Judicial Review in International Perspective:Liber Amicorum in Honour of Lord Slynn of Hadley [1 ed.] 9041113789, 9789041113788

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JUDICIAL REVIEW IN INTERNATIONAL PERSPECTIVE Volume II

Edited by

Mads Andenas

••

KLUWER ACADEMIC PUBLISHERS

LIBER AMICORUM IN HONOUR OF LORD SLYNN OF HADLEY VOLUME II

"Mr. Gordon Slynn was outstanding. The best I have ever known. He will go far." The Right Honourable Lord Denning, Master of the Rolls, The Due Process of Law, (London 1980) p. 12

LIBER AMICORUM in Honour of

LORD SLYNN OF HADLEY

JUDICIAL REVIEW IN INTERNATIONAL PERSPECTIVE

Editor Mads Andenas Director, British Institute of International and Comparative Law, London Fellow, Institute of European and Comparative Law, Oxford University

Associate Editor Duncan Fairgrieve Laming Junior Fellow, The Queen's College, Oxford University

Kluwer Law International The Hague - London - Boston

A C.I.P. Catalogue record for this book is available from the Library of Congress

web-ISBN 978-90-411-7979-1 Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 675 Massachusetts Avenue, Cambridge, MA 02139, U.S.A.

In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

Printed on acid-free paper

All Rights Reserved © 2000 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Graham & Trotman Ltd, Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. Printed and bOlUld by Antony Rowe Ltd, Eastboume

CONTENTS

PREFACE BY THE RIGHT HON. LORD WILBERFORCE

ix

THE RIGHT HON. LORD SLYNN OF HADLEY

xi

LIST OF CONTRIBUTORS

xv

PARTl COURTS AND INTERNATIONAL LAW

1

HE. Stephen M Schwebel The Proliferation ofInternational Tribunals: Threat or Promise?

2

HE. Dame Rosalyn Higgins Dualism in the Face of a Changing Legal Culture

3

55

Maureen Williams International Law in the Wake ofUNISPACE III

7

45

Henry G. Schermers The Pinochet Case

6

23

Ian Brownlie QC Boundary Problems and the Formation of New States

5

9

James Crawford SC The Standing of States: A Critique of Article 40 of the ILC's Draft Articles on State Responsibility

4

3

67

Friedl Weiss Austria from European State to Nation State in Europe

89

CONTENTS

VI

PART 2 COURTS AND THE CONSTITUTION

8

The Hon. Dieter Grimm Constitutional Adjudication and Democracy

9

103

The Hon. Aharon Barak The Role of The Supreme Court in a Democracy

121

10 The Hon. Stephen Breyer Judicial Review: A Practising Judge's Perspective 11 The Hon. Noelle Lenoir The Constitutional Council and the European Convention of Human Rights: The French Paradox

131

145

12 Dr. J WF. Allison Parliamentary Sovereignty, Europe and the Economy of the Common Law

177

13 Julian R. Moti 'The Law Giveth ... and my Lord Taketh Away' Constitutional Redress in the Pacific Islands

195

14 David Flint The Australian Crown

213

15 UljBernitz Sweden and the EMU - Political Tactics or Treaty Infringement?

223

PART 3 COURTS AND THE ADMINISTRATION

16 The Right Hon. Lord Cooke ofThorndon Damnosa Hereditas

237

17 The Right Hon. Sir John Laws The Rule of Reason - An International Heritage

247

18 The Right Han. Sir Stephen Sedley Policy and Law

259

CONTENTS

vii

19 Sir William Wade British Restriction of Judicial Review - Europe to the Rescue

267

20 The Han. Michael J. Beloff QC Who Whom? Issues in Locus Standi in Public Law

275

21 L. Neville Brown The Influence of the Conseil d'Etat on English Administrative Law and the European Court of Justice

293

22 Ivan Hare The Law of Standing in Public Interest Adjudication

301

23 Dawn Oliver The Singularity of the English Public Private Divide

319

24 Mads Andenas and Duncan Fairgrieve To Supervise or to Compensate? A Comparative Study of State Liability for Negligent Banking Supervision

333

25 Piet Jan Slot and Andrew Skudder The Community Regulation of Ports and Airports

361

PART 4 COURTS AND HUMAN RIGHTS

26 The Han. Adarsh Sein Anand Protection of Human Rights Through Judicial Review in India

381

27 The Han. Sandra Day 0 'Connor Justice at the Millennium: Through the Looking Glass and into the Crystal Ball

395

28 The Right Han. Beverley M McLachlin Speech and Reputation: The Legal Divide

403

29 The Right Han. Lord Hope of Craighead The Human Rights Act 1998 - The Task of the Judges 30 The Right Han. Lord Woolf ofBarnes The Human Rights Act 1998 and Remedies

415

429

CONTENTS

viii

31 The Hon. Michael Kirby The Changing Boundaries of Criminal Law

437

32 Colin Warbrick Article 13 - the Co-operative Role of National and International Judges in Securing the Enjoyment of Human Rights Under the European Convention on Human Rights (and its Limits)

449

33 Ernst-Ulrich Petersmann Judicial Protection of Economic Freedom in National and International Law: Time for 'Bringing Rights Home'

463

PARTS COURTS AND PROCEDURE

34 J.A. Jolowicz Group Litigation, Damages, and Judicial Control by Civil Courts

481

35 The Hon. Gustaf Moller Interim Relief and the European Judgment Conventions

493

36 The Hon. Pal Salt Reforme en Hongrie: L' Administration de l'Organisation Judiciare par Ie Conseil National Judiciare

509

PREFACE The Right Han. Lord Wilberforce

The thirty years of the legal life of Lord Slynn of Hadley (Gordon Slynn as he is known to his friends) have seen remarkable developments and changes in the legal scenery, both domestic (British), and international. Domestically I would pick out the belated advance of English law into the field of public law and the creation, by an apparently natural process of growth, influenced and fertilised by other systems, of a sophisticated and thrusting structure of administrative law. Internationally, we have witnessed the globalisation of economic relations, particularly of trade and finance and the relevant institutions, expansion of international litigation and arbitration, the establishment of new powerful courts, and new institutions of adjudication and learning. Lord Slynn's career, since his first public appointment in 1967, has reflected and, in turn, has significantly influenced these developments. Starting as Counsel to the (British) Ministry of Labour, he was soon appointed to the key post of Treasury (s.c. Government) Counsel in Common Law, a post which he held with conspicuous success until his nomination as a High Court Judge. A period of Presidency of the Employment Appeals Tribunal brought him more closely into the area of public law and this, no doubt, would have expanded further had he not in 1981 become an Advocate General at the European Court of Justice. This important appointment, with its opportunity of individual expression, by contrast with the collegiate anonymity of the judges of that court, soon established his reputation internationally for modernity, lucidity of thinking and a wide perspective of interests. There followed a four year period of service as a Judge of the E.C.J. before his translation to the House of Lords in 1992. The range of his interests over all this period continued to expand. In 1988 he became Chairman of the Executive Council of the International Law Association, so acquiring many new contacts and opportunities of influence. He was indefatigable in attending international conferences and visiting branches, with the object of involving members in the Far East and in Latin America in the Association's work. In the House of Lords, in addition to his judicial duties, he has been Chairman of the influential Sub-Committee on European Law, and Chairman of the Select Committee on the Public Services. Parallel with these appointments, he has a unique record as a lecturer in all parts of the world, on all subjects: (there can be few famous lectureships which have not recruited his always willing acceptance) as Chairman of Committees, President of Institutions, inside and outside the law. M. Andenas (ed.), Liber Amicorum Slynn ix-x (2000) © 2000 Kluwer Law International

x

PREFACE

So this book, by his friends, could be expected to extend widely, and in fact, it does not disappoint. Recollect that there is a separate volume covering the European Court of Justice, and yet there is enough in this publication to celebrate several separate careers. The reader will note that there are contributions from justices of eight Supreme Courts, plus the German Constitutional Court, the Conseil Constitutionel and the European Court of Human Rights, from ten universities, many of them multiple, together with famous institutions and individuals in many different fields. Even Lord Slynn's young lecturer interest in Air Law is reflected by a professional paper on the Law of Space. Many, if not most, of the contributions bear, appropriately, on the question of the role of courts in reviewing actions of the legislature and the executive, but there are also articles to attract other diverse specialists, several, no doubt to Lord Slynn's pleasure, provocative and forward- looking. Lord Slynn is happily still in office, so this is really a Festschrift of celebration. I am privileged to commend it to a wide readership. Richard Wilberforce

THE RIGHT HONOURABLE LORD SLYNN OF HADLEY

B.A. (London), M.A. LL.M. (Cantab). Hon. Fellow: St Andrew's College, University of Sydney (Australia); John Moores University Liverpool; Goldsmiths' College, University of London; King's College London. Hon. LLD: University of Birmingham 1983; University of Buckingham 1983; University of Exeter 1985; University of Technology, Sydney 1991; Bristol Polytechnic (C.N.A.A.) 1992; University of Sussex 1992; Stetson (USA) 1993; Staffordshire 1994; Pace New York 1995; Pondicherry University 1997; Kingston University 1997; Strathclyde University 1999; University of London 1999. Hon. D.C.L.: University of Durham 1989; City University 1994. Hon.D.Unv.: Universidad del Museo Social Argentino 1994. Hon.Dr Juris: UniversWit des Saarlandes 1994. Hon.Decanus Legis: Mercer University (USA) 1986. Hon.Fellow: American College of Trial Lawyers. Cordell Hull Peace Medal (Samford University USA) 1993. Member American Law Institute. Fellow of the Chartered Institute of Arbitrators. K.SU.

Grand Cross Order of Merit Luxembourg. Knight's Cross Order of Merit, Poland. Called to the Bar, Gray's Inn, 1956; Master of the Bench 1970; Vice-Treasurer 1987; Treasurer 1988. Junior Counsel to the Ministry of Labour 1967-68. Junior Counsel to the Treasury (Common Law) 1968-74. Appointed Queen's Counsel 1974. Leading Counsel to the Treasury 1974-76. President ofthe Employment Appeal Tribunal 1978-81. Recorder of the City of Hereford 1971, then a Recorder and Honorary Recorder of Hereford 1972-76.

xii

THE RIGHT HONOURABLE LORD SLYNN OF HADLEY

Judge of the High Court of Justice (Queen's Bench Division) 1976-1981. Advocate General at the Court of Justice of the European Communities, Luxembourg, 1981-88; Judge, 1988-1992. Lord of Appeal in Ordinary, House of Lords, March 1992-; Privy Counsellor 1992 Chairman, House of Lords Sub-Committee E, European Communities Committee 1992/95; Chairman Select Committee on the Public Service 1996/97 Sub Lector, Trinity College, Cambridge 1956-61; Lecturer in Air Law, London School of Economics 1958-61. Visiting Professor in Law: University of Durham 1981-88; Cornell, USA, 1983; King's College, London, 1988-91 and 1995-; University of Technology, Sydney, Australia, 1990-; National Law School of India University 1992-. Lectures: F.A. Mann 1981; Lord Fletcher 1983; Irvine (Cornell, USA) 1984; Lord Denning (B.A.C.F.I.) 1985; Baron Heydon de Lancey 1987; Leon Ladner (Vancouver) 1987; Hamlyn 1991; Lord Fletcher 1992; Butterworth 1992; Lord Denning (I.S.H.) 1992; Royal Bank of Scotland 1992; Lord Morris of Borth y Gest (University of Wales) 1992; Wolters Kluwer 1993; Tanner (Oxford) 1993; Romanes (Oxford) 1994; Edward Bramley (Sheffield) 1995; Nambyar (India) 1996. President Bentham Club (UCL) 1992; Holdsworth Club (Birmingham University) 1993. Hon.Vice-President, Union Internationale des Avocats 1976 - (Vice-President 1973-76); Vice-Chairman, Executive Committee, International Law Association 1986-88; Chairman 1988-; President, La Federation Internationale pour Ie Droit Europeen (F.I.D.E.) 2000-; Hon.Member, Society of Public Teachers of Law; Hon.Fellow, International Students House (Governor 1979-85 and 1992-); Hon.Member, Canadian Bar Association; Georgia Trial Lawyers' Association; Florida Defense Lawyers' Association; Colegio de Abagados of Buenos Aires; Indian Society of International Law; Fellow, International Society of Barristers (USA); Trustee, American-European Community Association Trust (1989-91). Visitor: Mansfield College Oxford; University of Essex. Chief Steward of the City of Hereford 1978-; Freedom of the City of Hereford 1996; Governor, Sadler's Wells Theatre 1988-1995; Chairman of Development Board, Academy of Ancient Music 1988-1992; Chairman of Governors of Mill Hill School 1989-1994; Master, Worshipful Company of Broderers 1994-95; Chevalier du Tastevin; Commandeur, Confrerie de St Cunibert; Commandeur

THE RIGHT HONOURABLE LORD SL YNN OF HADLEY

xiii

d'Honneur de la Commanderie du Bontemps de Medoc et des Graves and of Confrerie des comtes de Nice et de Provence. President: United Kingdom Environmental Law Association; United Kingdom Association for European Law; British Academy of Experts; European Maritime Law Association. Prior of England and the Islands of the Order ofSt. John since October 1999. Publications: Contributions to Halsbury's Laws of England and Atkins' Court Forms; various lectures published in legal journals; Introducing a European Legal Order (Stevens 1992).

LIST OF CONTRIBUTORS

Dr. John Allison

Fellow in Law, Queens' College, and University Lecturer, University of Cambridge The Hon. Dr. Adarsh Sein Anand

Chief Justice of India Dr. Mads Andenas

The British Institute of International and Comparative Law, London; Senior Fellow, Institute of European and Comparative Law, University of Oxford The Hon. Aharon Barak

President of the Supreme Court of Israel The Hon. Michael J. Belo.ffQ.C.

President, Trinity College, Oxford UlfBernitz

Professor, Stockholm University, Sweden; Visiting Professor, King's College, University of London The Hon. Stephen Breyer

Justice, Supreme Court of the United States L. Neville Brown DBE Professor emeritus, University of Birmingham

Ian Brownlie, CBE, QC, FBA

Fellow All Souls College, Oxford, Chichele Professor of International Law, University of Oxford 1980-99 The Right Hon. Lord Cooke of Thorn don KBE

Lord of Appeal; former President, Court of Appeal of New Zealand

xvi

LIST OF CONTRIBUTORS

James Crawford SC Whewell Professor ofInternational Law, University of Cambridge; Fellow Jesus College, Cambridge Dr. Duncan F airgrieve Junior Laming Fellow, The Queens College, Oxford David Flint Professor of Law and former Dean of the Law Faculty, University of Technology, Sydney; Chairman Australian Broadcasting Authority The Hon. Dieter Grimm Judge of the German Constitutional Courts, Karlsruhe, Germany Ivan Hare Fellow, Director of Studies in Law, Trinity College, Cambridge Her Excellency Rosalyn Higgins DBE Judge, International Court of Justice, The Hague The Right Hon. The Lord Hope ofCraighead Lord of Appeal in Ordinary JA. Jolowicz, QC Professor, Trinity College, Cambridge The Han. Michael Kirby Justice, High Court of Australia The Right Hon. Sir John Laws Lord Justice of Appeal, London The Hon. Noelle Lenoir Justice, Conseil Constitutionnel Paris The Right Han. Beverley M McLachlin, Chief Justice, Supreme Court of Canada The Hon. GustafMoller Justice, Supreme Court of Finland, Helsingfors, Finland

LIST OF CONTRIBUTORS

xvii

Julian R. Mati Managing Partner, J.R. Moti The Han. Sandra Day 0 'Connor Justice, Supreme Court of the United States Dawn Oliver Professor, University College Ernst-Ulrich Petersmann Professor, Senior Legal Adviser, World Trade Organisation, Geneva Georg Ress Judge of the European Court of Human Rights Henry G. Schermers Professor, University of Leiden His Excellency Stephen M Schwebel President ofthe International Court of Justice, The Hague The Han. Sir Stephen Sedley Lord Justice of Appeal Andrew Skudder Europa Instituut, University of Leiden, The Netherlands Piet Jan Slot Professor, Europa Instituut, University of Leiden, The Netherlands The Han. Pal Salt President of the Hungarian Supreme Court Sir William Wade QC, LLD, FBA Former Downing Professor of Laws, Cambridge, former Master, Gonville and Caius College Colin Warbrick Professor, Chairman of the Board of Studies, Department of Law, University of Durham

xviii

LIST OF CONTRIBUTORS

Friedl Weiss Professor of Law, Europa Institute, University of Amsterdam The Right Hon. The Lord Wilberforce Maureen Williams Professor, University of Buenos Aires and the Belgrano University The Right Hon. The Lord WoolfofBarnes The Lord Chief Justice of England

PART! COURTS AND INTERNATIONAL LAW

1 THE PROLIFERATION OF INTERNATIONAL TRIBUNALS: THREAT OR PROMISE?

HE. Stephen M Schwebel

The creation of new international judicial bodies is fundamentally a positive development, welcome rather than worrisome. It reflects the vitality and relative maturity of today' s international life. The body of international norms has increased significantly over the last decades. It covers a growing number of subjects. The number of States has tripled since 1946. Actors other than States play an increasingly important role in the international legal process and, in particular, have gained a measure of access to international dispute settlement mechanisms. The creation of new legal fora indicates that the effectiveness of international law can be increased by ensuring that legal obligations are equipped with means for their determination and application. At the same time, proliferation of international tribunals raises the question, to what extent is the International Court of Justice affected? The International Court of Justice, as the principal judicial organ of the United Nations, is the only truly universal judicial body. It is open to all States of the international community. It enjoys a comprehensive subject-matter jurisdiction embracing all aspects of public international law. Yet, its effective jurisdiction remains consensual and constrained. In view of the breadth of the Court's concerns, it is natural that the jurisdiction of specialized and regional judicial bodies partially overlaps the general and universal jurisdiction of the Court. States thus increasingly have a choice between the International Court of Justice and other legal fora. The availability of alternatives in judicial recourse essentially should be welcomed rather than deplored, because it may facilitate the peaceful settlement of international disputes. In practice, the International Court of Justice does not appear so far to have been negatively affected by proliferation of international tribunals. If there have been any such effects, they are conjectural. The option to refer a dispute to an arbitral tribunal rather than to the World Court has existed ever since its creation; international arbitration antedates the establishment of the World Court by some 150 years. It may well be that a number of cases which could have been brought to the Court since 1922 were submitted to M. Andenas (ed.), Liber Amicorum Slynn 3-8 (2000) © 2000 K1uwer Law International

4

CHAPTER 1

arbitration instead. This has, for example, been suggested particularly with regard to the Beagle Channel case and, most recently, the Eritrea/Yemen case. In both cases, the arbitral panels were entirely or predominantly constituted by members or former members of the Court. In the large, international arbitration and international adjudication co-exist peacefully, and the jurisprudence of one contributes to that of the other. The existence of regional human rights courts has not decreased recourse to the Court, given that only one inter-State case has ever gone to the European Court of Human Rights and none to the Inter-American Court of Human Rights. The International Court of Justice is confined in its contentious jurisdiction to disputes between States; while individuals may be parties to cases in human rights courts, they may not be party to cases in the World Court. At the same time, quite a number of World Court cases have dealt with human rights issues. The Court has made important contributions to the development of human rights law. What may be the first judicial "affirmative action" holding is to be found in a World Court opinion. 1 Whether the recent creation of the Central American Court of Justice will affect the World Court remains to be seen. The Central American Court currently is the only regional court which has broad jurisdiction in international legal disputes, including any frontier or maritime disputes arising between its Member States, 2 as well as a number of specific jurisdictional powers relating to the Central American Integration System. Although the Court has otherwise had an active start, no boundary disputes have as yet been submitted to it. It will be recalled that, prior to the creation of the Central American Court, boundary disputes between States of the region had been submitted to the International Court of Justice,3 and successfully resolved. The International Tribunal for the Law of the Sea has just started its judicial activity, so that, here too, any effects on the Court are conjectural. It is true that the M!V Saiga case - the Tribunal's sole case so far - could have been brought before the International Court of Justice, being a case between two States. However, had the Tribunal for the Law of the Sea not existed, this dispute over release of a vessel might not have been submitted to adjudication at all. A look at the Court's burgeoning docket may suggest that the International Court of Justice so far has not been adversely affected by the proliferation of other judicial bodies. In fact, it is busier than ever. There is reason to surmise that this may remain the case. The increasing choice between different judicial bodies wilI 1 2

3

Minority Schools in Albania, Advisory Opinion, 1935, P.CI.J, Series A/B, No. 64, p. 17. See Article 12, paragraph (a), of the Statute of the Central American Court of Justice. However, unlike other disputes, frontier, territorial or maritime disputes may only be brought before the Central American Court of Justice by special agreement. The Statute is reproduced in 34 ILM 921 (1995). Case concerning the Arbitral Award Made by the King of Spain on 23 December 1906, Judgment, I.CJ Reports 1960, p. 192; Land, 1sland and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.CJ Reports 1992, p. 351.

STEPHEN M. SCHWEBEL

5

not necessarily lead to a diversion of cases from one court to another. Instead, it may be likelier to increase the number of disputes submitted to judicial settlement. The "law habit" is open to healthy imitation. It has been suggested that the proliferation of legal fora poses a danger to the unity and development of international. law. However, complete unity has never existed in international law; and its development has always been uneven. The body of international law has been able to absorb a measure of diversity in judicial and arbitral decisions. The processes of the incremental development of customary international law are neither uniform nor unified, treaty-making is bilateral as well as multilateral, and many multilateral treaties are not designed to attract, or do not attract, universal adherence. There is a measure of diversity among different regional traditions in international law, among competing political ideologies, and between the approaches of developed and less developed States of the international community. The divergence of view among international lawyers on questions of international law is obvious. This does not exclude the judges sitting on the Bench of the International Court of Justice. Most decisions are not taken unanimously and judges are free to state their views in separate and dissenting opinions and they often do. Moreover, while the Court - and counsel before it give the judgments of the Court great weight, the Court (and the international community) are not bound by a rule of stare decisis. These diverse, differing elements may have contributed to the development of international law rather than impeded it. Whether the recent proliferation of judicial bodies is likely to upset the balance by increasing diversity to such a degree as to jeopardize the coherence of international law is a matter of speculation. The possibility of conflicting decisions between different judicial bodies of course cannot be excluded, but it should not be assumed or magnified. The likelihood of conflict between certain specialized tribunals and the World Court does not appear to be high. The type of cases the European Court of Justice deals with, and the cases before the human rights courts in Europe and in the Americas, do not present much potential for conflict. Nor is significant conflict between decisions of the WTO dispute settlement mechanism and the World Court to be expected, because the WTO operates in a highly specialized sub-system of internationallaw. There is a greater possibility of divergent views emerging between certain other international tribunals and the World Court, notably the International Tribunal for the Law of the Sea. Some of its jurisdiction on matters of the law of the sea duplicates the Court's jurisdiction in that sphere, and the Tribunal - a world court for the seas of the world - will inevitably deal with various elements of international law in any event. It is possible that the Court and the Tribunal may reach differing conclusions on the same legal problem, such as the interpretation of a particular provision of the Law of the Sea Convention. Another such possibility is found in the relationship between the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia, and equally that for Rwanda. In the case concerning the Application 0/ the Convention on the Prevention and Punishment o/the Crime o/Genocide, which is

6

CHAPTER 1

currently pending before the Court, Bosnia and Herzegovina and Yugoslavia both allege that the other has promoted genocide in breach of the Genocide Convention. The Court is thus asked to determine the responsibility of a State for genocide, the first such case in the history of international adjudication. The Yugoslav and Rwandan Tribunals have been dealing with similar issues, but they address the criminal responsibility of individual natural persons. When the Court comes to rule on these claims, it will be interesting to see how its judgment relates to judgments rendered and to be rendered by the Tribunals, and how judgments of the Tribunals relate to the judgment of the Court. It is also possible to speculate about the jurisprudential relationship between the World Court and the future International Criminal Court. Both courts may, in the exercise of their functions, be called upon to interpret conventions and determine customary norms in the field of international humanitarian law. The International Court of Justice has done so, most notably in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica),4 and in its advisory opinion on the Threat and Use ofNuclear Weapons. 5 In sum, only in the fullness of time will the character of the relationship between various international judicial bodies emerge. However, is there ground for assuming a largely negative, competitive relationship, or even one that will produce a "fragmented and unmanageable" body of internationallaw?6 International judicial bodies need not seek to establish their identity by deliberately developing distinctive viewpoints. International judicial bodies are not antagonists. Rather they share the common purpose of judicially settling disputes in order to make the world a just and more peaceful place. International judicial bodies fulfil another common function, that of developing international law. They can best do so if, while not necessarily deferring to, they give due weight to the decisions of other courts and tribunals. There are examples of mutual regard in the relationship between international judicial bodies. One may cite the Court's decision in the case concerning the GabCikovo-Nagymaros Project, in which the Court relied inter alia on a decision of the arbitral tribunal in the Air Services Agreement case when establishing the conditions a counter-measure must meet. 7 Arbitral tribunals, in tum, have relied on the case-law of the Court. A most recent example is the decision of the arbitral tribunal in the Eritrea/Yemen dispute, which drew upon the Court's jurisprudence in the Anglo-Norwegian Fisheries

4 5 6 7

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica), Merits, Judgment, I.CJ Reports 1986, pp. 14 et seq. Legality ofthe Threat or Use ofNuclear Weapons, Advisory Opinion, I.CJ Reports 1996. Robert Y. Jennings, "The Role of the International Court of Justice", CXVIII British Year Book ofInternational Law 1997, p. 60. Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, l.CJ Reports 1997, at p. 55, para. 83.

STEPHEN M. SCHWEBEL

7

case when referring to the significance of fishing activities around the disputed islands. 8 A look at the growing jurisprudence of the International Tribunal for the Prosecution of War Crimes in the Former Yugoslavia reveals a notable reliance on the case-law of the World Court and of other international judicial bodies. In the Tadic case,9 the appeals chamber relied on the Court's decisions in the Effoct of Awards case lO and the Nottebohm case, II when reviewing the constitutionality of the creation of the Tribunal by the Security Council. Reliance upon or references to the holdings of the International Court of Justice may also be found in the jurisprudence of other judicial bodies, such as the Iran-U.S. Claims Tribunal,I2 the Inter-American Court of Human Rights 13 and the WTO Dispute Settlement Body.14 In view of these considerations, whether there is a need for the establishment of a judicial mechanism that would promote or ensure the uniform interpretation of international law is perhaps open to question. Moreover, to the extent that the decisions of international tribunals do diverge, the fabric of international law is resistant - or porous - enough to sustain the diversity, or at any rate, a measure of diversity. If there were however the political will to establish such a mechanism - and it is not apparent that there is - the International Court of Justice might most plausibly fulfil this role, since it is the principal judicial organ of the United Nations and has general jurisdiction over all questions of international law. The logic of introducing a hierarchical system among international tribunals is appealing, and, over time, the need may grow. But the practical difficulty of engineering an effective role of this kind for the Court would be great. A possib'te harbinger of according the Court a measure of relevant appellate jurisdiction is found in Article 119 of the Statute of the International Criminal Tribunal, which provides: 8

9 10 11 12 13 14

Eritrea/Yemen, Award of the Arbitral Tribunal of 9 October 1998, para. 357; a further recent example is the arbitral award in the Laguna del Desierto case, 113 LL.R. I et seq. which relies on the jurisprudence of the Court with regard to the determination of whether an organ is a legal or political organ (para. 64), the scope of the principle of res judicata (paras. 68 and 70) and certain rules of treaty interpretation (paras. 75-77). Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72, Appeal on Jurisdiction (2 October 1995), reprinted in 35 ILM 32 (1996). Effict of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, IC.J. Reports 1954, p. 47. Nottebohm, Preliminary Objection, Judgment, IC.J. Reports 1953, p. III. The Iran-U.S. Claims Tribunal applied the standard of dominant and effective nationality established by the International Court of Justice in the Nottebohm case to the facts of more than 150 cases. See for instance Velasquez Rodriguez case, paras. 127 and 163; reprinted in 28 ILM 291 (1989). See, for instance, United States-1mport Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R, 12 October 1998, para. 130; reprinted in 38ILM. 118 (1999).

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CHAPTER I

"I. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court".

Various proposals about how the Court could perform such a unifying or appellate role have been advanced in recent years. The Report on Peaceful Settlement of Disputes prepared for the 1999 PCA Centennial reflects some of these proposals. A discussion of how the Court could fulfil this role should, however, be realistically approached. In particular, any solution which could be achieved only through an amendment of the Court's Statute, an integral part of the United Nations Charter, presents difficulty. Yet any solution short of amendment may be open to challenge. A possible if limited approach might be to extend the Court's advisory jurisdiction. In this vein, a proposal made by the ever fertile Professor Louis Sohn merits attention. In a recent article, he suggested that the General Assembly might authorize international tribunals "to request an advisory opinion on legal issues, especially when they involve an interpretation of a general, rather than a regional or technical, rule".15 This proposal, if adopted and implemented, might help to avoid conflicting interpretations of important principles of international law, at least among the different judicial bodies within the United Nations system. Whether it could be effected without amendment of the Charter and Statute is debatable. Yet it should be recalled that the League of Nations Council requested a number of advisory opinions of the Permanent Court of International Justice on behalf of States and other international organizations. 16 Why should not the United Nations match the League's legal ingenuity by authorizing a committee of the General Assembly to pass upon and pass on to the Court requests for advisory opinions from international tribunals? In any event, conflicting interpretations of international law can be moderated if international judicial bodies act as responsible collaborators in the development of international law and seek to promote its coherence by taking adequate account of each other's views.

15

Louis B. Sohn, "Important Improvements in the Functioning of the Principal Organs of the United Nations That Can Be Made without Charter Revision", 91 AJIL (1997), pp. 652 et seq., at p. 660. 16 Stephen M. Schwebel, "Was the Capacity to Request an Advisory Opinion Wider in the Permanent Court of International Justice than it is in the International Court of Justice"? LXII British Year Book ofInternational Law 1991, p. 62.

2 DUALISM IN THE FACE OF A CHANGING LEGAL CULTURE HE. Dame Rosalyn Higgins

Much of Gordon Slynn's great contribution to public life has been concerned with the interface of English law and European and public international law. It therefore seems appropriate to offer some brief observations as to the interplay of public international law and domestic law (whether common law or statutory) in the English courts. Such a theme contains within it many facets. One such might be the extent to which international courts and tribunals may concern themselves with the internal law of States that appear before them.l Related to that is the question whether it is appropriate for international courts directly to address their findings to national courts, rather than to governments. 2 Yet a further interesting topic is the extent to which international judicial decisions are binding within domestic legal systems. 3 Important as each of these are, I have chosen to address yet another question falling within this overall theme: the circumstances in which the rules and principles of general international law are relevant applicable law for English courts. There is not a legal system in the world where international law is regarded as "foreign law". It is everywhere part of the law of the land, as much as the law of contracts, labour law or administrative law. Too often this basic truth has been obscured in the minds by another important principle, namely, that the priority which general international law is to be accorded in the fact of conflicting constitutional, or statutory requirements, is a matter for domestic law; as is the place and status of international treaty law within the domestic legal system. But the reality of this latter point does not negate the significance and reality of the first. The judicial task of prioritizing, or "ranking" elements of law when they

2 3

This issue has been addressed in, inter alia, the Serbian Loans case, PCIJ, Series A, No. 20; the Brazilian Loans case, ibid., No. 21; Elettronica Sicula SpA (ELS1) case, ICJ Reports 1989, p. 15 at pp. 73-74. For a recent example, see Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports, 29 April 1999. See Vienna Convention on Consular Relations (Paraguay v. United States of America), ICJ Reports 1998, Order of 9 April 1998; and Breard v. Greene, 523 US 371 (1998).

M. Andenas (ed.), Liber Amicorum Slynn 9-22 (2000) © 2000 Kluwer Law International

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appear to conflict does not render the generic corpus of law to which one of the norms belongs "foreign law", nor, as was put by one of the many judges who had to deal with the prolonged Tin litigation, "law from Mount Olympus, which is surely not the law I have to apply in this court". This important, but elementary, notion can be succinctly stated by referring to Oppenheim, where the editors, Sir Robert Jennings (a past President of the International Court of Justice) and Sir Arthur Watts (a past Legal Adviser at the Foreign and Commonwealth Office) put it thus: "As regards the United Kingdom all rules of customary international law as are either universally recognized or have at any rate received the assent of this country are per se the law of the land. To that extent there is still valid in England the common law doctrine, to which Blackstone gave expression in a striking passage, that the law of nations is part of the law of the land. It has been repeatedly acted upon by the courts and can be regarded as an established rule of English law.,,4

Many authorities are cited in support. s Of course, a myriad of problematic issues nonetheless remain behind this verity for a common law jurisdiction. The starting point of the relationship between international law and domestic law lies in the legal theories of dualism and monism. "Dualism ... stresses that the rules of the systems of international law and municipal law exist separately and cannot purport to have an effect on, or overrule, the other".6 According to this theory, the applicability of international law within the domestic legal system is by courtesy of the State as an act of sovereign decision making. The dualist approach is obviously the one favoured by legal positivists, for whom the authority of the State is paramount.1 The monist theory, by contrast, insists upon a unitary view of all law, including international law and the other strands of domestic law. 8 It is thus a truism to say that the monist-dualist dichotomy necessarily influences the way national courts treat issues of international law. But it is also an overstatement. It is an overstatement for two reasons: first, notwithstanding the potential of a monist State for easy receipt of international law into the domestic system, without further domestic enactment being necessary, there still remains the question of how familiar the judges are, even within that monist legal system, with the substance of international law. If counsel and the bench are not readily conversant with international legal issues, indeed if they do not immediately see whether there is an international law issue within an ostensibly domes4 5 6 7 8

Oppenheim, International Law, 9th ed., at pp. 56-57. Including West Rand Central Gold Mining Co. v. [1905] ZKB, p. 392; Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1 AER 881; 1° Congreso del Partido [1981J 3 WLR 328. M. Shaw, International Law, 4th ed. at p. 100. Shaw, ibid., referring especially to Triepel, Volkerrecht und Landesrecht, Berlin, 1899; Anzilotti, Corso di Diritto Internationale, 3rd ed. (1928), pp. 43 et seq. and Oppenheim, op. cit., p. 55. Shaw, ibid., pp. 101 ff.

