights of Man in 1929. Individuals were ultimately recognized as partial subjects of international law, as the Permanent Court of International Justice stated in its 1928 decision in the Danzig Railway Officials case: "It cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts." 14 It was, however, the outcry following World War I I that pushed this notion to a new level, prompting the creation of the United Nations system and the movement toward international protection of human rights. Unfortunately, this ideal went largely neglected during the intervening Cold War years. 15 The end of this stalemate and the ensuing push for global - rather than hemispherical - cooperation has sparked greater hope that basic human rights will be guaranteed to all individuals through consistent international protection. A t the end of this millennium, recent efforts to hold individuals responsible for violations of international legal norms,

12

Far er, Human Rights before the Second World War, in: Inter-American Commission on Human Rights: Ten Years of Activities 1971-1981, 1982, v-vi. 13 For a thorough yet concise discussion of these events, see P. R. Ghandi , The Universal Declaration of Human rights at Fifty Years, German Yearbook of International Law (GYIL), vol. 41, 1998, 210-220. See also Hurst Hannum (ed.), Guide to International Human Rights Practice, 1984, 5. 14 15

1928 PCIJ, Series B, No. 15.

Antonio Cassese notes, though, that "despite the obvious problems of the Cold War era, the two power blocs did guarantee a modicum of international order to the extent that each of the superpowers acted as a policeman and guarantor of order in its respective bloc." O n the Current Trend towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, European Journal of International Law (EJIL), vol. 9, 1998, 1, 6.

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t h o u g h n o t as yet guaranteed of success, present the o p p o r t u n i t y t o c o n f i r m t h a t the principles first announced at N u r e m b e r g apply t o all persons.

I I I . M a k i n g Individuals Responsible for Crimes under I n t e r n a t i o n a l L a w Developments i n the law of w a r first gave rise t o the idea that individuals are subject t o i n t e r n a t i o n a l c r i m i n a l responsibility, enforceable b y i n t e r n a t i o n a l tribunals o r domestic courts, for certain acts o r omissions - an idea w h i c h t o d a y is undisp u t e d . 1 6 T h i s concept developed gradually over several centuries 1 7 before a significant step was taken i n the T r e a t y of Versailles p r o v i d i n g for the p u n i s h m e n t o f w a r criminals ( A r t . 228). 1 8 H o w e v e r , the watershed event w h i c h cemented this concept i n i n t e r n a t i o n a l l a w was the establishment of the m i l i t a r y t r i b u n a l at N u r e m b e r g following W o r l d War D.19

A. The Nuremberg Judgment and its Effects A r t i c l e 6 of the Charter of the I n t e r n a t i o n a l M i l i t a r y T r i b u n a l mandated i n d i v i d ual responsibility for the crimes triggering j u r i s d i c t i o n . 2 0 T h e massive scale of the h u m a n rights violations c o m m i t t e d b y the N a z i regime was matched b y a m u c h broader scope of j u r i s d i c t i o n granted t o the N u r e m b e r g T r i b u n a l t h a n was ever 16

Ian Brownlie , Principles of Public International Law, 5th ed., 1998,565, noting that "since the latter half of the nineteenth century [this concept] has been generally recognized ..." 17 M. Cherif Bassiouniy International Criminal Law: A Draft International Criminal Code, 1980, 5-11, noting the first reported prosecution in Naples in 1268 for initiating an unjust war and the first recorded international prosecution for war crimes in Germany in 1474, followed by isolated cases (before domestic tribunals) arising from the American Revolution and the American Civil War, the Spanish-American War, and the occupation of the Philippines. 18

Prosecutions under the Versailles Treaty were based on "(1) violations of laws and customs of war as established in customary international law and compiled in the Hague Conventions, and (2) initiation and waging of aggressive war in violation of international law." Cited in id. 19

Id., 9, noting that the "period between World War I and World War I I witnessed a lull in the efforts to regulate this type of conduct." The Nuremberg Charter, Tribunal Judgments and subsequent affirmation by the General Assembly "confirmed and applied [the idea] that individuals as well as States could commit violations of international law and be held responsible for those violations." Lori Fisler Damrosch, Enforcing International Law through Non-Forcible Measures, Recueil des Cours (RdC), vol. 269, 1997, 9, 27. 20

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal (hereinafter Nuremberg Charter), signed on 8 August 1945,82 U N T S 279. The text of Article 6 begins, "The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility ..." (emphasis added).

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envisioned f o l l o w i n g W o r l d W a r I. T h e crimes enumerated included crimes against peace ( A r t . 6(a)), w a r crimes ( A r t . 6(b)), and crimes against h u m a n i t y ( A r t . 6(c)). I n its final j u d g m e n t , the T r i b u n a l gave p o w e r f u l effect t o A r t i c l e 6 o f its Charter, stating: It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible... . In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as upon States has long been recognized.21 Despite arguments that the N u r e m b e r g and T o k y o tribunals represented victors' justice, 2 2 and violated the principles o f nullum

crimen sine lege , nulla poena sine lege, 23

" w h a t e v e r the status of the l a w i n 1945, A r t i c l e 6 of the N u r e m b e r g Charter has since come t o represent general international l a w , " 2 4 as evidenced b y the actions of the i n t e r n a t i o n a l c o m m u n i t y . 2 5 T h e General Assembly u n a n i m o u s l y adopted a resolution affirming "the principles of international l a w recognized b y the Charter o f the N u r e m b e r g T r i b u n a l and the j u d g m e n t of the T r i b u n a l . " 2 6 T h e General Assembly also adopted the Genocide C o n v e n t i o n 2 7 w h i c h is n o w i n force a m o n g 122

21

Nuremberg Judgment (note 1), 220.

22

For views concerning the World War I I tribunals, especially in light of the conduct in Vietnam, see generally Falk (note 2), and the sources cited therein. Lori Fisler Damrosch discusses this criticism as part of the problem of "principled application," and notes that there is "a new twist for the 1990s: the Yugoslavia and Rwanda Tribunals are enforcing international law only in those cases in which the permanent members of the Security Council can agree, while other at least equally egregious instances elude enforcement" (note 19), 34. This problem illustrates one key area in which the existence of an International Criminal Court may be particularly useful. Despite American opposition, the Rome conference did not approve mandatory Security Council approval of or home state consent to all indictments. Henry T. King/Theodore C. Theofrastous , From Nuremberg to Rome: A Step Backward for U.S. Foreign Policy, Case Western Reserve Journal of International Law (Case W. Res. J. Int'l L.), vol. 31, 1999, 47, 87. 23 Bassiouni (note 17), 10, stating that prior to Nuremberg, "crimes against humanity... were not specifically proscribed by international law." Brownlie takes a different view: "The category of war crimes was certainly orthodox law in 1945, and crimes against humanity were to a great extent war crimes writ large." Brownlie (note 16), 566. 24

Brownlie (note 16), 566.

25

"In the years immediately following the Nuremberg verdicts, there was a general consensus in the legal community that it was unjust to convict the Nazi defendants.... But time has treated the Nuremberg verdicts well. Today, the significance - perhaps even the inevitability of Nuremberg is the overwhelming consensus in the legal community." Anthony D'Amato, International Law Coursebook, 1994, 113. 26 27

G A Res. 95, U N Doc. A/64/Add. 1 (1946).

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U N T S 277.

Confronting the "Culture of Impunity" states,28 and the International Committee of the Red Cross opened for signature four Geneva Conventions concerning the conduct of war. 29 Discussion of an international criminal court led to the drafting of a statute as early as 1953.30 I n 1968, the General Assembly passed as a resolution a convention on the inapplicability of statutes of limitation to war crimes and crimes against humanity. 31 Finally, a number of important multilateral conventions concerning protection of human rights now exist at the international level: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination and Protection of Minorities, the Convention on the Elimination of A l l Forms of Discrimination Against Women, the Convention of the Punishment and Prevention of the Crime of Apartheid, 32 and, most relevant to the remainder of this article, the Convention Against Torture. 33 These agreements not only evidence the international community's desire to promote protection of basic human rights at the international level; in recent years, states have provided and strengthened enforcement mechanisms, most significantly through the recognition of universal jurisdiction. B. The Status and Effect of Universal Jurisdiction

Universal jurisdiction has become the hallmark of the international human rights movement, often providing some chance of enforcement where it would otherwise not be possible. This principle creates the basis upon which any state can initiate proceedings against an accused present in its territory for international crimes, regardless of the prosecuting state's link (or lack thereof) to the criminal acts.34 Universal jurisdiction was first recognized over the crime of piracy on the high seas 28

Brownlie (note 16), 566, note 41.

29

Geneva Conventions of 12 August 1949 for the Protection of Victims of War, 75 U N T S 31. 30

For discussion of the current status of the International Criminal Court and its relevance in immunity issues, see infra, Section V. 31 Convention on the Imprescriptibility of Crimes of War and Against Humanity, G A Res. 2391 (XXII) of 1968. 32

I C C P R , 16 December 1966,999 U N T S 171; ICESCR, 16 December 1966,993 U N T S 3; CERD, 7 March 1966, 660 U N T S 195; C E D A W , 18 December 1979, 1249 U N T S 13; Apartheid, 18 July 1976, 1015 U N T S 243. 33

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter Torture Convention), 10 December 1984, 1465 U N T S 85. 34

Brownlie (note 16), 308, noting that, technically, universal jurisdiction actually allows states to prosecute offenders under domestic law for acts not declared criminal under international law (e.g., piracy); international crimes, on the other hand, are prosecuted as breaches of international law.

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and was justified using the community interest at stake in prosecuting such offenses. 35 In the mid-20th century, supporters of the international human rights movement argued, based primarily on the principles announced at Nuremberg and the subsequent U N resolutions, that genocide and crimes against humanity triggered universal jurisdiction. 36 The most easily identifiable of crimes to which universal jurisdiction attaches are those dealt with in multilateral treaties. When such crimes are alleged to have been committed, any of the states which are party to the agreement may exercise jurisdiction to prosecute, applying domestic law enacted to implement the treaty obligation in its domestic courts. 37 This "piecemeal approach" to establish universal jurisdiction has been applied in conventions concerning taking of hostages, transnational terrorism, apartheid, and torture. 38 In addition to universal jurisdiction prompted by multilateral agreements, certain acts arguably trigger universal jurisdiction as a matter of customary international law. The American Law Institute, for example, has stated that "piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism" constitute such offenses. 39 O f particular relevance to the focus of Section V. of this article, the crime of torture has long been considered subject to universal jurisdiction. Torture has been addressed in several major international instruments, including the Universal Declaration of Human Rights (Art. 5), the International Covenant on Civil and Political Rights (Art. 7), and most significantly, the Convention Against Torture. Article 7 of the Torture Convention mandates states parties to either prosecute or extradite alleged offenders. 40 Thus, not only the prohibition of torture, but also the punishability of offenders, is well-established under international law. The relevance of universal jurisdiction to a discussion of immunity has been aptly stated by Marc Weiler: "As many of the most grave offenses to which universality attaches can typically be executed only by state officials, the process of the gradual expansion of legal universalism has obvious implications for the doctrine of immunities from jurisdiction." 41 In the following two parts, this author w i l l attempt to show that the classic notion of immunity is wholly incompatible with the notion of universal jurisdiction. 35

Id. See also the Lotus case (France v. Turkey), 1927 PCIJ, Series A, No. 9.

36

Buergentbal/Maier

(note 11), 172-173.

37

Richard B. Lillich/Hurst Hannum, International Human Rights: Problems of Law, Policy and Practice, 3rd ed., 1995, 937-938. 38

Id., 1005.

39

Restatement (Third) of the Foreign Relations Law of the United States § 404 (1987).

40

For discussion of aut dedere aut judicare , see infra , Section EI. C. 1.

41

O n the hazards of foreign travel for dictators and other criminals, International Affairs, vol. 75, No. 3, 1999, 599.

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I V . Modern Limits on Immunity By the middle of the 20th century, sovereign immunity had already begun to experience restrictions, thus allowing individuals and corporations to seek redress against states.42 This shift from absolute to restrictive immunity evidenced states' recognition that certain state actions or the conduct of their officials fell outside the traditional notions of state conduct or official capacity. It is not too great a leap, therefore, to argue that individual actions of a head of state clearly falling outside his official capacity might make him as responsible under international law as other individuals would be. However, the conventional wisdom has been that heads of state enjoy immunity rationepersonae as long as they are in office and their actions in pursuit of state interests or in an official capacity are protected indefinitely by immunity ratione materiae. 43

A. The Beginning of the End

Perhaps the most important contribution of the Nuremberg Tribunal to the equal protection of human rights was its rejection of the notion that some echelons of society, notably government officials and military officers, should be protected from individual liability for their acts by virtue of their positions. The Nuremberg Charter limited the defense of obedience to superior orders to only conditional consideration in mitigating punishment, and wholly excluded the defense of immunity for government officials. 44 In its judgment, the Tribunal emphasized that the doctrine of immunity, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. ... He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law. 45

It is important to note at this stage that the principles affirmed at Nuremberg are no longer considered solely applicable during international armed conflict. After a long 42

Damrosch (note 19), 27.