ROSALYN HIGGINS

11

tic case, then the judgment will still be essentially insular. Conversely, although dualism presents certain hurdles to the easy receipt of international law, a great deal can still be achieved if there is the institutional and moral desire to do so. And that is a matter of legal culture. It is frequently asserted that common law countries accept the dualist theory while civil law countries are more monist in their approach. This is, in fact, an oversimplification. Invariably, common law countries accept that general international law is part and parcel ofthe law of the land, its rules applicable like any others. However, common law countries invariably require something more to be done before international law treaty obligations receive a comparable treatment in the domestic courts. Exactly what that "something more" comprises varies from common law jurisdiction to common law jurisdiction, even if broad parameters of common law practice in the matter are rather well defined. 9 At the beginning of the last decade I wrote of a culture: "that disposes both judge and counsel to treat international law as some exotic branch of the law, to be avoided if at all possible, and to be looked upon as if it is unreal, of no practical application in the real world. Of course, this attitude is mostly to be found in those countries that embrace (insofar as they think about it at all) the dualist system. It is not an unfair description of some courts in the United Kingdom.,,1Q

I would not today write these critical words. Culture is not static and the last decade has been marked by an extraordinary opening up of the English courts to the appropriate application of international law. Of course, this can significantly be attributed to the impact of European Community law on domestic judicial decision making. But this is only part of the story, because the origins of the legal effect internally of European law still lies in freely accepted treaties (notwithstanding that developments in European law have been far reaching and perhaps often unforeseen). No comparable originating cause can be found for the change in legal culture so far as the rules of general international law are concerned. At the same time, the impact of European law within the United Kingdom has undoubtedly fostered an intellectual climate where a broader internationalism of outlook could flourish. A retrospective overview of these developments in legal culture is not uninteresting. The first strand was surely provided by the acceptance by the United Kingdom Government of the right of individual application to the European Commission and Court of Human Rights under Articles 25 and 46 of the European Convention on Human Rights. Until the European Convention was incorporated into English law in 1998, and until that legislation enters into effect, it has not been possible for the European Convention to found, as such, a cause of action in the English courts. 9

For a thorough survey, see Higgins (UK) and Jackson (USA), being chapters found respectively in F. Jacobs and S. Roberts, (Eds.) The Effect of Treaties in Domestic Law (1987). 10 Higgins, Problems and Process (1994), p. 206.

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How then were English Courts to deal with the problem of the fact that the UK's ratification of the European Convention on Human Rights was not matched by any intended acts of incorporation of the Convention? It could have been open to the English courts, faced with unincorporated human rights treaties, to use all that they wanted to from these instruments, and indeed from the international case law arising under them, drawing the line only at ensuring that the private rights claimed were not dependent upon the treaty, and that it was not the treaty obligation which the Court was enforcing. Such was the approach of Kerr LJ in the Tin case in the Court of Appeal lI to the proper parameters of the justiciability issue presented by non-incorporation. 12 But the approach of the English courts has in fact been very different. In the 1970s and early 1980s, most judges regarded European Convention provisions as "out of bounds", while a few judges vigorously sought ways to make them relevant to their judicial tasks. There then followed a period during which it became more generally accepted that unincorporated human rights provisions had a definable, albeit fairly circumscribed, place in judicial decision-making. More recently we have witnessed a striking new tendency, whereby the issue of nonincorporation is being rendered less and less important. Many of the problems of non-incorporation had in fact effectively disappeared by the time the 1998 Human Rights Act made rights under the European Convention rights under English law. These different phases can be briefly resumed. In the United Kingdom the courts have had to deal with two types of cases involving human rights. The first type of case has centred on an alleged denial, in a specific factual situation, of a particular right - freedom of association, freedom of speech, or a right of privacy, for example. The second type of case has centred on a matter not "overed as such by the rights enumerated in the international instruments, but in respect of which it has been claimed that those administering the law should have regard to relevant treaty commitments to

11 Maclaine Watson v. Dept. o/Trade [1988] 3 AER p. 257 at 291. 12 A different approach to this issue of justiciability was followed by the House of Lords, with Lord Templeman, who gave the leading speech, stating that a non-incorporated treaty was " ... outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant". Lord Oliver did immediately explain that this was not to say that a court must never look at or construe a treaty: it could do so when it is incorporated into legislation or private contract; or where a statute enacted to give effect to a treaty is ambiguous or obscure; or where domestic legislation, "either directly or by necessary implication", requires resort to a treaty for the purpose of construing its terms. This is, of course, a much more rigid formulation than the preferable formulation of Kerr U. Technically, the ratio decidendi of the Tin case in the House of Lords did not tum on this matter, and Kerr U's findings have not been "overruled". The matter remains open for future argument.

ROSALYN HIGGINS

13

hey are party. The line of cases on immigration issues in the Court of Appeal affords a very good example. 13 Lords Denning, Scarman and Roskill LJ sought in such cases to mark out what could and could not be done in the face of non-incorporation, each with somewhat differing approaches (and Lord Denning himself taking a more cautious approach in Bibi, than he had in Singh). By the early 1980s certain lines had emerged, by which the normal statutory rules of construction were relied on to bring the international obligation into play whenever possible. But reliance on these general principles of construction still did not fully address a range of issues coming more and more into focus. We may conveniently term these "second tier issues". In this second tier the questions rather have been whether a Minister of the Crown, in exercising a discretion, is required to have regard to the European Convention on Human Rights; and whether the courts, in exercising their judicial function, should have regard to concepts arising out of the jurisprudence of the European Court of Human Rights, such as the doctrine of proportionality and the requirement of prior certainty of the law. It is these second tier matters that have been the focus for important recent developments. In 1981, in the Fernandes Case, another immigration case, the Court of Appeal had held that the Home Secretary, in exercising his statutory powers, was not obliged to take into account the unincorporated European Convention on Human Rights. 14 The Brind Case can perhaps be seen as marking the end of one era and marking the transition to the more contemporary approach of the English courts. In this case the Secretary of State for the Home Department issued directives under the Broadcasting Act 1981 requiring the BBC and the Independent Broadcasting Authority to refrain from broadcasting the words spoken by persons representing proscribed organisations under certain anti-terrorist legislation. This was challenged as a contravention of Article 10 of the European Convention. The majority of the House of Lords in the final appeal in the Spycatcher Case had held that there was no reason why the common law should take a different See e.g. R. v. Secretary a/State/or the Home Department, ex p. Bhajan Singh [1976] QB 198. In this case the applicant had entered the United Kingdom illegally and sought the right to marry before deportation, citing Article 12 of the European Convention. R. v. Chief Immigration Officer, Heathrow Airport, ex parte Salamat Bibi [I 976), 1 WLR 979. In this case the applicant was refused admission by the immigration authorities and there was a dispute as to whether a certain resident in the United Kingdom was or was not her husband. The applicant claimed that the immigration officer ought to have exercised his discretion in favour of the family having regard to Article 8 of the European Convention. R. v. Secretary 0/ State for the Home Department, ex parte Phansopkar [1976) QB 606. In this case the applicant was a patrial within the meaning of the Immigration Act 1971, and thus had a right of abode in the United Kingdom. The issue was whether a patrial's wife, who did not herself qualifY, was entitled by virtue of her status also to enter the United Kingdom. Article 8 of the Convention was thus invoked. 14 Fernandes v. Secretary o/State/or the Home Department (1981) Imm. A.R. 1.

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approach from that enshrined in the Convention. IS But did that mean that where, as in the present case, the Court had to decide upon the limits of a discretionary power (under the Broadcasting Act 1981), recourse was to be had to the Convention? The heart of the matter was put thus by Lord Bridge, delivering the majority judgment of the House of Lords: "It is accepted ... that ... the Convention is not part of the domestic law, that the Courts

accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it. But it is already well settled that, in construing any provision in domestic legislation which is ambiguous ... the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes.,,16

Lord Bridge continued: "I confess that 1 found considerable persuasive force in this submission. But in the end 1 have been convinced that the logic of it is flawed."

To affirm a presumption whereby the executive was to exercise this and other discretions in conformity with the Convention was to introduce the Convention into English law "by the back door". Above all, he was nervous that "this would be a judicial usurpation of the legislative function". Although Lord Bridge was not prepared to find that a discretion had to be exercised in conformity with the Convention, he did find that a limitation on a fundamental right had to be justified by a compelling public interest. The primary judgment of that compelling public interest was for the Secretary of State. The English courts could then ask, applying the traditional tests of judicial review,17 whether a reasonable Secretary of State could, on the material before him, have reasonably made the primary judgment. He found he could.

15

[1990] I AC 109, per Lord Griffiths at p. 273 and Lord Goff of Chieveley, at pp.283284. 16 R v. Home Secretary, ex parte Brind [1991] I AC 696 at 748. 17 See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, CA.

ROSALYN HIGGINS

15

THE RECONCILIATION OF THE CONVENTION WITH THE COMMON LAW: THE PREFERRED WAY FORWARD

There has been an incremental willingness to introduce reference to the European Convention (and in occasional cases, such as, in the Derbyshire County Council case,18 to the International Covenant) in the case law. In Attorney-General v. Guardian Newspapers (No.2) [1990] 1 AC 109, Lord Goff made it clear that the principle of construction whereby a Statute is to be interpreted if possible so as to be compatible with international obligations applies not only to statutory construction, but to interpretation of the law more generally. He there stated (at 283-284): "I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty". In both Spycatcher and Derbyshire County Council it is the common law and its relationship to international human rights obligations that has been in focus. In the House of Lords the leading judgement was given by Lord Keith. He noted that the Court of Appeal had reached this conclusion primarily on the basis of the European Convention. He stated that he reached this same conclusion upon the basis of the common law,19 and without having to make reference to the European Convention. But he pointedly added that he found it satisfactory to be able to conclude that the common law of England was consistent with the obligations assumed by the Crown under the treaty in that particular field. 20 In R. v. Chief Metropolitan Magistrate ex parte Choudhury [1990] 3 WLR 986, the Divisional Court was required to address the fact that under common law the law of blasphemy protects the Christian religion but does not extend to Islam. 2 ! In determining whether that fact was a discrimination against Islam, the Court referred in considerable detail to the provisions of the European Convention and to the case law under Articles 9, 10 and 14. It seemed not at all inhibited by the non-incorporation (and to that extent had a comparable approach to the Court of Appeal in Derbyshire). In Rantzen v. Mirror Group Newspapers, again, non-incorporation seemed to have become an irrelevance. In this case it was suggested that the conditions placed upon restriction of freedom of speech in Article 10 (2) were relevant in determining whether the award of damages was excessive. Thus the requirements of "prescribed by law" and "necessary in a democratic society" were scrutinised in detail. There was long examination of case law of the European

18 Derbyshire County Council v. Times Newspapers [1992] 3 WLR 28. 19 Lord Goff in Guardian Newspapers Ltd. (No.2) had already expressed the opinion that in the field of freedom of speech there was no difference in principle between English law and the law of the European Convention. 20 Times Law Report, 19 February 1993. 21 The Court had been asked to prevent the publication of Salman Rushdie's The Satanic Verses on grounds of blasphemy against Islam.

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Court, including the Sunday Times case 22 and the Lingens case. 23 Again, nonincorporation seems to have been treated as an irrelevance; and, in a dictum that seems somewhat at odds with the findings of Lord Bridge in Brind, the Court of Appeal says "it is also clear that Article 10 may be used when the Court is contemplating how a discretion is to be exercised.24 These European Convention criteria were used to form the basis of the exercise by the Court of its statutory powers to reduce the damages to £110,000. 25 This increased use of the European Convention through the common law route, and the avoidance thereby of the problems that seemed so long posed by non-incorporation, has been welcome evidence of a changing legal culture.

* * * A retrospective survey of human rights cases before the English courts clearly illustrates that, while the technical problems remained unchanged from 1968 to 1998, the legal culture being applied to address them had altered radically. Of course, a developing ingenuity in having recourse to international standards has its limits. This technique cannot resolve the full range of outstanding problems of reconciliation of domestic law and international treaty law. Many of these will now be addressed through the Human Rights Act. 26

* * * Problems relating to the status of international organizations in English law afford further interesting examples of developing attitudes. If human rights law has ··underpinned some of the changing attitudes, the second strand of a developing international culture underpinning domestic judicial decision-making may reasonably be perceived as beginning with the Tin Councillitigation. 27 In the myriad of Tin Council cases a considerable number of English judges were exposed to notions of international law over a considerable period of time. A constant refrain throughout was the issue of how unincorpo22 23 24 25

2 EHRR 245. 8 EHRR 407. Transcript of Judgment (case not yet reported). The measure of libel damages awarded by a jury against Count Tolstoy forms the subject matter of another case currently before the European Commission on Human Rights: Tolstoy v. United Kingdom. Again, the vast size of the damages is contended to violate the guarantees of free speech. 26 The "grey area" presented by the long period between its enactment and its coming into effect is giving rise to its own interesting corpus of law. See, for example, R v. DPP ex parte Kebilene, Bouckemiche and Soridi 30 March 1999, where the Divisional Court declined to have recourse to the Act to find a 'legitimate expectation' for persons seeking to rely on the Act, given that the Act itself specifically stated that it was not to apply retrospectively. 27 See, inter alia, [1987] Ch. 419 ("Winding up action"); [1989] 3 WLR 969 (Court of Appeal); [1990] 2 AC 418 (House of Lords). See also Bingham, "There is a World Elsewhere: The Changing Perspectives of English Law", 41 ICLQ, pp. 513-529.

ROSALYN HIGGINS

17

rated international agreements should be treated in English law. That question necessarily exerted its own discipline. But to an international lawyer who participated throughout this long litigation, other striking elements remain in the memory. The first is that, while some judges were clearly discomforted by the large number of international law matters in issue, yet others relished their exposure to a hitherto unfamiliar field. It was here that began the turning of the tide,zs and English judges generally have since ceased to avoid all issues of international law but now give every appearance of enjoying such litigation before them. In an insular climate, a national judge of a common law dualist country may find insuperable problems in affording international status to an international organization, and shielding it from a 'superior' domestic law, if its governing international instrument, or other relevant agreements relating to it, have not been incorporated into English law. In a more liberal culture, strenuous efforts are made to use all possible legal devices to acknowledge the international realities within the English legal system. The theory of dualism plays a much more muted role. Thus the House of Lords was faced with the question of whether the Arab Monetary Fund could sue in the English courtS. 29 The Fund was set up by an international treaty which was not incorporated into English law. Its headquarters was in Abu Dhabi. UAE law (and the laws of the other member States) accorded it domestically the international personality provided for under the international treaty. Lord Templeman made clear that this did not create 21 Arab Monetary Funds: it was one organization governed by one agreement. But that organization, (which it was found convenient to treat as analogous to a limited liability company) once accorded legal personality under the law of a foreign State recognized by England, could sue and be sued in England. This approach was found ultimately to provide the answer, too, in the Tin Council litigation. Here the international organization, equally a treaty body, had its headquarters in London. Although the founding treaty was not incorporated into English law, other treaty instruments relating to its headquarters and privileges and immunities, were the subject of Orders in Council. A second striking element of the tin litigation was the appreciation shown by the Bench of at least some of the realities of the international legal system. Counsel may have thought that domestic law analogies would offer the greatest intellectual comfort to English judges. But at the end of the day the judges knew full well that the International Tin Council was neither a Scottish trade union, nor a firm of solicitors, nor an English company.30 It was an international organization. This is so, notwithstanding that the House of Lords, going further 28 A few of course, had long displayed exceptional interest in, and knowledge of, internationallaw, including, notably, Lords Wilberforce and Slynn. 29 Arab Monetary Fundv. Hashim (No.3) [1991] 2 AC 114. 30 All of these analogies had been deployed at length, with no case relating to these (totally irrelevant) fields left undeployed.

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than would seem necessary or desirable, had resort to the legal fiction that the International Tin Council was not only recognized in English law by an Order in Council, but "created" by it. 31 Butin so doing it afforded to the Tin Council the immunities from legal process and execution envisaged in the founding instruments.32 In Westland Helicopters v. AD] the interesting question arose as to whether the effecting of personality under a local law, relied on in the Arab Monetary Fund case, meant that the proper law of the international organization concerned was thus the law of that country. Colman J would have none of it. Taking a firmly internationalist perspective, he distinguished those authorities which were concerned with foreign companies rather than international organizations. So far as the latter were concerned, he neatly found that it would be contrary to the "comity of nations»]3 to recognize an international organization as being governed by national law, whether the law of its seat or of any of its members. Indeed, it would be "inconsistent with a widely accepted principle of public international law to which member States would be likely to adhere, namely that an international organization is a creature of public internationallaw".34

This finding echoed the forthright way to which Millett J (as he then was) had rejected the suggestion that, having the capacities of a body corporate in English law, the International Tin Council could be wound up: "It would alter the status of the organization charged with the function of administering the provisions of an internati~).1a1 treaty and it would be incompatible with the independence and international character of the organization.,,35

The influence of dualism is not apparent. NON-JUSTICIABILITY

This change in legal culture has also meant that frequent invitations by counsel to the courts to apply the Buttes Gas doctrine of non-justiciability have not been acceded to. The singularly British view of non-justiciability of issues of public international law articulated in that case36 has not been extended further, notwithstanding the siren song of dualism. 31 32 33

34 35 36

For a criticism, see R. Y. Jennings "An International Lawyer takes Stock", 39 ICLQ (1990), pp. 513-529. Rayner (J.H) (Mincing Lane) Ltd. v. Dept. o/Trade and Industry [1990] 2 AC 418. A phrase much invoked by national judges, the substantive content of which has never been clear to this international lawyer. [1995] QB, at p. 304. [1987], Ch 419, pp. 450-51. Buttes Gas and Oil Co. v. Hammer (No.3) [1982] AC 888.

ROSALYN HIGGINS

19

Colman J in Westland Helicopters3? followed Lord Diplock in British Airways Board v. Laker Airways Ltd. 38 in finding that it was not open to English Courts to determine whether a foreign sovereign State has broken or terminated a treaty. But suggestions in Buttes that international law matters, more broadly, might not be justiciable have been rejected by the English Courts, and welcomely so. In a litigation between Kuwait Airways and Iraq Airways and Iraq the defendants have claimed that the act of State doctrine precluded the English courts from doing other than give effect to two Iraq decrees under which Kuwait Airlines civil aircraft were removed to Iraq, and incorporated into Iraq Airlines, after the invasion. Mr. Justice Mance has given a judgment replete with analysis of international law cases and norms. Importantly, he found that "in applying the act of State doctrine ... the English Court is, as one element in its evaluation of public policy, entitled to take into account international law". This went beyond major violations of human rights (an exception to the act of State doctrine which was already acknowledged in the common law. 39 He proceeded to analyse the various resolutions on Iraq (themselves, I should add, unincorporated into English law), as well as provisions to the UN Charter, and found that: "this is a case where this Court can and should properly conclude and proceed on the basis that there were clear and fundamental breaches of international law and of the United Nations Charter ... "

Moreover: "Any suggestion that [the Security Council resolutions] can be viewed as remote or irrelevant to this country or to its public policy must also be dismissed. That in the modern world, all countries are ... 'a part of the main' finds expression in the preamble and articles of the UN Charter."

Accordingly, the Iraq decrees would not be recognized. 40

* * * More and more often are English judges becoming accustomed to adjudicating upon important elements of international law, in circumstances in which the "prior" matter of reception of the international norms concerned is simply not in issue. Sometimes the question is one of interpretation: thus in R .. v. Secretary of State for the Home Office, ex parte Vilvarajah, the issue was the proper interWestland Helicopters Ltd. v. Arab Organization/or Industrialization [1995] QC 283 at p. 294. See also Asov v. Baltic, Lloyds Law Reports, 1999, Vol. 2 at 177. 38 [1985] AC 58, 85-86. 39 Oppenheimer v. Cattemole [1976] AC 249; and Williams and Humbert Ltd. v. W & H Trade Marks (Jersey) Ltd., [1986] AC, 368. 40 KAC and IACv. Republic o/Iraq, Judgment of Mance J, 29 July 1998. 37

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pretation of Article lA (2) of the United Nations Convention relating to the Status of Refugees of 1951, and its Protocol of 1966. That provision defines "refugee" (in relation to which treaty parties undertook certain obligations) as a person who " ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality and is unable, or owing to such fear ... is unwilling to return to it". The Secretary of State argued that the test was whether, in the light of facts and circumstances, there was an objective risk of persecution if the applicant returned. Some of the applicants agreed with that test but said that, if applied, it should permit them to stay. The Court of Appeal favoured a different test, namely, actual fear and good reason for fear - even if objectively that fear is misconceived. The UN High Commissioner for Refugees was given leave to intervene when the case went on appeal to the House of Lords, and largely supported the position of the Court of Appeal. He also suggested that a domestic court should follow the general practice of states parties to the Convention in interpreting the Convention. That last point is not expressly dealt with by the House of Lords, even by Lord Goff, who dealt in detail with the Handbook on Procedures and Criteria for Determining Refugee Status, issued by the High Commission in 1979, as well as the travaux preparatoires of the Convention. At the end of the day their Lordships unanimously found that the test was one of objectively founded fear "for the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded."41 Another recent case more straightforwardly interprets the Vienna Convention on Diplomatic Relations (whose provisions are incorporated into English law). The issue was whether service of a unit or an Embassy by post contravened S.22 of that treaty, which requires an Embassy's premises to be treated with dignity. The judge robustly started by saying: "it is hard to see how the act of posting an envelope containing a writ through an available letterbox" impairs anyone's dignity. However, after carefully going through the work of the ILC and all the leading authors, he concluded that international law required him to draw the line differently. Only service by post was permitted under S.22 of the Convention; manual service was prohibited after al1. 42

41

[1988] 1 AER 193. The Convention and Protocol were not in terms incorporated into English law. But the courts found no difficulty in dealing with the case, because of the renvoi in Immigration Rules (1983) which stipulated that where a person is a refugee "full account is to be taken of the provisions of the Convention and protocol relating to the Status of Refugees ... Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments". 42 Del Favero S.p.A v. Republic o/Cameroon, Judgment of Mitchell J, 10 February 1999.

ROSALYN HIGGINS

21

The Pinochet cases are cases in the same category - that is to say, cases in which a key issue has been how the Torture Convention43 and the State Immunity Act of 1988 (itself reflective of international law) were to be applied in the particular circumstances of the case. Reconciliation of those two instruments, and associated temporal problems, have been of critical importance. While the litigation has attracted an enormous interest, and understandably so, in the longer term we may see the application of complex aspects of international law as part of the normal judicial function of the Divisional Court and House of Lords44 as an equally telling aspect of this difficult matter. The recent case of The Queen v. The Secretary of State for Trade and Industry, ex parte Greenpeace Limite~5 affords a further example of two phenomena here under discussion. In this case Greenpeace were seeking, in the context of the Nineteenth Round of Petroleum Licensing in the Atlantic Frontier area, a judicial review of the Secretary of State's determination that the Conservations (National Habitats etc.) Regulations 1994 applied only up to the twelve mile limit of United Kingdom territorial waters. Mr Justice Maurice Kay not only dealt in a fully authoritative manner with the exceedingly complex and technical relevant provisions of European and international law (and the principles of interpretation relating thereto); in so doing he also seemed to find it quite unnecessary to enquire as to which of the multitude of international agreements referred to had or had not been incorporated into English law.

* * * A final point should not really need to be made, but perhaps it does. The changing culture which has allowed international law to become so much part of the fabric of English law, notwithstanding the "dualist" approach to treaties, is one thing. But it is another thing entirely to suppose that submissions in a particular case, which rely especially on points of international law or human rights law, are necessarily right in the particular case. An openness to consideration of rules of international law does not ipso facto mean that every argument advanced which invokes such norms is a good argument. There is an understandable, but nonetheless flawed, perception in certain quarters of the public, that the very reliance on international law argument identifies which side should rightly win in a litigation. It is important that those of us who welcome the contemporary legal culture should also explain that the price of regarding international law as part and par43 International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. Incorporated into English law by S 134 of the Criminal Justice Act 1988. 44 In the matter of an Application/or a Writ 0/ Habeas Corpus and Subjicendum, Re Augusto Pinochet Ugarte, [1998] AER 629 (Div); R. v. Bow Street Stipendiary Magistrate, ex. p. Pinochet, (No.2) [1999] 1 AER 577 (HL); R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex p. Pinochet (No.3), [1999] 2 AER 97 (HL). 45 Times Law Report, 19 January 2000

22

CHAPTER 2

eel of English law is that sometimes arguments based on it will be regarded as sound, and sometimes not. It is thus nothing but reassuring that those among the judiciary who have so very much contributed to the breaking down of the old barriers - and notably of course Gordon Slynn - should one and the same time welcome and encourage full submissions on points of international law, but not necessarily accept them.46

46

See, in particular, the important opinions of Lord Slynn, in the November 1998 Pinochet Judgment in the House of Lords and in KAC v. lAC and Iraq; See further the speeches of Lord Lloyd of Berwick in the November 1998 Pinochet; and that of Lord Goff of Chieveley in the March 1999 Pinochet Judgment.

3 THE STANDING OF STATES: A CRITIQUE OF ARTICLE 40 OF THE ILC'S DRAFT ARTICLES ON STATE RESPONSIBILITY

James Crawford sC*

I

INTRODUCTION

National public lawyers are used to issues of standing to sue. Who can challenge a decision of a public authority, whether on constitutional grounds or because of a violation of some administrative law principle, is an often litigated issue. The general tendency has been to broaden the range of persons considered to be affected by a decision, for example to cover non-governmental organizations with a general interest in the subject-matter, I or persons who have made representations in the course of an inquiry leading to the decision, or persons with even remoter or more general interests. 2 The problem of identifying an "injured" or "interested" party is less present in the field of private law: "standing to sue" in contract, tort or restitution is usually synonymous with having a cause of action, i.e. a substantive right by virtue of the applicable substantive law. But even in such contexts the problem can arise. For example, in the common law of nuisance a distinction is drawn between a public and a private nuisance by reference to criteria which might equally be considered as laying down (substantive) criteria for a public nuisance or as defining the persons entitled to bring action. 3

*

2

3

From 1991-1997, the author was Director of Studies of the International Law Association, under the Chairmanship of Lord Slynn of Hadley. Gordon Slynn's concern for the long-term interests of the ILA, and his support for its officers during this period, were remarkable, the more so considering his numerous other commitments. For a recent example see R v Secretary of State for Trade & Industry ex parte Greenpeace Ltd, unreported, Kay J, 5 November ] 999, where Greenpeace was permitted to challenge a decision of the Secretary of State to grant offshore oil licenses in disregard of the provisions of the EC Habitats Directive. The substantive issue at stake was the extent to which the Directive applies to the EEZ, and it is clear that none of the other parties attacked had any reason to raise that issue. See e.g. Australian Law Reform Commission, Standing in Public Interest Litigation (ALRC 27, Canberra, 1985); HWR Wade & CF Forsyth, Administrative Law (71 edn, Oxford, 1994) ch 19, and for a comparative review P van Dijk, Judicial Review ofGovernmental Action and the Requirement of Interest to Sue (Alphen an den Rijn, Rockville, 1980). See 34 Halsbury's Laws ofEngland (4th revised edn, 1997), "Nuisance", paras 8, 61.

M. Andenas (ed.), Liber Amicorum Slynn 23-43 (2000) © 2000 Kluwer Law International

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CHAPTER 3

The position under international law used to be thought of rather in the way national private lawyers think of standing, simply as a function of the applicable substantive law. There were two reasons for this, perhaps interrelated. First, inth ternational law began and at least into the 19 century continued in the tradition of the "rights of states", lying behind which was the late medieval tradition of natural rights theory.4 International law was, in other words, the set of natural rights of states (independent communities in a state of nature, as distinct from members of some civitas in which they might have positive rights). The metaphysical underpinnings of this view are long gone, but in some respects it retains its hold, at least in the idea that the state has standing if, and only if, it has an individual right. Secondly, international law in its traditional conception was very largely a complex of interstate relations of an essentially bilateral character. This can be seen, for example, in the slow development of the multilateral treaty. Earlier peace treaties, including even the celebrated Peace of Westphalia of 1648, were bilateral in form, and the interests of third states were reflected by processes of adhesion or by aggregatin~ allies on one side as a single "party".5 Even when, in the second half of the 18 century, genuinely multilateral treaties came to be concluded, it was by no means clear that the legal relations that arise from such treaties were multilateral. The treaty may simply have been a way of aggregating bilateral legal relations or of generating new ones. 6 It was partly for this reason that international law has struggled to develop a notion of "public interest standing" in areas where the law does not have as its purpose the creation of synallagmatic rights and obligations. This can be seen, for example, from the decision of the International Court in the South West Africa cases (Second Phase) in 1966. That case involved a paradigm "public" claim, brought by Ethiopia and Liberia against South Africa and relating to the latter's administration of South West Africa (now Namibia) under a League of Nations mandate. The Mandate contained a compromissory clause referring disputes between League of Nations members arising under it to the Permanent Court. The International Court had held in 1950 that the winding up of the League of Nations in 1946 did not terminate the mandate, which still defined the

4

5

6

The first chapter of Grotius, De lure Belli et Pacis (1636) is revealingly titled "Quid bellum, quid ius", translated by Whewell as "What is war; what are rights?": W Whewell (trans), Hugonis Grotii De Jure Belli et Pacis Libri Tres (Cambridge, 1853) vol 1, 1. On the tradition of natural rights theory in the 17th century, see R Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979). The three treaties making up the Peace of Westphalia were: Spain-Netherlands, Munster, 30 January 1648: 1 CTS 1; Sweden-Empire, Osnabruck, 14 (24) October 1648: 1 CTS 119, and France-Empire, Munster, 12 (24) October 1648, 1 CTS 271. On the Peace of Westphalia see e.g. A Osiander, The States System of Europe, 1640-1990. Peace-making and the Conditions of International Stability (Oxford, Clarendon Press, 1994) 16-89; de Zayas, AM, "Westphalia, Peace of (1648)" (1984) 7 Enc PlL 537. See K Marek, "Contribution a l'etude de l'histoire du traite multilateral" in Festschrift fur RudolfBindscheidler (Bern, Stampfli, 1980) 17, 38-39.

JAMES eRA WFORD

25

terms on which South Africa's title to administer the territory depended. 7 When Ethiopia and Liberia brought proceedings against South Africa (the three states all having been members of the League) invoking the compromissory clause, the Court in 1962 upheld its jurisdiction. 8 Article 37 of the International Court's Statute was effective to transfer the Permanent Court's jurisdiction over to the new Court, and Ethiopia and Liberia remained entitled to invoke that jurisdiction as members of the League, despite its dissolution. The majority in 1962 seemed to have no difficulty with the fact that Ethiopia and Liberia were seeking to vindicate a public interest in the due administration of the Mandate, and were not relying in individual rights of their own. But in 1966 things changed, due in large part to changes in the composition of the Bench. The Court held, on the casting vote of its President (Spender), that the claim was inadmissible precisely because it did not involve individual rights of the claimant states. Thus individual states could not vindicate the "public" or multilateral right or interest in question. This was a matter for the supervisory and political organs of the League (which, however, no longer existed) and not for the Court. 9 It was, no doubt, in response to the outcry caused by the decision that the Court in 1970 made its most often cited statement on the question of "title to sue". No question of public right or interest was involved in the Barcelona Traction case. Moreover South West Africa had involved the interpretation of a particular compromissory clause in a particular instrument, not any general question of the definition of injured or interested states. But the question transcended such distinctions: it was whether international law was adapted to creating justiciable public institutions and rules which the member states could individually enforce. No doubt the majority in 1966 did not deny that this was possible. But at least there was a strong presumption against it, so strong that only the most explicit guarantee of a general right of action (actio popularis) could have done so. The Court in Barcelona Traction (Second Phase) was thus not announcing a rule as much as a category, a general idea, an alternative way of establishing legal relations in international law, contrasted with the classic bilateral relation of several rights and duties. But while redressing the imbalance left by the decision of 1966, it created a new uncertainty. The passage always cited from the judgment is the following: " ... an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

7 8 9

Status of South West Africa Opinion leI Rep 1950 p 128. South West Africa Cases (First Phase) leI Rep 1962 p 319. Ie] Rep 1966 p 6.

26

CHAPTER 3 Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment a/the Crime a/Genocide, Advisory Opinion, IC.J Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character. Obligations the performance of which is the subject of diplomatic protection are not of the same category. It cannot be held, when one such obligation in particular is in question, that all States have a legal interest in its observance. In order to bring a claim in respect of a breach of such an obligation, a State must first establish its right to do so ... ,,10

But at the same time, it went on to say in a later and less often discussed passage: "With regard more particularly to human rights, to which reference has already been made in paragraph 34 of this Judgment, it should be noted that these also include protection against denial of justice. However, on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality. It is therefore still on the regionallevel that a solution to this problem has had to be sought; thus, within the Council of Europe, of which Spain is not a member, the problem of admissibility encountered by the claim in the present case has been resolved by the European Convention on Human Rights, which entitles each State which is a party to the Convention to lodge a complaint against any other contracting State for violation of the Convention, irrespective of the nationality of the victim."ll

The cross-reference here to its earlier dictum implies that the Court saw no inconsistency between these passages. Nonetheless it is not clear how they are to be reconciled. One possibility is that, in referring to "the principles and rules concerning the basic rights of the human person", the Court was limiting itself only to those principles and rules which were clearly recognised by general international law as obligations erga omnes in 1970. This was arguably true for the prohibitions of slavery and racial discrimination, but not for the guarantee against denial of justice. On this view, only some aspects of the corpus of human rights law give rise to obligations erga omnes (or at least, only some then did so). A second possibility, however, is that the Court envisaged the existence of obligations erga omnes in international law, but without states having any of the "corresponding rights of protection". This might suggest that existing conditions of admissibility of claims (including the nationality of claims) would continue to apply to breaches of obligations erga omnes. Such an interpretation would in tum deprive the Court's earlier pronouncement of much of its significance. The contrast drawn in this passage between the universal instruments and the European Convention is also baffling. The relevant provision of the International 10 lCJ Reports 1970 p 3 at p 32 (paras 33-35). 11 lCJ Reports 1970 p 3 at p 47 (para 91).

JAMES CRAWFORD

27

Covenant on Civil and Political Rights (Article 41) is not limited by reference to considerations of the nationality of claims, any more than Article 24 of the European Convention then was. 12 Perhaps a more reasonable interpretation of these two passages is that the Court was seeking to distinguish between the remedies available for claims brought within the framework of diplomatic protection and those brought within the framework of human rights. On that basis, the possibility that general international law recognised an obligation (even an obligation erga omnes) not to deny justice to persons before national courts would not produce the result of assimilating the two fields, or of equating the remedies available to "interested" states for breach of human rights obligations to those available to states whose own rights had been infringed by a denial of justice to their nationals. But whichever view is preferred, uncertainties of interpretation remain, and the result is that Barcelona Traction is only the beginning of the story of "standing" in intemationallaw. 13 II

"STANDING" AND MULTILATERAL TREATIES: VCLT ARTICLE 60 (2)

One attempt to move beyond the discussion of general categories was made in the context of the codified law of treaties, embodied in the Vienna Convention on the Law of Treaties of 1969. That Convention does not seek to cover the whole ground of treaty law. It leaves largely to one side the question of performance of treaties,14 and in particular it does not deal with issues of state re12 It is true that Art 48 (b) of the European Convention specifically envisaged cases being brought to the European Court by a party "whose national is alleged to be the victim". But this was not an exclusive provision, and if the drafters of the International Covenant had wished to insert a similar proviso they could have easily done so. The issue addressed by Art 48 does not now arise under the Convention as amended by Protocol II (which entered in force on I November 1998). 13 Although there are many discussions of individual cases (both South West Africa and Barcelona Traction have generated a substantial literature), few authors have discussed these issues in a systematic way. See, however, K Sachariew, "State Responsibility for Multilateral Treaty Violations: Identifying the 'Injured State' and its Legal Status" (1988) 35 NILR 273; DN Hutchinson, "Solidarity and Breaches of Multilateral Treaties" (1988) 59 BYiL 151; V Vadapalas, "L'interet pour agir en responsabilite internationale" (1993) 20 Polish YBIL 17; B Simma, "From Bilateralism to Community Interest in International Law" (1994NI) 250 Receuil des cours 219;, A de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical InqUiry into the Implementation and Enforcement of the International Responsibility of States (Kluwer, The Hague, 1996); DJ Bederman, "Article 40 (2) (e) & (f) of the ILC Draft Articles on State Responsibility: Standing of Injured States under Customary International Law and Multilateral Treaties" (1998) 92 ASIL Proceedings 291. 14 VCLT, Art 26 announces that treaties must be performed, but it makes no attempt to say how, no doubt on the basis that this is a matter for the interpretation and application of each particular treaty and that there are no or very few discernible general rules. Arts 31-

28

CHAPTER 3

sponsibility for non-performance. 15 Thus it does not define which states parties to a treaty are entitled to call for its performance, to protest its non-performance, to seek restitution or compensation for breach of treaty, etc. However it was necessary to deal with one related question: which state or states are entitled to invoke a serious breach of a multilateral treaty in order to terminate treaty relations with the defaulting state, or at least to suspend them? The Vienna Convention did seek to establish a code of rules for the termination of treaty relations,16 and this question could not therefore be avoided. Moreover it has important implications for the broader issues of standing, first, because multilateral treaties are the normal vehicle for establishing public interest regulations or regimes in modem international law, and second, because it is obvious that not all states parties need be equally affected by a breach of a multilateral treaty. The relevant provision is Article 60. It is significant that it is the only provision of the Convention that draws a distinction between bilateral and multilateral treaties. If traditional international law had sought to reduce legal relations to a bilateral paradigm, then the paradigm of the treaty was equally the bilateral treaty. But as soon as it is accepted that at least some multilateral treaties create multilateral legal relations (i.e. that they cannot be reduced to bundles of bilateral treaty links), then some distinctions may be called for in terms of the effects of a breach. Article 60 (1) deals with the simple case of the bilateral treaty. Article 60 then provides as follows: "2. A material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i)

in the relations between themselves and the defaulting State, or

(ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation ofthe treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

33 deal with interpretation. Arts 69-72 deal with the extent of vested rights of states consequent upon performance. 15 VCLT, Art 73. 16 As appears from VCLT, Art 42 (2).

JAMES CRAWFORD

29

4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs I to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties."

Article 60 is limited to cases of "material breach". Unless the treaty otherwise provides, a breach of a treaty, not rising to the level of a material breach, gives no right to terminate or suspend. According to Article 60 (3) ... "A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty."

This definition is closer to that of a repudiatory breach in the common law of contract than it is to a "material breach", and although no adjective (such as "serious" or "grave") qualifies the term "violation" in paragraph (b), it sets rather strict limits on the right to respond to a breach by terminating or suspending the treaty. The overall concern seems to be with the stability of treaties, in the sense of their continuation despite breaches, rather than with their performance which emphasises again the extent to which rules relating to performance are subsumed under the law of state responsibility rather than the law of treaties. l ? As to material breach of multilateral treaties, Article 60 (2) distinguishes between three situations. First, there are states "specially affected by the breach". The term "specially affected" is not defined, and the commentary to Article 60 does not take matters further. 18 Perhaps the contrast between "a party" in paragraph (2) (b) and "any party" in paragraph (2) (c) may be taken to imply that only one or a few states would be "specially affected" by a breach. In other words, a state is only specially affected if it is affected to a special extent, over and above the position of other states parties to the treaty.19 In the Case concerning East Timor, Judge Weeramantry (dissenting) suggested that obligations erga omnes were to be equated to individual rights of all states so far as standing

17 A similar approach was manifested by the International Court in the Case concerning the GabCikovo-Nagymaros Project IC] Rep 1997 p 7 at p 68 (para 114), where the Court held that a bilateral treaty remained in force despite material breaches, amounting to repudiation of its original intent, by both parties. 18 See ILC Ybk 1966 vol II P 255, para (7). 19 The most obvious way in which a state could be "specially affected" for this purpose would be if it suffered actual damage. According to Reuter, "since international responsibility does not follow the lines of criminal responsibility, damage and reparation are precisely what makes it possible to define the 'specially affected' entity and its rights": P Reuter, Introduction to the Law a/Treaties (2 nd edn, Kegan Paul, London, 1995) 208.

30

CHAPTER 3

was concerned. 20 Whether or not this is true for the law of state responsibility, it is not how the law of treaties deals with obligations erga omnes partes. Instead, that situation is dealt with by clear implication in paragraph (2) (c). States which are not specially affected by a material breach are nonetheless entitled to invoke the breach in the limited circumstances there laid down, viz., where "the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty". Again the focus is on the classification a priori of the treaty or treaty provision, and not with the gravity of the violation as such. But unlike Article 60 (3) (b), the focus of paragraph (2) (c) is on the character of the treaty as a whole. 21 It must be established that its character is such that a material breach by one party produces a radical change in the position of every party. This in turn implies that the test is to be applied in the abstract and in advance: the treaty must be of such a character that any material breach will have the defined effect. There are very few treaties of which this will be true. In most cases it will only be the particular breach in the particular circumstances that radically changes matters. In these cases reliance would have to be placed on fundamental change of circumstances: under Article 62, this ground can be relied on irrespective ofthe character of the treaty in question. 22 The third case is the residual one, although it is listed first in article 60 (2). This concerns the states parties to the multilateral treaty as such. Under paragraph (2) (a), their rights as parties are strictly limited. They have no unilateral right to suspend or terminate the treaty: all they may do is to seek to persuade all the other parties (excepting only the state party in material breach) to join in doing so. Each other party can veto such a proposal, as agreement has to be unanimous. 23 Moreover this unanimous agreement is the only way by which (in 20 IC] Rep 1995 p 90 at p 172. The passage in question reads as follows: "An erga omnes right is, needless to say, a series of separate rights erga singulum ... With the violation by any State of the obligation so lying upon it, the rights enjoyed erga omnes become opposable erga singulum to the State so acting". Some difficulty was caused in that case between obligations and rights erga omnes. 21 Cf also VCLT, Art 56 (1) (b) (right of denunciation or withdrawal implied from the nature of a treaty). 22 Moreover Article 62 gives a unilateral right to terminate or withdraw from a treaty, including a multilateral treaty, whereas under Article 60 (2) (c), the only right is to suspend treaty relations, and termination requires the unanimous agreement of all the other parties. Fundamental change of circumstances is very difficult to establish as a ground for terminating a treaty (cf Case concerning the GabCikovo-Nagymaros Project IC] Rep 1997 p 7 at p 64-65 (para 104», yet in some respects it provides a more liberal basis than does Art 60 (2) (c). 23 By contrast, in the law of state responsibility a party may be entitled to suspend its own performance vis-A-vis another state in breach (not limited to material breach), by virtue of the exceptio inadimpleti contractus. See the Case concerning the Factory at Chorz6w (Jurisdiction), PCIJ Series A, No 9 (1927) P 31. The ILC has not yet decided whether the exceptio should be recognised in the codified law of state responsibility: see J Crawford, Second Report on State Responsibility, NCN.4/498/Add. 2, paras 314-329; ILC Report

JAMES CRAWFORD

31

the absence of express provision24) a multilateral treaty can be terminated for material breach by a party. All rights to respond, vested in less than the entire group of states parties faced by a breach, are rights merely to suspend the treaty. To summarize, despite the fact that Article 60 (2) draws a series of distinctions between States specially affected by a material breach of a multilateral treaty, states with a per se interest in a material breach and all states parties, the result is still a very restrictive regime, with a pronounced bias in favour of the continuation in force of treaties despite a material breach. There is no suggestion that obligations erga omnes partes give rise to any significant rights of reaction to breaches, in the framework of the law of treaties. In other respects as well, the distinctions drawn by Article 60 between states "specially affected" by a breach and other states parties seem to be isolated ones. No similar distinction is drawn in the provisions dealing with two other general grounds for termination. Thus Article 64 provides for termination in the event of incompatibility with a supervening peremptory norm. Like Article 53, which deals with invalidity of a treaty incompatible with an existing peremptory norm, Article 64 does not require that the state invoking it should be specially affected by the incompatibility (e.g. because the peremptory norm confers rights on that state or its people, or because the state is seeking to avoid a performance which would otherwise by incumbent upon it, or which would otherwise affect it). So far as the Convention is concerned, incompatibility with a peremptory norm could apparently be invoked by any party to a treaty at any time, even in circumstances where the incompatibility is hypothetical, i.e. where no occasion for incompatible performance has yet arisen in fact. This might be justified on the basis that there is a general interest of states in ensuring the primacy of peremptory norms. Yet under Article 65 it appears that only parties to the impugned treaty may invoke a peremptory norm as a ground for invalidating or terminating a treaty. Third parties (who may be the primary "victims", for example in the case of an aggression pact) apparently may not do so. Another illustration of the relative lack of concern manifested by the Convention for differently affected states arises in relation to Article 62, dealing with fundamental change of circumstances. That article drastically limits the circumstances in which a state may invoke fundamental change as a ground for terminating a treaty. But curiously it appears to pay little regard to the effect of the change on the invoking state. Paragraph (1) (b) provides that fundamental

1999 AJ54/1O, paras 334-347. 24 Express provisions dealing with the consequences of breach are uncommon, but see Comprehensive Nuclear Test Ban Treaty, 24 September \996, Art V (2), (1996) 35 ILM 1439, which entitles a Conference of states parties to take certain action against a state which fails to comply with a recommendation to "redress a situation raising problems with regard to its compliance"; the Conference may also recommend to states parties "coIlective measures which are in conformity with international law": Art V (3). Cf the similar provisions in the Chemical Weapons Convention, 13 January 1993, (1993) 32 ILM 800, Art XII (2), (3).

32

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change cannot be invoked unless "the effect of the change is radically to transform the extent of obligations still to be performed under the treaty", but it says nothing about who has to perform those obligations. One could envisage a case where the further obligations of state A under a multilateral treaty were indeed fundamentally changed to its disadvantage, whereas states Band C were relatively unaffected by the changes. Yet provided the other conditions in Article 62 were met, it would appear that any state party would be entitled to invoke the fundamental change, irrespective of any preference of state A for its continued performance. 25 III "STANDING" AND STATE RESPONSIBILITY: A GENERAL DEFINITION OF "INJURED STATE" IN INTERNATIONAL LAW?

For these reasons Article 60 (2) provides limited guidance in seeking to define different categories of states injured by a breach of international law, customary or conventional. It is necessary to tum to a later attempt at classification, also made by the ILC but not yet embodied in final form in any text. As adopted on first reading in 1996, Article 40 of the Draft Articles on State Responsibility provides as follows: "Article 40 Meaning a/injured State

1. For the purposes of the present articles, 'injured State' means any State a right of which is infringed by the act of another State, if that act constitutes, in accordance with Part One, an internationally wrongful act of that State. 2.

In particular, "injured State" means:

(a) if the right infringed by the act of a State arises from a bilateral treaty, the other State party to the treaty; (b) if the right infringed by the act of a State arises from a judgement or other binding dispute settlement decision of an international court or tribunal, the other State or States parties to the dispute and entitled to the benefit of that right; (c) if the right infringed by the act of a State arises from a binding decision of an international organ other than an international court or tribunal, the State or States which, in accordance with the constituent instrument of the international organization concerned, are entitled to the benefit of that right, (d) if the right infringed by the act of a State arises from a treaty provision for a third State, that third State; 25 The point is qualified to some extent by the Vienna Convention; under Art 65, state A would be entitled to object to a notification of termination. The Convention does not say what would happen in the event of a continuing disagreement between states Band C. Cf Art 65 (3).

JAMES CRAWFORD

33

(e) if the right infringed by the act of a State arises from a multilateral treaty or from a rule of customary international law, any other State party to the multilateral treaty or bound by the relevant rule of customary international law, if it is established that: (i)

the right has been created or is established in its favour;

(ii) the infringement of the right by the act of a State necessarily affects the enjoyment of the rights or the performance of the obligations of the other States parties to the multilateral treaty or bound by the rule of customary international law; or (iii) the right has been created or is established for the protection of human rights and fundamental freedoms; (t) if the right infringed by the act of a State arises from a multilateral treaty, any other State party to the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the protection of the collective interests of the States parties thereto.

3. In addition, 'injured State' means, if the internationally wrongful act constitutes an international crime, all other States."

The commentary to Article 40 26 notes that the question which state is responsible for an internationally wrongful act is answered in principle by Part 1 of the Draft Articles, and it notes, quite correctly, that Part 1 defines an internationally wrongful act ... "solely in terms of obligations, not of rights. This was done on the assumption that to each and every obligation corresponds per deflnitionem a right of at least one other State.,,27

This is undoubtedly correct as a matter of fact. Special Rapporteur Ago, the architect of Part 1, said in his Second Report that there was always "a correlation between a legal obligation, on the one hand, and a subjective right, on the other". Accordingly it was "perfectly legitimate in international law to regard the idea of the breach of an obligation as the exact equivalent of the idea of the impairment of the subjective right of others".28 This "exact" equivalence is sought to be expressed in a few crucial words in Article 40 (1).29 Thereafter Part 26 Adopted in 1985 (see ILC Ybk 1985 vol. II (Part 2) 25-7), the commentary to Art 40 was not reviewed when the Draft Articles as a whole were adopted on first reading in 1996. The only change was a footnote to para (3), noting that "The term 'crime' is used for consistency with article 19 of Part One of the articles. It was, however, noted that alternative phrases such as 'an international wrongful act of a serious nature' or 'an exceptionally serious wrongful act' could be substituted for the term 'crime', thus, inter alia, avoiding the penal implication of the term." 27 Commentary, para (2). 28 Ago, Second Report on State Responsibility, ILC Ybk 1970 vol II Part I, 192. 29 Curiously, however, Art 40 (1) with its use of the conditional "if' apparently contemplates that an act which infringes the right of a state might not be wrongful. This might

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2 of the Draft Articles talks of the rights of injured States rather than the obligations of States responsible for internationally wrongful conduct. Article 40 thus operates as the hinge of the entire draft, the connecting element between the treatment of obligations in Part 1 and the treatment of rights in Part 2. Paragraph 1 having announced the exact correlation of obligations and rights, paragraph 2 then goes on to identify, in a non-exclusive way, cases where a state or states may be considered to have a "subjective right". These cases vary from the dyadic right-duty relationship of a bilateral treaty or a judgment of an international court, to cases where the right arises under a rule of general international law or a multilateral treaty and all or many of the states bound by the rule or party to the treaty may be considered "injured". It also stipulates that in the case of "international crimes", all other states are injured and have a "subjective" right to act. As the commentary makes clear, the long and awkward catalogue in paragraph (2) is presumptive only. A particular treaty or rule may itself stipulate the entities (states or other persons) entitled to invoke responsibility for breach, either on an inclusive or exclusive basis. In accordance with the lex specialis principle, such a stipulation will prevail. 30 But Article 40 clearly plays a central role in the Draft Articles, since it is uncommon for a multilateral treaty to provide its own explicit set of standing rules, and even less common for rules of general international law to do so. In most cases, the identification of the "injured State" in article 40 will govern by default. The initial difficulty with Article 40 is precisely its identification of responsibility with the subjective rights of an injured state or states. Ago had announced that exact correlation at an early stage of his own work, and it was rooted in earlier theories of state responsibility (especially that of Anzilotti) based precisely on the paradigm of bilateral relations as the norm in internationallaw. But at the time of his Second Report (issued in the same year as Barcelona Traction), Ago had only just begun to formulate the idea of responsibility to the international community as a whole. For this purpose it matters little whether we talk of that responsibility in terms of the controversial notion of an "international crime", or whether we use the language of the Court itself and refer to an obligation held towards the international community as a whole (erga omnes). In either case, there is a problem in the immediate identification of that responsibility with the "subjective" rights of all or many states. The term "subjective" of course has a variety of meanings. When contrasted with "objective" (for example in the phrase "subjective judgement"), it implies an element of particularity and discretion, a wide margin of appreciation. The judgement of A as to matters of art or beauty cannot be opposed to the judgement of B except on the basis of subjective and debatable criteria: one person's view about the respective merits of, say, Tolstoy and Dostoyevsky is subjective simply be a drafting lapse, or it might have been intended to cover cases where a right is infringed but the wrongfulness of the act is precluded under Part 1, Chapter V. 30 Commentary, paras (5)-(6).

JAMES CRAWFORD

35

in the sense that others may legitimately differ. There are fields of human activity in which (while knowledge, experience and sensitivity count) judgements are ultimately subjective and disagreements irreducible. But law (if it is to function as law) is not such a field. It is not a subjective matter that Albania breached the rights of Great Britain in allowing its vessels to sail through the recently-mined waters of the North Corfu ChanneJ,31 that the continental shelf in the Gulf of Maine was divided in a certain way by a Chamber of the Court in 1985,32 or that the 1977 Treaty was succeeded to by Slovakia vis-a-vis Hungary.33 So far as international law is concerned those conclusions obtain. The function of law is, at some level and at some point, to ascertain the legal relations of persons, and this is true also for international law. Rather, the term "subjective" is used to make the point that the "secondary" legal relations arising from a breach of an international obligation are, necessarily, legal relations between the author of the breach and other persons or entities. There is no such thing as "responsibility in the air", any more than in the common law there can be negligence in the abstract - responsibility is always responsibility to persons, and is in that elemental sense "subjective".34 Implicit reliance is laid here on the work of WN Hohfeld and on his jural correlatives. 35 But Hohfe1d stressed the variety of legal relations that could be encompassed by his eight elementary particles, and while he was concerned with the dissection of legal notions, he was certainly not concerned to reduce legal relations to a single form, e.g. that form which is understood by the concept of a bilateral right-duty relation of two states in international law. The implicit use of his form of analysis to achieve such a result is illegitimate. The point may be seen by a simple example. Ethiopia and Liberia were not themselves the beneficiaries of the right they invoked in the Second South West Africa cases. The beneficiaries were, of course, the people of South West Africa itself; it was their "subjective" right to have the territory administered on their behalf and in their interest which was at stake. Ethiopia and Liberia claimed an adjectival or procedural right, to seek to ensure that South Africa complied with its obligations to the people of the territory. There is no analytical or other reason for disallowing such a legal relation, and Hohfeld would have had no difficulty in fitting it into his scheme. A legal system which seeks to reduce the legal relations between South Africa, the people of the territory, and the two applicant

31 Corfu Channel Case IC] Reports 1949 p 4. 32 Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, ICJ Reports 1984 p 246. 33 IC] Reports 1997 p 7. 34 In my view, however, the possible confusion between a very unusual sense of the term "subjective" and its more usual sense is a sufficient reason for abandoning the term altogether. 35 See WN Hohfeld, Fundamental Legal Conceptions (Yale UP, New Haven, 1964).

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states to a bilateral form is clearly defective. Yet this is precisely what Article 40 does, with its "exact" equivalents. 36 Another example is the treatment of human rights obligations. Under Article 40 (2) (e) (iii), every state bound by a human rights obligation is injured by its breach. 37 Indeed, on the face of it every state is considered as injured even by an individual and comparatively minor breach of the fundamental right of one person (not its national). According to the commentary, "it is clear that not every one of the rights enumerated in these instruments, nor every single act or omission attributable to a State which could be considered as incompatible with the respect of such rights ... must necessarily be qualified as giving rise to the application of the present provision".38 But this protestation is not reflected in the text of paragraph (e) (iii). Nor is any attempt made (e.g. by reference to the notion of systematic or gross breaches) to distinguish between cases where all states are injured and those where the individual beneficiary of the human right is injured and states parties to the human rights obligation have a general interest in compliance. Even in the case of well-attested gross or systematic violations of human rights, a distinction should still be drawn between the rights of the victims and the responses of states. Otherwise the effect of Article 40 (2) (e) (iii) is to reduce human rights to states rights, and this is no more justified when one is dealing with systematic violations than with individual ones. Why should individuals or groups be less the legal beneficiary or right-holder of a human right that has been systematically breached, as compared with one whose breach affects only them? It may be that other ("third") states are considered as having more extensive rights to intervene or to respond to systematic breaches than they might have in cases of individual breach - though the International Covenants of 1966 do not say SO.39 But even if their rights are more extensive, they do not 36 In Barcelona Traction itself, the Court noted that "Responsibility is the necessary corollary of a right" (IC] Reports 1970 p 3 at p 33 (para 36». But it did so after first drawing a distinction between the rights of states vis-it-vis other states (e.g. in the field of diplomatic protection) and obligations erga omnes which all states have a "legal interest" in protecting. It was not saying that the only cases of responsibility are cases where a state's individual rights are infringed. 37 Actually para (e) (iii) is oddly drafted: it applies to any "right ... created or. .. established for the protection of human rights and fundamental freedoms". It is odd to speak about a right established for the protection of a right, though this seems to be merely a drafting problem. In this context it should be stressed that Part I applies to all international obligations of states, whatever their subject matter, whether they arise by treaty or under general international law and whether their beneficiaries are other states, international organizations, human beings or "the international community as a whole". See Art 1, 16, and] Crawford, First Report on State Responsibility, AlCN.4/490/Add. 4, paras 117-118, 123-129; Second Report ... , AlCN.4/498, paras 16-34. 38 Commentary to Art 40, para (22). 39 See however the judgment of the European Court of Human Rights in the Ireland v United Kingdom, ECHR Series A, No 25 (1978) 64 (para 159), which implies that different rules exist for interstate complaints involving systematic breaches as compared with

JAMES

eRAWFORD

37

seem to change in character. The states concerned may be representing the victims, but they are not to be identified with them, and they do not become the right holders merely because they are recognised as having a legal interest in the author state's compliance with its human rights obligations. This is true, whether that special interest exists in some or all cases of human rights obligations. Paragraph (2) (e) (iii) also raises the question why human rights are singled out as a category for special treatment. According to the commentary ... "The interests protected by [human rights] provisions are not allocatable to a particular State. Hence the necessity to consider in the first instance every other State party to the multilateral convention, or bound by the relevant rule of customary law, as an injured State.,,40

The notion of interests being "allocatable" to a particular state apparently refers to that state as the specific obligee. But just because human rights obligations under multilateral treaties or general international law are not owed to a particular state does not make it necessary that all states concerned should be conSIdered as obligees, and certainly not "in the first instance". Moreover human rights obligations are not the only class of international obligations whose performance cannot be considered as affecting any "particular State" considered alone. This is also true of some obligations in such fields as human development, world heritage and environmental protection. No individual state is more affected than any other by the release of CFCs which affect the ozone layer, or by uncovenanted contributions to global warming, to take only two examples. Thus the fact that human rights obligations are in some sense established to protect a general community interest does not justify singling them out in Article 40. There could well be others which could be mentioned. What does seem to be special about human rights obligations, as distinct from obligations for the protection of, say, marine mammals, old-growth forests or the ozone layer is that they are specifically formulated in terms of the rights of individuals, whereas in these other fields the relevant instruments speak of the obligations of states. Even the previous international law rules relating to the treatment of aliens in the field of diplomatic protection were deliberately articulated as involving the rights of states, as the Permanent Court stressed in Mavrommatis Palestine Concessions. 41 The use of the language of human rights in the Charter and in human rights treaties since 1945 involved a considered change in this terminology. The distinction in the language of intemationallaw as between human rights and other fields such as the environment has been consistent since 1945. It must have legal significance. But it provides no reason at individual complaints. 40 Commentary to Art 40, para (20). 41 PCIJ, Series A, No 2, 1924 P 12. The same principle was affirmed by the International Court in Reparations for Injuries suffered in the Service of the United Nations ICI Reports 1949 p 174 at pp 181-182, and also in Barcelona Traction (Second Phase) ICI Reports 1970 p 3 at pp 32-33.

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all for treating human rights obligations as "allocatable" to states "in the first instance". Yet another difficulty with paragraph (e) (iii) is the contrast evident with the other cases of recognition of multilateral "rights" in Article 40. Every state is injured, apparently, by any breach of a human rights rule binding both the author state and the victim state. But by virtue of Article 40 (3) and the "definition" of international crimes of state in Article 19 (3) (c), every state is also injured by "a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid". There is an obvious disparity in a text one provision of which deems all states to be injured by all or most breaches of human rights, whereas another provision requires that the breach must be "serious", "on a widespread scale" and concern an obligation "of essential importance". (Which non-derogable human rights obligations, one might ask, are not of essential importance?) At least, Article 40 (2) (e) (iii) makes this aspect of the definition of an international crime effectively redundant. But the disparity goes further, and raises questions about the breadth of paragraph (e) (iii), at least ifno further distinction is drawn between the consequences of being an injured state for the two different purposes. It is, surely, one thing to be entitled to protest a breach of human rights, or to call upon the state concerned to cease its wrongful conduct and quite another to assume responsibility for the vindication of the right in question, to decide on countermeasures and so on. Yet, as will be seen in a moment, Article 40 treats all injured states in the same way, and it makes no distinction between degrees of injury .42 Apart from "international crimes", two other cases are given in Article 40 of the recognition of multilateral rights. In accordance with Article 40 (2) (e) (ii), every state party to a multilateral treaty, or bound by a rule of general internationallaw, is injured by a breach which "necessarily affects the enjoyment of the rights or the performance of the obligations of' those other States. The commentary gives no example of such a case. Indeed it says little more than that the paragraph "deals with a situation of fact recognized as a special one also in the Vienna Convention of the Law of Treaties in so far as multilateral treaties are concerned (see e.g. article 41, paragraph 1 (b) (i), article 58, paragraph 1 (b) (i), and, in a somewhat different context and wording, article 60, paragraph 2 (C»".43 However these three provisions of the Vienna Convention deal with different problems, and they do not apply the same criteria. Article 41 (1) (b) is concerned with the modification inter se of a multilateral treaty by some only of its parties. Such a modification is permissible if it is not prohibited by the treaty and "does 42 It is true that Articles 51-53 deal with other consequences of international crimes. As presently formulated, however, these do not amount to much (not even a liability to punitive damages): see Crawford, First Report ... , NCNA/490IAdd. 1, para 51. The most significant consequence of the Draft Articles for "international crimes" is that all states are injured thereby. 43 Commentary to Art 40, para (19).

JAMES CRAWFORD

39

not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations". The test of permissibility here is contextual: it depends on whether the particular modification in fact affects the position of the other parties to the convention. It is not an a priori test, such as Article 40 (2) (e) (ii) seems to apply. It is not limited to modifications which "necessarily affect" the other parties but extends to those which in fact affect them. Moreover there is no requirement that it affect all the other parties: a modification which affected some or perhaps any of them would be excluded. Article 58 (1) (b) is concerned with the suspension of operation of a multilateral treaty between some only of its parties: quite properly it applies the same test as does Article 41 of the Vienna Convention for modifications inter se. Of the three provisions mentioned in the commentary, only Article 60 (2) (c) actually deals with questions of breach (i.e. of responsibility). As has been seen, it is concerned with any treaty which is "of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations". This is narrower than Draft Article 40 (2) (e) (ii): while applying an a priori test of effect upon other states, it applies to the treaty as a whole and not to the particular obligation breached, and it requires that the breach affect every other party. Then there is Article 40 (2) (t), which applies only to rights under multilateral treaties, and defines as injured all other states parties to a treaty "if the right infringed ... has been expressly stipulated in that treaty for the protection of the collective interests of the States parties". The commentary gives as an example "the concept ofa 'common heritage of mankind', as recently accepted in respect of the mineral resources of the sea-bed and subsoil beyond national jurisdiction".44 This suggests that the notion of express stipulation is to be interpreted with some flexibility. Nonetheless, the commentary notes that "in the present stage of development of the international community of States as a whole, the recognition or establishment of a collective interest of States is still limited in application", and it is textually limited to express stipulations in multilateral treaties. 45 In fact both paragraphs (e) (ii) and (t) of Article 40 (2) deal with the same essential situation: that of "integral" obligations, that is to say, obligations whose performance or non-performance involves conduct which necessarily affects, or is recognised as affecting, the rights or interests of all other states parties. 46 While recognising this possibility twice, Article 40 (2) conspicuously fails to recognise the case of a state or states "specially affected" by a breach of a 44 Commentary to Art 40, para (23). 45 Commentary to Art 40, para (24). This is said however not to "exclude the development of customary rules of international law to the same effect": ibid., para (25). Presumably such a rule would be lex specialis, protected by Draft article 37. 46 The notion of "integral" obligations was developed by Fitzmaurice as Special Rapporteur on the Law of Treaties: see ILC Ybk 1957 vol. II, 54, and see also Sachariew (1988) 276, 281.