43

Sir Arthur Watts , The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, RdC, vol. 247, 1994-ÜI, 82. O n the distinction between immunity ratione materiae and immunity ratione personae, see supra (note 8). 44

Nuremberg Charter (note 20), Art. 7 provides: "The official position of Defendants, whether as heads of State, or responsible officials in Government departments, shall not be considered as freeing them from responsibility, or mitigating punishment." Art. 8 reads: "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." 45

Nuremberg Judgment (note 1), 221 (emphasis added).

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hiatus from international prosecution - but not, however, from "lip service" to the Nuremberg Idea - of war crimes or crimes against humanity, the atrocities committed during the conflict in the former Yugoslavia "shocked the conscience of mankind," prompting the establishment of the International Criminal Tribunal for the Former Yugoslavia. 46 Similar events led to the establishment in 1994 of an international tribunal for Rwanda. 47 The Yugoslav Statute marks a major break w i t h the Nuremberg Charter by virtue of its applicability to non-international armed conflict. 48 The Rwanda Statute also applies to internal conflict, and may even be applicable to crimes committed during peacetime.49 The numerous multilateral conventions concerning human rights, notably the Torture Convention, define the violations without regard to war or peacetime status, then provide universal jurisdiction over offenders. The Torture Convention even provides that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture," 50 thereby evidencing the parties' intent to confirm that torture is an international crime whether committed during war or during peacetime. The I L C Draft Code of Crimes of 1996 confirms that torture is an international crime when part of a "widespread or systematic attack" against civilians, language which was followed in the Yugoslav and Rwanda statutes. B. Extradition of Political Offenders

Apart from the Nuremberg and Tokyo tribunals' rejection of immunity for war crimes and crimes against peace and humanity, developments in extradition law during the interceding fifty years have further set the stage for the restriction of immunity. It is well settled that individuals may not escape criminal liability for common crimes (crimes considered mala in se) by fleeing to another state.51 O n the international level, aut dedere aut judicare has become the main method of enforce46 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991, in: Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U N Doc. S/25704 & Add. 1 (1993), Annex (hereinafter Yugoslav Statute). 47

Statute of the International Tribunal for Rwanda, Art. 9(2)(b), Security Council Res. 955 (1994), U N SCOR, 49th Sess., U N Doc. S/RES/955 (1994) (hereinafter Rwanda Statute). 48

Yugoslav Statute (note 46), Art. 5.

49

See Theodor Meron, Is International Law Moving towards Criminalization, EJIL, vol. 9, 1998,18, 22; Meron , International Criminalization of Internal Atrocities, AJIL, vol. 89, 1995, 554, 557. 50

Convention against Torture (note 33), Art. 2(1).

51

See, e.g., Brownlie (note 16), 563.

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ment in a number of international conventions providing for punishment of international crimes, including torture. 52 Thus the primary effect of universal jurisdiction on states which discover alleged criminals in their territory is that they may either investigate and prosecute in their own courts, or extradite the accused to another state.53 Aut dedere aut judicare is not unlimited, however. Even where an extradition treaty exists, states are not required to extradite an accused person if it considers that person to be a political offender. The political offense exception allows states to refuse to extradite where doing so would mean "taking sides" in a political dispute in the state requesting extradition. Beginning in the 1800s, liberal propensities encouraged granting asylum to political offenders, 54 generally on the theory that justified political resistance should not be considered in the same league as common crime, and rebels should not be subject to unfair prosecution and penalties because of their political beliefs. 55 Notwithstanding the difficulties in defining a "political offense," it has long been argued that acts in violation of the law of war, terrorism, genocide, attempts on the life of a head of state, and crimes against humanity should never be considered political offenses. 56 These "negative definitions" demonstrate the modern trend of limiting the scope of the political offense exception. 57 This limited nature 58 bolsters individual criminal responsibility under international law.

52 John Dugard/Christine Van den Wyngaert , Reconciling Extradition with Human Rights, AJIL, vol. 92 (1998), 187, 209, citing Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, Arts. 4,7,860 U N T S 105; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 23 September 1971, Arts. 4, 7, 10 ELM 1151; International Convention against the Taking of Hostages, 17 December 1979, Art. 9, 1316 U N T S 205; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, Arts. 3, 7, 1035 U N T S 167; and the Torture Convention (note 41). 53

Note that states are not required to actually prosecute each case; the principle requires only that the requested state consider in good faith whether to prosecute the alleged offender. Dugard/Van den Wyngaert (note 52), 209. 54

Brownlie (note 16), 563.

55

Quinn v. Robinson , 783 F.2d 776 (9th Cir. 1986).

56

O n the nature and extent of political offenses and acts excluded therefrom, see Hans Schultz , The General Framework of Extradition and Asylum, in: M. Cherif Bassiouni/Ved P. Nanda (eds.), A Treatise on International Criminal Law, vol. 2, 1973, 309. 57 Christine Van der Wijngaert, The Political Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual and the International Public Order, 1980, 1-4. 58

As Brownlie notes, "the uncertainty of the concept of political offenses" creates substantial difficulty in this area of the law. (Note 16), 563. It may be that states' recognition of the vagueness of the concept, and not their desire to render more international criminals liable for their actions, is responsible for its limited use.

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Finally, the inapplicability of statutes of limitations to international crimes supports a theory of individual responsibility. Alleged World War I I criminals were prosecuted in national courts long after the final judgment at Nuremberg was announced, 59 and those courts relied on the peculiar nature of international crimes as providing justification for continuing enforcement. In 1968 the General Assembly passed a resolution rendering inapplicable statutes of limitations on war crimes and crimes against humanity. 60 The Council of Europe has also agreed by treaty to exclude the effect of statutes of limitations from these crimes. 61 These actions make it clear that persons who escape liability for human rights violations may not rely on the passage of time to shield them from liability.

V . For Whom the Immunity Bell Tolls As the foregoing discussion demonstrates, modern international law recognizes that individuals, and not just states, are bearers of rights in the international system. Moreover, at least since Nuremberg, the international community has expressed a desire for individuals to have corresponding obligations under international law and that state authorization, whether express or implied, cannot justify breaches of those obligations. 62 The notion of individual responsibility, as opposed to state responsibility, formed a key part not only of the Nuremberg Charter and Judgment, but also was reaffirmed in a restatement by the International Law Commission and unanimously affirmed in a United Nations General Assembly Resolution. 63 The development of the concept of individual responsibility has also, necessarily, reduced the once absolute view of sovereign immunity of states and strengthened the exercise of universal jurisdiction over persons accused of committing acts deemed criminal by all states,

59 Notable is the decision of Israel's Supreme Court in Attorney-General of Israel v. Eichmann, 36 ILR 5 (1962) which upheld Israel's jurisdiction to prosecute a Nazi official almost twenty years after the offenses were committed, in a war which ended three years before Israel became a state. Eichmann was followed in the U.S. case Demjanjuk v. Petrovsky , which authorized extradition to Israel, upholding Israel's right to prosecute an accused murderer for his acts in East European concentration camps, 603 F. Supp. 1468 (N.D. Ohio), aff'd 776 F.2d 571 (6th Cir. 1985), cert, denied 457 U.S. 1016 (1986). 60

Note 31.

61

Non-applicability of Statutory Limitations to Crimes against Humanity and War Crimes, ETS No. 82, adopted 25 January 1974. 62

Henry T. King , Jr ., Nuremberg and Sovereignty, Case W. Res. J. Int'l L., vol. 28,1996,135,

137. 63

Note 26. See also King/Theofrastous

(note 22), 53.

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including torture, "regardless of whether or not the criminal acts are argued to have been committed in the pursuit of some state interest." 64 What remains to be seen, however, is whether this desire w i l l be put into consistent and uniform practice. 65 The approval of the Rome Statute of the International Criminal Court 6 6 has been hailed as a major step towards ensuring prosecution of international crimes, establishing a solid base for a new tribunal "one that, like Nuremberg, emphasizes individual responsibility over state sovereignty." 67 I n addition, the international community now faces two instances where it may choose to support prosecution of heads of state for international crimes, thereby effecting its stated objective to enforce international criminal law, or it may choose to retreat from this goal, ensuring that prosecution of international crimes w i l l remain at best only a faroff ideal, or at worst the victors' justice of the past. It is to the first of these challenges that I now turn. A. Ex Parte Pinochet 68

The facts surrounding Spain's request to extradite Genera\Augusto Pinochet from Great Britain for crimes committed mainly in Chile while Pinochet was the head of state of Chile are by now well-known and do not bear repeating here. 69 To date, the 64

King/Theofrastous

65

See Damrosch (note 19) and accompanying text discussing "principled application."

(note 22), 54-55.

66

Rome Statute of the International Criminal Court, 17 July 1998, U N Doc. A / C O N F . 18/9, reprinted in: 37 I L M 999 (1998). The Statute was approved by an unrecorded vote of 120 in favor, 7 against, with 4 abstentions. 67

King/Theofrastous

(note 22), 50.

68

The basis of this analysis will be the second decision of the House of Lords, issued 24 March 1999, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet ; Regina v. Evans and A notherand the Commissioner of Policefor the Metropolis a Others Ex Parte Pinochet (hereinafter House of Lords II). The text of this decision is available in: 38 I L M 581 (1999). Where necessary, the author will make comparison to the first decision of the House of Lords, issued 25 November 1998, reprinted in: 37 I L M 1302 (1998) (same case name; hereinafter House of Lords I), and to the decision of the Divisional Court (also called the English High Court), The Queen v. Nicholas Evans , et al. t ex parte Augusto Pinochet U garte, issued 28 October 1998, reprinted in: 38 I L M 68 (1999). 69

In addition to the historical and procedural summaries contained in the decisions, in particular Lord Browne-Wilkinson's opinion in the second House of Lords decision, see Weiler (note 41), 600-603; Colin Warbrick/DominicMcGoldrick (eds.), The First Pinochet Case: Immunity of a Former Head of State, International & Comparative Law Quarterly, vol. 48, January 1999,207-216 (covering events through the 17 December 1998 grant of leave for rehearing) Ambos, Der Fall Pinochet und das anwendbare Recht, Juristische Zeitung (JZ), 1999, 16-24 (covering the Divisional Court and the first House of Lords decisions); id., Pinochet - 2. Akt, JZ, 1999,564-566 (reviewing the second House of Lords decision); and Amnesty International,

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British courts have issued three major decisions with regard to Pinochet's immunity. The first, issued by the Divisional Court, held that Pinochet enjoyed immunity from prosecution (and, as a result, from extradition to Spain) and resulted in immediate appeal to the House of Lords. The Law Lords overturned this decision on 25 November 1998, by a bare majority of three to two. This decision was set aside, however, by order dated 15 January 1998, after the affiliation of Lord Hoffmann w i t h Amnesty International, an intervenor in the case, became known. Thereafter, the Law Lords issued a second decision on 24 March 1998, ruling six to one that Pinochet did not enjoy immunity from prosecution for the crimes alleged to have occurred after 29 September 1988 in the Spanish extradition request. 70 A consensus emerged that the prohibition on torture had been elevated to jus cogens status long before 1984 Torture Convention, 71 and that international law did not permit immunity ratione materiae for acts constituting crimes under international law. However, the Lords agreed to limit the reach of their decision to crimes allegedly committed after 29 September 1988 because to hold otherwise would violate the double criminality rule of extradition proceedings. 72 Therefore all states involved in the present case must have ratified the treaty in order for individual liability to attach. Among Chile, Spain and the U K , the U K was the last to ratify in 1988; as a result, only those charges against Pinochet pertaining to torture committed between that date and his resignation in 1990 could be extraditable offenses. In the following sections, each opinion w i l l be reviewed in turn with the goal of drawing a comparison between the Lords' decision and the foregoing discussion of the status of immunity from prosecution of crimes under international law. 1. Opinion of Lord Browne-Wilkinson After a comprehensive summary of the proceedings and facts in the case, Lord Browne-Wilkinson proceeded to evaluate the status of the relevant international law The Case of General Pinochet - universal jurisdiction and the absence of immunity for crimes against humanity, November 1998, available at: http://www.amnesty.org. For a view from an international relations perspective, see Geoffrey Hawthorn , Pinochet: The Politics, Int'l Aff., vol. 75, No. 2,1999,253-258. For a review of the controversy's effect on Chile, see Manuel Antonio Garreton , Chile 1997-1998: the revenge of incomplete democratization, 259-267.

70 Lord Browne-Wilkinson , Lord Nolan , Lord Hope of Craighead , Lord Hutton, Lord Savill ofNewdigate , Lord Millet, and Lord Phillips ofWorth Matravers issued opinions denying Pinoche immunity. Lord Goff of Chieveley issued an opinion in support of immunity. 71

See, e.g.t Opinion of Lord Browne-Wilkinson , House of Lords II, 38 I L M 581, 589-590 (1999). 72

A state may extradite an accused if the offense with which he is charged is an offense under both the laws of the requesting state and the laws of the requested state. While torture committed in the U K was illegal before its implementation of the Torture Convention, torture committed outside the United Kingdom was not criminal until it passed this legislation.

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and its application to the case at hand. He noted that personal responsibility for international crimes - including torture - had been established at least since 1946.73 He also found that the prohibition on torture enjoyed jus cogens status which made it subject to universal jurisdiction. The Torture Convention was required, however, to make clear the universal jurisdiction supporting prosecution in a foreign state's domestic courts, as opposed to an international tribunal. Turning to the law of immunity, Lord Browne-Wilkinson recognized the persistence of immunity of a head of state, to the same extent as immunity of the state itself, to the present day, and that it covers ex-rulers for acts in performance of their functions as head of state. The key question for him, then, was whether torture may be considered an official function; he held that it may not, noting the paradox that would result: " H o w can it be for international law purposes an official function to do something which international law itself prohibits and criminalises?" 74 I n reaching this conclusion, Lord Browne-Wilkinson

cited Sir Arthur Watts:

While generally international law ... does not directly involve obligations on individuals personally, that is not always appropriate, particularly for acts of such seriousness that they constitute not merely international wrongs (in the broad sense of a civil wrong) but rather international crimes which offend against the public order of the international community. States are artificial legal persons: they can only act through the institutions and agencies of the state, which means, ultimately through its officials and other individuals acting on behalf of the state. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal state and not to the individuals who ordered or perpetrated it is boh unrealistic and offensive to common notions of justice.75

Moreover, he found that as a matter of customary international law, heads of state may be individually responsible under international law for authorization or commission of serious crimes, and that "continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention." 76 2. Opinion of Lord Hope Lord Hope also found that immunity could be circumscribed by jus cogens norms as a matter of customary international law, where jurisdiction was provided before international courts or tribunals. He too found the state of international law unclear regarding whether immunity was so limited in cases brought before foreign domestic

73

Following the adoption of the U N Charter on 24 October 1945 and the 1946 affirmation by the General Assembly of the Nuremberg principles. Note 26 and accompanying discussion. 74

Opinion of Lord Browne-Wilkinson,

75

Id. , 593-594, citing Watts (note 43), 82.

76

Id, 595.

594.

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courts. So like Lord Browne-Wilkinson, he held that it must be the Torture Convention which provides the exception to immunity in Pinochet's case. In evaluating the Convention, Lord Hope ruled that universal jurisdiction exercisable by foreign domestic courts was not implicit in the terms of the Convention; rather, pointing to the evaluation of developments in the prohibition of torture in the U.S. case Siderman de Blake v . Argentina , it had been sufficiently established by 1988 to justify prosecution. 77 In large part, the ratification of the Torture Convention itself was responsible because once this agreement was in force - in 1987 - it put all on notice that universal jurisdiction was applicable. 3. Opinion of Lord Saville I n a short opinion of only a few pages, Lord Saville also found that no implied terms in the Convention lead to a denial of immunity. Rather, its express terms do: namely, that an official act in a ruler's public capacity implementing torture fell within the terms of the Convention, thus obviating the need for further analysis. " A former head of state who it is alleged resorted to torture for state purposes falls in my view fairly and squarely within those terms and on the face of it should be dealt with in accordance w i t h them." 78 4. Opinion of Lord Millet Lord Millet summarily dismissed the immunity defense, holding that the definition of torture is "entirely inconsistent with the existence of a plea of immunity ratione materiae " because it is necessarily committed by public officials acting in their official capacity. 79 I n handling the issue of universal jurisdiction, Lord Millet set out two criteria necessary for universal jurisdiction to attach: the perpetrator must violate a jus cogens norm 8 0 and the acts alleged must be "so serious and on such a scale that they can justly be regarded as an attack on the international legal order. Isolated offences, even if committed by public officials, would not satisfy these criteria." 81 I n relying

77

Opinion of Lord Hope, 625, citing Siderman de Blake v. Argentina , 965 F. 2d 699 (9th Cir. 1992). 78

Opinion of Lord Saville, 643.

79

Opinion of Lord Millet, 651.

80

Id., 649. See also Prosecutor v. Anto Furundzija, No. IT-95-17/1-T, Judgment of 10 December 1998. 81

Yugoslav Tribunal, Trial Chamber, Case

Id. He based this criteria on the original definitions of war crimes and crimes against peace, the Eichmann decision, and definitions used in the Statutes of the Yugoslav and Rwanda tribunals.

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on the Eichmann case,82 Lord Millet concluded that the defense of immunity ratione materiae - comparable to the Act of State defense used there - could not be applicable due to the international and universal nature of the crimes. Responding to an argument made by Lord Goffof Chieveley in support of immunity for Pinochet , Lord Millet followed the consensus of the legal community that to a great extent, war crimes have been replaced by crimes against humanity, obviating the need for armed conflict for the acts to count as criminal. 83 Finally, Lord Millet cited the Republic of Chile's concession that, by 1973, the use of torture by state authorities was outlawed by international law, the prohibition constituted a jus cogens norm, and created an obligation enforceable erga omnes. Thus he would have granted Spain's extradition request for all crimes charged. 5. Opinion of Lord Hutton LordHutton found "clear recognition" since World War I I that international crimes exist and must be prosecuted, and that the immunity which was upheld in civil cases cited by Pinochet's counsel does not carry over to criminal proceedings under Part I of the British State Immunity Act of 1978.84 In Marcos & Marcos v. Federal Dept. of Police, 85 the United States brought an action against the Marcoses for abuse of position to acquire public funds and artworks. The United States then sought Swiss assistance to procure bank documents relating to the investigation. The Swiss federal court held that the defendants would have enjoyed immunity, but the Philippines (under Corazon Aquino) had expressly waived immunity in that case. Lord Hutton distinguished the case on the grounds that the defendants were not accused of violating a peremptory norm of international law; therefore, no waiver of immunity was generally required. 86 He noted, however, that both Chile and Pinochet would enjoy state immunity for his acts outside the scope of official conduct in civil proceedings for damages.87 6. Opinion of Lord Phillips Lord Phillips reached his conclusions by drawing a distinction between civil cases and criminal cases brought against a head of state. He first addressed the justifications for immunity ratione materiae*. first, to sue an individual on the basis of state conduct 82

Note 59, followed Demjanjuk v. Petrovsky , id.

83

See discussion supra , Section IV. A.

84

Opinion of Lord Hutton , 636, 632.

85

102 ILR 198, 203 (1989).

86

Opinion of LordHutton , 632.

87

Id., 640.

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amounts to suing the state itself and would result in the state having to pay damages (this would only be the case in civil suits); and, second, that international law does not allow one state to judge the internal affairs of another (sovereignty), so that sitting in judgment of the official of the state - which requires evaluating the state's acts has been held impermissible under the Act of State doctrine. 88 According to Chief Justice Fuller in Underbill v. Hernandez, 89 immunity of the state extends to acts by officials performed in the exercise of governmental authority. One can argue this does not exclude liability for international crimes since the commission of unlawful acts falls outside the scope of "governmental authority." 90 But counsel for Pinochet argued that conduct of a head of state, whether lawful or unlawful, is imputed to the state and therefore enjoys immunity. Lord Phillips agreed that this was true in civil cases, citing an "impressive, and depressing, list" of cases where courts held themselves bound by the language of statutes affording immunity to states, even where the alleged conduct of the state violated international law. 9 1 He thus set up the pivotal issue: whether the same analysis applies in respect of criminal proceedings. T o address this issue, he turned to the development of international criminal law, in particular with regard to universal jurisdiction over crimes which trump sovereignty, namely crimes against humanity which "shock the conscience of mankind." 92 He agreed with the appellants that international law has progressed so far that it establishes criminal conduct that is a matter of concern for all states, for which individuals are responsible under international law, over which universal jurisdiction may be exercised, and to which no immunity attaches. Lord Phillips concluded "this is an area where international law is on the move and the move has been effected by express consensus recorded in or reflected by a considerable number of international instruments." 93 Despite this recognition, Lord Phillips deemed it an "open question" whether universal jurisdiction always permits prosecution of these offenses in any state, noting that Eichmann alone does not constitute sufficient state practice. 94 Rather the practice 88

Opinion of Lord Phillips, 658.

89

168 U.S. 456,457 (1897).

90

See U.S. v. Noriega , 117 F.3d 1206 (1997) (drug trafficking constituted private conduct and therefore did not trigger immunity). 91

Opinion of Lord Phillips , 659, and cases cited therein.

92

Oppenheim's International Law (Sir Robert Jennings/Sir Arthur Watts eds.), vol. 1/2-4, 1992, 998. The passage referred to in this part of Lord Phillips' opinion concludes that, while evolving, there is as yet no general principle of international law allowing states to punish foreign nationals for crimes against humanity in the same way that prosecutions against piracy are allowed. Counsel for the appellants argued that this passage is now obsolete and that international law now recognizes a category of crimes serious enough to warrant punishment in foreign domestic courts. Lord Phillips agreed with appellants. Opinion of Lord Phillips, 660. 93 94

Opinion of Lord Phillips, 660.

Id.

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of the international community seems to favor the establishment of ad hoc tribunals, except where states agree otherwise by treaty (as in the Torture Convention), but that a treaty provision would require a waiver of immunity. Here, Lord Phillips drew a comparison to the Genocide Convention which explicitly provides in Article 4: "persons committing genocide... shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals." 95 Regardless, Lord Phillips did not find that, in the absence of such a provision, international law requires granting immunity to officials accused under the Convention terms, "on the simple basis that no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime." 96 He then justified the lack of any specific provision in the Torture Convention on the ground that the parties assumed that immunity could not be asserted for torture as a crime under international law. 97

7. Opinion of Lord Goff Lord Goff, the sole supporter of immunity for Pinochet , based his reasoning on the argument that torture was not a crime outside the context of armed conflict until the developments of the 1990s, well after the latest date at issue - 1989 - in the Spanish indictment. 98 Lord Goff further discounted the expressions of intent of the U N General Assembly resolutions and efforts by the ELC, concluding that the only events providing clear precedent for universal jurisdiction over torture as an international crime were the Yugoslav and Rwandan Tribunals. As these were only established after Pinochet resigned from office, he could not have been put on notice that his actions would be subject to universal jurisdiction. 99 Thus Lord Goff seemed more focused on the lack of precedent for the act of prosecuting a former head of state in a foreign domestic court for the crimes alleged than the multitude of statements concerning the illegality of the conduct. Moreover, the Torture Convention lacks a specific provision waiving immunity. He supported his argument, somewhat counterintuitively, with the number of states (116) having ratified the Convention, arguing that so many states would never have ratified had they envisioned that in so doing they were waiving immunity ratione materiae. 10° 95

Id., 661, citing the Genocide Convention (note 27).

* id. "id. " Opinion of Lord Goff, 599. "Id. loo f a c t that 116 states have become party to the Torture Convention reinforces the strong impression that none of them appreciated that, by signing the Convention, each of them would silently agree to the exclusion of state immunity ratione materiae. nId., 607.

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The opinions presented by the Law Lords in the Pinochet case provide valuable grounds for assessing of the development of immunity law and international crimes, and this case w i l l certainly have far-reaching impacts on the development of international law in the 21st century. The majority appears to have accurately followed the trend of writings in the field of international crimes, and supported their views for restriction of immunity. Most convincingly, the Law Lords indicated that it would be wholly inconsistent with international law (and common sense) to allow heads of state to go unpunished for state acts of torture when junior officials would be liable. 101 This idea was also espoused by the majority in the first House of Lords decision; as noted by Lord Nicholls , commission of international crimes of the caliber of torture is "not acceptable conduct [under international law] on the part of anyone. This applies as much to heads of state ... as it does to everyone else; the contrary conclusion would make a mockery of international law." 1 0 2 Yet it cannot be ignored that since Nuremberg, only two international tribunals have been established to prosecute those responsible for crimes against humanity, and the community of states seemed paralyzed by an inability to reach consensus in the intervening years. Lord Goffs focus on the lack of state practice supporting acceptance of universal jurisdiction is not entirely misplaced. His argument forces a return to the age-old question of how much practice is enough to evidence support for an obligation - and whether the prohibition of torture constitutes sufficient evidence of state practice favoring universal jurisdiction. He held it did not. However, given the inconsistency which necessarily results from the exemption of heads of state from responsibility for torture, which by definition requires action in an official capacity, this author believes the view of the majority of Lords to be correct. In this vein, the overwhelming adoption of the Rome Statute is a very positive sign that, Cold War politics now aside, states can get down to serious business in enforcing the Nuremberg principles. The efforts of one ad hoc tribunal are contributing in large part to this development.

101

Recall that since Nuremberg, the defense of superior orders for acts in violation of international law has been rejected. See discussion of the Nuremberg Judgment, supra , Section IV. A. At Nuremberg, the defense of superior orders was allowed only to mitigate punishment "if moral choice was not possible," King/Theofrastous (note 22), 83, note 140. The exact language of Article 8 of the Nuremberg Charter is repeated in the Yugoslav Statute, which considers superior orders only to mitigate punishment where "justice so requires," Yugoslav Statute (note 46), Art. 7(4), and the Rome Statute allows the defense to be considered only when the alleged crimes are not "manifestly unlawful" (from which category genocide and crimes against humanity are explicitly excluded), Rome Statute (note 66), Art. 33. 102

House of Lords I, Opinion of Lord Nicholls , 37 I L M 1302 (1998).