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multilateral obligation. In this respect it fails to follow the (limited) logic of Article 60 (2) of the Vienna Convention. It would be very odd if a state specially affected by a breach was entitled to suspend the underlying obligation but not to insist on its performance. Indeed the suspension of the obligation may actually be convenient so far as the state in breach is concerned. Even if it does not release it from obligation already accrued,47 it wiIl have the effect of releasing it from any obligation of cessation (so far as relations with the suspending state are concerned), and of any legal consequences of what would otherwise be a continuing wrongful act. Suspension of treaty relations is only rarely and intermittently a sanction, and it is no substitute for an adequate regime of state responsibility. So far I have focused on difficulties raised by article 40 in its identification of the "injured State" in multilateral contexts. The consequences of that identification raise corresponding difficulties. Each state injured by an internationally wrongful act is entitled to seek cessation and reparation,48 and to take countermeasures if cessation and reparation are not provided. 49 This may be appropriate where the "subjective" or individual rights of states are concerned; a state whose right has been violated or disregarded is entitled to protest, to insist on restitution where possible, or (even where restitution may be possible) to decide that it would prefer compensation. It may insist on the vindication of its right or decide in the circumstances to overlook it and waive the breach. The position where the obligation is a multilateral one may well be different. For example, the primary beneficiary of a substantive obligation (e.g. the individual human whose right has been violated contrary to a human rights obligation, the people whose right to self-determination has been denied, or even the state primarily injured by a breach of an obligation erga omnes) may prefer compensation to restitution. By what right could others, even with a recognized legal interest in compliance, countermand that preference? Again there is a contrast with Article 60 (2) of the Vienna Convention, which is at pains to limit the steps that "specially affected" or "integrally affected" states can take vis-a-vis a defaulting state. These steps are limited to the relations of the affected state vis-a-vis the responsible state, and allow only suspension of treaty relations. More drastic measures require the unanimous agreement of the other states parties.

47 CfVCLT, Art 72 (1). 48 See Arts 41, 42. 49 See Art 47. The only (indirect) qualification is provided by Art 48, with its requirement that countermeasures "shaH not be out of proportion to the degree of gravity of the internationaHy wrongful act and the effects thereof on the injured State".

JAMES eRA WFORD

41

IV FIRST STEPS IN THE RECONSIDERATION OF ARTICLE 40

For the reasons that have been stated, Article 40 as it stands does not provide a suitable basis for the codification and progressive development of the law of state responsibility. It is defective in a number of respects: •

in its apparent assumption that all responsibility relations are to be assimilated to classical bilateral right-duty relations; in its equation of all categories of injured state, with all having the same independent rights; in its definition of "injured state" in respect of multilateral obligations. in its circuitous and prolix drafting.

As to drafting, there is, of course, no difficulty in recognising as an injured state any state which is the direct beneficiary of the obligation breached: i.e. the state which has a substantive right corresponding to that obligation. Article 40 (2) (a)-(d) simply provide examples of such cases, but this does not seem necessary. The primary rules of international law can be left to determine the substantive rights of states, just as they are left to determine their substantive obligations for the purposes of Part 1 of the Draft Articles. The more interesting and difficult problem concerns multilateral obligations. In relation to these, it seems that Article 40 requires not so much redrafting as rethinking. There is no space here for a complete appraisal of the issues, but a number of preliminary remarks may be made. (1) It seems essential to draw a distinction between the primary obligee of a multilateral obligation and other states privy to the obligation which may have a legal interest in its performance. It is true that in some cases of multilateral obligations there is or may be no primary obligee. This is probably true, for example, for the obligations of states parties not to omit excess CFCs into the atmosphere. 50 But there are other multilateral obligations where there is, clearly, a primary obligee. For example, among obligations erga omnes, self-determination5l is in the first place a right of the people in question; but it is an obligation erga omnes of states, and in particular of those states responsible for the administration of non-self-governing territories. The obligation not to use force against the territorial integrity or political independence of another state is an obligation erga omnes, but the primary obligee is the state against which

50 51

See the Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, (1987) 26 ILM 1529; Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, (1987) 26 ILM 1550. Affirmed as an obligation erga omnes by the International Court in the Case concerning East Timor IC] Rep 1995 p 90 at p 102 (para 29).

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(2)

(3)

(4)

(5)

the armed force is used. Other examples could be given both of cases where the primary obligee is a state and where it is not. Where there is a primary obligee, the position of "interested" states must be to some extent ancillary or secondary. For example, if the primary obligee validly consents to conduct which would otherwise constitute a breach of a multilateral obligation, that consent precludes wrongfulness. 52 Other states may well have a legal interest in compliance, and as a consequence they may have a legitimate concern to ensure that consent was validly given (e.g. without coercion or other vitiating factors). But their own consent would not preclude wrongfulness - any more than the consent of Ethiopia and Liberia could have precluded the wrongfulness of South Africa's conduct vis-a-vis the people of the mandated territory. Similarly in the Nicaragua case (Merits), the International Court noted that action by way of collective self-defence could not be taken by a third state except at the request of the primary obligee (the state subjected to the armed attack).53 Yet, of course, the rules relating to the use of force give rise to obligations erga omnes. This suggests the need to distinguish between particular states whose rights are infringed by the violation of a multilateral obligation and those states with a legal interest in compliance with the obligation. The latter group will not have the same rights as the former, and the simple equation of the two in the present version of Article 40 is quite unsatisfactory. There seems to be no difficulty or possibility of conflict in recognising to all "interested" states the right to protest at an internationally wrongful act, and to call for cessation and reparation of injury (whether or not the injury is caused to those states). On the other hand, it is less clear that those states, merely because they are recognised as having a legal interest in the performance of the obligation, should be able to seek compensation or take countermeasures on their own account. Whether or not there is a primary obligee, it may be appropriate, on the analogy of Article 60 (2) (b) of the Vienna Convention, to give rights to any state "specially affected" by the breach of a multilateral obligation, in particular the right to seek compensation for damage suffered. The analogy of collective self-defence suggests the need for some regime of "collective countermeasures". For example, where states are taking countermeasures in some collective interest, rather than in order to vindicate their own individual rights, the principle of proportionality should apply collectively to the action taken by all of them. In cases where a state is the primary obligee (and in conformity with the Court's approach to collective self-defence in Nicaragua), countermeasures could only be taken at the request of that state. This may be contrasted with the existing provisions of Part 2, which allow each individual state

52 See DASR, Art 29. 53 lCI Rep 1986 p 14 at p 105 (para 199).

JAMES CRAWFORD

43

to take countermeasures in the collective interest without regard to the position of any other injured state, or the cumulative effect of such countermeasures on the target state. (6) In cases of integral obligations (i.e. where the obligation does not correspond to a substantive right of any particular state or other person, but all states parties are to be regarded as having a legal interest in the performance of the obligation and as legally affected by its breach), clearly all states should be recognised as having a legal interest, entitling them to demand cessation and reparation. But the cautious approach to integral obligations, taken in article 60 (2) (c) of the Vienna Convention in particular its requirement of "radical" effect - suggests that rights of individual or unilateral action in such cases may need to be limited, and that countermeasures or other responses would normally be a matter for the competent international organisation, or for the interested states parties acting in collaboration. If Article 40 is altered along these lines, the question will then be whether these changes sufficiently respond to those cases where all states in the world are faced with the breach of certain fundamental obligations. One problem, which Article 19 clearly did not resolve, is that the seriousness of the breach of an obligation does not necessarily equate with the fundamental character of the obligation itself. But whatever further solutions may be suggested, a more refined and differentiated approach to the "injured state" is at least a necessary beginning.

4 BOUNDARY PROBLEMS AND THE FORMATION OF NEW STATES Ian Brownlie QC*

As a public order system, international law has a number of discrete but overlapping elements. First, there is the principle, embodied in the United Nations Charter, that the international community, in this case the political organs, has a monopoly of the use of force and that resort to self-help is permitted only by way of exception. Secondly, there is a system of enforcement primarily by means of the Security Council and also through regional organizations. Thirdly, there is a somewhat asymmetrical but generally effective system of adjudication and arbitration, which is centred upon the International Court of Justice but includes distinguished ad hoc courts of arbitration. To these elements should be added the passive public order system constituted by the concepts of States and of international boundaries. In this context it is worth pointing out that, essentially, the international community of independent States constitutes a sort of traffic system based upon the three-dimensional boxes of territory and territorial jurisdiction of which individual States consist. In this context it is the role of boundaries which is critical in dividing the spheres of action of States and their police and security forces, and thus in avoiding breaches of the peace. In the result there is a series of legal concepts which correspond to political reality and which, operating jointly, provide a simple but efficacious system of international public order. These concepts are the existence of States as such, the concept of title to territory, the principle of territorial integrity, and the role of boundaries. If I can tum first to the significance of States. In spite of the scepticism of political science, the State has remained as the preferred model of political selfdetermination. This observation is not made in a spirit of Hegelian euphoria. The State for me has no particular mystique. It is a vehicle and, like the motor car, can be used for terrorism or for taking people to hospital. The important point is that there are few alternative models. The only alternative models available appear to be confederations, economic communities, trusteeships and condominia. Such other models tend to be complex and transitional either in purpose or in fact. States thus remain as the stan-

*

The author was Director of Studies of the International Law Association 1982-91 under the Chairmanship of Lord Slynn of Hadley.

M. Andenas (ed.), Liber Amicorum Slynn 45-53 (2000) © 2000 Kluwer Law International

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dard model and oppressed and subordinated communities in all parts of the world tend to adopt a programme of statehood. The concept of statehood must be taken in conjunction with the concept of title to territory. Governments have an acute sense of territorial entitlement. This is recognised by the law but is by no means a mere legalistic construct. Politicians and ministers have a natural sense of entitlement based on historical considerations and a sense of the role of the individual State in relation to other States. It is no coincidence that a significant proportion of disputes taken to the International Court or to arbitration are concerned precisely with title to territory. Title to territory may have various origins. A principal source of title is the independence of the State and its recognition as such. Title, apart from the case of islands and reefs, connotes boundaries and it is boundaries which playa major role in the public order system. This role has three constituents: a) firstly, the allocation of territory and thus the implementation of the notion of entitlement; b) secondly, the separation of jurisdictions; c) and thirdly, the separation of the physical operations of police and security forces. The international order is thus based upon the allocation of territory as between States. The territorial space of States can only be penetrated by consent. And threats to the peace are avoided by the physical separation of jurisdictions and the areas in which poli~e and security forces may carry out patrolling and enforcement actions. There is a wealth of experience based upon the peaceful settlement of boundary disputes and the evidence relied upon by international tribunals in relation to the determination of boundaries. Such evidence includes administrative practice, such as the collection of taxes, legislation, official maps, expert opinion evidence in the form of atlases and other reference works, and, in the case of traditional boundaries, repute or public knowledge. At this point I can pause to summarise the basic elements of the public order system, that is to say, the existence of a system of States, the concept of title to territory, the principle of trespass (which is the municipal version of territorial integrity), and the role of boundaries. This system provides a simple but attractive framework for the maintenance of order and the preservation of stability. However, the efficacy of the system faces threats from a number of sources. In the first place, the stability and efficacy of the system outlined above may be threatened by the formation of new States, and especially by situations of civil strife in which the forces unleashed may have political purposes unrelated to the dimensions of existing public law units. In the case in which the reformation of States is carried out by multilateral decision-making in which those af-

IAN BROWNLIE

47

fected genuinely acquiesce there are no serious problems. This was probably the case with the reformation of the territories of the Austro-Hungarian Empire into new States like Czechoslovakia. Nor will there be serious difficulties in the case of a voluntary union of two existing States or of a peaceful secession of a discrete political unit as in most cases of decolonisation. The difficult situations are those in which secessions take place which are incomplete or strongly opposed by significant groups within the populations of the areas concerned. Such was the case in relation to the appearance of Israel in 1948 and the secession of Croatia and other republics from the Socialist Federal Republic of Yugoslavia recently. In this context it is of great importance to determine what happens to international boundaries when there is a change of sovereignty. This class of problems is usually described as state succession, although this classification is not necessary to the solution of problems. In the doctrine of international law it has long been accepted that a change of sovereignty does not as such affect international boundaries. This principle was assumed to apply by the International Court in the Temple case (on the Merits) 1 between Thailand and Cambodia. However, this principle would not cover the problems arising when the former sovereign relinquishes control over large areas of colonial empire which then fragment into new states. In Latin American practice the principle of uti possidetis was adopted in order to deal with the situation within the former colonial domains. The American jurist Hyde reported the principle of uti possidetis by quoting the words of two Spanish jurists: 'When the common sovereign power was withdrawn, it became indispensably necessary to agree on a principle of demarcation, since there was a universal desire to avoid resort to force, and the principle adopted was a colonial uti possidetis, that is, the principle involving the preservation of the demarcations under the colonial regimes corresponding to each of the colonial entities that was constituted as a State. ,2

This principle thus originated as a political policy but evolved into a legal principle which represented the practice within the Spanish Empire applicable in Latin America. The legal principle involves an implied agreement to base territorial attributions on a rule of presumed possession by previous Spanish administrative units in 1821 (in Central America, the States' choice of arbitrary date) and in 1810 (in the rest of Latin America). The principle has played a significant role in arbitrations and cases before the International Court involving Latin American States. Apart from the principle of continuity of former administrative boundaries, the concept has two corollaries. First, it was presumed that the dissolution of the Spanish Empire did not have the effect of leaving any territory as terra nullius, I 2

Ie] Reports, 1962 p. 6. Hyde, International Law Chiefly as Interpreted and Applied by the United States (2 vol, 2 nd edn., 1945) p. xx.

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in other words the intention was not to allow space for intervention and occupation of territory from outside the continent. Secondly, given the difficulties of proving the precise locations of ancient administrative divisions in poorly mapped areas, the strict principle of uti possidetis juris was supplemented in the practice of international tribunals by uti possidetis de facto. This involved reference to the exercise of jurisdiction and the carrying out of acts of administration by governments. Both in origin and function the principle constituted a part of Latin-American regional international law, and was seen as such in the literature of the law. Although there are dissenting voices, the principle of uti possidetis has now been accorded universal acceptance. It was recognised in substance by the Organisation of African Unity in the Cairo Resolution of 1964 and was applied by the Chamber of the International Court in the Burkina FasolMali Frontier Dispute case3 decided by the International Court in 1986. Whilst there has been no multilateral declaration concerning uti possidetis in an Asian context, there can be no doubt that the principle applies also in relation to Asian territorial disputes. The principle of stability of boundaries was affirmed in the Temple case (Meritst and the essence of uti possidetis was recognised in the Award of the Arbitral Tribunal in the Rann of Kutch Arbitration between Pakistan and India. 5 Moreover, the chamber in the case concerning the Frontier Dispute (Burkina FasolMali) stated that uti possidetis 'is therefore a principle of a general kind which is logically connected with this form of decolonisation wherever it occurs'. 'This form' being the disintegration of a colonial territory into its separate administrative units which then appeared as independent states. The principle has also been adopted in the practice of European States in relation to the changes in Eastern Europe and in the Soviet Union. Thus the European Community and its Twelve Member States issued a Declaration on 16 December 1991 of 'Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union'. One of the conditions for recognition of the new States was 'respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement' . On the same date the European Community and its Twelve Member States issued the 'Declaration of Yugoslavia' relating to recognition of the independence of 'the Yugoslav Republics'. This incorporated the same Guidelines and included the following: 'The Community and its Member States agree to recognise the independence of all the Yugoslav Republics fulfilling all the conditions set out below.'

3 4 5

IC] Reports, 1986 p.554. IC] Reports, 1962 p. 6. Award, 1968; ILM vii, 633; ILR 50, 2.

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49

The conditions included a reference to 'the above-mentioned guidelines'. The Arbitration Commission of the International Conference on Yugoslavia in due course applied the Guidelines on Recognition in a series of Opinions on the recognition of the Republics of Yugoslavia, of which Opinion No.3 recognised uti possidetis as a general principle. Apart from the practice of States the principle has received ample judicial recognition of its status as a principle of general international law. The following decisions attest to this: a) The Guinea (Bissau) Maritime Delimitation case, Award of 14 February 19856 b) And also the case I have referred to several times, the Case Concerning the Frontier Dispute (Burkina FasolRepublic ofMali). By way of clarification it is necessary to emphasise that uti possidetis does not freeze boundaries. It consists essentially of the single principle that the change of sovereignty does not as such change the status of a boundary, and thus pre-existing disputes will subsist as an aspect of the principle of continuity. Thus the principle of uti possidetis has played a significant role in limiting the possibilities of instability deriving from the formation of new States. In this regard, it has been reinforced by the general importance given to 'the fundamental principle of the stability of boundaries' by the jurisprudence of the International Court, as, for example, in the Judgment in the important Libya/Chad case of 1994/ which resolved a major dispute between Libya and Chad relating to an area known in the press as the Aouzou strip. There remain certain other threats to the public order system. One such threat derives from an element of historical accident. In cases like that of French West Africa, at the time of decolonisation, the units which emerged as States were equal in constitutional status and so there was no particular problem when they decolonised. They all decolonised on the same basis, all became independent. In contrast, when the Soviet Union dissolved, the constituent units were various in constitutional statuses, although each unit apparently reflected the distribution of a particular national group. Thus there were Union Republics, Autonomous Republics, Autonomous Regions and Autonomous Areas. After the disintegration occurred, some of the 'lesser' units assumed, not without reason, that they also had the right to independence along with the Union Republics. International law as such obviously cannot provide direct answers to such political issues, but the principle of self-determination is relevant both legally and politically in such situations. After all, lawyers tend to prefer consistency and thus may wonder why Croats and Slovenes have the right to selfdetermination but not Chechens.

6 7

ICI Reports, 1990 p. 64. ICI Reports, 1994 p. 6.

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The principle of uti possidetis militates in favour of stability. Can it be reconciled with self-determination, which, at first sight, constitutes a source of change and territorial instability? The answer is unavoidably complex and has several distinct elements. In the first place, few writers express the opinion that a condition of the validity of a transfer of territory is the provision of opportunity for the expression of opinion concerning the transfer by the inhabitants. Secondly, it must be appreciated that there is a complementarity between uti possidetis and the principle of self-determination. It is uti possidetis, which creates the ambit of the pertinent unit of self-determination, and which in that sense has a logical priority over self-determination. The complementarity is evident in the practice of the European Community relating to the Republics of Yugoslavia. In particular, Opinion No.4 of the Arbitration Commission of the International Conference on Yugoslavia adopts the territorial unit of the Socialist Republic of Bosnia-Herzegovina as the relevant unit for the purposes of its Opinion on international recognition. On this premise the Commission applies the EC Guidelines on the recognition of new States and decides that 'the will of the peoples of Bosnia-Herzegovina to constitute' Bosnia as a sovereign State 'cannot be held to have been fully established'. And so there is a combination of uti possidetis as the basis of the unit, Bosnia-Herzegovina, and that unit is then being subjected to a separate test of selfdetermination by the Arbitration Commission. And finally, the principle of self-determination is in any case subject to a procedural process of certification and validation and it is necessary to take a further look at self-determin~tion. Its historical background is rich and one can find writers, especially of Balkan nationality, writing about self- determination in the late 18th century, and in those days it was called the principle of nationalities. It remained an influential political principle. Whilst it was not applied consistently, it appeared as the basis for many of the decisions by the Allied Supreme Council in the Versailles Peace Settlement and Associated Peace Treaties of 1919-1920. I think that although in those days it clearly was not a legal principle, and was not regarded as a legal principle, it was relied upon in relation to the affairs of Europe. Norms tend 'to go round', and it became fairly obvious that if the principle applied in some areas of the World, it should perhaps apply in other areas of the World. It then appears as one of the principles of the United Nations Charter but there is still a certain deliberate ambiguity about self-determination in the drafting and at least on one view the references in the Charter are perfectly compatible with the ordinary concept of the independence of States. And then it is given a prime place in the United Nations General Assembly's Declaration on the Independence of Colonial Peoples (Resolution 1514) adopted in 1960, which was a part of the process of decolonisation then at its height. Even in 1960 there was still a debate as to whether self-determination only applied to colonial peoples or whether it had a broader application. In the Helsinki Final Act of 1975 it is fairly clear that the principle was applied to the peo-

IAN BROWNLIE

51

pIes of Eastern Europe and the former Soviet Union. And it is certainly my view that by 1975 it was difficult to say that the principle of self-determination was not a legal principle and that it only applied to the colonial agenda. But let me put the other point of view. A number of distinguished writers, Thomas Franck for example, of New York University and Rosalyn Higgins, who is now the British Judge on the International Court, have the view that, although it is a legal principle, self-determination only applied in the form of the right of secession within the agenda of colonial freedom, but that now it is a reference simply to the rights of minorities within independent states. I have a number of problems with that, and I do not understand why selfdetermination should apply to Zambians or Kurds but not to Palestinians, for example. I simply do not understand why, if the principle ever had any validity, it should only apply to the classical colonial agenda. And I think that it is now a legal principle but, like the early development of the concept of title to the resources of the continental shelf, it is in the stage of development and its ramifications are still not worked out, but as a core principle it is a legal principle, and is recognised as such by many States. The problem of course is to define the unit of self-determination, that is the key, and that is the area in which the principle is not yet fully developed. One of the reasons why respectable lawyers do not like the principle of self-determination is that they see it as a form of instability, which will create a basis for civil strife and civil war. I think that is, of course, a valid and important concern. Part of the answer to the question of its causing instability is precisely this procedural process of certification and validation of units of self-determination that I have referred to. There is some analogue with the process of the recognition of new states, and there is an overlap in fact with the procedure for the validation of new units of self-determination and they are part of the same process. It is this process of validation and recognition which explains why selfdetermination does not cause instability everywhere. As with the appearance of new States, there is a procedural process, which stems the tide. There is a door to be entered, which involves international recognition either in the form of action by political organs of the United Nations, or in the form of collective recognition by the unilateral acts of individual states. And so, for example, General Assembly Resolutions over a period of years have recognised that the Palestinians are a unit of self-determination with large votes in favour of that view. In 1960 a group of states took the view that the island of Cyprus, as a whole, is a unit of self-determination. In the affairs of the United Kingdom, there is legislation recognising Northern Ireland as a discrete unit of self-determination. And so by various means, as in the case of the development of the recognition of new states, units of self-determination are given appropriate recognition, usually as new states. Now there are certain conditions applicable. Thus, there is a requirement of legality. If a putative unit of self-determination arises from a foreign invasion and the occupying power invokes the principle of self-determination in order to

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disguise what is in fact, an annexation, an intervention without lawful justification, the unit does not qualify for recognition and it was on that basis that many states refused to recognise the Government of Manchukuo in the 1930s. It is on that basis that no State apart from Turkey has recognised the 'Turkish Republic of Northern Cyprus'. There is also the requirement of authenticity. If the putative unit of selfdetermination has been the object of a great deal of demographic manipulation so that the nature of the population has been substantially changed, it quite simply lacks authenticity as a unit of self-determination. And I would like to return to the general theme of the stability of boundaries between States. International tribunals, and especially the International Court, have affirmed an overall policy of finality and stability. The principle of State succession in the case of boundaries complements that general policy. But I would like to point out that even these concepts themselves must have certain limits and Judge Shahabuddeen (in his Separate Opinion) in the Libya/Chad case warns that the concept of stability is question begging and that one should look at the legal situation generally and therefore the concept of finality does not in itself provide an answer or a short cut. 8 This is also true of the principle of uti possidetis itself, to which I have given a very high rating as an element in maintaining stability in international affairs and I think that is a correct assessment, but again it is necessary to recall that it does not mean that no disputes arise, what it means is that disputes do not arise simply as a result of the change of sovereignty. Thus, if at the time of decolonisation there were existing ambiguities such pre-existing disputes will subsist. At the same time subsequent modification of the colonial boundary by agreement is perfectly lawful and the boundary is not frozen. And so Gambia has made an agreement with Senegal making local changes so that certain villages will have a more comfortable position in relation to neighbouring villages. The Cairo Resolution does not forbid lawful changes in African boundaries but simply provides that decolonisation as such does not change the legal status of a boundary. And uti possidetis may apply so to speak in retrospect. Thus in the Rann of Kutch case that followed a small war between India and Pakistan, the distinguished Court of Arbitration actually applied the status quo. They investigated the status quo in the 19th century, within the paramountcy of Great Britain and India which treated the State of Kutch as an independent state subject only to the overarching paramountcy system in relation to the part of British India known as Scind. It treated that relationship as though it were a relationship between completely independent states. This was exactly the way the two now independent parties India and Pakistan had fought the case. And so uti possidetis was, as it were, taken back into the affairs of British India. Why? Because that provided a legal outcome to a difficult dispute. And so in the Libya/Chad case, although 8

ICJ Reports, 1994 p. 6 at p. xx.

IAN BROWNLIE

53

Chad had only become independent in 1960 and the treaty in dispute was concluded in 1955, the International Court had no difficulty in applying the principle of uti possidetis, although in formal terms it was only approved by the African States in 1964 and so it was applied in retrospect. Good public order and public policy made that a sensible solution. In conclusion it is necessary to refer to certain relatively anomalous situations. On occasion it may happen that the appropriate application of the principle of self-determination involves not the process of secession and independence, but a decision to adopt a regime of autonomy within an existing State. Such regimes may arise in various ways, including multilateral territorial settlements, and purely voluntary internal political developments. Twentieth century examples include the Aland Islands, the Memel Territory, the Free City of Danzig, the Special Administrative Territory of Hong Kong, and the recent case of Scottish devolution. In the Security Council resolutions relating to the situation in Kosovo, the Security Council appears to be seeking to impose a regime of substantial autonomy. There are many obscurities in the documents but the preamble to each of five resolutions affirms 'the commitment of all Member States to the sovereignty and the integrity of the Federal Republic of Yugoslavia'. The last such Resolution was that of 10 June 1999. But there are serious problems of legality concerning the use of the threat of force and large-scale use of force by certain Member States in order to seek to impose a political solution. It is difficult to see any legality in the bombing of a State in order to enforce a political solution in the form of autonomy. Such an enforced solution would not qualify for recognition. The Security Council Resolution of 10 June 1999 provides a framework for 'a political process towards the establishment of an interim political framework agreement providing for self-government for Kosovo ... ' (Annex 2, para.8). The negative aspects of boundaries must be recalled. Boundaries involve forms of control and tend to divide local communities. The practice of State has evolved various methods of mitigating or avoiding the negative effects of boundaries. (a) Local servitudes may have been created, e.g. rights of way, rights of fishing. (b) Bilateral treaties often create special boundary regimes. (c) Joint Development Zones may be created by treaty. (d) And, at the macro-political level, economic communities may play a role. There may also be special regimes for Boundary Rivers. But in all this there is a necessary proviso. Even where there is a regime of joint development in place, as a matter of stability and public order, it is important to have a determination of the actual limits of sovereignty.

5 THE PINOCHET CASE Henry G. Schermers

I

INTERNATIONAL CRIMINAL LEGISLATION

The Lord Slynn of Hadley was one of the twelve law lords who sat in the case of Pinochet. His careful consideration of the case brought him in the minority, which accepted that Pinochet was entitled to claim immunity from arrest and extradition proceedings in the United Kingdom. StilI, he brought arguments for both sides. His final choice for the more conservative view may be supported by those who cherish legal certainty rejecting changes of the law which are not formally adopted by a legislator. In the present article we will focus in particular on the changes developing in public international law. There is no legislator, which can effectively codify changing convictions with respect to the law as it stands. Traditionally, international law is codified and amended in international treaties, but increasingly it is understood that this traditional system is obsolete. In a world that requires legislation, rules applying only in States that expressly accepted them are insufficient. We badly need legislative authority. Can it be the United Nations? Any other universal organisation? Some international organisations legislate in specified limited fields, such as air navigation, mail or meteorology. This means that there is world law, applied everywhere and irrespective of any ratification, on air navigation, on the distribution, weights and measures of letters and on the methods to be used for measuring atmospheric pressure. Rapidly, uniform technical rules spread over the world as a consequence of increasing communications and a growing unified world market. When practical need forces everybody to accept a uniform rule, world law arises. But when interests differ, when political solutions are needed, uniform law is hard to make. So far, there is no international organisation with any general legislative competence. Does that necessarily mean that international legislation on political issues remains impossible? Or can we find some kind of legislative power in traditional sources of international law such as custom or generally accepted principles? An interesting field of development is the protection of fundamental human rights and the combat against serious crimes. Traditionally, the treatment of individuals was an issue essentially within the domestic jurisdiction of States and

M. Andenas (ed.), Liber Amicorum Slynn 55-65 (2000) © 2000 Kluwer Law International

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outside the jurisdiction of international organisations, l but gradually the international community accepts responsibility when a national government seriously violates the rights of individuals. A clear example of an issue, which gradually came under international supervision, is the policy of apartheid. Originally this was a matter of domestic jurisdiction. Under South-African law it was perfectly legal, if not even wanted. Gradually, a combat against apartheid became an issue of international law. In a continuous stream of resolutions the General Assembly and the Security Council of the United Nations expressed their opinion on this policy, finally clearly stating that it is an international crime. 2 Why is apartheid a crime? In previous centuries it was a rather common phenomenon that some peoples had more rights than others, noblemen more than commoners, masters more than slaves, etc. In our time, apartheid is a crime. Who decides what should be a crime? Basically that is a cultural question. In some communities homosexuality is a crime, in others it is tolerated; in some cultures it is a crime to convert a moslem into another religion; in others it is a fundamental human rights that this should be permitted. Each community decides what it wants to see as a crime. Through increasing communications, and in particular through television, a cultural world community is developing. Gradually, it becomes intolerable that some communities consider criminal what other communities consider to be fundamental human rights and that some communities tolerate (or even promote) what other communities regard as serious crimes. Increasingly, the world community defines the most awful acts as universal crimes. This is not rashly done. Before a crime is recognised as a universal crime long debates and careful considerations take place. Only gradually universal acceptance of the criminal character of particular acts develops. Universal acceptance of crimes may be difficult, but it is not impossible. Notwithstanding many cultural differences, there are universal convictions, even though their number may be limited. Killing other people without good cause, torture and perhaps trade in women and children are universally accepted as criminal. There is a universal culture recognising that causing suffering to other people is basically wrong and that it is criminal if there is no need for it. Apartheid causes suffering to many people, as a system it is wrong and that is why the General Assembly of the UN in many resolutions could make it a universal crime.

1 2

UN Charter, Article 2(7). References in the Preamble of the International Convention on the Suppression and Punishment of the Crime of Apartheid, Annex to GA-Resolution 3068 XXVIII) of 30 November 1973. See, e.g., GA Resolution 2202 (XXI) of 6 Dec. 1966 and GA-Resolution 37/69/A of9 Dec. 1982; SC-Resolution 418/1977.

HENRY G. SCHERMERS

II

PENALISATION

1

By the national court

57

Once we have accepted that international crimes exist, the question arises whether those who commit them should be punished and by whom. When international criminal legislation develops, the need for international criminal jurisdiction develops as well. Once there are international crimes, there should be international prosecution and international court proceedings. But we have no international criminal court yet. The only reasonably well functioning judiciary in our world is the judiciary of each national State. It should therefore be the States who must prosecute and punish international crimes. In most cases this works reasonably well. International crimes are also crimes in virtually all national legal systems and usually criminals will be prosecuted and punished by the judiciary of their own State. In many respects that is also the most suitable judiciary. It is near to both the crime and the criminal, it will have the best access to proof and the severity of the punishment will be in conformity with local convictions. 2

By other courts

When the national judicial system is unable or unwilling to prosecute, the question arises whether there is any other legal system which can fill the gap. Once we have accepted international crimes we should also accept an international criminal court. Better than any national judiciary such a court should be able to handle international crimes in a sufficiently fair way. But we must accept that for several years to come such a court will not be available. The only remaining alternative is then to be found in the judicial system of States other than the national State of the criminal. Once a crime has been classified as an international crime, one may submit that any court should have jurisdiction. We can distinguish three situations in which the national judiciary is unable to try international crimes. (1) The national judiciary may be submissive to those who commit the crimes, as in most dictatorial regimes, (2) the international crime may not be a crime under national law as in the case of apartheid, prior to 1990, and (3) non-prosecution may have been accepted as a condition for terminating the crime. In each of these situations the question arises whether jurisdictions of other States may take over. (1) When the national judiciary is unable to adjudicate because of their submission to a dictatorial regime, adjudication by other national judiciaries seems appropriate and not too difficult to justify. The fight against international crimes is so important that the criminals must be tried. When a crime is universal all courts should be competent to try the perpetrator.

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(2) Adjudication is more difficult when the crime is not a crime under the national law of the State concerned. This was one of the problems in the Tribunals of Nuremberg and Tokyo after World War II. Many of the war crimes committed were in conformity with national law, in particular with the requirement that orders of superior officers must be obeyed. The Nuremberg and Tokyo Tribunals accepted that acts permitted or even prescribed under national law could still be criminal offences if they were criminal according to general principles of law recognised by civilised nations. Thus, these tribunals expanded the old Latin rule: "Nullum crimen, nulla poena sine praevia lege poenali ". As off their judgement the lex poenalis was no longer limited to the national law; it could also be international legislation. This is confirmed in international treaties on the nulla poena rule. The European Convention on Human Rights and the International Covenant on Civil and Political Rights both provide (respectively in Art. 7 and Art. 15): "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed."

Both articles also provide in a second paragraph that: "(Nothing in) this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by (civilised nations, respectively, the community of nations)."