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B. Indictment of Milosevic

The equally dramatic, but as yet less discussed, indictment by the Yugoslav Tribunal of Yugoslav President Slobodan Milosevic on charges of war crimes creates the second direct challenge to the traditional notion of immunity. This indictment 1 0 3 is significant in one key respect: it targets a sitting head of state. After the indictment was issued, the Tribunal reaffirmed its position in October 1999 by announcing that it was considering a charge of genocide. This move, while extremely important for the statement it makes, has been to date only a formal super-condemnation of Milosevics actions. Indeed should Milosevic be delivered to the Tribunal and should the Tribunal to attempt to hear this case while he is still head of state, would most likely be a step too far for most international legal scholars and even for the Lords who denied Pinochet immunity. Several made statements in the course of their opinions that affirm that, while Pinochet's actions may no longer benefit from a protective immunity, immunity ratione materiae zndpersonae persist as long as the head of state is in office. It is only upon the expiration of a head of state's term that immunity ratione personae ends; therefore, in the case of Milosevic, if the international community takes no action to break with the precedent-setting Pinochet case, Milosevic would have to be found subject to the jurisdiction of any court, domestic or international, empowered to adjudicate cases of war crimes and crimes against humanity. In sum, although the Yugoslav Tribunal can take no action against Milosevic as long as he is still head of the Yugoslav state, it has sent an important message to him and other heads of state who might aspire to follow his infamous tactics: Immunity may not shield you forever. It is exactly this sort of statement which is needed to serve the most important goal, and arguably so far the most unrealized, of the human rights movement: deterrence. 104

V I . Conclusions The Pinochet case has presented a unique opportunity to the international community because it is the first time a former head of state has been called to account for human rights violations before the domestic courts of another state. 105 Perhaps more

103 Prosecutor Against Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljus Ojdanic y Vlajko Stojilykovic, Indictment of 24 May 1999. 104

King/Theofrastous (note 22), 64, stating this problem as it relates to the need for a permanent international court: "even when an active criminal is identified, there are no effective mechanisms for intervention and apprehension.... [As a result], ad hoc tribunals lack what many argue to be the most important feature of an effective system of law - deterrence. n (Emphasis in original). 105

Admiral Dönitz, head of state of Germany following Hitler's death and until the end of the war one week later, was tried for waging a war of aggression and for war crimes before the

10 GYIL 42

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significant than the outcome in this one case is the debate it draws to light and the choices w i t h which the international community of states must now grapple. Several issues remain open: Does international law require a convention to be in force before universal jurisdiction is available? Is the denial of immunity warranted only where a term can be implied in the text of an agreement to indicate states' consent, even where the general agreement on the prohibited conduct has long been clear? W i l l the denial of immunity in the criminal law context open the door to civil suits against heads of state? Can the domestic courts of one state legitimately step in where international consensus is not yet present to establish an ad hoc tribunal? Although these points remain in question, the signal sent is more than clear: The days of absolute immunity for heads of state are coming to an end. The decision of the Law Lords has made an indelible mark on future attempts to ensure individuals accused of international crimes are held responsible. Even if the Home Secretary ultimately decides to release Pinochet, 106 the case w i l l have important effects on the work of other courts and tribunals. Perhaps such a turn of events would even promote more rapid ratification of the Rome Statute, and its provision explicitly denying immunity for heads of state. The support for immunity for Pinochet , particularly from the United States,107 is disheartening. However, the case has brought to a head the irreconcilable conflict between international criminal responsibility and immunity of heads of state. Without doubt, how states ultimately resolve this conflict w i l l shape international law in the 21st century.

Nuremberg Tribunal. See, e.g., D'Amato (note 25). Eichmann and Demjanjuk were prosecuted in the domestic courts of Israel; however, they were not heads of state (note 59). 106 Following the 10 October 1999 ruling that extradition could proceed, the Chilean government officially requested Pinochet's release on humanitarian grounds, specifically, his failing health. O n 11 January 2000, the British government announced that a team of doctors had declared him medically unfit to stand trial. Home Secretary Jack Straw announced he would not make a decision until after hearing arguments from the parties to the case; the deadline was to be 18 January 2000. A hearing already had been set for 20 March 2000 to hear Pinochet's appeal of the 10 October ruling. AP report of 11 January 2000, available at: www.cnn.com/ world/ europe/11/01/ pinochet.01. 107

In the author's opinion the support is disheartening both because the United States should be taking the lead in human rights protection instead of lagging behind its European counterparts and because the United States led the drafting of the Nuremberg Charter.

Forum Prorogatum in the International Court By Sienho Yee*

I. Introduction Article 36(1) of the Statute of the International Court of Justice (ICJ) provides that "[t]he jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." Article 36(2) provides for the so-called "Optional Clause" compulsory jurisdiction system. Article 40(1) provides that a case may be instituted by notification of a special agreement or by application. Article 36(1) is practically an exact replica of the corresponding article found in the Statute of the Permanent Court of International Justice (PCIJ).1 As envisioned by the original drafters of the PCIJ Statute, Article 36(1)2 was intended to provide for two ways in which the parties may found the jurisdiction of the Court, that is, either by a special agreement concluded with regard to a particular case or by a previous agreement in regard to a certain category of cases. Thus Article 36(1) did provide for certain forms of expressing consent to the jurisdiction of the PCIJ. Relying on the absence of any express formal requirement in this article, however, the PCIJ interpreted it as providing for none. It interpreted Article 36(1) - more specifically, the phrase "all cases which the parties refer to it" - as permitting it to adopt the doctrine of forum prorogatum as a jurisdictional principle and to adapt this doctrine to the circumstances of international judicial process, as a "third

* Sienho Yee , 1999. Visiting Assistant Professor of Law, Northwestern University, Chicago; D. Phil, candidate (Oxford); J. D. (Columbia). E-mail: [email protected]. I am grateful to Professor Ian Brownlie for his advice, to the U K ORS Committee; St. Hugh's College, Oxford; and the Hong Kong Oxford Scholarship Fund for scholarships. Opinions and errors are solely mine. 1

Manley O. Hudson , The Twenty-Fourth Year of the World Court, American Journal of International Law (AJIL), vol. 40, 1946, 1, 31. Depending on the context, the phrase "the Court" in this article may refer to the PCIJ, the ICJ, or both. 2

The PCIJ Statute did not contain paragraph numbers, but for the sake of convenience, they will be used herein.

10»

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w a y , " t o b o r r o w Judge Huber's phrase, 3 of f o u n d i n g the j u r i s d i c t i o n of the C o u r t over the merits of a dispute. T h i s interpretation appeared t o have w o r k e d i n a m o d i fication o f A r t i c l e 36(1) of the P C I J Statute. T h e drafters of the I C J Statute, h o w ever, intended that the I C J f o l l o w the jurisprudence of the PCIJ and thus m a y be deemed t o have c o n f i r m e d its case l a w o n forum

prorogatum.

A s a result, A r t i c l e

36(1) of the I C J Statute m a y be interpreted as p r o v i d i n g for n o specific f o r m a l requirement for expressing consent t o j u r i s d i c t i o n and as encompassing the applicat i o n o f forum

prorogatum

as a n o r m a l m e t h o d of f o u n d i n g the j u r i s d i c t i o n of the

C o u r t over the merits of a dispute. 4 T h e t e r m forum

prorogatum

appeared t o have been coined b y the Judges of the

P C I J w h e n t h e y discussed the proposed amendments t o the Rules of C o u r t i n 1934. 5 3

Rights of Minorities in Upper Silesia (Minority Schools), 1926 PCIJ, Series A, No. 15,52 (diss op. Huber). A declaration made under Art. 36(2) is apparently treated as a species of "previous agreement." See also J. C. Witenberg, L'organisation judiciaire: la procedure et la sentence internationales, 1937,6: "Les formes du consentement de l'Etat sont le compromis , la clause compromissoire , le traite d'arbitrage permanent." 4

See Sections D.D., ELD., infra. For general discussion of forum prorogatum , see John Collier/Vaughan Lowe , The Settlement of Disputes in International Law, 1999,136; Ian Brownlie , Principles of Public International Law, 5th ed., 1998,724-735; D. J. Harris , Cases and Materials on International Law, 5th ed., 1998,999-1001; Shabtai Rosenne, Law and Practice of the International Court, 1920-1996, 3rd ed., 1997, 695-725; id., Law and Practice of the International Court, 2nd ed., 1985, 344-363; id., Law and Practice of the International Court, 1st ed., 1965, 344-363; id., The Forum Prorogatum in the International Court of Justice, Revue hellenique Droit Internationale, vol. 6, 1953, 1; Mohammed Bedjaoui, The Forum Prorogatum Before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism, ICJYB 1996-1997,216, Speech given before the Sixth Committee in 1996 as President of the ICJ; a modified French version appears in: African Yearbook of International Law, vol. 5, 1997, 91; Dinh Nguyen Quoc/Patrick Daillier/Alain Pellet, Droit international public, 5th ed., 1994,845-846; Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986; Jacques Soubeyrol, «Forum prorogatum» et Cour internationale de Justice: de la procedure contentieuse a la procedure consultative, Revue Generale de Droit International Public (RGDIP), vol. 76, 1972, 1098; Georges Abi-Saab, Les exceptions preliminaires dans la procedure de la Cour internationale, 1967,109-112, 218-223; Ibrahim F. I. Shihata, The Power of the International Court to Determine Its Own Jurisdiction, 1965, passim-, Pierre Stillmunkes, Le «forum prorogatum» devant la Cour permanente de Justice internationale et la Cour internationale de Justice, RGDIP, vol. 68, 1964, 665; Michel Dubisson, La Cour internationale de Justice, 1964, 198-204; Sir Hersch Lauterpacht, The Development of International Law by the International Court, 1958, 103-107, 201-210; Gabriele Salvioli, Problemes de procedure dans la jurisprudence internationale, Recueil des Cours (RdC), vol. 91,1957-1,587; Bohdan Winiarski , Quelques reflexions sur le soi-disant forum prorogatum en droit international, in: D. S. Constantopoulos et al. (eds.), Problemes fondamentaux du droit international - Festschrift für Jean Spiropoulos, 1957,445; Humphrey Waldock, Forum prorogatum or Acceptance of a Unilateral Summons to Appear Before the International Court, International Law Quaterly, vol. 2, 1948, 377. 5

1936 PCIJ, Series D, 3rd Addendum to No. 2, 69 (minutes of 9th Meeting, 24 May 1934).

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However, the concept, sometimes couched in slightly different terms, such as "prorogation of jurisdiction," has a long pedigree. It originated in Roman law and has been inherited by many national legal systems.6 As traditionally understood, forum prorogatum means the extension of the jurisdiction of a court by agreement of the parties in a case which would otherwise be outside the court's jurisdiction. 7 Adopted by the PCIJ, forum prorogatum was first applied in its traditional sense of extending already existing jurisdiction. 8 In this sense, the Court's jurisdiction ratione personae over the parties, as well as jurisdiction ratione materiae over a certain matter, has been established by some prior consent. That consent, however, covers some, but not all, issues relating to the dispute. After proceedings have been instituted, the parties agree either by express declaration or by successive conduct implying agreement to extend their consent to cover additional issues. Rosenne notes another aspect of prorogation of jurisdiction where States may agree to confer upon a non-judicial organ, which is competent to make non-binding recommendations, the power to make binding decisions.9 While such a conferral of power on the Council of the League of Nations received the endorsement of the PCIJ, 10 Rosenne thought that it was not a form of forum prorogatum. He did not elaborate his reasoning for this position, stating that he would not discuss it further because it did not relate to a judicial body. 11 However, such a conferral of power, which transforms a non-binding decision whether termed "recommendation" or "advisory opinion" into a binding one, can and does apply to judicial organs. The ICJ itself, when acting to give advisory opinions to international organizations, can be "granted" the power to give "binding" advisory opinions under certain international conventions. 12 Nevertheless, such a conferral of additional power upon the

6

Rosenne (note 4), 1997, 696 (quoting Ulpian); Bedjaoui (note 4), para. 6.

7

See Rosenne (note 4), 1997, 696; Dictionnaire de la terminologie du droit international, 1960, 481. 8

Rosenne (note 4), 1997, 697.

9

Id., 696-697. Judge Oda seemed to apply the concept of forum prorogatum to the Court's power to decide a case ex aequo et bono. Jan Mayen, 1993 ICJ Reports 38,113-114, para. 87 (sep. op. Oda). It is submitted that although not free from doubt, such a power, regulated under Art. 38(2) of the Statute and not Art. 36, is not one of jurisdiction to decide the case at all, but a power with respect to applicable substantive law. Thus an extension of the Court's power to decide a case ex aequo et bono is not an application of forum prorogatum, and is not discussed here. 10

Interpretation of the Treaty of Lausanne (Advisory Opinion), 1925 PCIJ, Series B, No. 12, 27. For analysis, see Gabriele Salvioli, La jurisprudence de la Court permanente de Justice internationale, RdC, vol. 12, 1926-II, 56. 11 12

Rosenne (note 4), 1997, 697.

E.g., Convention on the Privileges and Immunities of the United Nations, 1 U N T S 15, Art. Vm, § 30.

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ICJ should not be considered to involve the application of forum prorogatum. The extension of jurisdiction, if any, does not cover additional subject matter that does not fall within the ICJ's jurisdiction under the operation of normal rules. Moreover, in reality no additional power is conferred, as the decision-making organ is still performing the same function. N o r can additional power be conferred without disregarding the ICJ Statute. The transformation of an advisory decision to a binding one results from the decisions of interested organizations and States to endow the decision w i t h a different effect, independent of the ICJ's power, and to treat the decision differently than an advisory opinion. This voluntary election derives its binding force not from anything that the ICJ does after proceedings have been instituted but from the agreement of the interested parties. 13 The Court has not only adopted the concept of forum prorogatum , but has also adapted it to the circumstances of the international judicial process. From time to time, a State may unilaterally make an application to institute proceedings before the Court, relying upon a defective jurisdictional basis. Sometimes it may do so although it is clear that no special agreement or treaty or convention in force has granted jurisdiction to the Court. A t this point, the Court has received an application, but it has no jurisdiction over the subject matter of the application. The respondent State or more accurately the State against which the application has been filed 14 is in effect given an opportunity to accept the jurisdiction of the Court. Sometimes the respondent agrees, either by express declaration or by successive conduct implying agreement, such as arguing the merits of the case without further ado, to accept the Court's jurisdiction, post hoc, after proceedings with respect to the dispute have been instituted. 15 Once this is done, the Court would consider its jurisdiction to have been established and proceed to adjudicate the dispute. In so doing the Court applies the concept of forum prorogatum to sanctify this prolonged process of consenting to the jurisdiction of the Court and to establish its jurisdiction over a case. Thus, this aspect of the application of the concept of forum prorogatum is not an extension of existing jurisdiction as of the time when the case was instituted, but

13 See Difference relating to Immunity from Legal Process of a Special Rapporteur of the C mission on Human Rights (Advisory Opinion ), 1999 ICJ (not yet published, available at: http://www.icj-cij.org/icjwww/idocket/iniuna/inumaframe.htm ), paras. 24-25; ILOAT (UNESCO) (Advisory Opinion ), 1956 ICJ Reports 77,84. See also Robert Ago, Binding Advisory Opinions of the ICJ, AJIL, vol. 85, 1991, 439; Rosenne (note 4), 1985, 682; Hans Kelsen, The Law of the United Nations (with Supplement), 1951, 486. 14 Technically the State against which an application is filed is not a "respondent" State until it has accepted the invitation to submit to the jurisdiction of the Court. For the sake of simplicity, the term "respondent State" will be used throughout this article to indicate any State against which an application has been filed, whether or not the Court has jurisdiction over that State when the application is filed. 15

See Rosenne (note 4), 1997, 697; Bedjaoui (note 4), para. 7; Eitzmaurice Lauterpacht (note 4), 103.

(note 4), 506;

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an establishment of initial jurisdiction over the matter. This is not part of the traditional doctrine of forum prorogatum. The application of forum prorogatum by the ICJ and PCIJ has become a flexible way to establish the jurisdiction of the Court, in addition to special agreements and treaties in force. The most obvious feature of forum prorogatum is its flexibility w i t h respect to the timing and form of consent. However, the application of the doctrine ultimately rests on the same consensual basis as do special agreements and treaties in force; essentially it is a particular form of special agreement without its formalities. 16 As the experiences of the PCIJ and the ICJ demonstrate, only when the Court is satisfied that there is an agreement to have it decide the dispute does it proceed to adjudicate upon the matter. This study w i l l first review and critique the experiences of the PCIJ and the ICJ in applying forum prorogatum to establish its jurisdiction over the merits of a case and to examine whether such application is compatible with the Statute. It w i l l then discuss the tension between the application of the doctrine and the authority to act before the Court. Finally, an attempt w i l l be made to draw some conclusions from the analysis and to evaluate the doctrine of forum prorogatum as a jurisdictional principle. I I . The Experience of the PCIJ A t an early stage of its life, the PCIJ, without hesitation but without using the term, began to apply the doctrine of forum prorogatum , thereby broadening the means of recourse to the Court. In so doing, the PCIJ was not only flexible w i t h respect to the timing and form of consent, but also appeared not to take sufficient care in some cases to ascertain the existence of consent, while giving draconian effect to the consent thus established. The PCIJ's case law led to a questionable modification of Article 36(1) of its Statute, which was reaffirmed by its rule-making in 1934-1936. A. Timing of Consent

The case law of the PCIJ indicates that the critical time for a party in a case to accept, either expressly or by implication, its jurisdiction was not before a case was taken before it. The PCIJ ruled in Upper Silesia (Minority Schools) that the "previous conclusion of a special agreement" is not necessary. 17 Rather, that time, for the purposes of forum prorogatum , is any reasonable time after a case has been instituted 16

Cf. Salvioli (note 4), 587, arguing that "le terme «compromise doit etre pris dans son acception la plus large: c'est-a-dire «existence de deux volontes des deux parties»," manifested in a formal compromis or successive conduct. 17

1928 PCIJ, Series A, No. 15, 23.

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and before the oral proceedings on the merits come to an end. Jurisdiction was expressly accepted in a Counter-Case (now called Counter-Memorial), 18 in response to a new issue raised in another Counter-Case, 19 and during oral argument on the merits. 20 I n Upper Silesia (Minority Schools ), the respondent State was held to have implicitly accepted the jurisdiction of the Court at the time when it filed its CounterCase without objecting to the jurisdiction of the Court. 2 1 B. Form of Consent

1. Express Consent The PCIJ's judgment in Mavrommatis Palestine Concessions (Jurisdiction), 22 the second judgment in its history, gave the impression that it was the first instance of its application of forum prorogatum} 3 Alleging that the concessions of one of its nationals, a Mr. Mavrommatis , had been infringed, Greece instituted proceedings before the PCIJ, relying upon Article 9 of the Protocol X I I to the Peace Treaty of Lausanne of 24 July 1923, and Articles 11 and 26 of the Mandate for Palestine conferred upon the United Kingdom on 24 July 1922.24 Article 26 of the Mandate conferred jurisdiction on the Court w i t h respect to the interpretation or application of the Mandate. 25 Article 11 of the Mandate and Article 9 of Protocol X I I provided for the relevant substantive obligations of the Mandatory. The former provided that the Administration of Palestine "subject to any international obligations accepted by the Mandatory, shall have full power" to provide for public ownership, control of natural resources and public works. 26 The latter stipulated, among other things, that the State acquiring the relevant territory "is fully subrogated as regards the rights and obligations of Turkey towards the nationals of the other Contracting Powers ... who are beneficiaries under concessionary contracts entered into before 29 October 1914, w i t h the Ottoman Government or any local Ottoman authority." 2 7 The British Government filed a preliminary objection to the jurisdiction of the Court, 18

Mavrommatis , 1925 PCIJ, Series A, No. 5, 27-28.

19

Chorzow Factory , 1928 PCIJ, Series A, No. 17, 36-37.

20

Mavrommatis , 1925 PCIJ, Series A, No. 5, 28.

21

1928 PCIJ, Series A, No. 15, 24-25.

22

1924 PCIJ, Series A, No. 2.

23

See Rosenne (note 4), 1997, 706; Waldock (note 4), 383; Salvioli (note 10), 9.

24

1924 PCIJ, Series A, No. 2, 11.

25 26 17

Id. Application of Greece, in: Mavrommatis Pleadings, 1924 PCIJ, Series C, No. 5-1, 88. Id.

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arguing, inter alia , that Protocol X I I was not yet operative and, as a result, it would be premature for the Court to entertain complaints as to its infringement. 28 Before the Court ruled on these objections, Protocol X I I entered into force between the United Kingdom and Greece. The Court held that it had jurisdiction under the Mandate, on the basis that even if the application were premature when filed because Protocol X I I had not yet been ratified, this circumstance would be covered by the subsequent ratification. 29 Waldock noted that "[t]he Court thus held that the absence of one party's consent to jurisdiction when proceedings were instituted was cured by a subsequent consent to jurisdiction given outside, and without specific reference to, the proceedings before the Court." 3 0 This assessment appeared to be supported by the Court's language used in its discussion of the issue of whether the application was premature. O n closer examination, however, there may be room for disagreeing w i t h the assessment. First of all, it is not clear whether the Court actually treated the issue as one of jurisdiction. It used the qualifying language "even assuming" and "even if" to describe the argument that the Court had no jurisdiction when the application was filed. 31 Moreover, Article 9 of Protocol X I I to the Treaty of Lausanne was not a jurisdictional clause, but a provision establishing the substantive obligations of the parties. 32 Greece appeared to rely upon it for the position that the United Kingdom was obligated to satisfy the claims it was making, and not to found the jurisdiction of the Court. Article 26 of the Mandate was the provision upon which Greece attempted to found the jurisdiction of the Court. 3 3 Thus it may be argued that consent existed when the case was initiated. The first true instance of express acceptance of jurisdiction during the course of the proceedings before the Court was made in the Counter-Case filed by the British Government in response to the Application of Greece in Mavrommatis Jerusalem

28

Id., United Kingdom's Preliminary Objection to the Jurisdiction of the Court, 440-447.

29

1924 PCIJ, Series A, No. 2, 34. The United Kingdom also argued that in any event Protocol X I I did not provide for the jurisdiction of the Court. Id., 30. The Court treated this as an implicit objection to its jurisdiction and proceeded to examine and reject the British argument on whether this Protocol had overridden the Mandate on the issue of jurisdiction. 30

Waldock (note 4), 383. Shihata (note 4), 129, noted that this was "not exactly a case of prorogated jurisdiction," without giving any explanation other than quoting from the judgment of the Court. 31

1924 PCIJ, Series A, No. 2, 34.

32

The Court also noted this "substantive law" aspect. Id., 32. Its decision did not violate the rule against retroactive application of obligations, as this provision did not create new obligations but merely recognized existing ones by providing for subrogation of rights and obligations of Turkey. See id., 34. Cf. Salvioli (note 10), 82. 33

Supra (note 26), 90-91.

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Concessions .34 The Court's ruling, on the preliminary objection filed by the United Kingdom, made it clear that it had jurisdiction over only some of the concessions.35 Subsequently, the British Government filed its Counter-Case, specifically consenting to the exercise of jurisdiction by the PCIJ over an additional issue. The Court noted the agreement of the parties "resulting from the written proceedings" and held that it had jurisdiction over the additional issue.36 In this case, the Court also found that an express acceptance of jurisdiction over yet another issue was made during the oral proceedings. 37 In the Chorzow Factory (Merits) case38 Germany brought a case before the PCIJ against Poland under the Geneva German-Polish Convention on Upper Silesia of 1922. In its Counter-Case, Poland made a counter-claim based on Article 256 of the Treaty of Versailles of 1919, which was beyond the jurisdictional provision of the Geneva Convention. 39 In its reply to the Polish Counter-Case, Germany first pointed out the jurisdictional infirmity of the counter-claim, but thought that jurisdiction could be based on the Locarno Convention between Germany and Poland on arbitration, which apparently required that a certain procedure be followed before an issue could be referred to the PCIJ. The reply continued that this point "may be left open, since the German Government accepts the jurisdiction of the Court in regard to the question raised in the Counter-Case." 40 From this reply, the Court saw that while basing the Court's jurisdiction over the issue upon the Locarno Convention, Germany was "above all anxious that the Court should give judgment on the submission." 41 The Court noted that while it did not specify any jurisdictional basis for its counter-claim, Poland wished it to give judgment on its claim. 42 As a result, the Court found that the parties were in agreement in submitting the counter-claim to the Court for a decision.43 34

1925 PCIJ, Series A, No. 5. Noted as express acceptance in Witenberg Lauterpacht (note 4), 105. 35 36

(note 3), 107;

1925 PCIJ, Series A, No. 5, 27-28.

Id.

37

I d , 28.

38

1928 PCIJ, Series A, No. 17.

39

Id., 35-36.

40

Id., 37 (quoting Reply of the German Government).

41

Id.

42 43

Id .

Id. The Court went on to "add* a discussion on the relationship of the counter-claim and Germany's principal claim. It seemed to put forward tentatively the Geneva Convention as an alternative ground for jurisdiction over this counter-claim. The Court stated that the counterclaim was in the nature of an objection to Germany's claim and that since it had held that it had jurisdiction over Germany's claim under the Geneva Convention, "it seems natural on the

Forum Prorogatum in the International Court

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2. Implied Consent The first case in which the Court found implied acceptance of jurisdiction was Interpretation of Judgment No. 3.44 In that case, the Greek Government by unilateral request instituted proceedings before the PCIJ under Article 60 of the Statute seeking an interpretation of Judgment No. 3. Under that article, a unilateral invocation of the Court's jurisdiction must be based on the existence of a dispute as to the meaning and scope of an existing judgment. However, the Court, through the Chamber of Summary Procedures, held that since Bulgaria submitted observations regarding Greece's request, without disputing the Court's jurisdiction to give such interpretation, it had "jurisdiction to do so as the result of this agreement between the Parties, so that there is no need for the Court to consider in the present case whether, in the absence of a definite dispute between the Parties regarding the interpretation of [Judgment N o . 3], the requisite jurisdiction could be based exclusively on the unilateral request made by the Greek Government." 45 The leading case in which the PCIJ held that the respondent State had implicitly accepted its jurisdiction is Upper Silesia (Minority Schools). 46 In that case, Germany instituted proceedings by unilateral application before the PCIJ against Poland for alleged violations of the Geneva German-Polish Convention on Upper Silesia of 1922 relating to the protection of minority rights in Upper Silesia. Part HI of that Convention contained three divisions. Article 72 was the last article in Division I. Although paragraph 3 of that article, which Germany relied upon to found the Court's jurisdiction, granted to the PCIJ the jurisdiction over disputes relating to provisions preceding Article 72 in Division I only, Germany's submissions addressed issues relating to the interpretation and application of both Division I and Division II. Poland did not raise any preliminary objection to the jurisdiction of the PCIJ either before or in its Counter-Case where it made a submission asking the PCIJ to debouter Germany's claim. 47 Germany then filed a Reply to Poland's Counter-Case. In turn, Poland filed a Rejoinder in which it challenged the jurisdiction of the PCIJ, asserting that only in its Reply did Germany define the issues clearly so as to raise same grounds also to accept jurisdiction to pass judgment on the submissions which Poland has made with a view to obtaining the reduction of the indemnity to an amount corresponding to the damage actually sustained." Id., 39 (emphasis added). It is not clear whether this statement was meant to justify his exercise of jurisdiction or to emphasize the "natural" connection between the two claims. The context in which this statement was made favors the latter view as this statement was made in the paragraph discussing the relationship of the counterclaim and Germany's principal claim. But see Rosenne (note 4), 1997, 1274. 44

1925 PCIJ, Series A, No. 4.

45

Id., 5-6.