The American Convention on Human Rights (Art. 9) and the African Charter on Human and Peoples' Rights (Art. 7, § 2) are less specific. According to the former the act must constitute a criminal offence under the applicable law, according to the latter a legally punishable offence. In both cases this may include international crimes. The second paragraphs of Article 7 of the European Convention and of Article 15 of the Covenant accept prosecution and punishment for acts which have not been declared criminal either by national or by international law but which are so vicious that they can be seen as criminal under general principles of law, meaning that any normal human being must understand that they are criminal. This may cover issues, which never before obtained the attention of any legislator and therefore were not expressly prohibited, such as ethnic cleansing. It should be clear that the judiciaries of States other than the national State should be reticent in adjudicating crimes which are not crimes under the applicable national legal system, but when there is no doubt that the acts committed are crimes under international law or under general principles of law they should be considered competent. The rule that se-

HENRY G. SCHERMERS

59

rious crimes should be prosecuted and punished must outweigh procedural rules of judicial competence. (3) Most difficult are the cases where non-prosecution has been accepted in the domestic legal system as a condition for terminating the crime. Are the national authorities competent to waive prosecution of international crimes? Or should there be international agreement? Prosecution will be difficult if a competent international body (the General Assembly, the Security Council, the prosecutor of an international criminal tribunal) has agreed to the waiver of prosecution. But, so far, national authorities never requested formal international approval for a deal under which powers were transferred with a condition that no prosecution was to follow. One may well defend that without international approval international law prohibits amnesty for serious international crimes and that therefore deals holding that no prosecution will follow are void. Dugard offers at least six grounds for holding that successor regimes are obliged under international law to prosecute the most serious international crimes: 1. The Genocide Convention of 1948 contains an absolute obligation to prosecute offenders. 2. Several decisions of the Inter-American Court and Commission of Human Rights held that amnesties granted by Argentina and Uruguay were incompatible with the American Convention on Human Rights. 3. The UN Human Rights Committee held in its General Comment No. 20 (44) of April 1992 that amnesties covering acts of torture are 'generally incompatible with the duty of States to investigate such acts. 4. The International Law Commission's Draft Code of Critnes against the Peace and Security of Mankind obliges States to try or extradite those alleged to have committed crimes against humanity. 5. The States parties to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968 undertake (in Article IV) to adopt legislation necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes enumerated in Article 1 of that Convention. 6. In the Statutes for the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda prosecution of those responsible for the crimes punishable under these Statutes is required. 3 However persuasive these arguments may be, Dugard does not believe that international law has reached the stage of a prohibition of all amnesty for serious international crimes. In his submission: "State practice hardly supports such a rule as modem history is replete with examples of cases in which successor re-

3

See John Dugard "Dealing with Crimes of a Past Regime. Is Amnesty still an Option?" Third Manfred Lachs Memorial Lecture, 1999, p. 3.

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gimes have granted amnesty to officials of the previous regime guilty of torture and crimes against humanity, rather than prosecute them."4 Is State practice decisive for the development of international law? Do illegal acts of States prevent the further development of law? We have to take into account that international law is still made and developed by the States. For customary law doctrine has accepted the need of opinio juris in addition to practice. And it is that opinio juris which is still absent with respect to an obligation to prosecute officials of a previous regime with whom an agreement not to prosecute was made. The clearest recent example of a deal not to prosecute after a transfer of power is offered by South Africa. After the numerous resolutions of the UN there could be no doubt that the world community considers the policy of apartheid to be criminal. But, in South Africa it was decided to terminate the crime without punishment. They had no choice. Those in power would not have accepted change if that would have brought them in jail. On the other hand amnesty for crimes committed during the apartheid regime was neither general nor unconditional. A Truth Committee was established as an alternative for prosecution. One of the aims of prosecution is to satisfy victims of the crime. The Truth Committee reached that aim to a considerable degree. Dugard mentions many precedents for Truth Committees. Though Dugard does not accept that present international law always requires prosecution and punishment of international crimes he admits that it is moving in that direction. Blanket, unconditional amnesty is no longer acceptable. The present choice is between prosecution or amnesty accompanied by a truth commission. s With respect to the law as it stands, I think we should accept Dugard's position, but as lawyers we must continue to exert all possible pressure for punishment of international criminals. The situation in Chile was not fundamentaIly different from that in South Africa. Mr. Pinochet was Head of State until 11 March 1990. Thereafter, a democratic government was established but on such conditions that Mr. Pinochet was not to be punished for any acts he might have committed. In both cases there was a Truth and Reconciliation Commission, though their powers differed considerably.6 Criminals should be punished. Why are those who invented, promoted and executed apartheid not punished and why does the General Assembly not insist on such punishment? Why are there no strong forces in the world aiming at such punishment? Is there no justice? Or are there other forces stronger than justice? Is peace more important than justice is? Punishment of all those who shared responsibility for apartheid would have caused civil war, would have lead to bad suffering of many people. Is that a reason to forsake justice? Should peace have priority over justice?

4 S 6

Idem, p. 4. Idem, p. 6. See Dugard, idem, p. 9.

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This is one of the most difficult questions of politics. The defence and promotion of justice may require such sacrifices that it may seem better to sacrifice justice. In the Munich Agreement of 1938 peace was given priority to justice, or, rather, real justice was not even considered. The unjustness of the Nazi regime versus e.g. the Jews and versus democracy in general was not taken into account and the cession of the Sudeten German areas to Germany was not considered unjust. The world community for the sake of peace accepted many unjust situations. Cambodia, Birma and Tibet are just a few examples. But when president Milosevi6 went too far in suppressing the rights of the Albanian people in Kosovo, NATO opted for justice over peace. As a matter of principle that seems correct. Should not justice always have priority? Is it not best in the long run to defend and promote justice, irrespective of the consequences? As an aim that seems correct. But promoting justice does not necessarily mean that all those who violated justice will always be punished. Again, South Africa offers a clear example. Those who had committed the crime of apartheid had based their acts on their cultural inheritance, which, during ages, had accepted inequality of races. Any decision to punish them would have lead to civil war, or at least to great tensions, fighting and losses of life. Was it not more acceptable to strive at the abolition of apartheid along peaceful means, tolerant to the past? Should the series of resolutions of the UN which made the policy of apartheid an international crime be seen as legislation for the future without any retro-active effect? This would mean that apartheid was not an international crime at the time when it was introduced. South Africa opted for non-punishment and that choice seemed justified. As a deterrent punishment was not of great importance. Individuals cannot establish a system of apartheid. Governments and communities of peoples may develop apartheid but it will normally be impossible to hold particular individuals liable for it. To persuade a population that particular groups of men are inferior to others may be easier than to persuade a population that all men are equal, but, still, it will take much time and the involvement of many propagandists. To accommodate the victims, at least to some extent, South Africa instituted a truthcommission. Even if the need for peace prevents the full application of justice, a middleway can be found. One could permit the judiciary of other states to prosecute and to try officials who obtained amnesty in their own country and allow the international community t6 grant pardon after the judgment has been pronounced. To the victims of the crimes this must give some satisfaction and the final decision is with the international community where .it should be. The condition not to be prosecuted under which powers were transferred must then be taken into account. Of course, the international community has no power to grant amnesty, but a resolution of the General Assembly of the UN asking the State holding the convicted persons to release him will normally be sufficient for his release by that State. Another possibility could be that a person suspected of an international crime could be tried by the judiciary of any other State, but when found guilty,

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he should be sent back to his own State for punishment. There, the balance between the amnesty and the international opinion could then be made. III THE CASE OF CHILE

To what extent differs the situation of Chile from that in South Africa? In both cases those responsible for the crimes were supported by a considerable part of the population, which meant that their prosecution would lead to unrest, demonstrations, violence and possibly losses of lives. In both cases the international crimes were terminated by some kind of agreement which meant that those responsible for the crimes remained unpunished. Peace and co-operation were preferred over justice and punishment. Two questions arise and these two questions are the core of this problem. (a) Is it the lawyer or the politician who should decide? and (b) What should the choice be and how is it to be made? 1

Is it law or is it policy?

The task of a politician is to find the right balance between different interests in society. Those interests may be of a general character such as the interests between employers and employees or between industry and environment or they may be the interests of a particular group such as homosexuals or gypsies versus the interests of the rest of society. The task of a lawyer is to defend and promote justice. In a choice between justice and peace he ought to be biased; it is his duty to be biased in favour of justice. There cannot be a proper balance in society if not the lawyer defends justice against those who defend other interests. There can be only one conclusion: let the lawyer defend justice, let those who prefer peace over justice defend peace and let the politician decide. In the English case of Pinochet the real question at stake was whether or not Mr. Pinochet should be punished for the crimes committed under his authority. Was he to be sent back to Chile the then existing peace might have been continued but no justice would be done to him. Was he to be extradited to Spain, he would be tried and justice might be done, but peace might be disturbed. This was a political choice, but the politicians wanted to hide behind the lawyers and awaited the answer to a technical legal question, an answer that would be founded on the interpretation of laws which had little to do with the choice between justice and peace, but at the same time an answer that would be understood by the outside world as making that choice. 2

What should the choice be and how should it be made

The choice that should be made was: should Mr. Pinochet be prosecuted even if such prosecution would create unrest in Chile or should priority be given to

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peace by not raking up questions which had been put at rest when powers were transferred. However, the question posed to the English judiciary was a different one. It was asked to decide whether Mr. Pinochet was entitled to immunity as a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts allegedly committed whilst he was Head of State. Putting it in general terms the question was not: "Should persons responsible for the most serious crimes be punished?" but: "May former Heads of State be prosecuted before foreign courts for acts committed whilst they were Heads of State? Particularly in a legal system based on stare decisis this different formulation is of great importance. One can approach the problem in two different ways. (l) The more traditional and legally well founded way is to hold that the courts should reply to the question put in a neutral and objective way. If immunity is denied to Mr. Pinochet, then a precedent is constituted for holding that former Heads of State can be prosecuted in foreign countries for their official acts, which seems unacceptable as a general rule of law. In any case, the traditional rules of public international law rather extend the immunity of Heads of State for acts committed in their capacity of Head of State to the time after the termination of their office. As a general rule such immunity is justified. Heads of State sign many acts of government and, normally, they should not be held personally liable for them in a country other than their own.7 In his opinion in the Pinochet Case of 25 November 1998 Lord Slynn of Hadley took up this position. He replied to the question of immunity of a former Head of State in a way which could serve as a precedent for most acts performed by Heads of State during their term of office. One can understand this position, particularly when taking into account that decisions of the House of Lords are binding precedents for all other courts in the U.K. (2) One can, however, follow a different line of reasoning when the act concerned is of a serious criminal nature. The time of absolute sovereignty is over. No longer have governments unlimited control over their subjects. The development of international law within the United Nations and in many international treaties on human rights have created the first rules of a universal legal order which sets limits to the powers of national governments and which allow (perhaps even order) punishment of those who violate the (still rather few) rules of universal law, such as those on genocide, torture and apartheid. As long as there is no international criminal court the world judiciary is formed by the combined judiciaries of all States. This means that all national judiciaries are obliged to cooperate in fighting international crimes, that they all are competent to do so and that persons should be extradited to those national courts which are in the best position to try the criminal. In that reasoning it makes little difference whether the perpetrator is Head of State, former Head of State or an official of any other 7

This does not mean that their own country can hold officials always criminally responsible for governmental acts. See European Court of Human Rights, Loukanov v. Bulgaria, 20 March 1997, Rec. 1997 II.

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kind. Prosecution and extradition will prevail over the traditional rules of immunity. This approach does not contlict with the traditional rule of international law that one State should not judge the acts of another State. It is - and it should be the international community which decides that particular official acts of State authorities are of a criminal nature. Once this has been established the authorities of other States should not judge the criminal nature of that behaviour. They just draw the consequences with respect to the individuals concerned. They help executing what the international community considered necessary. In their first case the House of Lords took this position. They accepted rules of humanitarian law of an order higher than the traditional rules on immunity. In the second judgment the House of Lords backed out of this position of principle by founding their decision on the formal authority of a treaty. IV CONCLUSION Comparing the opinion of Lord Slynn with the position of the majority in the two judgements of the House of Lords my conclusion is that in a way they were both right depending on what question the House of Lords had to answer. Public international law grants immunity in foreign courts to Heads of State for their official acts. This rule may be weakened by a gradual development of higher law granting an exception for warcrimes and crimes against humanity, but it used to be an undisputed rule of international (and national) law and it never was officially amended. The reason for this immunity is that one State should not judge the acts of another State. This reason still stands, even though it is weakened by a development, holding international organisations competent to judge the legality of acts of States. The reason for the rule between States still stands. Accepting that a higher law prohibits crimes against humanity has not created formal rules on how to establish that such crimes have been committed and on who should punish whom. As long as the International Criminal Court does not exist political forces, mainly those of the great Powers, decide which crimes are crimes under international law and who should be punished for them. This means that the law in this field is still unclear and unstable, but there is law which is gradually recognised as jus cogens. It is difficult to adapt existing rules of law, such as those on immunity, to changed rules of international jus cogens as long as those rules are unclear and unspecified. If one State should not judge the acts of another State the immunity cannot end when a ruler leaves his office. For acts committed thereafter the former ruler may become liable, but for acts committed during his office the immunity must continue if one wants to prevent one State judging the acts of another. The question posed to the House of Lords was not about Mr. Pinochet's crimes but only about the immunity of a former Head of State for acts committed whilst he was Head of State. Taking account of the authority of a House of Lords judgement and not wanting to set aside existing law Lord Slynn held that the immu-

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nity existing during Mr. Pinochet's office continued thereafter. I think, this is in conformity with positive international law as it stands. The real problem is the difficulty to amend existing international law. The gradually developed jus cogens, making crimes against humanity international crimes and making individuals liable, requires amendment of many rules of internationallaw which traditionally only regulated relations between States. Was it the task of the House of Lords to make such amendments? One can well understand that Lord Slynn answered this question in the negative. The majority of the House was less focused on existing positive international law, perhaps also less familiar with it. They looked at the problem in a more general way. They considered that a positive answer to the formal question whether a former Head of State continued to have immunity for acts committed whilst he was Head of State meant in fact that Mr. Pinochet would not be punished for serious crimes committed under his authority. Would that be in keeping with the development of the law? Would it be acceptable to public opinion? Was not the real question at stake different from the one on immunity? To the outside world the House of Lords had to decide whether Mr. Pinochet should be punished or not. The majority of the House of Lords replied to that question and, rightly, they replied in the affirmative. The great value of the Lords' judgement is the recognition that the fundamental rules of humanitarian law precede well-established traditional rules of international law. Many further questions remain unsolved. They were not before the House of Lords. If Mr. De Klerk came to England and a Zambian court would request extradition on the ground that he committed the crime of apartheid against some Zambian citizens, could one then invoke the Pinochet precedent? Could a Russian court require the extradition of president Clinton, holding him responsible for NATO bombing on innocent citizens of Serbia? Who decides? Can we leave these decisions to the combined judgments of the judiciaries in the requesting and the requested States? We badly need an International Criminal Court.

6 INTERNATIONAL LA W IN THE WAKE OF UNISPACE III Maureen Williams'

"For all these items oflegal architecture, lawyers must take responsibility - for their incompleteness, their distorsion, their misuse. And it is our business as lawyers of the future to correct them". (Lord Wilberforce, 57th ILA Conference, Manila 1978)

The following lines are dedicated to the Rt. Hon. The Lord Slynn of Hadley, in admiration for his work and with much affection. They are also intended as a contribution to the UN Decade for International Law which Lord Slynn supported enthusiastically from its very first stages. I

INTRODUCTION

The Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (Vienna, 19-30 July 1999) - hereinafter referred to as UNISPACE III - has added a new element to the challenge of exploring and exploiting these areas which lie beyond the limits of national jurisdiction and are free for all. Unlike the two previous UNISPACE Conferences (1968 and 1982), which highlighted the need for international cooperation and the importance of not taking earth rivalries into outer space, UNIPACE III put a strong accent on the private aspects of space activities. The presence, for the first time, of the space industry was the striking feature of this Conference. In fact, the trend towards commercialisation of space activity is a reality of our times. Private enterprises in space are day by day gaining momentum. Nowadays, a discussion on the need to have effective procedures on dispute settlement, for example, goes far beyond the scope of an academic exercise designed to outline solutions for the mid or long-term future. The risk of contro-

*

The author holds the chair of Public International Law at the University of Buenos Aires and is rapporteur of the Space Law Committee of the International Law Association.

M. Andenas (ed.), Liber Amicorum Slynn 67-87 (2000) © 2000 Kluwer Law International

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versies over private investments in space is rapidly increasing and there is now general awareness that the stage of mere exploration of outer space is over. A string of new challenges, as Lord Wilberforce was saying in Manila, are awaiting intemationallawyers for solutions.

II

FROM THE DAWN HOURS OF SPUTNIK I TO THE THRESHOLD OF A NEW MILLENNIUM

When, on 4 October 1957, the then USSR launched the first artificial satelliteSputnik 1- into orbit around the Earth no country brought up complaints in the sense that its sovereign rights in space had been infringed. Although careful not to surrender any rights they might have been entitled to in the new areas reached by man, States did not freeze in cold-war stands which could have hindered future agreements in the field. l Briefly, a few milestones will be listed in the progressive development of this new branch of international law which is constantly being shaped by advances in science and technology. The list is by no means exhaustive amd includes contributions from both governmental and private sources. Before doing so, however, it is interesting to recall that in the beginning of the sixties, at a summit meeting held at the Elysee in Paris in May 1960 where Eisenhower, Adenauer, Macmillan, De Gaulle and Krushchev took part, the latter questioned Eisenhower -in a harsh and vitriolic manner, according to Macmillan's Memoirs - on the flight of Guy Powers, an American pilot who had been shot down a short time before over Soviet territory. De Gaulle, in turn, observed that the flight of Sputnik I was just as objectionable as the situation described by Krushchev. To which the Soviet Prime Minister did not agree, stating that Sputnik I did not carry cameras on board ... This anecdote was frequently referred to by Goedhuis, a renown expert on these subjects who, since its creation and for many years hence, chaired the Space Law Committee of the International Law Association. Naturally, in those days, there was no legal instrument establishing that outer space and celestial bodies were free for the exploration and use of all states and that these activities On 3 December 1976, in Bogota, eight equatorial states claimed that the segments of the geostationary orbit at the height of 36000 Km formed part of the territory over which the underlying State exercised sovereignty. This claim, known as the "Bogota Declaration" caused initial confusion but was subsequently toned down in later years at COPUOS and today has only historical significance. It was rejected at the time by the two space powers. It is beyond question that the geostationary orbit, just like any other orbit, lies in outer space - namely in an area beyond national jurisdiction - and that even though no agreement on the delimitation of the upper limits of airspace exists, any claim of sovereignty at, or beyond, 100 Km would run counter to the principles of freedom of exploration and use of outer space and celestial bodies. There seems to be consensus on the figure of 100 Km and what is still lacking is an agreement among governments on this point.

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should be carried out for the benefit and in the interest of all peoples, for peaceful purposes and in accordance with international law. Nor was it yet determined where the regime of sovereignty over airspace ended and at what height the principles of freedom of exploration and use began to apply. The very thorny aspects involving the latter issue remain unresolved. The subject has figured on the agenda of the UN Outer Space Committee over the years without, so far, tangible results. Let us now unfold the aforementioned landmarks which may well be considered the pillars of the international law of outer space. In the first place mention should be made of the Ad Hoc Committee on Outer Space set up within the framework of the United Nations in 1958. This Committee was replaced in 1962 with the Committee on the Peaceful Uses of Outer Space (COPUOS) which, to date, is composed of a Legal Subcommittee and a Scientific and Technical Subcommittee. The ILA, for its part, created its Space Law Committee in 1958, which met that year for the first time on the occasion of its 48th International Conference held in New York. The Committee has met without interruption ever since - with the exception of the 55th Conference in 1972 - reporting to every biennial Conference of the Association on a number of topical matters. From its very first steps the Committee benefited from the skill of its learned rapporteurs, among which Jennings, de la Pradelle, Berezowski and Pepin may be mentioned. 2 The Committee's reports and draft conventions provide useful contributions to the work of the United Nations Committee on Outer Space, as shall be seen later. The 1962 UNGA Declaration of Principles to govern the Activities of States in the Exploration and Use of Outer Space, including the moon and other celestial bodies, is at the root of the space treaties presently in force. This instrument, together with the Draft Code prepared by the David Davies Memorial Institute of International Studies (London) in 1966 are the most direct precedents of the 1967 Outer Space Treaty. Its wording, it may be added, is reminiscent of the 1959 Antarctic Treaty, particularly as regards the call for international cooperation, the ban on claims of sovereignty, the requirement for peaceful purposes as a requisite to carry out activities in those areas, and the provisions on demilitarisation and ban on nuclear weapons in outer space, the moon and other celestial bodies. The twelve years elapsed between 1967 and 1979 were streamlined by the adoption of the five space treaties effective today, namely the 1967 Space Treaty, the 1968 Astronauts Agreement, the 1972 Liability Convention, the 1975 Registration Convention and the 1979 Moon Agreement. Outside the framework of the United Nations proper, and under the umbrella of the International Telecommunications Union, the 1971 Intelsat (Definitive) Agreements 2

See the present writer's book EL RIESGO AMBIENTAL Y SU REGULACION DERECHO INTERNACIONAL Y COMPARADO (Residuos Espaciales - Protecci6n de la Capa de Ozono), particularly Chapter II on the ILA. Publ. by Abeledo-Perrot, Buenos Aires, 1998.

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and the 1976 Inmarsat Agreements provided a new and clear example of progressive development of the law in the field of space communications. 3 The work of the United Nations extended to other more sensitive areas, such as direct broadcast by satellites, remote sensing, and the use of nuclear power sources in outer space. In all three areas no conventions were adopted but, instead, a series of Principles were agreed upon in 1982, 1986 and 1992, respectively. The Principles may be seen as a code of conduct in each of their fields. 4 A number of them have become today part of customary international law. This treaty-making activity clearly indicates that the international community is reacting timely to the challenge of laying down new law to govern the new activities. At the same time it is showing a sense of responsibility whereby law should constantly keep pace with technological progress. This, in turn, calls for a delicate balance between the traditional principles which serve as common denominators to all these questions and are more likely to survive and the development of new, more specific lex specialis. In this task it appears sensible not to faIl in the trap of laying down too detailed regulations which are often overridden by technology and ineffective in practice. Per contra, we should move carefully up the scale towards more stringent regulations. This is, in fact, the way space law has evolved since the initial stages. Four successive space treaties stemmed from the 1967 Treaty on General Principles when the need to regulate specific matters and give a more precise legal meaning to the principles enshrined in 1967 was made evident. Actually, this trend may be identified from the days of the UNISPACE I Conference in 1968 and, later, in UNISPACE II in 1982. On both occasions it was easily perceived that international cooperation did not simply mean an aspiration or expression of ideals but, rather, a genuine will to cooperate in good faith leading to a "general obligation to cooperate" as was later embodied in the 1989 Ottawa Declaration of Principles on the Protection of the Atmospheres and in the 1994 ILA International Instrument on Space Debris. This obligation to cooperate is now interpreted by a great part of the doctrine as a "conditio sine qua non" for the legitimacy of any activity carried out in outer space. 6 3

4

5 6

The full names of these treaties are: 1967 Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space; 1972 Convention on International Liability for Damage caused by Space Objects; 1975 Convention on Registration of Objects launched into Outer Space and 1979 Agreement governing the Activities of States on the Moon and other Celestial Bodies. The full names of these Principles are: 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (UNGA Res. 37/422); 1986 Principles relating to Remote Sensing of the Earth from Outer Space (UNGA Res. 41/65) and 1992 Principles relevant to the use of Nuclear Power Sources in Outer Space (UNGA Res. 47/68). 1989 Ottawa Declaration of Experts on the Protection of the Atmosphere (Principle 11). The Argentine doctrine on the mandatory nature of international cooperation - seen as a

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Important contributions to the development of the law of outer space and, particularly, on the question of space debris, were made by the two European Conferences organised by the European Space Agency (ESA) in Darmstadt in 1993 and 1997. A characteristic trend of these regional Conferences, also reflected in the meetings celebrated by the Institute of Air and Space Law of Cologne University, the International Institute of Space Law, the Iberoamerican Institute of Air Law and Space Law, the International Law Association through its Space Law Committee and other relevant institutions, is the interdisciplinary approach to the different aspects related to space activities. This working method was strongly advocated by lord Wilberforce in many of the ILA Conferences over which he presided. We are strongly reminded of his words in Manila in 1978 If we are to work in a new international economic order, we need development lawyers lawyers who can do more than work out formulas, lawyers who can work with people of other disciplines - agriculturists, engineers, technicians ....7

This trend is almost routine now in the field of space activities and their legal regulation. Lawyers became increasingly aware that interdisciplinary working methods were a sign of the tines and that the voice of "agriculturists, engineers, technicians ... " and other experts in the various fields was essential in order to produce realistic results. We, lawyers and scientists, no longer speak different languages, but cooperate together in an effort to provide feasible solutions. By way of example, the ILA Space Law Committee is assisted in its work by three scientific experts on the subject, i.e. Professor Rex (present chairman of the Scientific and Technical Subcommittee of the United Nations Outer Space Committee - COPUOS), Professor Perek (Academy of Sciences of Prague) and Prof. Engineer Ricciardi (former board member of the National Committee on Space Activities - Argentina). Given the firm trend towards commercial activities in space, Prof. Petersmann, a specialist of note in international trade law, has now joined the above-mentioned team of consultants. De lege ferenda, one cannot fail to recall the two draft international instruments adopted by the ILA in this field. The first, adopted at the 61 st Conference of the Association (Paris 1984), addressed the question of dispute settlement concerning space activities. This text was revised recently by the ILA Space Law Committee and, with slight changes and adjustments, adopted as a Revised Convention on the Settlement of Disputes related to Space Activities, at the 68th ILA Conference (Taipei 1998). The second international instrument drafted by the Space Law Committee concerned the outstanding issue of space debris. The

7

necessary requirement for conducting activities in outer space - was outlined in 1972 at a Seminar on the Teaching of International Law as Applied to Outer Space and Space Communications (UnescoiNational Commission on Space Research). It gradually gained support from the publicists of different countries. Report on the 57th Conference of the International Law Association, Manila 1978, p.512.

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final text was adopted at the 66th ILA Conference (Buenos Aires 1994) under the name International Instrument on the Protection of the Environment from Damage caused by Space Debris. Both these instruments have been introduced and explained in detail by the chairman of the ILA Space Law Committee, K.H. Bockstiegel, at the ensuing Plenary Meetings of the COPUOS in Vienna which are held annually in the month of June. III INTERNATIONAL LAW ON THE AGENDA OF UNISPACE III Attention will now be focused on some of the main legal issues discussed in the course of the UNISPACE III Conference held in Vienna in July 1999. Together with the governmental Conference, a Technical Forum was organised which brought together experts in the different fields of space activities and their implications. A full week was devoted to space law questions under the title "Workshop on Space Law in the 21st Century" comprising eight working sessions. This Workshop, organised by the International Institute of Space Law under the presidency of Nandasiri Jasentuliyana, with Stephen Doyle as programme coordinator, played a major role. The result was a Final Report with recommendations drawn from the different working sessions which were submitted to the Conference. Topics were as follows: Existing United Nations Treaties: strength and needs Expanding Global Launch Services Expanding Global Communications Services Expanding Global Remote Sensing Services The Roles of International Organisations in Privatisation and Commercial Uses of Outer Space Expanding Global Navigation Services Possible international regulatory framework, including legal conflict resolution in expanding space commercialisation Maintaining the Space Environment In light of the above list, the leitmotiv of the UNISPACE III Conference is not hard to recognise. There is an unquestionable emphasis on the commercial aspects of space activities, on dispute settlement mechanisms and on the protection of the space environment. An essential pre-requisite was the need to establish whether the outer space treaties in force were realistic today or should be adapted to the present international context. The foregoing reflections should be read within the new scenario. Indeed, no longer do we speak of two super space powers exploring and using outer space. Medium and small space powers have created a unity of action which allows them, collectively, a position in outer space activities which individually would

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go beyond their reach. The actors, therefore, have increased dramatically. In addition, the world is no longer divided into two opposed political blocs. This fact should ease the way towards more effective dispute settlement mechanisms. At the same time, the involvement of private entities in space activities is growing by leaps and bounds and, as observed at the outset, the possibility of conflict is infinitely higher today. In disputes between private enterprises the existing mechanisms and institutions for dispute resolution presently provided by international law - particularly concerning international commercial arbitration - appear suitable, with perhaps minor adjustments, for application, mutatis mutandi, in this field. s However, in disputes between private bodies and sovereign States or, generally speaking, other subjects of public international law, the question is not so simple: the issue of sovereignty is still today a stumbling block in spite of the different moves towards a more restricted interpretation of that concept. IV THE CHALLENGES AHEAD

1

How far does State sovereignty extend in space?

In spite of having, so far, no agreement on the delimitation and demarcation of outer space, which means nothing less than establishing the height as from where state sovereignty ends and the regime of freedom of exploration and use begins, the UNISPACE III Workshop on Space Law moved vigourously ahead in the discus~ion of the various topics with pragmatism and intelligence. As remarked before, the commercialisation of space activities, the consideration of dispute settlement procedures and the protection of the environment were the recurring notes throughout the eight working sessions of the Workshop. Before embarking on a few thoughts on these matters, some reflections will be made on the need to update the Outer Space Treaties in force.

2

Outer Space Treaties revised

As already indicated, the 1967 Space Treaty - currently referred to as the "Treaty on General Principles" - saw the development of those principles within four subsequent international agreements. Hence the reason to consider it the "Magna Carta of Space". Consequently, its provisions may be further developed as needed - by means of separate binding instruments, or UNGA Resolutions but the Treaty itself, its essence, its scope and its wording should, in the present writer's view, remain unchanged.

8

Report of the 67th Conference of the ILA, Helsinki 1996 (Report of the Space Law Committee, by the present author).

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Article V of the 1967 Space Treaty on General Principles gave way, one year later, to the adoption of the Astronauts Agreement, and articles VI and VII of the 1967 Treaty - concerned with international responsibility and liability were further developed in the context of the 1972 Liability Convention. Article VIII dealing with registration - which, in Bin Cheng's view should be amended with a possible introduction of the concept of nationality for spacecrafe - was expanded and given a more precise legal meaning in the 1975 Registration Convention. Article II and related provisions of the 1967 Treaty resulted in the 1979 Moon Agreement where article 11 provided, in no uncertain terms, that the moon and its resources were the common heritage of mankind and that, when feasible, an international regime for the management of those resources ought to be devised. \0 Article IX of the 1967 Treaty addressing contamination is today not enough to cover the threats and risks arising from space debris. Indeed a new treaty is imperative on this topic and, to this end, reference is made to the ILA International Instrument on Space Debris adopted in 1994 in Buenos Aires. The activities of private enterprises in outer space which, in many respects, come under article VI of the 1967 Treaty, will be the object of a separate treatment within this article, under another subtitle. Let us now have a look - in chronological order - at the United Nations Space Treaties that followed the so-called Magna Carta of Space. In doing so we shall have in mind the two basic requirements - which, in the well-known view of Bin Cheng - should exist for possible amendments, that is to say, the will of the powers stemming from a perceived need for change, and the existence of a propitious political moment. Both requirements are, no doubt, closely intertwined. a

The 1968 Astronauts Agreement

At the present time, it is reasonable to say that there are no reasons of weight for the amendment of the Astronauts Agreement, which is rightly described as a "humanitarian" treaty laying down unilateral obligations for those who have the technology to track, identify, rescue and return to the launching authority astronauts and objects launched into outer space. There is, possibly, a contradiction between article VIII of the 1967 Space Treaty laying down the duty to return to the "state of registry" and article 5 (3) of the Astronauts Agreement speaking of 9

See Bin Cheng's answers and comments to the Second Preliminary Report of the ILA Space Law Committee for the 2000 London Conference, p.: of manuscript. 10 It remains to be seen whether the Moon Agreement - which goes a long way in the progressive development of international law - will ever get a warmer support from the international community. Since only five ratifications were needed its entry into force raised no difficulty. Perhaps some course of action similar to the one taken regarding Part XI of the 1982 Law of the Sea Convention (reviewed in New York in the mid-nineties) would be advisable having in mind that states are normally cautious to undertake commitments when they cannot foresee what those commitments will turn out to be in a few years' time.