46

1928 PCIJ, Series A, No. 15.

47

Id., 7.

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the question of the Court's jurisdiction. 48 The Court rejected this jurisdictional challenge. It held that the consent of a State to the submission of a dispute to the Court may be inferred from issue of jurisdiction so that it must be regarded as an unequivocal indication of the desire to obtain a decision on the merits. 49 It read the word debouter in its ordinary French meaning as indicating that Poland's submissions aimed at the merits of all of the claims, disputing the accuracy of Germany's contentions and asking the Court to reject them, and thus established Poland's implied consent to the jurisdiction of the Court. 5 0 Societe Commerciale de Belgique 51 is another case in which the Court found implied consent to jurisdiction. Here, the Societe Commerciale de Belgique obtained two arbitral awards against Greece, one providing for the cancellation of a contract and the other for damages. Greece considered the award for damages as part of its external public debt, without any preference over other similar obligations. Relying on a bilateral treaty, the Belgian Government instituted proceedings before the PCIJ by unilateral application against Greece, alleging that Greece had violated its international obligation by refusing to carry out the award for damages, thereby infringing the rights of its national. The Greek Government replied that it regarded the arbitral awards as res judicata , but its financial condition made it impossible to execute the award as formulated. The Belgian Government then transformed its submissions and Greece continued to respond to them on the merits. 52 Without inquiring into whether the treaty invoked by the applicant State was sufficient to found its jurisdiction, the Court stated that "[w]ith regard to its jurisdiction to adjudicate on these submissions, it is sufficient for the Court to observe that the Greek Government has raised no objection; on the contrary, it has submitted arguments on the merits and has asked for a decision on the merits. In regard to this point, the Parties are therefore in agreement.'' 53 Implied acceptance is thus sufficient to found the jurisdiction of the Court, apparently whether or not there has been some other existing basis for it. Moreover, as the issues are being rephrased and transformed, the implied acceptance w i l l be considered to have been transformed together with the issues, in the absence of objections.

48

Id., 21.

49

Id., 22-24.

50

Id., 20, 24.

51

1939 PCIJ, Series A/B, No. 78, 160.

52

Id., 160-173.

53

Id., 174.

Forum Prorogatum in the International Court

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C. Existence and Effect of Consent

1. Existence of Consent To ascertain the existence of consent in the application of forum prorogatum , the PCIJ established a strict standard. The PCIJ in Upper Silesia (Minority Schools) spoke of consent being inferred from acts "conclusively establishing i t " 5 4 and of the "unequivocal indication" of consent.55 Put forward by the PCIJ in the context of finding implied consent, this standard would also apply in the context of ascertaining or interpreting express consent.56 The Court's application of this standard in this case may be considered, however, to be somewhat less stringent. It equated responding to a claim on the merits without making any reservations to the issue of its jurisdiction with consent to its jurisdiction: [T]here seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it. It seems hard to deny that the submission of arguments on the merits, without making reservations in regard to the question of jurisdiction, must be regarded as an unequivocal indication of the desire of a State to obtain a decision on the merits of the suit. 57

T o trigger the application of this ruling, the response to a claim must address the merits of the claim without making reservations to the question of jurisdiction. This becomes an issue of interpreting the response. Since a response may not be clear-cut in its meaning and implication, its interpretation may be difficult. This problem can be resolved only by approaching the response and the proceedings as a whole. But the Court did not appear to do so in this case. Rather, it appeared to place more emphasis on the word debouter than on the whole context. Considering the ordinary French meaning of the word as one used to address the merits, the Court had no problem in finding that Poland's Counter-Case addressed the merits of all of Germany's claims without making any reservations to the question of jurisdiction. 58 The dissenting judges did not read Poland's Counter-Case that way. Judge Huber thought that the context of the Polish submissions required a non-ordinary meaning 54 55

1928 PCIJ, Series A, No. 15, 24.

Id.

56

The PCIJ did not appear to have the occasion to apply this standard in a case of express consent in which normally there was no dispute as to the existence of consent. See Part HB. 1. The ICJ, however, had to deal with this issue in Corfu Channel. See text accompanying infra , notes 143-158. 57

Supra , note 54.

58

Id. , 20-26.

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reading of the word debouter, 59 Similarly, Judge Negulesco did not see any consent by Poland to have the claims relating to Division I I decided by the Court. He reasoned that because the plea to the jurisdiction was mentioned in the statement of reasons of the Counter-Case, it could not be said that in the final submission of the CounterCase, by using the words ude debouter le Gouvernement de sa demande," the Polish Government had renounced the plea. 60 T o him, the final submission of the CounterCase should have been construed in the light of the grounds upon which this submission was based, and "it should have been looked upon as subsidiary and only arising if the Court declared it had jurisdiction." 61 These arguments were persuasive but apparently not sufficient to cast any doubt in the mind of the Court on its conclusion that the Counter-Case "conclusively" established Poland's consent to have the Court decide the merits of all of Germany's claims. It would appear that the Court gave too much weight to the wording of the final submissions and not enough to their context and the entire argument. A prudent respondent may be well advised, when there is any doubt as to jurisdiction, to expressly raise an objection to the jurisdiction of the Court in its final submissions and state that, in the alternative, it also raises other issues. 2. Effect of Consent Once consent is given in a case, it serves to establish the jurisdiction of the Court and cannot be retracted in subsequent proceedings. The effect of consent is the same, whether it is given expressly or impliedly, and whether forum prorogatum is applied or not. The Court in Upper Silesia (Minority Schools) ruled: If, in a special case, the Respondent has, by an express declaration, indicated his desire to obtain a decision on the merits and his intention to abstain from raising the question of jurisdiction, it seems clear that he cannot, later on in the proceedings, go back upon that declaration. This would not hold good only if the conditions under which the declaration had been made were such as to invalidate the expression of intention, or if the Applicant had, in the subsequent proceedings, essentially modified the aspect of the case, so that the consent, given on the basis of the original claim, could not reasonably be held to apply to the claim in the form which it now assumes. And, in the Court's opinion, there is no reason for dealing otherwise with cases in which the intention of submitting a matter to the Court for decision has been implicitly shown by the fact of arguing the merits without reserving the question of jurisdiction. 62

59

Id, 49-50 (diss. op. Huber).

60

Id., 67 (diss. op. Negulesco).

61

Id., Accord; id., 57-59 (diss. op. Nyholm).

62

Id. , 25.

Forum Prorogatum in the International Court

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The principle that consent once given cannot be taken back during a proceeding appears to be a well established one, 63 which Bedjaoui characterized as an expression of the principle of non-contradiction. 64 It has the same effect as does the principle of estoppel, although it is not estoppel itself, 65 because its application does not appear to require the presence of certain elements such as detrimental reliance, necessary for the operation of estoppel. Applying this holding to the facts of the case, the PCIJ denied any effect to Poland's objection to the jurisdiction of the Court made in its Rejoinder after it had implicitly accepted the jurisdiction by addressing the merits of Germany's claims in its Counter-Case. 66 Judge Huher argued that tacit consent should not have such an effect. In his view, "[t]he absence of a plea to the jurisdiction does not create jurisdiction; it merely enables the case to be proceeded with." 6 7 He contended further that "when giving judgment in virtue of jurisdiction implicitly or explicitly recognized by the Parties, [the Court] must ex officio ascertain on what legal foundation it is to base its judgment upon the claims of the Parties. Jura novit curia. The Court's jurisdiction is determined by the treaty or special agreement establishing that jurisdiction, and not by the contentions maintained by the Parties in the particular case."68 The first proviso to the Court's holding appeared to have been relied upon by Judges Huher and Negulesco who claimed that Germany's conduct caused Poland to file its jurisdictional objections somewhat late. 69 This argument did not persuade the Court. The second proviso was at issue in Societe Commerciale de Belgique where the applicant kept modifying its submissions and the respondent continued to respond to them on the merits. Apparently thinking that fresh consent was given after the applicant's submissions were modified, the PCIJ held that it had jurisdiction. 70

63 See Witenberg (note 3), 4. Cf. Humphrey Waldock , Decline of the Optional Clause, British Yearbook of International Law (BYIL), vol. 32, 1955-1956, 244, 263-265. 64

Bedjaoui (note 4), para. 35. It is beyond the scope of this study to venture into the various bases for this principle, one might add that it can be considered an expression of the good faith principle, which the ICJ has considered to be the main principle governing the creation and performance of legal obligations. See Nuclear Tests (Australia v. Francej, 1974 ICJ Reports 268. 65

Brownlie (note 4), 724 ("the judicial practice has not developed forum prorogatum into a true principle of estoppel"). Contra J. L. Simpson & Hazel Fox, International Arbitration: Law and Practice, 1959, 66. 66

1928 PCIJ, Series A, No. 15, 21-26.

67

Id., 53 (diss, op .Huher).

"Id., 54. 69

Id. , 49; 68 (diss. op. Negulesco).

70

1939 PCIJ, Series A/B, No. 78, 174.

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I n addition to raising issues relating to the existence and effect of consent given during the course of the proceedings, the dissenters in Upper Silesia (Minority Schools) also challenged the application of forum prorogatum as being incompatible w i t h Article 36 of the Statute. The question was whether the phrase "the parties refer to it" in Article 36(1) also encompassed the application of forum prorogatum as a "third way," in addition to special agreements and pre-existing agreements, to establish the Court's jurisdiction over the merits of a case, which was referred to the Court by one of the parties unilaterally. The Court held: The Court's jurisdiction depends on the will of the Parties. The Court is always competent once the latter have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it. Article 36 of the Statute, in its first paragraph, establishes this principle. ... The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement. Thus, in [Mavrommatis] the Court has accepted as sufficient for the purpose of establishing its jurisdiction a mere declaration made by the Respondent in the course of the proceedings agreeing that the Court should decide a point which, in the Court's opinion, would not otherwise have come within its jurisdiction. And there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it. ... 7 1

The Court further held that "there is nothing in [the Geneva] Convention or in the principles governing the Court's jurisdiction to prevent questions not falling within the category of those in respect of which compulsory jurisdiction is established, from being submitted to the Court by agreement between the Parties, notwithstanding the fact that the suit has been brought on the basis of the clause conferring compulsory jurisdiction." 72 It appears that the Court's interpretation of the Statute is primarily based on the ordinary meaning of its text. That reading, according to the Court, indicates an absence of any requirement that consent to jurisdiction be expressed in a certain form or manner or at a certain time and an absence of any prohibition against acceptance of jurisdiction from being effected by agreement between the parties as evidenced by separate and successive acts. From such a reading, it follows that forum prorogatum is permissible. Thus the Court appeared to resort to the rationale of that which is not prohibited is permitted.

71

1928 PCIJ, Series A, No. 15, 22-24. For discussion, see text accompanying notes 46-50, 54-61. 72

Id, 24.

Forum Prorogatum in the International Court

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The Court's ordinary meaning reading is not the only and necessary interpretation. The issue appears to hinge upon the interpretation given to the phrase "the parties" in "all cases which the parties refer to it" in Article 36(1). This phrase was borrowed 73 from Article 14 of the Covenant of the League of Nations, which stated, in part: "The court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly." 74 The Court treated the term "the parties" as used in such a way that each of the parties may refer or submit the case separately to the Court and the act of "the parties refer to it" would not be completed until both parties have done so. Such a reading is an unusual one. Another plausible interpretation would be to treat the terms as used in its cumulative sense, as meaning "the two parties." Thus read, the phrase "the parties refer to it" implies that the two parties refer the case jointly to the Court. Under such a reading, forum prorogatum would conflict with Article 36(1). LordPhillimore adopted this reading at the conference of the Advisory Committee at The Hague charged w i t h drafting the PCIJ Statute, citing the support of the Legal Section of the Secretariat of the League of Nations and various English authorities. 75 The English translation 76 of the record of his speech stated that he was "unable to interpret the word 'parties' contained in this article otherwise than to mean 'the two parties.'" 77 T o him, "English legal phraseology uses the plural, in speaking of parties concerned in a case, only for the purpose of referring to the two contesting parties." 78 Article 14 of the Covenant, in his opinion, "could only mean one thing...: the consent of both parties is necessary before a case can be taken before the Court," 7 9 and that "the consent of both parties is necessary before the case can be dealt with." 8 0 Here, the 73

Cf. League of Nations, Documents concerning the Action Taken by the Council of the League of Nations under Art. 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court (1921) (hereinafter PCIJ League Doc), 144. The word "submit" was replaced by "refer" in the PCIJ Statute, but this change has not been considered significant. 74

As reproduced in Permanent Court of International Justice Advisory Committee, Documents Presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice (1920) (hereinafter PCIJ A C Doc), 9 (emphasis added). 75

Permanent Court of International Justice Advisory Committee, Proces-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (hereinafter PCIJ A C Proces), 235. 76

All members of the Committee spoke in French except Root. Id., I V (Preface).

77

Id., 224.

78

Id. , 235.

79

Id. The French original of the record stated: "Paccord des deux parties est necessaire pour qu'une affaire puisse etre portee devant la Cour." "Id.

1

GYIL42

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language "be dealt with" does not mean merely to "be decided by the Court," which would be confirmed by the Court's subsequent reading, but had a broader meaning, "starting any procedure with respect to it." This is clear from the French original, which read: "le consentement des deux parties est necessaire pour que la procedure puisse etre entamee." 81 Moreover, in his view, "[though unfortunate,] Article 14 of the Covenant only gave the Court competence to deal with questions truly submitted to it by the parties, and not the questions they had agreed to submit to it." 8 2 Thus, Article 14 of the Covenant required a special agreement to found the jurisdiction of the Court; a treaty in force would not suffice. In order to permit unilateral application, Phillimore proposed building a limited compulsory jurisdiction system in the Statute itself. This system would explicitly treat the Statute and any conventions in force as instruments of consent.83 A t the present time, such a reading of the phrase "the parties" still commands following. For example, when interpreting in 1995 the phrase "the parties may submit the matter to [the Court]," Judge Koroma stated that "the ordinary meaning of the 'parties' is that the two or both Parties jointly must submit their dispute." 84 The remote context of Statute in which the term "the parties" is used does not appear to be dispositive, but tends to indicate a distinction between "each party" and "the parties." 85 This context thus seems to favor reading "the parties" as "both parties." A t least it would support the conclusion that there is ambiguity in the text, 86 which would call for an examination of the preparatory work in order to ascertain its meaning. This the Court did not do. tl

Id.

82

Id., 237.

83

Id., 252,253. Phillimore envisioned the Statute as a convention establishing the Court, id., 236,244,252. Baron Descamps also spoke of "the Convention concerning the general Office of International Justice." Id., 254. After some fine tuning by Hagerup, Phillimore's proposal also included conventions in force as instruments of consent. Id., 237, 253. While the Advisory Committee did not propose a mode of adoption of the Statute, it clearly understood the Statute as a convention establishing the Court, capable of embodying the consent of States parties to the Court's jurisdiction. Id., 1T7 (Rapporteur's Report). See also Manley O. Hudson, The Permanent Court of International Justice: 1920-1942, 1943, 120-122. 84

Qatar v. Bahrain, 1995 ICJ Reports 70 (diss. op. Koroma ). See also id., 55, 56 (diss. op. Shahabuddeen) (the implication was clear that the case was to be submitted by both parties). 85 86

See Arts. 28,39(3) ("the parties"); Arts. 31,41(1), 60 (speaking of each, either or any party).

In Qatar v. Bahrain, 1995 ICJ Reports 18-19, the Arabic term al-tarafan, which meant "the parties" per Qatar, and "the two parties" per Bahrain, was not considered by the Court to be dispositive of the issue whether Qatar may validly invoke the Court's jurisdiction by unilateral seisin. This would tend to support the view that the phrase "the parties" in Art. 36(1) is ambiguous, although the issue in that case is not forum prorogatum, but whether one party's seising of the Court in itself would give it jurisdiction under the circumstances of the case.

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Moreover, the PCIJ's reliance on the rationale of that which is not prohibited is permitted appears suspect in the context of international jurisdiction, although it may be appropriate in another context. As Judge Huher pointed out, although the delimitation of jurisdiction under Article 36 is wide, "it is also simultaneously limitative in character" in the sense that "the Court has no jurisdiction independent of the w i l l of the Parties and existing prior to such will." 8 7 This character of international jurisdiction, as the background against which the old Statute was drafted, would seem to militate in favor of a less expansive reading of the Statute in case of uncertainty. O n balance, the ordinary meaning reading adopted by Phillimore would appear to be the better one. It finds support in a phrase in the express terms of the Statute and, to some extent, in the remote context. O n the other hand, the interpretation adopted by the Court is based on the absence of certain things in the Statute, without giving effect to what the terms of the provision can be deemed to imply. The second strand in the Judgment is a reading of the Statute based on judicial precedents such as Mavrommatis, 88 While this precedent 89 is apposite and may be persuasive if meant to confirm an interpretation of the Statue, it can hardly serve to modify a treaty duly concluded by State parties. While State practice may do so, international judicial precedents have not been considered to represent State practice. This is so because it is difficult to treat an international judicial organ as an organ of a particular State and its decisions as direct evidence of State practice. A n international judicial decision is "an expression not of the practice of the litigating States, but of the judicial view taken of the relations between them on the basis of legal principles which must necessarily exclude any customary law which has not yet crystallized." 90 The dissenting judges in Upper Silesia all relied to some extent on a form of ordinary meaning interpretation for a contrary position. 91 In addition, Judge Huber put forward an interpretation of Article 36 which is based on the preparatory work. Under the general principles of treaty interpretation, there was no occasion for the

87

1928 PCIJ, Series A, No. 15, 48 (diss. op. Huber).

88

Waldock (note 4), 385, endorsed this approach.

89

O n precedent generally, see Mohamed Shahabuddeen , Precedent in the World Court (1996); Volker Roben, Le precedent dans la jurisprudence de la Cour internationale, German Yearbook of International Law, vol. 32, 1989, 382. 90 Shahabuddeen (note 89), 72; see also Cameroon v. Nigeria , 1998 ICJ Reports 275,365 (diss, op. Weeramantry) ("no amount of contrary jurisprudence can override the imperative requirements of the Court's Statute"); Hugh Thirlway , The Law and Procedure of the International Court of Justice: 1960-1989, BYIL, vol. 67, 1996, 1, 26-27; Lauterpacht ( note 4), 20-21; Max Serensen , Les sources du droit international, 1946, 153-155. 91

ll

1928 PCIJ, Series A, No. 15, 48-73.

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Court or Phillimore to resort to the preparatory work of the Statute. But the existence of two competing reasonable views of the ordinary meaning of the Statute in itself may indicate there may be ambiguity in it and thus would permit an interpreter to seek guidance from the preparatory work. 9 2 A reading of Article 36(1) based on the preparatory work would support the view that the PCIJ was wrong in Upper Silesia. As Judge Huber stated, the Court's interpretation of Article 36 "appears difficult to reconcile with the conceptions which, at the time of the preparation of the Statute, were current in Government circles in regard to compulsory arbitration, and it is itself contradicted by the records of the preparatory w o r k . " 9 3 The history of the debut of Article 36(1) supports this position. A t the conference of the Advisory Committee, sentiments were strong to establish a compulsory jurisdiction system that would permit unilateral applications. When Phillimore proposed building such a system in the Statute itself, Mr. Root called the attention of the Committee to the issue of "how one party alone could submit a case to the Court without a previous agreement on the subject w i t h the opposite party." 9 4 Without presenting his view as an interpretation of Article 14 of the Covenant, Mr. Root "suggested that the plaintiff should submit its version of the case to the Court, that the defendant party should submit his, and that the decision should be left to the Court, instead of requiring the parties to agree between themselves upon the subject of the dispute before submitting it to the Court." 9 5 This would turn out to be similar to the subsequent application of forum prorogatum. But Root's suggestion was not adopted. He himself did not seem to have much faith in it. He merely mentioned the suggestion, without insisting upon it, and turned to another topic. 96 It was immediately criticized by Mr. Adatci. 97 Subsequently, in response to Phillimore's question on whether, when the parties to a dispute were not bound by a formal agreement, one party could appeal to the Court for a decision on jurisdiction, the President of the Committee stated emphatically: "Submission of a case to the Court by only one party could take place only by virtue of a Convention between them." 98 After this exchange, Root's suggestion did not seem

92 Vienna Convention on the Law of Treaties (Vienna Treaties Convention), 1155 U N T S 331, Arts. 31, 32. 93

1928 PCIJ, Series A, No. 15, 52 (diss. op. Huber).

94

PCIJ A C Proces, 241.

95

Id

n

Id.

97

Id., 242.

98

Id., 245.

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Court

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t o be revisited b y a n y o n e . " U l t i m a t e l y , the C o m m i t t e e agreed w i t h Phillimore's reading of " t h e parties" and A r t i c l e 14 of the C o v e n a n t , 1 0 0 and essentially adopted a c o m p u l s o r y j u r i s d i c t i o n system as he proposed, giving the C o u r t j u r i s d i c t i o n over a list of disputes, as between M e m b e r s of the League, and over other matters as p r o v i d e d i n a general or particular c o n v e n t i o n . 1 0 1 I t is difficult n o t t o consider this result as a rejection of forum

prorogatum.

T h e C o u n c i l of the League of N a t i o n s t h o u g h t t h a t the A d v i s o r y C o m m i t t e e ' s proposed system of l i m i t e d c o m p u l s o r y j u r i s d i c t i o n a m o u n t e d t o a m o d i f i c a t i o n of A r t i c l e 12 o f the Covenant, as i t w o u l d restrict the freedom o f choice i n the means of dispute settlement that a State enjoyed thereunder. 1 0 2 T h e C o u n c i l proposed that the A d v i s o r y C o m m i t t e e ' s draft A r t i c l e 33 be changed t o read: " T h e j u r i s d i c t i o n of the C o u r t is defined b y Articles 12,13 and 14 of the C o v e n a n t . " 1 0 3 A r t i c l e 34 was t o read " [ w ] i t h o u t prejudice t o the right of the Parties, according t o A r t i c l e 12 of the Covenant, t o s u b m i t disputes between t h e m either t o judicial settlement o r arbitrat i o n o r t o e n q u i r y b y the C o u n c i l , the C o u r t shall have j u r i s d i c t i o n (and this w i t h o u t any special agreement giving it jurisdiction) t o hear and determine disputes, the

99

Id. , 726-729. This point was not mentioned in the Rapporteur's Report.

100

Mr. Loder (Netherlands) first argued that under Art. 14 of the Covenant a matter may be referred by any one of the parties at any time, id ., 233, 250, but appeared to have abandoned his view subsequently, id., 239. But his position was nevertheless noted in the Rapporteur's Report. Id. y 728. The members of the Committee at The Hague appeared to focus on the ordinary meaning of the text of Art. 14 of the Covenant. Its drafting history did not appear to have been expressly relied upon during the deliberations of the Committee, the Council or the Assembly and, as a result, probably could not be treated as part of the drafting history of the PCIJ Statute. But it tends to confirm Phillimore's reading. During a meeting of the preparatory Commission discussing draft Art. 14 as amended by President Wilson and Lord Robert Cecil , which at that time contained the language of "the parties recognize as suitable for submission to [the Court]," Larnaude (France) made a proposal to amend the draft so that the Court would have jurisdiction over a matter which "l'une quelconque des parties" may wish to submit to it. That proposal was not adopted. The English minutes of the meeting of the preparatory Commission stated that it was changed to state "both parties," while the French minutes stated that it was withdrawn. David Hunter Miller , one of the main drafters, stated that his notes did not indicate any action on the Wilson-Cecil version but that the change mentioned in the English minutes was in substance already in the Article. Miller , The Drafting of the Covenant, 1928, vol. 1, 328-330; vol. 2, 349, 516, 526. This history tends to support reading the term "the parties" as "both parties." 101

PCIJ A C Proces, 679-680 (Draft Scheme, Art. 34); 726-729 (Report of the Rapporteur). See also James Brown Scott , The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists: Report and Commentary, 1920, 97-106. 102

PCIJ League Doc. 45, 47.

103

Id .y 47, 57.

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settlement of which is by Treaties in force entrusted to it or to the tribunal instituted by the League of Nations." 1 0 4 The Subcommittee of the Third Committee of the Assembly gave these principles a slightly different expression in two renumbered articles. Article 36 would read "The jurisdiction of the Court comprises all cases which the Parties refer to it and all matters specially provided for in treaties and conventions in force" and Article 37, "When a treaty or convention in force provides for the reference of a matter to a tribunal to be instituted by the League of Nations, the Court w i l l be such tribunal." 1 0 5 The wording of this part of Article 36 was not changed subsequently, although other paragraphs not at issue here were added to the article. 106 The SubCommittee explained these provisions as follows: 1. The jurisdiction of the Court is in principle based upon an agreement between the Parties. This agreement may be in the form of a special Convention submitting a given case to the Court, or of a Treaty or general Convention embracing a group of matters of a certain nature. 2. With regard to the right of unilateral arraignment contemplated in the words ("and this without any special agreement giving it jurisdiction") in the Council's draft, the Sub-Committee, by deleting these words, has not changed the meaning of the draft. In conformity with the Council's proposal, the text prepared by the Sub-Committee admits this right only when it is based on an agreement between the Parties. 107

These statements make it clear that unilateral application without an existing agreement was not envisioned. 108 Article 40, providing for the procedure whereby the jurisdiction may be invoked, contemplated unilateral applications only based on existing agreements. Thus the weight of authority tends to show that under either an interpretation based on the ordinary meaning of the text or one based on the preparatory work, Article 36(1) of the PCIJ Statute did not permit the application of forum prorogatum. It is reasonable to conclude that the PCIJ's case law modified its Statute, to which States became parties only by ratifying the Protocol of Signature. 109 In this sense, the application of forum prorogatum to establish the Court's jurisdiction was an instance of judicial lawmaking. 110 104

Id., 47, 57-58.