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the "launching authority" instead. I believe, however, that further state practice is necessary in the field before considering any changes. b

The 1972 Liability Convention

The same thinking, however, is not applicable to the Liability Convention. This was the present writer's view during the recent analysis carried out in the context of the ILA Space Law Committee, which will be developed further in the following paragraphs. In this regard two controversial aspects will be addressed, i.e. dispute settlement and the applicable law. i

Dispute settlement

It is contended that the dispute settlement mechanisms should be made more ef-

fective. As they now stand, failing the diplomatic channels, any of the parties to a dispute on the interpretation or application of the Convention may request the setting up of the Claims Commission envisaged in article XIV. The awards stemming from the Commission shall be final and binding provided the parties have so agreed; otherwise, the Claims Commission shall render a final and recommendatory award which the parties shall consider in good faith (article XIX, 2nd paragraph). At the time of its adoption in 1972 - in the midst of the cold war - the Convention was considered an important step forward in the development of the internationallaw of outer space. Yet, in today's world, circumstances are different and the political moment seems more propitious for advancing. The weakness of the Liability Convention lies, doubtless, in the recommendatory nature of the Claim Commission's awards, if not in 1972, certainly so today. The world is no longer split in two antagonistic political blocs where the mere thought of suggesting compulsory procedures was doomed to rejection. Briefly, the Liability Convention has converted what should be an exception into a rule. In dispute settlement procedures decisions should be binding unless the parties have agreed beforehand to the contrary. The drafting history of this article clearly shows that a number of delegations to the Legal Subcommittee of COPUOS favoured binding decisions as a general rule. International law, and the principles of justice and equity, called for this solution. Yet, the harsh facts of politics made it impossible. In the world of today, however, where space activities are growing in dramatic proportions -particularly in the commercial field - and where the possibility of conflict is infinitely greater, we no longer can afford the weakness of this system. The international community already provides encouraging examples which may be followed in this area. The protection of the ozone layer provides a glaring illustration. II On this problem, states and international organisations aware of the risks implied by a delay in the adoption of international measures to 11

See Chapter VIII on the Ozone Layer of the book cited in note 2.

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protect that natural resource - restricted their sovereign rights on the production and use of halocarbons in a way that would have seemed unthinkable a few years back, when anachronic ideas of absolute sovereignty still influenced the flow of international relations. The international community -including the major producers of CFCs, HCFCs and related products-, have even advanced the dates originally set forth for the elimination of certain chemical products based on chlorine and bromine, thus setting a true example of inter-generation responsibility. It is hard to accept today, in the present international scenario, that disputes on the interpretation and application of the major Space Treaties should be subjected to recommendatory awards, even if we take for granted the good faith of all the parties involved. 12 This really amounts to a retreat in the development of international law. Bin Cheng, in his recent book entitled STUDIES IN INTERNATIONAL SPACE LA W 13 gives deep thought to the matter believing that, even though from the standpoint of purely legal technique the claims settlement procedure in the Liability Convention is far from being the most effective, it is important enough that this machinery should exist at all. It all depends, in the view of this learned professor, on the principle of good faith being observed. Yet, this does not seem sufficient. The issue of compulsory jurisdiction appears less sensitive today, in a world no longer divided in two confronted political units. The days when the Soviet delegates would consistently refuse to consider any proposal of advancing in this field - I am strongly reminded, on this point, of the discussions at the 19689 Vienna Convention on the Law of Treaties - have been undoubtedly left behind. Indeed, as our highly respected professor points out, the time of the drafting ofthe Liability Convention was extremely difficult in political terms. The adoption of the text, after eight years of patient drafting within the Legal Subcommittee of COPUOS, was a noteworthy effort in the progressive development of the international law of outer space. Furthermore, a slight but important step forward was given in connection with the recognition of the legal personality of international organisations involved in space activities, especially having in mind the adamant position of the Soviet Union on this matter at the moment. Just as realistic is Bin Cheng's observation in the sense that it would have been of no use to get the USSR or, for the sake of the example, any other space power, to sign -and even ratify - a convention providing for compulsory mechanisms and later reject it if it did not go along with its interests. In other words, it was preferable then for all the space powers to join the convention even if it meant a setback in the quest for more effective dispute settlement mechanisms. 12 First Preliminary Report to the 2000 London Conference by the Rapporteur of the ILA Space Law Committee (pp-l0-l2 of manuscript). 13 Bin Cheng, STUDIES IN INTERNATIONAL SPACE LAW, Clarendon Press Oxford, 1997, at p. 355-6.

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This was in fact the case with the Inmarsat Agreements adopted in 1976 where unlike Intelsat- compulsory arbitration was adopted on a very restricted scale and only for disputes between private entities. Yet, this apparent retreat in dispute settlement procedures in Inmarsat allowed for global integration: all the sea powers of the world were able to join in a maritime system for satellite communications. Today, however, we live in an entirely different political context. The almost perfect Convention adopted in 1972 included all the space powers and was certainly preferable to a perfect treaty which, in practice, would have been ineffective. This is precisely what happened with the ambitious supranational dispute settlement system devised in the Andean Pact for part of Latin America: it was theoretically impeccable but never managed to get off the ground. As far as that almost perfect 1972 Liability Convention is concerned, it may be fair to say that the procedure envisaged for dispute settlement has, so far, hardly been made use of, in spite of the non-binding nature of awards. The Claims Commission, thus, had no work to do and was only made reference to to the best of the present writer's knowledge - on the occasion of the Cosmos 954 incident - a Soviet satellite which fell on Canadian territory, issue which was settled through direct negotiations between these two countries. It is true that article XIX of the Liability Convention contains an optional clause for accepting binding awards. Is this enough today? Some mid-way solutions have been advanced on this question which might be of help. For example, the proposal of Austria to the Legal Subcommittee of COPUOS which will be examined in the following lines. On this point it is opportune to recall that, on the occasion of the 41 st session of the COPUOS in June 1998 in Vienna, the Chairman of the ILA Space Law Committee, K.H. B6ckstiegel, made a number of specific comments on the lack of binding procedures in the Liability Convention. In doing so the speaker found support in the position of Austria voiced a few months earlier at the Legal Subcommittee of COPUOS. Briefly, this proposal consisted in the following. Until the moment comes for having more generally accepted binding procedures for dispute settlement related to space activities -a field to which, it should be recalled once again, the ILA has contributed with its Revised Text of a Convention, adopted at its 68th Conference- states should be encouraged to avail themselves of the third paragraph of UNGA Resolution 2777 (XXVI). This paragraph consists of a kind of optional clause whereby states may issue a declaration of acceptance of the Claims Commission decisions as binding, on a basis of reciprocity. This course of action would, no doubt, ease the way towards more effective dispute settlement procedures. As observed by B6ckstiegel in the abovementioned meeting, both the European Space Agency and the ILA would support the idea. 14 Among its advantages, it would avoid the amendment of the Li14 See op.cit. in note 12, p. 11 of manuscript.

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ability Convention right away as well as the need to draft a separate instrument. Moreover, it would go a long way in strengthening international cooperation and helping create a climate of confidence which is so important for international relations to develop. The idea should definitely be supported. Yet, one cannot escape the fact that, should the Claims Commission become active as a result of the growth of space activities, it would be far more difficult to reverse the principle embodied in article XIX at a later stage. Hence, the moment is now exceptional to move ahead and state that provision in reverse so that awards are made binding as a rule. Kopal, present chairman of the Legal Subcommittee of COPUOS, commented on this point in one of the ILA's preliminary reports for the 69th Conference in 2000. 15 This scholar does not think that the rule contained in paragraph 2 of article XIX can, as suggested above, be stated in reverse (i.e., that awards should be binding unless otherwise declared in anticipation by the parties) because, in accordance with general international law, there is a free choice of means and the consent of states is always necessary for binding methods. Fair enough. Such is in fact the reading of article 2 (3) of the United Nations Charter drafted over half a century ago. However, it is precisely on these bases that States may restrict their sovereignty and agree beforehand to binding methods for dispute settlement within the context of the Liability Convention. To this end article VI (on binding procedures) of the 1998 ILA Convention on the Settlement of Disputes related to Space Activities, and the Dispute Settlement Clause thereby recommended as a model, provide a useful example if and when the decision to revise the Liability Convention is taken on the basis of the review clause contained in article XXVI. In conclusion, the abov~-described option suggested by Austria should be encouraged as an intermediate solution towards more effective dispute settlement procedures. This would avoid the amendment of this section of the Liability Convention in the immediate future. Nevertheless, the ultimate objective, namely the adjustment of article XIX to make it more consistent with our times, should not be overlooked. ii The applicable law In the second place, the Liability Convention has been criticised for its article XII on applicable law which reads The compensation which the launching state shall be liable to pay under the Convention shall be determined in accordance with international law and the principles of justice and equity in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, state or international organisation on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.

15

See op.cit. in note 9, p. 10 of manuscript.

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This article was the result of a compromise within the Legal Subcommittee of COPUOS. Moulded on the basis of epic encounters among the delegations, it was adopted with great difficulty. For reasons of interpretation, it should be read together with paragraph four of the Preamble to the Liability Convention which declares Recognising the trend to elaborate effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage.

For a better understanding of this issue let us take a quick look at the drafting history of Article XII. It is based on what used to be a joint proposal made by Belgium, Brazil and Hungary,16 later endorsed by the Argentine delegationheaded by its Permanent Representative, Ambassador Cocca - on the grounds that it allowed to assess every element of the legal issue in question, which included written and unwritten law, case law, common sense and the social laws protecting the victim in hislher own environment. In accordance with the abovementioned proposal, the victim was to be restored to a condition "equivalent" to the one that existed before the damage was caused. In the text finally adopted the term "equivalent" was deleted, a move which was seen with favour by most of the delegations to the Legal Subcommittee ofCOPUOS. On the whole, Article XII of the Liability Convention should be considered as one of its greatest merits in that, under extremely difficult circumstances, it succeeded in imposing an obligation to restore the victim to the "status quo ante". In other words, a "restitutio in integrum" criterion was adopted. In spite of this, the article in question has been a target for acid criticism within governmental circles and outside. For example, the reference to international law has been objected to on the grounds that it was too general and that the principles of justice and equity were rather vague and abstract to provide a proper basis for establishing compensation. 17 Within the Legal Subcommittee of COPUOS the pressure to include a mention of the place where the damage had been caused was persistent but unsuccessful. The nitty-gritty of this question was the fear of many delegations that their own nationals, if injured, would receive token compensations hinging on the way the principle of reciprocity was interpreted. There seems to be a great deal of confusion and doubt concerning the application of public international law and not a few delegates to the COPUOS were trapped in a maze of theoretical discussion concerning rules of conflict of laws. Yet, as far as article XII of the Liability Convention is concerned, conflict of laws is by no means the issue. 16 UN Doc. AlAC.l05IC.2/L.79, 21 June 1971. 17 See, inter alia, Stephen Gorove, "Dispute Settlement in the Liability Convention, in the book SETTLEMENT OF SPACE LAW DISPUTES (B5ckstiegel ed.), Carl Heymanns Verlag 1980.

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It is further believed that the reference to "international law" in article XII of the Liability Convention is not all that abstract. It encompasses both conventional and customary international law, as well as the general principles of law, as listed in article 38 of the Statute of the International Court of Justice. In the absence of precise rules within the first two sources it seems reasonable to look for answers in the third, under which the principles of justice and equity would be included. It is important to recall, in this respect, that whenever international tribunals were called upon to decide in accordance with "international law" the task raised no great difficulties. Similarly, the principles of justice and equity are not really as vague as they are sometimes made out to be. If we turn the pages of history back to 1922, when the Permanent Court of Arbitration was called to decide on the case of the Norwegian Shipowners, it did so on the basis of "principles of justice and equity" which were described as "general principles of justice". Interesting, for its implications, is the fact that the court recognised the objective existence of those principles and at the same time considered them independent from the national legal systems and common to all civilised nations. Indeed, some authors consider that in this case the PCA has used the terms "law", "justice" and "equity" as synonyms. IS Let us now return to the present time. It is generally contended that the definition of "equity" is a source of confusion because, being a subjective concept, it lends itself to a multiplicity of meanings. The idea of equity in the mind of a judge in Luxembourg or Strasbourg, for example, may differ substantially from that of his colleague in Latin America or Africa. And this, today, is a fact, in spite of globalisation. .. A number of cases recently decided in the field of the law of the sea illustrate the way in which international law and the principles of justice and equity are being interpreted and applied by international courts and tribunals. Ifwe take a look at the last thirty years, a period which is more or less coincidental with the initial phases of the exploration and use of outer space, this may help us evaluate whether changes to article XII are really justified. In the North Sea Continental Shelf case (1969) involving Germany, the Netherlands and Denmark, the ICJ established that delimitation should be made by agreement between the parties, in accordance with "equitable principles" and on the basis of an underlying obligation to "negotiate in good faith".19 In the Fisheries case between the UK and Iceland the striking feature was the introduction of the concept of "objective equity" by the Court. This construction was considered preferable to the application of other -somewhat elusive - principles. The new concept was to be resorted to by the parties to the dispute in any future negotiation. 20 18 Bin Cheng, "]ustice and Equity in International Law", Current Legal Problems, London 1955, at p. 285. 19 IC] Reports 1969. 20 IC] Reports 1974.

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Of special interest, and because of the influence this case may have in the field of space activities, is the reasoning of the arbitral tribunal set up to deal with the delimitation of the Channel Islands between the UK and France.2 ! The case was decided in 1977 and the tribunal was instructed to give its award in accordance with international law. On these grounds France maintained that the applicable law was customary international law whilst the UK contended that article 6 of the Geneva Convention on the Continental Shelf should be applied. Additionally, "estoppel" was invoked by the UK on the basis of France's ensuing behaviour. The tribunal looked for an "equitable" result which should be acceptable to the parties involved even though this procedure could not be seen objectively speaking - as an equitable solution to the dispute. The tribunal held that the role of equity was to "redress inequities", which was a practical way to solve a dispute prolonging in time. In the following years the IC] became frequently involved with the interpretation of the concept of equity. Mention may be made, inter alia, of the Libya-Tunisia22 and the Gulf of Maine cases. 23 In the Guinea-Guinea/Bissau arbitration24 the tribunal was instructed to give its award in accordance with "the rules of international law". This proved a relatively simple task which consisted in identifying "equitable and objective principles" meaning that each state should control, to the best of its possibilities, the maritime areas opposite to its coastlines and in their vicinity. These decisions are illustrative of the dimensions up to which international courts and tribunals are interpreting and applying international law and the principles of justice and equity over the last three decades. In addition to being a precedent of weight given the depth in which they have been examined by judges and arbitrators, the latest decisions in the field of delimitation of maritime areas are, at the same time, clearly indicative of the trend towards pragmatic solutions which is likely to be followed in the field of space activities. In conclusion, article XII of the Liability Convention dealing with the applicable law should be kept in its present reading which raises no issues of conflict of laws. Thus, the compensation to be paid to the victim of the damage, or heirs, will be determined in accordance with public international law and the principles of justice and equity. This formula looks entirely satisfactory in the world oftoday25 to ensure the prompt payment of a full and equitable measure of compensation to the victims of the damage, as worded in the Preamble to the Liability Convention.

21 22 23 24 25

International Legal Materials 397 (1979). ICJ Reports 1982. ICJ Reports 1984. XXV International Legal Materials 251 (1986), Op.cit. in note 13, p. 336.

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The 1975 Registration Convention

This question was equally examined by the ILA Space Law Committee during 1998-99 and at the 1999 UNISPACE III Vienna Workshop. An overall conclusion would be that the points of law involved in the Registration Convention are less polemic than those in the Liability Convention. For example, Kopal identifies as an outstanding question the clarification of the formula "a state which launches or procures the launching" (article I). As Bin Cheng phrases it, where would the link be between the state and the private entity involved? Would it be nationality, domicile, residence, place of incorporation, place of business? Or otherwise?26 The advisability of clarifying Article II (2) of the Convention regarding the situation of two or more launching states in respect of a single space object has been advocated by part of the doctrine. This article leaves to those "two or more launching states" the determination of who will register the object in the register it maintains. As Bin Cheng observes, the present reading raises the possibility of flags of convenience.27 To sum up, the extreme flexibility of the provisions of this Convention still appear a matter of concern to both lawyers and scientists. This was clearly seen in Perek's presentation at the UNISPACE III Workshop, in his capacity as author of the discussion paper "Maintaining the space environment". In conclusion, the most urgent steps to be taken for updating this Convention would be the unification of national registries maintained by the launching states and some kind of agreement on a supplement to article IV where many more details concerning the space object should be requested. This, as well as the clarifications on article I mentioned earlier and the need to give more precision to the position of international organisations engaged in space activities, could be carried out by means of an additional protocol to the Convention or through an UNGA Resolution. d

The 1979 Moon Agreement

De lege ferenda, a string of possible changes come to mind in connection with the Moon Agreement in order to make it more attractive to the international community. The very few ratifications which materialised in the last twenty years would however indicate that the international community is not, on the whole, quite prepared for an agreement ofthe kind. The implications of the concept of "common heritage of mankind", as also its interpretation and application to the moon and its resources, divides the international lawyers with no clear criteria in sight. The international regime contemplated for the management of those resources is even more controversial as well as reminiscent of the prob-

26 Op.cit. in note 9, p. 11 of manuscript. 27 Op.cit. in note 13, chapters 23 and 24.

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lems raised by Part XI of the 1982 Law of the Sea Convention, originally drafted along similar lines. In conclusion, a number of adjustments will have to be made, at some future stage, on the basis of the review clause which the Moon Agreement incorporates in article 18. However so, it seems premature at the moment to get involved in the amendment of this Agreement. 3

Environmental problems - Space debris

On this topic we do no more than insist on the reference to the ILA Instrument on Space Debris adopted in Buenos Aires in 1994 after six years of profound analysis and discussion carried out from a variety of angles. This Instrument is kept under permanent review by the ILA Space Law Committee and has already been introduced to the COPUOS by chairman Bockstiegel, as observed earlier. Therefore, only a comment on the treatment of this question at the UNISPACE III Workshop on Space Law will be herewith included. Under the heading "Maintaining the Space Environment" Session 8 of the Workshop was organised under the chairmanship of Ambassador Qizhi He (China) with the present writer acting as rapporteur and commentator of the Session. The discussion focused on two basic sources, a discussion paper prepared by Perek in accordance with the title of the Session, and the explanation of the ILA Instrument on Space Debris made by Bockstiegel and the present writer. The discussion paper underlined the need for the space environment to be "kept fit" and gave its full support to the work carried out in this field by COPUOS - particularly its Scientific and Technical Subcommittee where debates on space debris went a long way in clarifying the many intricacies involved - and within other governmental and private entities. Given the background of its author, the discussion paper supported the encouragement of technical solutions to prevent, reduce and even remove, space debris. Perek, as one of the ILA Space Law Committee's Technical Consultants, pursued the trend shown in his most recent writings where, in a sharp interdisciplinary approach, he provided the lawyers with updated information on the amount of space debris (95% of all the objects presently in outer space). The attention of the assembly was drawn to the threat to active satellites resulting from this situation. The discussion paper was enhanced by the author's impromptu remarks calling for joint action in the adoption of a set of principles or code of behaviour -possibly along the lines of the ILA International Instrument- to provide a legal framework for maintaining the space environment. The time was considered appropriate for steps in this direction. Such the underlying conclusion of the Session. The Session commentators (Bockstiegel, Lafferranderie and the present writer) centered their comments on the growing problems originating from space debris in view of the rapid development of commercial activities in space. The risks to the space environment arising from constellation satellites was a matter

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of concern common to all three commentators as well as the vagueness of the rules of international law which may be applicable to the protection of the space environment today. The general feeling of the meeting was that the topic of space debris and its legal aspects should be included on the agenda of the Legal Subcommittee of COPUOS without further delay .. This may be summarised in the statement "we cannot afford to wait when the welfare of mankind is at stake". The recommendation of the Workshop on Space Law to the UNISPACE III Conference (Doc. A/CONF . 184/C. IlL. 12) was that due consideration should be given to the protection of the environment where private entities are currently not held directly accountable. With this in mind, the establishment of launch standards and environmental impact assessments was proposed. V

COMMERCIAL ACTIVITIES IN OUTER SPACE

This extremely topical subject calls for a separate heading. The nineties have witnessed its growing impetus which prompted public and private institutions of regional and global scope to list it on their agendas. Recently, it was the object of special attention during most of the eight sessions of the 1999 Space Law Workshop within the framework of UNISPACE III where, as observed at the outset, it became one of the recurring notes of the meeting. A frequent example of the exploitation of outer space is provided by the use of the geostationary orbit for communication satellites which will possibly be followed, before too long, by the exploitation of the low earth orbits. Hence, responsibilities and liabilities will be growing in an unprecedented scale. And even though international law provides a number of rules and general principles - many of them enshrined in the major space treaties - which may be applied to private activities in space, they will possibly be insufficient to cope with the challenge of the new scenario. It is nowadays common knowledge that, if a problem can be measured, the path to solutions becomes considerably eased. Let us therefore take a look at some of the major legal issues involved in the commercial aspects of space activities and explore whether changes in the law are realistic and if existing gaps in the law are insurmountable. First, it is important to determine to what extent the provisions in the 1967 Space Treaty and the 1972 Liability Convention suffice to deal with the question. Article VI ofthe 1967 Treaty28 appears, at first sight, to cover a number of 28 Article VI of the 1967 Space Treaty provides: "States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried out by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of nongovernmental entities in outer space, including the moon and other celestial bodies, shall

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possibilities relating to private activities in space, and their consequences. This article reflects, today, customary international law, when imposing direct state responsibility for national activities, whether carried out by governmental agencies or non-governmental entities. The principle may be summarised as "freedom of action of private enterprises in outer space under the responsibility of the state concerned". Yet, on second thoughts, it is not all that simple. As Bin Cheng points OUf9 this article includes not only acts which, if committed by states, would be breaches of public international law, including relevant treaties, but arguably also breaches of domestic law, both civil and even criminal. There is, in addition, an ensuing duty of control and supervision of the state over all private activities in space which, as observed by lasentuliyana30 also includes state authorisation for performing the activities in question. This issue is, in turn, tied up with the problem of delimitation of outer space and the very entangled aspects relating to nationality of spacecraft and jurisdiction. Moreover, there are a number of definitions pending among which that of "space object" - which appears neither in the 1967 Treaty nor in the Liability Convention - stands out. This is a difficult hurdle to overcome for a clear development of international law and the commercialisation of space activities. Turning to the provisions of the Liability Convention which may be applied to private activities in space, it is interesting to note the suggestions on article XI 31 put forward by lasentuliyana, specifically mentioning and anticipating the possibility of the use of other remedies to recover compensation for damage caused by space objects. This specialist considers that with the growth in commercial space activities and the role of non-state actors, the pursuit of claims through these alternative remedies provided by the Convention will become more likely than attempting to find solutions through diplomatic channels. Furthermore, these alternative fora could well avail themselves of the provision of require authorisation and continuing supervision by the appropriate State Party to the Treaty. When activities are carried out in outer space, including the moon and other celestial bodies, by an international organisation, responsibility for compliance with this Treaty shall be borne both by the international organisation and by the State Parties to the Treaty participating in such organisation". 29 Bin Cheng, "Article VI of the 1967 Space Treaty Revisited: 'International Responsibility', 'National Activities' and 'The Appropriate State' ", 26 (1) Journal of Space Law (1998), pp.7-31. 30 Jasentuliyana's comments to op.cit. in note 12. 31 Article XI of the Liability Convention provides: "1. Presentation of a claim to a launching State for compensation for damage under this Convention shall not require the prior exhaustion of any local remedies which may be available to a claimant State or to natural or juridical persons it represents. 2. Nothing in this Convention shall prevent a State, or natural or juridical person it might represent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State. A State shall not, however, be entitled to present a claim under this Convention in respect of the same damage for which a claim is being pursued in the courts or administrative tribunals or agencies of a launching State or under another international agreement which is binding on the State concerned".

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this Convention as well as of any recommendatory award from the Claims Commission, by analogy, as guidance for their own decisions. In both cases the relevance of article XI of the Liability Convention should be recognised. To the foregoing suggestions may we add that article 10 of the 1998 ILA Convention on Settlement of Disputes related to Space Activities - should it become effective - clears up the way when providing, in its second paragraph that The dispute settlement procedures specified in this Convention shall be open to entities other than states and international intergovernmental organisations, unless the matter is submitted to the International Court of Justice in accordance with article 6.

It may be recalled that, when the question was discussed at the 67th ILA Conference (Helsinki 1996) the general conclusion of the Space Law Committee was that disputes between private enterprises concerning the exploration and use of outer space were already adequately covered by the rules and institutions relating to international commercial arbitration. This conclusion was endorsed by the Iberoamerican Institute of Air and Space Law and Commercial Aviation, at its XXIX Conference held in Panama in October 1999. Within the scope of the United Nations, the UNISPACE III Preparatory Conference for Latin America and the Caribbean was organised in Concepcion, Republic of Chile, in October 1998. On this occasion the views of the delegates of the countries of the region, after reporting on their experiences in this field, coincided on the importance of the role of private entities in programmes using space technologies. 32 Under the heading "Possible International Regulatory Frameworks, including Legal Conflict Resolution in Expanding Space Commercialisation" the Technical Forum (Workshop on Space Law of the 1999 UNISPACE III Conference) made a number of recommendations, where the ILA Revised Convention on the Settlement of Disputes related to Space Activities was a matter of frequent reference. It was noted that space activities were increasingly being affected by the expanding body of international economic law where it was important to have effective dispute settlement mechanisms which should take into account the existing arbitration rules used in international practice for dispute settlement. 33 This idea is very close to the ILA conclusion reached in 1996 at the Helsinki Conference. The commercialisation of space activities is opening a new field for the practitioner. As B6ckstiegel remarked at the 7th Practitioners' Forum organised on 6 November 1998 by the European Centre for Space Law at the ESA Headquarters in Paris, the current developments of commercialisation and privatisation of space activities have led to the fact that space law practitioners are in32 Presentation made by the Republic of Bolivia to the Regional UNISPACE III PREP Conference, Concepcion, Republic of Chile, 12-16 October 1998, entitled "Participacion de la Empresa Privada en Proyectos que Usen Tecnologias Espaciales", by J. Eduardo Delgado C. 33 AlCONF.184/C.l!L.2.

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creasingly concerned with other, business related, fields of law. The Institute of Air and Space Law of Cologne University, together with the German Aerospace Centre (DLR), are presently involved in these questions on the basis of a research project dealing with the Legal Framework of the Commercial Use of Outer Space, entitled "Project 2001" and where a high number of experts from all over the world are taking part. An international conference on the subject is programmed for the year 2001 in Cologne. The International Institute of Space Law, for its part, has included this subject on its agenda for over twenty years. The role it played in organising the Workshop on Space Law for the Twenty First Century, which was the nucleus of the Technical Forum reporting to UNISPACE III, has already been referred to. The topic presently appears on the agenda of the ILA Space Law Committee where the revision of the space treaties in the light of the growing commercialisation of space activities is now being analysed with a view to reporting to the ILA London Conference in July 2000. Finally a word on "space contracts", a term of relatively recent vintage. Prima facie, these contracts are not too different from the classical model. Yet, they are rapidly evolving and moving away from the traditional categories. Such is, for instance, the case of contracts governing the building of satellites, or the rendering of launching or communication services, the final objective of which is to carry out commercial activities in outer space. These possibilities -which a short time ago sounded like science fiction- are a reality today and on their way to becoming routine. As observed by Laurence Ravillon34 the drafters of these contracts, as a first step, look at the existing law but, at the same time, are required to model that law in accordance with the contingencies imposed by space activities. In other words, the law emanating from contractual practice reflects the activity it is intended to govern. This circumstance accounts for the use of flexible language in the various clauses included in space contracts and has a high impact on the regulation of risks as well. Just as in the initial stages of aviation, so in the field of space contracts technical risks are closely interwoven with the legal risks likely to be encountered in the different stages of their execution. The many issues, new trends and challenges following in the wake of UNISPACE III are no doubt immense in scope and complexity. Sound legal reasoning and critical views are therefore essential to confront the task brought about by the advancement of science and technology.35

34 Laurence Ravillon, "Droits des contrats spatiaux: quelques themes recurrents", Revue Fran9aise de Droit Aerien et Spatial 1998, N° 1, Vol. 205, at pp. 35-37. 35 The author is grateful to the University of Buenos Aires, The British Council/Antorchas and the University of Belgrano for the support given to research on these topics.

7 AUSTRIA FROM EUROPEAN STATE TO NATION STATE IN EUROPE Friedl Weiss

I

INTRODUCTION

The worldwide process of 'globalisation' and the antecedent process of European 'integration', have prompted lively scientific debate as well as nationalistic resentment and opposition. Traditional concepts are being re-examined, including the role of the nation state and the concepts of sovereignty and, more generally, of national identity. Indeed, prior to and during the process of accession to the European Community, candidate countries regularly experience some kind of collective national soul searching. Austria's accession to the European Community, for example, occasioned some looking into socio-historical mirrors. Political-legal change of identity is grafted upon a particular social context, the socioeconomic, cultural, political and even religious evolution which condition it. Starting from the basic observation that all forms of governance and the rule of law determined by them must be adapted from time to time or fail, the following sketch attempts to trace and bridge certain fault lines in Austrian recent history between the notions of 'people' (Volk), 'nation' and 'Europe'. II

THE CONCEPTS: PEOPLE, NATION, EUROPE

1

Conceptual contours

Historically charged concepts such as those of 'people' (Volk) and 'nation' which semiotically refer to very complex historical processes, elude definition. Only concepts devoid of historical 'baggage' can be clearly defined.! At first sight, the political concepts of 'people' (Volk), 'nation', and 'Europe' appear irreconcilably opposed to one another. Habitually, the former two - 'people' (Volk) and 'nation' - are seen as being based on the shared perception of some naturally evolved community, some organically grown body-politic. By contrast, the latter, the concept of 'Europe', is seen as representing a rationalistic political structure and as some kind of artificially fitted construct. Some, therefore, consider Friedrich Nietzsche, Zur Genealogie der Moral, Works in three volumes, edited by Karl Schlechta, MUnchen 1954-56, vol.2, p.820. M. Andenas (ed.), Liber Amicorum Slynn 89-99 (2000) © 2000 Kluwer Law International

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the sequence 'people' (Volk) - 'nation' - 'Europe' as signifying inexorable progress, from primitive- atavistic to civilised European forms of socio-political organisation. To others, 'Europe' represents a retrograde development, some alienating political artefact which betrays the qualities of social authenticity and exclusivity deemed inherent in the concepts of 'people' (Volk) and 'nation'. Clearly, the concepts of 'people' (Volk) and 'nation' remain controversial. They have not yet been deposited -like for instance the ptolemaic cosmology - in some receptacle for discarded ideas or ideologies. On the contrary, it would appear that these concepts still retain their almost mystical attraction, at least as some kind of spiritual resting places offering comfort at times of rapid and profound socioeconomic and political change. Not surprisingly, therefore, the 'social engineers' of the proverbial 'European home', the drafters of the 1992 Maastricht and 1997 Amsterdam Treaties, have tersely confirmed the common principle of the respect for the national identity of member states. 2

2

Philosophical and metaphorical images

Georg Christoph Lichtenberg, writing in the second half of the eighteenth century, compared people to old clothes and the state to a wardrobe. He saw rulers as men wearing those clothes, sometimes brushing them, and throwing them away when worn out. In any case, Lichtenberg considered "airing" of the 'nation' indispensable for its own enlightenment. 3 Nietzsche took the view that the concept of 'nation' as it was commonly used in Europe, resembled more a "res facta" than "res nata" and that, confusingly, it appeared even more as "res ficta et picta", decidedly something young, movable and evolving. At the same time he warned that these 'nations' would be well advised not to indulge themselves in hot-headed competition and enmity.4 He showed astute awareness of the seductive power of these notions when he wrote acerbically: even good Europeans permit themselves occasional relapses into nationalistic agitation and stirrings and inundations with atavistic patriotic sentiment. s He also warned, almost prophetically, against the slowing down through patriotic eruptions, of the unstoppable process of the approximation of the 'European man'. He observed that while states oppress mankind, consuming it like flaming torches, wreaking monumental destruction upon entire countries and towns and causing

2 3 4 5

Art.6(3) (ex-Art.F(3)), Treaty of European Union, consolidated version, OJ C 340 (1997). G.C.Lichtenberg, Aphorismen, Eine Sammlung aus Lichtenbergs Gedankenblichem, in Gruppen zeitlich geordnet, edited by E.Volkmann, Philipp Rec1am jun., Leipzig, 1944, p.179. Friedrich Nietzsche, 'Volker und Vaterlander', in 'Jenseits von Gut und Bose', Works in three volumes, edited by Karl Schlechta, Mlinchen 1954-56, vol.2, p.717. Ibid., p.706.

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barbarity and hatred among peoples, they also incite people to committing heroic deeds. 6 III PEOPLE, NAnON: PERSISTENCE AND F ASCINAnON OF CONCEPTS

How come these criminally tainted concepts have not yet been completely consigned to the history books? How is one to account for their noticeable resurgence and enduring attractiveness, only half a century after Europe's unprecedented genocide which was rooted in them? Can this be explained by the empirically irrefutable nature of socio-political concepts which spares them the fate of such scientific edifices as the Ptolemaic cosmology, which was noted, then abandoned and archived. Wittgenstein was right when he wrote in 1946 that if man never acted stupidly, clever things could never be done.? But it is also certain that he never meant to recommend persistent repetition of the same stupidities. It would be equally absurd to expect the end or abolition of history8 to provide salvation from some presumptive potential for such repetition. It can scarcely be denied that the concepts 'people' and 'nation' continue to fascinate social scientists, if only because traditional questions need to be asked again under changed circumstances. Likewise politicians are never shy to invoke them in support of particular goals. Yet if 'good governance' is to rule during its millennium through globalised 'participatory democracy', what would be the use, if any, of these concepts? 'Patriotism', Dr. Johnson observed, "is the last refuge of the scoundrel", but in reality it is, as Ambrose Bierce noted, probably the first refuge. 9 The further enlargement of the European Union will challenge its democratic members. It will show whether the construction of a common 'European home' can be completed without relapses into patriotic anxiety, protectionist sentiment or even retreat into tribal huts. IV CONCEPTUAL TENSIONS PAST AND PRESENT

1

'People' and 'Nation ': abridged cultural history

The concept 'people' is closely linked with the name of Herder who saw in it the highest and most important form of community, a source of continuity and identity amidst political fragmentation. He saw a people as 'authentic', 'historical', 'hu6 7 8 9

Friedrich Nietzsche, 'Der Griechische Staat', aus FtinfVorreden zu flinfungeschriebenen Btichern, in op.cit., supra fn.l, vo!.3, pp.280-81; Aus dem NachlaB der Achtzigerjahre, ibid., p.635. Ludwig Wittgenstein, Vermischte Bermerkungen, Bibliothek Suhrkamp, 1978, p.99. This has been attempted repeatedly and unsuccessfully already in 1525,1789,1871, Oswald Wiener, Die Verbesserung von Mitteleuropa, Rohwolt, 1972, p.xxxii. Ambrose Bierce, The Devil's Dictionary.

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man', the state by contrast as 'mechanical', 'contrived', 'imposed'. Inspired by Herder, Savigny searched for hidden connections between 'German character' and traditional laws and legal customs. But his love of his country was basically rooted in his hatred of everything French. Grimm searched in languages for mystical links shaping a sense of national identity but, like Savigny, failed. None of these pseudoscientific attempts to determine national character ever advanced beyond romantic presumptions. Generally, a distinction is made between the legally relevant concept 'Staatsnation', and that of the so called 'Kulturnation'. The former which is based on the notion of 'people' bonded by consent, self-determination, sovereignty and democracy denotes a 'people' within a state. It corresponds to the terminology of the French Revolution. By contrast, the romantic notion of 'Kulturnation' is linked to perceptions of ethnic and national identity. The latter, of course, is harmless, even useful, when employed to denote cultural particularity, but dangerously perverted when used as a means of racial or ethnic identification. The practice of marginalising and eliminating persons arbitrarily linked to certain stereotypical racial groups in the "Third Reich" and that of 'ethnic cleansing' on the Balkan of the nineties derive from such perversion. Yet it can scarcely be denied that despite their repeated extreme perversion in numerous patriotic enterprises, the notions 'people' and 'nation' still appear as virgines intactae. When stirringly appealed to by reckless political leaders, they still appear as powerful instruments capable of mobilising a people's perennially paranoid liberation struggle against 'others'. Thus, the 'entente infernal' of 'people' and 'nation' operates like magma, permanently simmering under a thin crust of political enlightenment and resisting solidification as terra firma of' civil society'.

2

'People' - 'Nation': their relations to the 'State'

In light of such exaltation about the ideas of 'people' and 'nation', the 'State' merely appears as a banal administrative instrument to secure legal-institutional, individual, societal, religious, as well as any other particular objective. Already Ranke recognised that 'people' and 'state' do not easily co-exist, as when he wrote about the tendency of nations to form states which by their very nature are more tightly organised than nations.1O Normally, states have but one purpose: to serve all their inhabitants, preventing or defusing conflict, organising civilised communal life and, under favourable conditions, benefiting from multicultural enrichment. The loyalty of its inhabitants is ideally not based upon the interests of particular groups but on the common notion of welfare, provided it gives full consideration to their welfare. Generally, the State and its administrative divisions are a matter of 'public choice' of its inhabitants: ubi bene ibi patria, not ubi patria ibi bene ! A purposeful community, but no proper 10 James J.Sheehan, The problem of the nation in German history', in Otto Biisch, James J.Sheehan (eds.), Die Rolle der Nation in der deutschen Geschichte und Gegenwart, Colloqium Verlag, Berlin 1985, p.l O.

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substitute for religion. Accordingly, up to now the European Union has remained primarily an economic union of sovereign states striving for 'economic good governance'. A pan-European 'patriotism' which might survive severe economic stress and buffeting from global market forces is not yet discernible. The question arises, therefore, how best to secure the socio-economic 'acquis communautaire' and the rule-of law and democratic practice of government in difficult times. The question is as to whether this can be done through a rather tight federal structure or through reliance on looser elements of polycentrism and subsidiarity.

V

'PEOPLE' - 'NATION' IN THE EVOLUTION OF AUSTRIAN IDENTITY

1

Linguistic equality and national autonomy in Austria's multi-ethnic state (Vielvolkerstaat)

According to a popular albeit stereotypical image, the old Austria of bygone ages was some kind of 'paradise lost', contemporary Austria, by contrast, is perceived as a small, prosperous state infected with 'permanent neutrality'. What are the merits of these contrasting images, of an old, benign Austria and a harmless, barely noticeable new Austria? Part of the traditional image of the old Austria, of its own proper identity, is undoubtedly the colourful images ofthe romanic, germanic, slavonic languages and cultural identities of all its peoples and the ability of society and government flexibly to reconcile the most alien forces. ll In former times, an Austrian patriot was typically a person open to multicultural and federal ways, someone who considered the Austro-Hungarian monarchy to constitute a historical necessity. In sharp contrast thereto and fiercely ranged against all enlightened attitudes, operated the destructive force of nationalism. The question arises as to whether history could have evolved along different lines? This appears certain, since what is sometimes called historical necessity is in reality no normative necessity but is a rather haphazard sequence of events. 12 Thus, cisleithanian Austria!3 between 1867 and 1918 was based on the principle of equality, especially for the protection of minorities, and thereby upon an indispensable building block of modern rule of law. Furthermore, owing to the jurisprudence of the 'Reichsgericht' and nfthe Administrative Court, Austria also possessed one of 11

Hermann Bahr, 'Das junge Osterreich', in Die Wiener Moderne, Literatur, Kunst und Musik zwischen 1890 und 1910, Reclam, 1981, p.293-95. 12 Robert Musil, Das hilflose Europa oder Reise vom Hundertsten ins Tausendste, R.Piper & Co,Veriag, Mtinchen, 1961, p.8. 13 Geographically, the Dual Monarchy was split into two parts separated by a muddy little stream, the Leitha, trickling south of Vienna along the border with Hungary. Everything to the east of the Leitha became known as 'Transleithania', everything to the west 'Cisleithania'. Apart from the hereditary Austrian lands, the latter included Bohemia, Moravia, Galicia, the Bukovina and part of Silesia, see Gordon Brook-Sheperd, The Austrians. A Thousand Year Odyssey, Harper Collins, 1996, p.93.

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the most developed systems of judicial protection in public law before 1918. Especially the right of action before the 'Reichsgericht' for violation of constitutionally guaranteed rights, including those of the rights of nationality and of the use of a national language was developed to an extent not found elsewhere in Europe before the First World War. 14 It was only in the last two decades in the life of the old Austria that the demands of various nationalities for greater self-determination contributed to its demise. The transformation of the right of nationalities as equal right to a national language into a right of national autonomy including the right (and duty) of determination of national identity, prompted greater autonomy of administrations, leading to increased isolation of the nationalities. At best this changed the adverse position of certain national groups into a more favourable one, thus promoting tolerance, but it failed to forge a sense of multinational community. Although the equal status of the nationalities was short-lived, it represented something of a historical achievement which was not found in any other European country at the relevant time. ls

2

One pessimistic testimony of the 19th century

Already in the sixties of the last century Austria's chances of survival were rated minimal. As a consequence of a rising emphasis upon the principle of nationality, a historian of supranational conviction deemed a confederation beyond reach. He also expressed the fear that violent struggles would be followed by even greater absolutism. He compared Austria to a drunk lurching from side to side until accidentally struck down and wrote that he was afraid of dealing with a corpse rather than the living subject ofthe history of an empire. 16 In retrospect one could say that old Austria's almost modem structure was not conquered by hostile armies, but was wantonly destroyed in a national and religious civil war. The prime reason for its eventual break-down was the intolerance of Austrians themselves, which manifested itself, inter alia, through their arrogant refusal to learn foreign languages, a language of the 'servant' peoples. Once the destructive fire of nationalism was lit, by the Germans and Hungarians, the "Herrenvolker" and main culprits of the old monarchy, it spread like bush fire also to the successor states. The outcome is well known: historical Austria disappeared from the maps and with it the ideal of a miniature pan-Europe, of a multinational, multicultural federation and the chance to tum "aliens" into fellow citizens. It suffices to recall conse-

14 Gerald Stourzh, 'Die Idee der nationalen Gleichberechtigung im Alten Osterreich', in Erhard Busek und Gerald Stourzh (eds.), Nationale Vielfalt und Gemeinsames Erbe in Mitte!europa, Verlag fUr Geschichte und Politik, Oldenbourg, 1990, pp.39, 43. 15 Ibid., p.47. 16 Cited from Brigitte Hamann, 'Anton Gindeley - ein altosterreichisches Schicksal', in E.Busek and G.Stourzh op.cit., supra fn.14, pp.27, 31.

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quences of such dreadful nationalistic thinking: genocide and unspeakable atrocities committed by so-called "Obermenschen" against so-called "Untermenschen." 3

Elements of 'Austrianness '

As has been mentioned above, the concept of nationalism in form of a peculiar Austrian nationhood first surfaced during the last years of the monarchy, and then again during the inter-war years, and particularly emphatical\y after the Second World War. The Austrian writer Grillparzer, writing in 1849, still dismissed the idea of an Austrian nation for fear of its possible unfortunate exaggeration, and taking the view that the way of modem education proceeds from humanity through nationalism to bestiality.17 At first, the adoption of the national principle had to be guarded against as it was at first thought of as something that could threaten the Habsburg Monarchy. On the other hand, Austrian nationhood was invoked defensively against hegemonial Prussia and against independence movements and centrifugal tendencies of other Austrian nationalities. 18 During the confrontation of the historical model concepts of a greater Germany comprising Germany and Austria ("groBdeutsches" Model\) and that of Germany without Austria and its non-Germanic possessions ("kleindeutsches" Modell), certain questionable and stereotypical characterisations of Austria's German identity having a European dimension emerged. Some saw in an Austrian some kind of Europeanised German, some even contrived to identifY Austrians as better Germans than the Prussians. 19 The permanent crisis of the concept of Austrian nationalism since 1967 is explained on the one hand by the system of dualism, i.e. the fact that Hungary occupied its place not in but alongside Austria, and on the other hand because of the double use of that notion. Thus, the 'Ausgleichsgesetz' with Hungary of 1867 concerned the regulation of common matters of all countries belonging to the' Austrian Monarchy' as well as of Hungary. On the other hand, the contemporaneous basic law governing the general rights of nationals, made provision for Austrian nationality only for the non-Hungarian countries. 20 4

Austria in the 20th Century

In contrast to Habsburg Austria's largely uninterrupted continuity, Austria's history in the 20th century was both disturbed and fragmented. Amongst many significant 17 "Der Weg der neueren Bildung geht von Humanitat durch Nationalitat zur Bestialitat", cited by Erich Zollner, Der Osterreichbegriff, Verlag fur Geschichte und Politik Wien, 1988, p.87. 18 Ibid., p.86. 19 Ibid., p.88. 20 Gerald Stourzh, Vom Reich zur Republik, Studien zum Osterreichbewul3tsein im 20.Jahrhundert, Edition Atelier, Wien 1990, p.29.

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differentiated periods one might mention the following: the last flicker of the empire 1900-1918; thereafter fifteen years democratic but strife riven Republic, since 1919 and upon insistence of the World War I Allies named Republic of Austria; five years authoritarian rule 1932-38; seven years Nazi-Regime; fifty four years Second Republic, forty four as permanently neutral state,21 and five years as member of the European Union.

a

Period ofAustrian identity crisis

These sharply differentiated historical changes served to prolong the crisis of Austrian identity and to delay the formation of Austrian consciousness. In hindsight, such crisis of Austrian identity after the demise of the monarchy found both radical and comical expression. For example, Karl Renner's draft of a constitution was at first designed for a freestate of "Southeast Germany" ("Stidostdeutschland"). An article appearing on 6 and 8 March 1918 in "Die Innsbrucker Nachrichten", a newspaper published in Innsbruck, rejected both the designations "Austria" ("Osterreich") and "German-Austria" ("Deutsch-Osterreich"), after an opinion poll amongst its readers.22 Karl Renner explained his own preference for the designation "Republik der deutschen Alpenlande" on the ground that the Sudeten Germans23 had been separated from the Alpendeutschen through the peace treaty of St. Germain and could not, therefore, be included any longer.24 Feeling "German" ("Das DeutschfLihlen") was a sentiment widely shared by intellectuals and politicians in those days. For instance, Kelsen wrote in 1926, that he considered it morally insupportable that 6,5 million people should be pressed into a community which was lacking coherence and sense and was not based on any political idea. To him neither historical, nor national, religious or cultural reasons could justify contemporary Austria, which he perceived as nothing but an arbitrary piece of land left over after the victors of the First World War had satisfied their territorial needs. 25 Anton Kuh, a contemporary Viennese literary figure dedicated an epitaph to the old Austria which read: "Austria is the cradle of the German world. It is in Austria that both Good and Evil of the central European mind was born, thesis and antithesis; Austria was the birthplace of antisemitismus and simultaneously of zionismus; of the first and the third Reich; Hitlers und Mozarts. It was in Austria, in the 'Nibelungenlied', that the German language originated (in Pochlam on the Danube). It was in Austria several hundred years later that it died (in Braunau am 21 22 23 24 25

See Friedl Weiss, 'Austria's Permanent Neutrality in European Integration', Legal Issues of European Integration, 197711, pp.87-127. Readers' suggestions included: Hochdeutschland, Deutsches Bergreich, DonauGermanien, Ostsass, Ostdeutscher Bund, Deutschmark, Teutheim, Treuland, Friedeland, Deutsches Friedland. The "Sudetendeutschen", some 3,5 million German speaking inhabitants of the Sudetenland, a part of Bohemia, were allotted to the Czechoslovak Republic by the peace treaty of St.Germain. Gerald Stourzh, op.cit., fn.20 supra, p.32. Ibid., p.33.

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Inn)."26 In his view, Vienna's contribution to the Germanic world was its very "Ungermanness" (,Undeutschheit'), a world of nuances which irritated plain plebejan nationalists who resented Vienna as a place where a great diversity of multinational and multicultural human ways mattered more than obdurate stolidness of simplistic ideological orientation.27

b

The concept ofa second German State

The concept of a second German state prevailed also during the DollfuBSchuschnigg era. The Socialist party supported it even after Hitler had seized power in Germany. The key to understanding the peculiar Austrian consciousness lies in some mysterious and romantic yearning for the empire which survived in all political camps - the catholic, the socialist and the national socialist - during the decades of transition from the collapse of the empire until the emergence of the Second Republic. This attitude is summarized in the famous word of Chancellor Seipel in 1928 who considered Austrians by their very nature to be citizens of a large state ("GroBstaatmenschen") and who considered it not the task of the inhabitants of the 'Carolingian Ostmark' and the epigones of the victors over the Turks, to tend their own little garden and to show it for a fee to foreign visitors.28 The idea of Austria as a small state only began to take root after 1945, especially after Austria regained its independence and was accepted as a permanently neutral state in 1955. This opened the door to the development of an own Austrian self-consciousness as a small sovereign nation state. 29 VI EUROPE Although Europe as currently defined by the constitution of the European Union was built on the ruins of nationalistic devastation and genocide, it still exhibits features of a constructed, mechanical, 'unnatural' edifice. Can this idea born of reason and desire for peace be threatened again by the destructive force of a revived nationalistic nostalgia? Paradoxically, the founding fathers of Europe themselves - Monnet, Schumann, Spinelli et al. - were heroic-romantic visionaries whose idea of a united Europe appeared beyond reach at the time. But that visionary phase soon gave way to the sober reality of market administration by official high priests of market integration. Indeed the Maastricht Treaty on European Union of 1992 attempts to secure the gains derived from successful economic integration by cautious political26 Anton Kuh, Von Pochlam bis Braunau, aus Ruth Greuner (ed.), Luftlinien, Feuilletons, Essays und Publizistik, Locker Verlag, Wien 1981, p.325. 27 Ibid., Wien, ibid., p.376. 28 Ibid., pA8. 29 Max Riedlsperger, Austria: A Question of National Identity, volA Politics and Society in Germany, Austria and Switzerland, No.1 Autumn 1991, pA8, 53, 59.

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ideological mobilization of the peoples of the European Union and their institutions, to perhaps distract them from 'market fatigue' and 'market boredom'. There are signs that popular sceptical attitudes vis-a-vis the European Union and the Economic and Monetary Union are primarily the expression of 'non-economic' misgivings. Conceivably, such attitudes may be indicative of a certain retreat from the abstract rationality and mechanics of macroeconomic policies, something akin to a spiritual return to the supposedly reassuring conditions felt apparently in a more narrow identification. Perhaps we are currently witnessing the emergence of demands for some kind of mature provincialism as basic right, a rebellion of the spirit of 'real villages' against the alienating virtual reality of the 'global village'. If that were the case, the question arises how best to protect Europe's unscrupulously abstract set-up which allegedly fails to satisfy certain needs against the spirited revival and reaction of resurgent neo-national provincialism. One must also ask whether the multi-state provincialism instituted by the Treaty on European Union can successfully overcome centrifugal nationalistic aberrations. Unfortunately, no perfect solutions are in sight. However, it would seem imperative and possible to conceive of the future modem Europe also as an institution for the promotion of multicultural reciprocity. Europe as 'dispersonal place' for all, instead of one only legally securing the work place for a few voluntarily 'displaced persons'. VII CONCLUSIONS State-centred thinking has dominated Western political philosophy of international relations since the sixteenth century charting the creation, rise to near absolute power and relative decline of state power. However, the demise of national boundaries and of nation states as artificial, advocated and predicted by the 19th century laissez-faire and Marxist ideologies respectively,30 appears still premature today and a long way of[31 World-wide debates about the nature of the unfolding post Cold War world, especially regarding the international politics of environment and development, comprise at least three strands. One concerns the future role of nation states, a second the related role of various non-state actors, particularly corporations and NOOs, and a third the foundations, common values, rules and institutions of a civilized international polity. The latter may be called a third liberal revival, consisting of attempts to re-equip and re-construct liberalism within its existing edifice of philosophical foundations and property relationships.32 This is to be achieved by superimposing 30 Marxism saw states as oppressive of the impoverished masses of destitute workers, and the liberal free market philosophy as potentially disruptive agents in free markets. 31 David Armstrong, Revolution and world order: the Revolutionary State in International Society, Oxford, Clarendon Press, 1993, pp.301-2. 32 A 'second revival', as reaction to totalitarianism was based on the works of Keynes (reconstruction of economics), Schumpeter (reformulation of democratic theory), Mann-

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some kind of scientific-managerial role for the state. That role is to be exercised pursuant to an ostensibly ideologically neutral scientific logic of intervention in order to protect an emerging new balance between ecological interdependence and political independence, between market and communitarian or collective views, and indeed between environmental concerns and economic development and trade objectives. At least since the conclusion of the Maastricht Treaty on European Union of 1992 it has become clear that neither legitimacy and operability of nation states nor that of international institutions serving their ends can be based on the economic principles governing the market place alone. "Federalism", decision-making "as closely as possible to the citizen in accordance with the principle of subsidiarity"33 but also "regionalism" are more than slogans in post-Maastricht 'Euro-jargon'. Citizens of the Union, regions and provinces will henceforth be able to influence decision making in the European Community, thereby enhancing its legitimacy and that of its organs. Austrian history, both of the Monarchy and of the Republic, was never shaped by some ethnic or linguistic unity. Austrian history was always and continues to be primarily that of countries which have been put together and which have grown together. 34 Austria's neighbours too (Hungary, the Czech, Slovak and Slovenian Republics, Italy and Poland) derive their identity from a multi-national history. The collapse of communism and the process of the re-equipment of the liberal state which followed it and which included a policy of the de-regulation of state activities, gave rise to something of a moral-ideological vacuum. As happened regularly in history, such a vacuum attracts occasional attempts to restore nationalistic concepts of order. As was so shockingly demonstrated by the bloody misuse of the concepts of 'people' and 'nation' in the former Yugoslavia, the realisation of the old Austrian idea of a multi-cultural federation remains still very difficult of achievement at the threshold of the twenty-first century. To that extent Europe remains in statu nascendi, as European citizens still feel their loyalty primarily to their home country. Much vigilance and untiring effort and determination will be required to rekindle and implement the idea of a supra-national, multi-cultural European identity. Only if it were based on that idea could the European Community become a role model of progress of human civilisation. If this came about, the European Community model would be eminently suitable for transplantation to other groups of nations of similar cultural and economic backgrounds.

heim (programme for the social sciences) and Popper (logic of scientific discovery), see Omar F.Hamouda, John N.Smithin (eds.), 'Keynes and Public Policy After Fifty Years, vol.I: Economics and Policy, Edward Elgar, 1988, p.15. 33 Para. I I of the Preamble to the Maastricht Treaty on European Union of 7 February 1992. 34 Gerald Stourzh, op.cit., supra fn.14, p.51.

PART 2 COURTS AND THE CONSTITUTION

8 CONSTITUTIONAL ADJUDICATION AND DEMOCRACY

The Han. Dieter Grimm

I

WORLD-WIDE RECOGNITION, PRECARIOUS STATUS

Constitutional adjudication is as old as democratic constitutionalism. But for a long period of time, the United States of America remained alone in subjecting democratic decision-making to judicial review. While constitutions had become widely accepted already in the 19th century, it took almost two hundred years for constitutional adjudication to gain world-wide recognition. I In the 19th century, only Switzerland entrusted its Supreme Court with jurisdiction in the field of constitutional law, however this did not include review of federal legislation. All other attempts to introduce constitutional adjudication failed. This is also true for Germany where the constitution of 1849 provided for judicial review in an ample manner. But the constitution adopted by the revolutionary Paulskirchen Assembly did not enter into force because the monarchs refused their consent after the revolution had been put down. The reason for the rejection of constitutional adjudication in the 19th century was its· alleged incompatibility with the principle of monarchical sovereignty which governed most of the European states at that time. When the monarchy collapsed and was replaced by popular sovereignty as in France in 1871 and in many other states after World War I, constitutional adjudication was found to be in contradiction with democracy. Parliament - as a representative of the people - should be under no external control. The only exception was Austria which, in its constitution of 1920, established a constitutional court with the explicit power to review acts of the legislature. Austria thus became the model of a new type of constitutional adjudication: that by a special constitutional court. In Austria this court holds a position parallel to other specialised supreme courts whereas in most other countries which adopted this model in the second half of the 20th century, the constitutional court is placed on top of the judicial hierarchy. In Germany, the Austrian example and the difficulties of the Weimar Constitution of 1919 caused an intensive academic debate on judicial review where Hans Kelsen (who had drafted the Austrian constitution) and Carl Schmitt were

See CN. Tate/T. Vallinder (eds.), The Global Expansion of Judicial Review, (New York, London 1995). M. Andenas (ed.), Liber Amicorum Slynn 103-120 (2000) © 2000 Kluwer Law International

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the leading adversaries. 2 Kelsen, departing from his theory of the hierarchy of norms, declared judicial review a necessary element of constitutionalism. If ordinary law was inferior to constitutional law and could claim legal validity only when within the constitutional frame, an institution was needed to determine whether the frame had been transgressed or not. Schmitt, on the other hand, argued that judicial review would mean a loss for both legislature and jUdiciary. It would necessarily end up in a "juridification of politics" and a "politisation of the judiciary". In practice, the narrow competences of the Staatsgerichtshofwere not enlarged, but on very rare occasions, the Supreme Court (Reichsgericht) claimed the power to review federal legislation. It needed the experience of 20th century dictatorship with its disdain for human rights to overcome the old reservations and to open the doors for constitutional adjudication. Germany and Italy established constitutional courts in their post-war constitutions. Spain and Portugal followed after their respective revolutions. After the fall of the communist regimes which had been in strong opposition toward any kind of judicial control of state action, with the early exception of Yugoslavia and the late exception of Poland, all former members of the Soviet Union and the Eastern alliance provided for constitutional courts in their legal systems. Constitutional courts also came up in East Asia and in Latin America after the collapse of military dictatorships and furthermore in Africa, most prominently in South Africa after the collapse of the apartheid regime. In other countries in the British tradition like Canada, Australia and India, the supreme courts soon began to exercise judicial review. The same is true for countries as Norway and IsraeP

2

3

H. Kelsen, Wesen und Entwicklung der Staatsgerichtsbarkeit, Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 5 (1929), 5; H. Kelsen, Wer soli Hiiter der Verfassung sein?, Die Justiz 1930/31, 576; C. Schmitt, Das Reichsgericht als Hiiter der Verfassung, in: Die Reichsgerichtspraxis im deutschen Rechtsleben, (Berlin, Leipzig 1929), vol. I, 154; C. Schmitt, Der HUter der Verfassung, Archiv des offentlichen Rechts 55 (1929), 161; C. Schmitt, Der Hiiter der Verfassung, (Berlin, Leipzig 1931). For a discussion see H. Wendenburg, Die Debatte um die Verfassungsgerichtsbarkeit und der Methodenstreit der Staatsrechtslehre in der Weimarer Republik, (Gottingen 1984). The older surveys on the dissemination and organisation of judicial review are outdated by the developments of the last decade. For a more recent general account see K.G. Zierlein, Die Bedeutung der Verfassungsrechtsprechung flir die Bewahrung und Durchsetzung der Staatsverfassung,. Europdische Grundrechte Zeitschrijt 1991, 301; limited to certain regions: C. Starck/A. Weber (eds.), Verfassungsgerichtsbarkeit in Westeuropa, 2 vols., (Baden-Baden 1986); H.-R. Horn/A. Weber (eds.), Richterliche Verfassungskontrolle in Lateinamerika, Spanien und Portugal, (Baden-Baden 1989); A. v. BrUnneck, Verfassungsgerichtsbarkeit in westlichen Demokratien, (Baden-Baden 1992); D. Greenberg et al (eds.), Constitutionalism and Democracy: Transitions in the Contemporary World, (New York, Oxford 1993); J.A. FroweiniT. Marauhn (eds.), Grundfragen der Verfassungsgerichtsbarkeit in Mittel- und Osteuropa, (Berlin 1998). For the Norwegian case see Mads Andenas/I. Wilberg, The Constitution of Norway, (Oslo 1987), 99.

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There are other states, however, some of them with an undoubted democratic tradition like the United Kingdom and the Netherlands, which still refuse to adopt constitutional adjudication, and quite often they do so on the ground that democracy forbids it. In many former communist countries the newly established constitutional courts are under strong attack, partly from the politicians who had favoured constitutional adjudication to cure the old vices, but find it cumbersome when applied to their own activities, partly from the traditional supreme courts which cannot get accustomed to having been relegated. But also in countries where the existence or the scope of judicial review is not seriously challenged, the question of legitimacy of constitutional adjudication and its compatibility with democratic principles is frequently raised. This is certainly true for the United States with its endless debate on the "counter-majoritarian difficuJty",4 but to a certain extent also in countries like Germany or France, at least when unpopular decisions are handed down. Thus, the relationship of democracy and constitutional adjudication has remained precarious and subject to heated debate. s Some theorists worry that democracy will be paralysed by constitutional straitjacketing. Others fear that the constitutional dike might be breached by a democratic flood. This article will try to show that there is neither a fundamental contradiction nor a necessary connection between constitutional adjudication and democracy. Judicial review has a number of democratic advantages. But it also creates some democratic risks. Consequently, the question whether or not a country should adopt constitutional adjudication is not one of principle, but one of pragmatics. It requires a balancing of benefits and costs. The answer may vary according to time and circumstances, and each country has to find its own solution. Yet, in view of the precarious situation of democratic constitutionalism in many parts of the world and the direction party politics take in many established democracies, it seems that more arguments speak for, than against judicial review. II

NEITHER CONTRADICTION NOR NECESSITY

1

No contradiction

Constitutional adjudication is just as little irreconcilable with democracy as constitutionalism itself is. It characterises a democracy that sovereignty belongs to the people. This is its distinctive element in comparison with other forms of government where a hereditary monarch or an elite are regarded as sovereign or where sovereignty is attributed to God and exercised by His chosen representa4 5

Beginning with A.M. Bickel, The Least Dangerous Branch, (New Haven 1962). Compare, e.g., J. Elster/R. Slagstad (eds.), Constitutionalism and Democracy, (Cambridge 1988); recently D. Kennedy, A Critique of Adjudication, (Cambridge 1997); U.R. Haltern, Verfassungsgerichtsbarkeit. Demokratie und Misstrauen, (Berlin 1998); M. Tushnet, Taking the Constitution away from the Courts, (Princeton 1999).

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tives on earth. Democracy does not mean that the people governs itself. The bigger a society is and the deeper its various functions are differentiated, the more it is in need of an independent system specialising in political matters. Governmental functions are then entrusted to special organs and officials. But these derive their power from the people and exercise it on behalf of the people to whom they are answerable for the way in which they make use of their power. The means of securing the dependence of government on the people is the constitution. 6 The constitution is a direct expression of or at least attributed to the popular will. In its constitution the people lays down the principles and form according to which public authority shall be exercised. In order to reach this end, the constitution is endowed with legally binding force and - since it regulates the making and execution of the law by the various state agencies - it is superior to all other law. Thus, the constitution functions as a basis and framework of legitimate power. Submission of the rulers to the conditions laid down by the people is the explicit function of the constitution. It therefore allows the distinction between legitimate and illegitim~te power claims. The question whether a certain person or a number of persons can duly claim to act on behalf of the people and whether a certain act is binding for the people or not is answered by the constitution. As every other legal norm, constitutional law obligates those to whom it is addressed. But it is not capable of guaranteeing that the addressees comply with the norms or that - if willing to comply - they understand their meaning correctly. The threat of non-compliance is particularly serious in the field of constitutional law. Different from ordinary law which binds the citizens and is enforced by the state, the addressees of constitutional law are the highest state organs themselves so that no higher authority exists which could enforce the constitution against them. When, in view of this particular weakness of constitutionallaw, the people provide for a special agency charged with the task of determining the meaning of the constitution in cases of conflict, and evaluating power claims and government acts as to their conformity with constitutional requirements, the existence of this organ and the exercise of the power vested in it cannot be deemed undemocratic. This is even true when the constitution sets up a purely majoritarian type of democracy. In this type of democracy, the will of the majority governs unconditionally. Whatever the majority decides has binding effect for the community. Constitutions which follow this model and consequently lack all substantial limits to majority decisions nevertheless contain a certain number of procedural requirements whose violation can render a decision invalid. Hence, judicial review remains possible with regard to those formal requirements for the correct formation of the majoritarian will. Constitutional adjudication on procedural grounds can even be exercised when the constitution allows its guarantees to be 6

For the function of the constitution see D. Grimm, Die Zukunjt der Verfassung, (2nd ed., Frankfurt 1994).

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set aside in a single case, provided that the decision was taken by the majority necessary to amend the constitution ("Verfassungsdurchbrechung" as admitted in the Weimar Republic). The question whether this majority had been attained can be decided by courts. Moreover, it seems rather difficult to uphold a concept of democracy which is purely formal. First, a concept of democracy based on the majoritarian principle alone, is incapable of effectively securing democratic government. It does not prevent the majority from abolishing the majority rule by majority vote. This is what happened in Germany in 1933 - an experience that had a strong impact on the legislative history of the Basic Law. Secondly, democracy, even if identified with the majority principle, is difficult to conceive of without some additional guarantees for the functioning of the democratic process. Freedom of speech and information is arguably the most important one. Protection of the minority is another one whose absence would severely curtail the chances for democratic change. Such additional guarantees, when implicated in the notion of democracy, could, of course, be subject to review without any violation of the democratic principle.? As a matter of fact, rights of that sort, but also others regarding life, liberty and property, or institutional guarantees, for instance of marriage and family, are expressly contained in most modem constitutions. Today, the question is no longer whether a constitution should contain fundamental rights, but which rights should be included into it. Next to the classical civil liberties, younger generations of human rights have found entrance into more recent constitutions. All are intended to either guide or restrict government activities. Where a bill of rights exists, the legislature is not allowed to do whatever it deems good or necessary for society. There are some preestablished guidelines as to what the common weal requires. The existence of such a bill of rights does not deprive a constitution based on popular sovereignty of its democratic character. If the people decides to check government power vis-it-vis the citizens through fundamental rights, enforcement of such rights against a ruling majority can hardly be regarded as anti-democratic. However, the problem that, in cases of conflict, it is always a past majority binding a present majority, remains. Yet, this effect lies in the very nature of constitutions. Constitutions extend the consensus of a given society as to the forms and principles of governance into the future and endow it with legally binding force. They lay down general rules for future decision making and, thereby, exonerate the political process from the burden of constantly having to rediscuss the substantial and procedural premises of political decisions. In addition, the fact that these principles are agreed upon in advance and distant from an actual controversy, make ajust solution more likely. Finally, only by general 7

This is the way the Supreme Court of Israel took, beginning with the Kol Ha'am decision, Selected Judgements of the Supreme Court of Israel, vol. 1, 90. Compare D. Kretzmer, Democracy in the Jurisprudence of the Supreme Court of Israel, Israel Yearbook on Human Rights 26 (1987), 267.