105

Id., 206, 218 (Report of Sub-Committee and adopted by the Third Committee).

106

Cf. id., 222, 224 (Report of Third Committee), 263 (PCIJ Statute as adopted by the Assembly). 107

Id., 211.

108

It is clear that by "Convention" and "agreement," the statesmen referred to a "formal agreement." 109

PCIJ League Doc., 257, 258.

110

Cf. Shahabuddeen (note 89), 91.

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E. Reaffirmation of the Doctrine: Rule-making in 1934-1936

The rule-making discussion of 1934-1936 reaffirmed the doctrine of forum prorogatum. The wording of Article 35 of the Rules of Court resulting from this discussion was intended to accommodate it. Judge Fromageot started the controversy on this issue by proposing a new rule that would require an application to specify the provision upon which the application was to be filed, that is, upon which the jurisdiction of the Court was to be founded. 111 Such a rule probably would have the effect of overruling the jurisprudence of forum prorogatum in a rule-making context. Several judges immediately voiced their objections to this proposal. Judge Schücking suggested that there was no basis in the Statute for this proposal and warned against multiplying the requirements in the Rules thereby making them more exacting than the Statute. 112 Judge Anzilotti's objection was based on the proposal's conflict with the jurisprudence of the Court and its questionable impediment to practical expedience, as it would make it impossible for a case to go forward when, although a State may find it difficult to accept a special agreement, it refrained from objecting to an application being filed against it. 1 1 3 Judge Schücking further argued that such a rule would amount to abolishing the institution of forum prorogatum, which "would not be in the interests of international justice." 114 Judge van Eysinga also opposed the proposal. In his view, the Court should be freely and easily accessible. He therefore concurred that multiplying the requirements in the Rules, making them more exacting than Article 40 of the Statute, would be undesirable. 115 Several judges disfavored the doctrine of forum prorogatum 116 and endorsed Judge Fromageot's proposal. The Court then voted in the affirmative (by the casting vote of the President) on the issue whether it was "desirable" to mention the jurisdictional provisions in the application. 117 This vote of course meant only that it would be desirable and not necessary to do so. I n order to satisfy all opinions expressed, Judge Fromageot subsequently suggested changing his proposal to read: "[the application] must also, as far as possible , specify the provision [on which the applicant founds the jurisdiction of the Court.]" 1 1 8 This language made such specification optional and would accommodate the invocation 111

PCIJ, Series D, 3rd Addendum to No. 2, 65-66, 69, 913.

112

Id., 66.

113

Id., 67-68.

114

Id., 69.

115

Id., 69-70.

116

Id., 71. For example, Judge Count Rostworowski observed that "the result of construing the fact that a State consented to argue the merits as implying that it accepted the Court's jurisdiction, might be to impute to that State an intention which it did not possess." 117

Id., 72.

118

Id., 159-160 (emphasis added).

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of forum prorogatum , and it was thus intended to permit its application. 119 This proposal was unanimously adopted by the Court 1 2 0 and has remained, with slight modification, in the successive versions of the Rules until this day. 121 This rule no doubt facilitates the invocation of the doctrine of forum prorogatum. I I I . The Experience of the ICJ In its application of forum prorogatum, the ICJ continues to be flexible with respect to the timing and form of consent. Beyond that flexibility, however, the Court has been increasingly rigorous in ascertaining the existence of consent, especially when consent is given implicitly. Its rule-making of 1978 put some further restraint on the abuse, if not the use, of forum prorogatum. Sir Hersch Lauterpacht noted succinctly that a [t]he manner in which the Court has combined encouragement of the practice of forum prorogatum with a determination to set some ascertainable limits to its operation provides an interesting example of a combination of boldness and caution in relation to a principle of an apparently formal and technical character - though in fact the possibilities inherent in that principle are of more general import. " 1 2 2 Finally, in terms of legitimacy, the ICJ's application of the doctrine rests upon firmer ground because the drafters of the ICJ Statute endorsed the PCIJ's jurisprudence.

A. Timing of Consent

The ICJ held in Corfu Channel that acceptance of jurisdiction need not be done "jointly and beforehand by a special agreement." 123 In that case the Court held that acceptance of its jurisdiction was made by Albania through a letter sent to the Court by its Deputy Foreign Minister before it filed any formal response to the application. I n Haya de la Torre, 124 consent to jurisdiction was implicitly given when the respondent replied to the application on the merits without raising any jurisdictional issues. Finally, it may be worth noting that the Court appears to have trouble w i t h finding implied consent to jurisdiction during the period for the written and oral proceedings on the request for provisional measures. 125

119

See Rosenne (note 4), 1997, 702-705; Bedjaoui (note 4), para. 15.

120

PCIJ, Series D , 3rd Addendum to No. 2, 159-160,1005 (Art. 32(2)).

121

See ICJ Rules of Court, Art. 38(2), in: ICJ Acts and Documents, Series D, No. 4, 1978,119. 122

Lauterpacht (note 4), 103.

123

1947-1948 ICJ Reports 28.

124

1951 ICJ Reports 71, 78.

125

See text accompanying infra , notes 173-183.

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B. Form of Consent

1. Express Consent I n Corfu Channel (Preliminary Objections), the Court found that Albania expressly accepted its jurisdiction after the proceedings were instituted, thus applying forum prorogatum in its first case. There, a dispute arose between the United Kingdom and Albania regarding an incident taking place in the Corfu Channel. The Security Council recommended that the dispute be referred to the ICJ in accordance with its Statute. The United Kingdom instituted proceedings unilaterally against Albania, asserting that the case was one which was specially provided for in the United Nations Charter under Article 36(1) of the Statute.126 Albania's Deputy Foreign Minister sent in a letter dated 2 July 1947, arguing that the United Kingdom's Application was not in conformity with the non-binding recommendation of the Security Council, and that in the absence of an acceptance of Article 36 of the Statute or other instrument of international law whereby Albania might have accepted the Court's compulsory jurisdiction, it considered that the United Kingdom was not entitled to refer the dispute to the Court by unilateral application. 127 The letter further stated: Profoundly convinced of the justice of its case, resolved to neglect no opportunity of giving evidence of its devotion to the principles of friendly collaboration between nations and of the pacific settlement of disputes, it is prepared, notwithstanding this irregularity in the action taken by the Government of the United Kingdom, to appear before the Court. Nevertheless, the Albanian Government makes the most explicit reservations respecting the manner in which the Government of the United Kingdom has brought the case before the Court.... The Albanian Government wishes to emphasize that its acceptance of the Court's jurisdiction for this case cannot constitute a precedent for the future. 128

It further notified the Court of its appointment of an agent.129 Subsequently, Albania filed a preliminary objection arguing that the United Kingdom application was filed contrary to Articles 36(1) and 40(1) of the Statute and therefore was inadmissible. Rejecting that objection, the Court founded jurisdiction on Albania's letter, reading it as a waiver of all procedural irregularities and as an acceptance of jurisdiction, 130 without expressing an opinion on the United Kingdom's attempt to base the Court's jurisdiction upon other grounds. In so doing the Court read the language "acceptance of

126

1947-1948 ICJ Reports 15, 17. See also II Yung Chung, Legal Problems Involved in the Corfu Channel Incident, 1959; Waldock (note 4). 127

1947-1948 ICJ Reports 18.

128

Id, 19.

129 130

Id. Id, 27.

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the C o u r t ' s j u r i s d i c t i o n for this case" as c o n s t i t u t i n g "a v o l u n t a r y and indisputable acceptance of the C o u r t ' s j u r i s d i c t i o n . " 1 3 1

2. Implied I n Haya de la Torre,

132

Consent

the C o u r t founded its j u r i s d i c t i o n u p o n i m p l i e d consent.

I n that case, C o l o m b i a filed an application before the I C J against Peru presenting a p r i n c i p a l claim w h i c h ostensibly sought an interpretation of the Asylum

judgment,

b u t i t also sought adjudication of an alternative claim that w e n t beyond such an interpretation. T h e p r i n c i p a l claim asked the C o u r t t o state i n w h a t manner the Asylum j u d g m e n t should be executed and whether i n execution of that judgment the Governm e n t o f C o l o m b i a was b o u n d t o deliver Haya de la Torre t o the G o v e r n m e n t of P e r u . 1 3 3 T h e alternative claim asked the C o u r t t o decide " i n the exercise of its ordin a r y competence ... w h e t h e r , i n accordance w i t h the law i n force between the Parties ... the G o v e r n m e n t of C o l o m b i a is, o r is n o t , b o u n d t o deliver M. Victor Raul Haya

131

Id. The Court also noted that the letter accepted the recommendation of the Security Council. This may have played a part in the Court's reading of the letter, but it would not help to answer Albania's contention that the content of the recommendation itself did not speak of any acceptance of the Court's jurisdiction to decide the case but only of referring the dispute to the Court in accordance with its statute , which would require either a special agreement or a pre-existing agreement. For further discussion of this case as supplying an example of the application of forum prorogatum , see Lauterpacht (note 4), 103-104; Waldock (note 4). Collier/Lowe (note 4), 136, thought that Albania's express acceptance of admissibility and jurisdiction in Corfu Channel made it unclear whether forum prorogatum was applied. This suggested that they believed that only implicit acceptance of jurisdiction could constitute forum prorogatum, which is a rather narrow view of this doctrine. They also cited the special agreement between the parties for the position that forum prorogatum was not the only basis for jurisdiction. This is true, and the Court stated in an order of 26 March 1948 that the special agreement "formed the basis of further proceedings before the Court," Corfu Channel , 1948 ICJ Reports 55. However, the special agreement was not meant to preempt the Court's judgment on Albania's preliminary objections, but, rather, was intended to be, and was in fact, delivered to the Court after it had pronounced its judgment, id., 54. Thus one may argue that the special agreement was unnecessary. The agent of the United Kingdom stated that he did not mind whether the Court should proceed on the basis of its unilateral application or the special agreement. See Corfu Channel , 1950 ICJ Pleadings, vol. 3, 162-163. 132 1951 ICJ Reports 71. Earlier in Asylum, under a special agreement referring the dispute with respect to the grant of asylum to Haya de la Torre by Columbia's ambassador to Peru in Lima, which permitted unilateral application, Columbia submitted to the Court two questions and Peru filed a counter-claim. Columbia did not object to the Court's jurisdiction over this counter-claim in its original form. 1950 ICJ Reports 267-270,280-281. Rosenne (note 4), 1997, 1274-1275, argued that forum prorogatum was applied. One may argue that it was not and that the special agreement was the basis for jurisdiction. 133

1951 ICJ Reports 72-73, 78-79.

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de la Torre to the Government of Peru." 134 Peru raised no objection to the jurisdiction of the Court and argued the claims on the merits. The Court held that a [t]he Parties have in the present case consented to the jurisdiction of the Court. A l l the questions submitted to it have been argued by them on the merits, and no objection has been made to a decision on the merits. This conduct of the Parties is sufficient to confer jurisdiction on the Court." 1 3 5 Judge Sir Hersch Lauterpacht argued 136 that in United States Nationals in Morocco the Court applied forum prorogatum} 17 There, France relied upon the Declaration of Acceptance made under Article 36(2) of the Statute by the United States, which contained the so-called automatic reservation of matters of domestic jurisdiction, to found the Court's jurisdiction. Sir Hersch Lauterpackt based his opinion primarily on the respondent's statement that "[t]he United States Government does not raise any jurisdictional issue in the proceeding, even though it does not concur in the allegations w i t h respect to the compulsory jurisdiction of the Court which have been presented by the French Government, it being its understanding that its abstaining from raising the issue does not affect its legal right to rely in any future case on its reservations contained in its acceptance of the compulsory jurisdiction of the Court." 1 3 8 Although the Court did not state how it found the consent of the United States, this statement (particularly the denial of France's allegations regarding compulsory jurisdiction) appeared to indicate that consent was implicitly given outside its Declaration of Acceptance, with a view to avoiding any decision on the validity of the automatic reservation. Thus Sir Hersch Lauterpacht may be correct in treating the case as one in which the principle of forum prorogatum was applied. 139 In addition, Rosenne argued that the Court implicitly applied forum prorogatum to exercise jurisdiction over a counter-claim presented by the United States there since neither the parties nor the Court raised any jurisdictional issue w i t h respect to it. 1 4 0 3. Existence of Consent The ICJ has continued to apply the strict standard to ascertain the existence of consent. T o describe the standard, the ICJ used the phrase "voluntary and indisputable

134

/