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rules can the ultimate end of constitutions, namely to secure a government of laws and not of men, be reached. The proper solution for the conflict between historical and actual consensus is, therefore, not the abandonment of constitutional principles but the permission to amend the constitution. 2

No necessity

While judicial review is not inconsistent with democracy, neither is it indispensable for democracy. Those who take the opposite position and declare judicial review a necessary condition of democracy, argue that democratic constitutions are of little or no value without an institution that guarantees government compliance with constitutional provisions. Sure enough, this argument can rely on historical evidence. There are plenty of examples of constitutions turning out to be largely ineffective because, in case of conflict, it is impossible to enforce them against reluctant government organs. This is certainly true for most pre-, pseudo- or semi-democratic constitutions. But even democratic governments which are in general devoted to the constitution, may, on special occasions, develop a tendency to disregard constitutional norms which stand in their way in the pursuit of political goals. On the other hand, there is sufficient historical proof that democratic states can live without constitutional adjudication. Constitutions are not condemned to remain mere paper tigers without specialised enforcement organs. It may be that examples of this assertion are less frequent than examples of the opposite case. But they undoubtedly exist. Nobody would deny the democratic character of states like the United Kingdom or the Netherlands which do not support constitutional adjudication. The reasons are manifold. On the one hand, democratic governments will hardly ever be disdainful of the limits drawn to them by the constitution. In particular, the political process usually functions according to the organisational and procedural rules laid down in the constitution. On the other hand, courts are not the only possible guardians of the constitution. The inter-organ control stemming from the separation of powers is one; popular support for the constitution or effective media control are others. In the last resort, respect for the law in general and the constitution in particular depends on roots that stretch deeper than legal precautions. The willingness to comply with the constitution even if it interferes with one's political plans and even if one is in a position to neglect it without risk is, to a large extent, a cultural achievement. There are societies where this respect is more deeply rooted in the citizens than in others. In these societies, democratic politicians will usually be less inclined to neglect the law, and the general public will react in a more hostile manner to governmental violations. The risk to loose acceptance is then an additional factor to strengthen the constitution. When after the events of 1989/90, many drafting committees of new constitutions and many newly appointed constitutional judges asked how political compliance with constitutional law and with orders of a constitutional court could be achieved, one

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had to refer them mainly to the cultural backing which constitutions need and which a constitutional court can never fully replace. Therefore, Kelsen's position that constitutional adjudication is the logical consequence of constitutionalism can hardly be upheld. Kelsen saw the function of constitutional law in regulating the formation of ordinary law and concluded that this function could be fulfilled only when the constitutional requirements were enforceable against a reluctant legislature. A constitution which regulates the legislative process without caring about the compliance by the legislators lacks, in his view, full legal validity. It is not much more than a "non obligatory desire".8 Strictly speaking, it regards its own provisions about legislation not as binding but leaves them to the disposition of the legislature. Kelsen's reasoning may have some historical evidence. In many political systems, the constitution in the absence of special safeguards - was indeed not taken serious. Examples can be found particularly in societies without a firm democratic and constitutional tradition where other safeguards of the constitution are underdeveloped. But it is not true as a general principle. It is all the less true considering that courts cannot guarantee government compliance with the constitution either. They can but enhance the chances that it be respected. Ineffective courts are as possible as ineffective constitutions. For once, they can be so closely linked to the rulers that their willingness to perceive or invalidate unconstitutional acts is low. Secondly, the already mentioned fact that, vis-a-vis the constitution, addressee and guarantor of the law fall together, puts courts which enforce constitutional requirements against government organs in a precarious situation. When the highest authorities of the state neglect court orders the courts have no means to enforce respect for the constitution vis-a-vis the rulers. There is no bailiff for constitutional matters. This shows that not only constitutionalism, but also constitutional adjudication rests on cultural grounds. Effective judicial review requires a political culture where, in general, court decisions are accepted even by those who are in power, and where public esteem for the constitution is so high that disrespect becomes too costly for politicians. 9 Hence, political systems with and without judicial review may form different types of democracies. But the characterisation of a given political system as democratic or undemocratic does not depend on the recognition of constitutional adjudication. Neither is the existence nor the absence of judicial review a precondition of democracy. Consequently, the decision pro or contra judicial review is not one of principle but of pragmatics. The choice has to be made between different types of democracy, not between democracy and judicial review. The decision requires an assessment of the advantages and disadvantages of ju8 9

H. Kelsen, Staatsgerichtsbarkeit (note 2), 78. Compare D. Grimm, Zum Verhaltnis von Interpretationslehre, Verfassungsgerichtsbarkeit und Demokratieprinzip bei Kelsen, Rechtstheorie Beiheft 4, 1982, 149. Compare H. Jacob et al (eds.). Courts. Law and Politics in Comparative Perspective, (New Haven, London 1996).

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dicial review for democratic systems. It is best based on an analysis of the differences between democratic systems with and without judicial review and on an appraisal whether the disadvantages can be minimized without weakening the benefits. III DEMOCRATIC ADVANTAGES AND DEMOCRATIC RISKS

1

Advantages

The observation that the government and the political parties acting within government organs tend to form their political will irrespectively of the constitution may serve as a starting point for the comparison. Constitutional provisions rarely guide the perception, processing and solution of political problems. The question whether a political plan or measure is compatible with the constitution usually enters only at a later stage of the decision making process. Constitutional law then functions as a subsequent corrective. It is true that political organs when they raise a constitutional question do not dispose of other ways of determining the meaning of a constitutional provision. The legal method is the same for politicians and judges. But the circumstances under which constitutional questions are answered differ. And the circumstances of the political sphere are not particularly favourable to unbiased constitutional answers. Politicians act in a competitive environment. What counts here is political success and ultimately electoral victory. This creates an inclination to submit constitutional requirements to political needs - not necessarily in the sense that the constitution is simply set. aside, but in the sense that it is understood in a way favourable to one's political purposes. In contrast, courts operate under a different code. They do not pursue political plans and usually do not depend on reelection. They are specialised in legal adjudication. Law is their primary concern. Their autonomy and independence vis-a-vis political actors allows them to determine the meaning of a given legal text by professional criteria, unaffected by political programs and the imperative of winning elections against other competitors. It is therefore more likely that the intentions of the constitution and not those of the politicians prevail when a constitutional conflict arises. In a democratic system without judicial review these virtues do not enter into the political play. A system in want of constitutional adjudication is therefore less able to counterbalance the inclination of political actors ~ even if they are constitutionally minded - to understand the constitution in the light of their political purposes. Moreover, in the absence of an independent arbiter, conflicts about the constitutionality of a given government act will always be decided in favour of the majority, since no one can hinder it from going along according to its understanding of the constitution. As a consequence, the basic consensus among competing political forces laid down in the constitution is in danger of eroding in the long run. Conflicts within the constitutional framework tend to

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become conflicts about this framework and may finally affect the stability of the democratic system. In contrast, political systems with constitutional adjudication enjoy, through the mere existence of a court with the power of judicial review, the advantages of an early and more or less neutral look to constitutional requirements. In such a system, political actors are forced to anticipate the opinion ofthe court in order to avoid a legal defeat. While arguments of political desirability or usefulness usually prevail in the decision making process, they are now balanced by legal arguments. The potential of constitutional conflicts is thus minimised. When the anticipatory mechanism fails and conflicts about the constitutionality of political measures arise, judicial review can help to settle them in a manner which leaves intact the integrative force of the constitution. The court decision solves the dispute and creates certainty about the meaning of the constitution. The disputed measure either gains additional legitimacy or is definitely excluded from the range of permitted alternatives. In addition, judicial review operates as a counterbalance against the tendency of all political forces to rid themselves from their competitors to the largest extent possible. Competition, it should be noted, is the most important motor of democracy and the best means of controlling government. But the controlling effect depends on the existence of equal opportunities for the majority and opposition and hence on safeguards against abuses of majority power to the detriment of the minority. The controlling effect of competition completely disappears when the competitors share a common interest. This is the case, for instance, in questions of party financing. Another common interest, at least with the established parties, is the use of their legislative or administrative power to suppress or hamper political newcomers or dissidents within the party. In areas where party competition fails, courts are the only means to secure the degree of openness that is crucial to democracy. The same is true for the societal preconditions of democracy. Periodical elections and deliberating parliaments alone do not constitute a democratic system. Democratic government depends on a constant feedback between the governing and the governed. Such a feedback only comes about when opinions can freely be formed and expressed and when interests can freely be organised and articulated. Since governments are always tempted to use their power in order to silence or intimidate critical voices or to favour followers and discriminate against opponents, equal freedom is in need of special guarantees effective against government actions. This need is fulfilled by fundamental rights which have been part of constitutional law from the beginning. But constitutional history teaches that most bills of rights remained a merely symbolic, legally irrelevant part of constitutional law as long as they were not accompanied by constitutional adjudication. Finally, constitutional adjudication can contribute to the legitimacy of the democratic system as a whole. Apparently, pluralist societies suffer from the difficulty of securing sufficient legitimacy and mustering political motivation in society. This notorious shortage of consensus, legitimacy, and societal engage-

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ment may be caused by the fact that it is up to constantly changing majorities to define the common weal. Everything seems contingent. Under such conditions, a constitutional court manages, to a certain extent, to compensate for this deficit by making visible, behind the befuddling contingency of party politics, generally binding principles and norms. Politicians cannot simply give vent to their own or their clientele's interest or follow their momentary ideas. The constitution matters. Its limitations of government power are more than mere promises. Politicians will often find the enforcement of constitutional requirements burdensome or even unjustified in individual cases. But what, in the short run, may look like an obstacle turns out, in the long run, to stabilise the acceptance of political decisions. 2

Risks

While it is true that judicial review can strengthen democracy, this does not mean that it presents no democratic risks. These risks, to be sure, do not refer to the possibility of wrong decisions. Every political system knows institutions that have the last say in a given matter, and therefore lives with the risk of "wrong" decisions. While it is possible to keep them at bay through institutional arrangements, there is no avoiding them completely. The German Constitutional Court owes its existence and ample powers to the legislature's former abuse of its power to have the last word. Rather, the democratic risk lies in the lack of democratic control. After all, the judiciary can set aside the will of the elected representatives of the people without enjoying equal democratic legitimacy and without being equally accountable to the people. The latter is even true for countries where judges are elected, not appointed. 1o Furthermore, judicial review tends to judicialise the political discourse. Political actors are tempted to blame a political program or a draft law which they dislike as being a violation of the constitution. By doing so they do not only curtail the political part of the discourse where arguments concerning the usefulness, the consequences, or the price of political plans prevail. They can also impair the constitution which instead of being the underlying integrative force of the polity, becomes a weapon in the political struggle. It becomes one argument, among many others, and is, so to speak, pluralised into the conflictuous, controversial market of opinions. Without one integrative document, however, the textualization of the polity would come to an end. I I Germany, with its long tradition of political controversies masquerading as legal argument, seems to be a major example of this development.

10 For the problems created by the election of judges see S.P. Croley, The Majoritarian Difficulty, University a/Chicago L.R. 62 (1995), 689. 11 This expression is borrowed from N. Luhmann, Gesellschaflsstruktur und Semantik, vol. 4, (Frankfurt 1995), 114.

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Yet, the lack of accountability and of the democratic control it entails would be of minor importance if judges exercising judicial review could be said to apply general constitutional norms to individual cases only. Since Montesquieu's days, this is indeed the most common justification of judicial independence: Judges are bound to the prescribed norms, and their task is to discover the content of these norms and to apply them - a process known as the "theory of binding norms". Courts are not entitled to make genuine decisions but have to enforce decisions made by others. If this were true, every exercise of judicial review would still entail a loss of power for the democratically legitimised organs. But, what is lost is nothing more than the unfettered power to act in breach of the constitution which enjoys higher democratic legitimacy. It is for this reason that judicial review was not considered a democratic problem when introduced in Germany after World War II. Today, it is a truism that legal norms do not and cannot determine judicial behaviour and court decisions in a comprehensive manner. In exceptional cases only does the text of a norm immediately provide the answer to a legal question . . Cases like these rarely require litigation. Under normal circumstances, the meaning of a general norm with regard to an individual case has to be determined by interpretation, and interpretation usually leaves room for more than one answer. This is true for legal norms in general. But it applies with particular force to constitutional norms. Constitutions fulfil the function of providing a common basis for political adversaries and thus require a political consensus broader than that underlying ordinary laws. They are also more difficult to amend. For these reasons, constitutions tend to be more open-ended as well as less complete and consistent than ordinary laws. Gaps in scope and content, therefore, need to be bridged through interpretation or concretisation. 12 What follows from this is that the application of constitutional norms in concreto involves extrapolation beyond the given. The meaning of a provision must be determined in a more or less complicated operation of legal reasoning which sometimes makes it difficult to recognise the boundaries between interpretation and amendment. This is particularly true for the growing number of cases where old norms have to be adapted to new developments, mainly in the field of basic rights. Thus, to maintain that judicial review poses no democratic problem because all that judges do is to enforce prior decisions made by the people is too easy a way out. Application of norms cannot be clearly distinguished from norm creation. Adjudication constitutes a mixture of cognitive and voluntary elements. The norms which bind government are, in the process of interpretation, to a large extent "made" by the courts. Compared to, say, the United States Supreme Court, the German Constitutional Court goes pretty far in this direction. Not only does it interpret the various civil rights in such an expansive manner that hardly a state action remains 12

For the latter compare K. Hesse, Grundzuge des Verfassungsrechts der Bundesrepublik Deutschland, 20th ed. Heidelberg 1995, 24 ss.; critical E.-W. Bockenforde, Die Methoden der Verfassungsinterpretation, Neue Juristische Wochenschrift 1976, 2089.

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out of the range of judicial control, enabling the Court to act as "censor of reasonableness of all governmental action".13 It also deduces from the bill of rights - besides the government's duty to refrain from certain actions - an obligation of the legislature to actively protect fundamental rights against intrusions from societal forces. It thus uses its competencies not only to invalidate certain government acts, but also to require action where the government was unwilling to act under its own impetus. Thus, in a number of cases, legislation was declared unconstitutional, not because it had gone too far in restricting fundamental rights, but because it had done too little in protecting them against menaces stemming from private parties. Of course, the creative element permeates not only judicial review, but more or less law application in general. Yet, there is an important difference between ordinary and constitutional law. Ifthe legislature finds the interpretation given to ordinary law by the courts unacceptable, it can alter the legal program and thereby change the practice of the courts. With regard to ordinary law the legislature thus has the last word. Constitutional law, on the other hand, binds the legislature, and so does the court's interpretation of the constitution. In the case of conflicting views it is the constitutional court, not the legislature, 'which has the last word. It is true that constitutional courts as well can be re-programmed, but only by constitutional amendment which is usually difficult to obtain. It is precisely this political element of judicial review that needs to be reconciled with democracy. IV A VOIDANCE OF DEMOCRATIC RISKS

I

Substantial approach

Such reconciliation requires a delimitation between the proper domain of the legislature as direct representative of the people and that of the courts as guardians of their fundamental and integrating values. Many criteria for this delimitation have been tried over time. The most popular one is the difference between law and politics. The courts shall only render legal decisions and abstain from political rulings which, in tum, belong to the legislature alone. Although it is undeniable that law and politics are not identical, the difference between them seems much too imprecise to solve the problem of delimitation. The reason lies in the nature of constitutional law. On the one hand, it forms the body of norms which are designed to bind the legislature when it takes political decisions, and 13 D.P. Currie, The Constitution of the Federal Republic of Germany, (Chicago 1994),319. For civil rights jurisprudence see D. Grimm, Human Rights and Judicial Review in Germany, in: D.M. Beatty (ed.), Human Rights and Judicial Review. A Comparative Perspective, (Dordrecht 1994), 267; D. Grimm, Riickkehr zum liberalen Grundrechtsverstandnis?, in: Zukunft (note 6), 221; D. Grimm, Schutzrecht und Schutzpflicht, in: Festschriftfur E.G. Mahrenholz, (Baden-Baden 1994),529.

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constitutional courts are charged with examining these decisions as to their conformity with the norms. On the other hand, constitutional norms are far from that degree of precision which could give them strictly binding effect force. The consequence is that constitutional adjudication is inevitably political in a double sense. First, it has tremendous political effects insofar as the courts function as arbiter in genuine political conflicts. They decide whose political will prevails, for instance the one of the legislature or the one of the executive, the one of the majority or the one of the opposition, the one of the federal government or the one of the member states (Lander). Furthermore, it ultimately depends on the court whether the legislature is able to realise what it deems politically necessary and whether it has to take action where it would prefer to remain passive. Secondly, in deciding questions of this sort according to constitutional law, the courts are not bound to an extent that would exclude any political element from the decision. Enforcing constitutional law contains an element of political choice which can be narrowed, but not completely avoided. A more precise criterion seems to be the principle of separation of powers. Yet, although all democratic constitutions adhere to this principle because it has proved to be an effective safeguard against absolutism and abuse of power, there is not one single notion of separation which could furnish a universal criterion for delimitation between courts and legislature. Rather, every constitution goes its own way, none being able to strictly separate the various branches of government. When a constitution provides for judicial review, it inevitably gives the courts a share in law-making - a negative one when they are restricted to invalidating acts of parliament, a positive one when they are, in addition, empowered to oblige the legislature to act. But the constitution cannot exactly tell where the power of the legislature ends and that of the court begins. This, in tum, depends on the requirements the constitution contains with regard to the legislative process. This is why a number of authors pin their hopes on legal methodology. In their view, only those decisions which have been found according to the accepted principles of legal reasoning are legitimate. But, methodology is equally unable to provide a satisfactory answer to the problem of delimiting judicial review. This is not to say that methodology does not matter. It no doubt helps to infuse rationality into the process of interpretation and to bring forth controllable results. Yet, there is usually not one single accepted method, but a plurality of methods, so that choices have to be made which influence the results. 14 Moreover, methodology is not exempt from change, and very often it is the courts that bring forth new methodological variants which later enter into the accepted canon. In sum, methodology lacks the degree of precision and authority which would allow a clear distinction between decisions remaining within the realm of the judiciary and encroaching upon functions of the legislature.

14 Compare D. Grimm, Methode als Machtfaktor, in: Festschrift for H. Coing, vol. J, (Milnchen 1982),469.

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A more precise limitation on the basis of methodology seems possible only by following the theory of original intent much discussed in the United States. IS Yet, interpretation according to the intent of the framers is both, a self-deception and a depreciation of the constitution. The deceptive effect results from insurmountable difficulties in establishing what the framers' original intent was and even more what it might have been had they known of the issue now before the court. The depreciation lies in the fact that the courts, if they applied the method in its strict sense, would have to refuse to answer all problems not foreseen by the framers. The adaptation of constitutional norms to new developments - television, atomic energy, electronic data processing for instance - would be left to constitutional amendments, even in cases where constitutionally protected values are directly affected. The theory, therefore, ends up reducing the importance of the constitution. Consequently, it does not have any followers in Germany inside or outside the Constitutional Court. In view of these inadequacies, many resort to judicial self-restraint as a way out of the dilemma. Self-restraint, however, is not able to furnish criteria for distinction between the domain of the legislature and that of the courts. It appeals to the professional or democratic ethics of the judges, perhaps also to their self-interest not to undermine the own position which can easily happen when a court goes too far in restricting or pre-determining the political process. But the necessity of such an appeal is the best proof of the difficulty to find workable limits. For, were there borderlines which could guide judicial behaviour, no need for self-restraint would arise. In addition, self-restraint does not help where the courts, by way of constitutional interpretation, find or develop requirements binding the legislature. It would be difficult to convince ajudge not to rule what he or she thinks the constitution requires.

2

Functional approach

A more helpful approach to shaping the contours of legislative as opposed to judicial tasks seems to be a functional one. The keywords here are action and control. The constitution structures political action by organising, guiding and limiting it. But it does not regulate it to an extent which would reduce politics to mere execution of constitutional orders. Within the framework of the constitution the political organs are free to make those choices which, according to their view, the common best requires. The election decides which of the competing views is preferred by society and which political group may therefore fill the leading positions in the state and carry out its political program. By contrast, courts and especially constitutional courts, are called to control whether the other branches of government, in defining, concretising and implementing the 15 Compare, e.g., A. Scalia, A Matter of Interpretation, (Princeton 1997); W. Heun, Original Intent und Wille des historischen Verfassungsgebers, Archiv des offentlichen Rechts 116 (1991),185.

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political goals, have acted in accordance to the constitutional principles and not transgressed the constitutional limits. This division of functions which underlies all democratic constitutions allowing judicial review does not affect the power of courts to define what the constitutional provisions mean and how far they reach. This is an integral part of the juridical function. But it generates two other consequences. First, courts lack the power to determine political goals. Their competence is limited to measure goals against constitutional requirements. Beyond the range of constitutional law, the courts' preferences are without relevance. Second, the order of political decision and control must not be reversed. Courts are not called upon to anticipate or design legislative measures but to review them after they have been taken. This presupposes that another government organ must have acted before constitutional control can set in. It does, however, not exempt political omissions from control, provided that a constitutional duty to act exists. The function of the different organs also determines their equipment. Under the pressure of numerous and complex problems lawmaking requires a highly differentiated and co-operative system for both, perceiving problems and devising workable and effective solutions. As state tasks expand and as the government's capacity to directly intervene into social systems decreases, legislative functions get to be performed in a mediative, rather than authoritative process. For these reasons, legislation today rests, in substance, with the executive branch with its greater expert knowledge and mediative resources. Parliaments have gradually lost their role of drafting laws. Rather, parliamentary procedure finds its main justification in providing transparency and political control. The parliamentary minority can force the majority to disclose and give reasons for its plans and can confront the majority with its own alternative projects. Societal interests get a chance to intervene, and the media may raise viewpoints relevant for the general public and the politicians alike. Courts have no equivalent instruments at their disposal fit to fulfil this function. They lack the wealth of information and expert knowledge assembled in the other branches of government. Empirical findings are by no means excluded. On the contrary, the so-called legislative facts play an important role in judicial review. But the findings follow a selective principle which is guided by the norms the courts apply. Aspects of effectiveness, expediency, or social consequences of a decision enter into the decision making process only from a normative point of view. Prognostics of future development which play an increasing role in the legislative process of welfare states cannot be undertaken by the courts. While it may be true that courts, in one case or another, have decided on a more thorough basis of information than the legislature,16 this cannot offset the general restrictions under which law, in an era of ever-increasing differentiation, must operate.

16 For examples from the jurisprudence of the German Constitutional Court see K.J. Philippi, TatsachenJeststellungen des BundesverJassungsgerichts, (Koln 1971).

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Among such drawbacks, court procedures count as perhaps the most important. In contrast to parliamentary procedures, they do not, need not, and, perhaps, must not reach a similar degree of transparency or offer equal chances to participation. The judicial framework makes it impossible to completely disclose and exhaustively discuss underlying points of political or social controversy. The formalised procedure leaves little to no room for non-parties to the conflict to voice their views or introduce their interests. There are no direct feedback-mechanisms between court decisions and societal reactions. Courts are, of course, not beyond public criticism, but, not subject to elections, they are much more protected against public protest than political actors. Judicial procedures, therefore, are adequate when it comes to review laws as to their constitutionality or when there is need to remind the legislature of unfulfilled constitutional duties. They are ill-devised, though, to determine political goals or anticipate legislative decisions. Ultimately, it has to be taken into account that every issue decided in the juridical process is no longer open for decision in the democratic process. Courts concerning themselves with such issues too early deprive the deliberation about social conflicts and the possible solution of its political phase. At the same time, the guiding principles and values of political deliberation - like publicity, transparency, acceptability, and accountability - playa minor role in court procedure, and it is doubtful whether this deficit is offset by specifically juridical values. The possibility that the decision of the court is the better one for the community cannot set aside the functional limits drawn by the constitution. The same is true for the argument that, in case of parliamentary reluctance, a court decision is better than no decision at all. Where constitutional criteria for the "better" lack, politics and politicians are free to act or not act and have to bear the responsibility for it is their behaviour. It is worth mentioning that the omission of the political phase is often enough in the interest of political organs themselves. It allows them to shift responsibility to the courts for. measures that are unpopular or likely to spark off heated debate. This manoeuvre, however, benefits political actors only in the short term. In the long run, it leads to their considerable weakening since social areas once ceded to constitutional review cannot easily be regained for political decision. The tailspin looks as follows: The more decisions are left to the courts, the less room is left for political decision, the less elections matter, and the more difficult the implementation of innovation or major change becomes. In other words, the risk is that judicial review may lean towards securing the status quo, devalue traditional instruments of democracy, and favour the ossification of the political process. In the end, the result may be political blockades and a loss of legitimacy for the polity as a whole.

DIETER GRIMM V

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COMPENSATION OF DEMOCRATIC DEFICITS

Constitutional democracy, by definition, entails a simultaneous commitment to the principles of democracy and constitutionalism. In this combination, the constitution tends to be the weaker part. Constitutional adjudication is an attempt to make up for this weakness. But, as demonstrated, it generates its own democratic problems. When the democratic advantages and disadvantages are weighed in light of the preceding considerations, it seems, however, not impossible to collect the benefits and to minimise the risks of judicial review. Still, there is no guarantee for success. The balance remains a precarious one because, to a large extent, it depends on the judges whether constitutional adjudication and democracy will be reconciled, there being no superior organ which could put the court in its place. Thus, it is understandable, when, in spite of the world-wide expansion of judicial review, some societies trust the political process more than the judicial one. However, for states where constitutional democracy is a rather new achievement and where the societal preconditions of democratic government are still underdeveloped, or for states where the constitution did not matter for a long time because state agents could disregard it without risking a loss of legitimacy in the population, it will be more difficult to renounce constitutional adjudication than for states with a long and stable democratic tradition and a general respect for the rule of law. In states of the first category, the constitution will normally be in need of an independent agent whose primary concern it is to guarantee compliance with its rules and who thus makes it visible and meaningful for the general public. This may explain why so many countries which only recently turned democratic have opted for constitutional adjudication. Compared with the question of introducing or renouncing constitutional adjudication, it is of secondary importance whether it is exercised by the ordinary judiciary or by a particular constitutional court. Both systems have their advantages and disadvantages. I? The hierarchical position of the constitution and the informational resources required by judicial review could speak for a separate constitutional court. On the other hand, the ordinary courts may be better prepared to integrate constitutional requirements and ordinary law and thus avoid inconsistencies as well as the permanent issue where to draw the line between the realm of constitutional and that of ordinary law, and correspondingly to determine the limits between the constitutional court and the ordinary courts. In the last resort, it will probably be decisive how willing and capable the ordinary courts are to open themselves up for constitutional arguments and to interpret ordinary law in light of the constitution.

17 For a comparison see M. Cappelletti, Judicial Review in the Contemporary World, (Indianapolis 1971); from a practical point of view D. Grimm, Probleme einer eigenstandigen Verfassungsgerichtsbarkeit in Deutschland, in: R.I. Schweizer (ed.), Reform der Bundesgerichtsbarkeit, (ZUrich 1995), 161.

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Yet, there is one consideration which may stress the importance of constitutional adjudication for countries with a solid democratic system as well. Constitutional review seems capable of compensating for some of the most dangerous deficits of modern democracies. The catchword is professionalisation of party politics. Surprisingly, such deficits arise from the principles of democratic accountability and responsive government, which turn out to be double-edged swords. 18 Democratically organised political systems and particularly political parties as their main actors operate under the imperative of winning elections. Electoral success is the prerequisite of bringing one's personnel into leading positions and of making one's political program enforceable. Hence, from the point of view of political parties, it is reasonable to do everything that helps win the elections and to avoid, at the same time, everything that may endanger this goal. This imperative has its costs. The tendency to instrumentalise all public spheres where decisions can be taken which may affect the claims of political parties endanger the autonomy of areas where party influence is not legitimate: public administration, judiciary, public television etc. The checks and balances provided in the constitution are thereby undermined. 19 In addition, political parties tend to concentrate on short-term success, if possible close to the election day, in order to raise their chances. They may even try to fabricate events of success, be they mere symbolic ones, for the purpose of reinvigorating their campaign. The downside, of coutse, is a neglect of long-term issues and of side-effects likely to occur in thenot-so-close future. What is more, parties reveal a certain indifference vis-a-vis fundamental societal principles embedded in the constitution when they can exchange them for an imminent gain. The judicial system operates under entirely different conditions. Its far-reaching lack of accountability and answerability to the public may in this light be its main virtue. Political success is no relevant parameter. Judges generally do not owe their pO,sition to general elections and are not subject to re-election or, mostly, re-appointment. Thus immunised, their autonomy protects them against sanctions in response to unpopular decisions. Usually they are not in need of seeking a professional 'career after retirement from the court. All of this makes them far less dependent on consent than politicians. What becomes clear, in sum, is that such insulation - taken together with professional standards - is the source of judicial authority. It enables the court to insist on respect for the lasting principles on which society rests, and to remind politicians of their long term-obligations, at least as far as they have a basis in constitutionallaw.

18 A more comprehensive analysis of the downside of democratic accountability can be found in J.G. March/J.P. Olsen, Democratic Governance, (New York 1995), 144 ss.; Haltem, Verfassungsgerichtsbarkeit (note 5), 398 ss. 19 Compare D. Grimm, Die politischen Parteien, in: E. Benda/W. Maihoferl H.-J. Vogel (eds.), Handbuch des Verfassungsrechts, (2nd ed., Berlin, New York 1994), 599, 644 ss.

9 THE ROLE OF THE SUPREME COURT IN A DEMOCRACY The Hon. Aharon Barak

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of "checks and balances". This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom. In this separation of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. In doing so, the judicial branch has to perform three principal functions. The first is concerned with determining those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion. The principal burden of carrying out the first and third functions is placed on the first levels of the judicial hierarchy. The burden of carrying out the second function falls on the Supreme Court. This second function - determining the law - is simple in cases where the law is known, accepted, and certain. In these cases, the court merely declares what already existed. It does not create a new norm. The court, to paraphrase Montesquieu, constitutes the legislator's mouthpiece, or the constituent assembly. However, the law is not known and accepted in all cases. There exist "hard cases", where the law is ambiguous; where there is more than one legal or constitutional option. A statute is subject to more than one interpretation; provisions in the Basic Laws are subject to a number of interpretations; the common law "Israeli style" allows a number of solutions, or is amenable to a variety of new developments. There exist a number of possible analogies, and the Heritage of Israel (Moreshet Yisrael) may be brought to bear in a number of ways. In such situations, a determination of the law by the Supreme Court is also the creation of law. The law changes, following the judicial decision. Before the judicial decision, the statute or the Basic Law spoke with a number of voices. After the judicial decision only one voice may be heard. The transition from the uncertainty of multiple possibilities, to the certainty of the single solution, involves more than just the pronouncement of the law, but M. Andeoas (ed.), Liber Amicorum Slyon 121-129 (2000) © 2000 Kluwer Law International

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also the creation of the law. This is "judicial legislation", and in this, the judge has discretion. He is not a mere mirror, passively reflecting the image of the law. He is also an artist, creating the picture with his own hands. Creating this kind of law is different than the way the constituent or legislative branches create law. They are meant to create laws in an abstract fashion. By contrast, the judicial branch is not meant to create laws. It is meant to decide concrete cases. Therefore, the creation of law by the jUdiciary is incidental to the decision in a case and, by its nature, secondary to the creation of the law by the political branches. This is the creation of law "between the crevices" of the constitution and the statutes. The normative activity accomplished by the court - a product of the judicial discretion granted to it - is not an indication of judicial imperialism. It is an indication of the uncertainty inherent to the law itself. Law is not mathematics. Law is a normative framework which determines what is permitted or prohibited. Indeed, so long as we cannot predict the future, we will have to live with the flexibility which allows solutions for unpredictable problems. So long as language does not permit the sort of generalisation that can cover all the possibly relevant details, one has to recognise the existence of situations which were not necessarily contemplated by the rule, but which are included by force of judicial decision. The existence of a state organ with the power to provide solutions for unpredictable problems, while adhering to a changing reality, becomes necessary. A state organ with the power to remove the lack of certainty found in law is needed. In every society, this organ is the court. Indeed, it is neither desirable nor possible to build a legal system whereby there would be, in advance, a known solution for every legal problem, and whereby there would be no uncertainty. The source of uncertainty lies in human limitations, and in the nature of society. Thus, the law is based on the presumption that not aU legal problems have one legal solution; for there are legal problems which have more than one legitimate solution. Choosing among the legal possibilities is the office of the Supreme Court of the legal system, which applies its judicial discretion. In the creation of judicial law - a product of judicial discretion - the judge gives expression to the basic values of the legal system. These values are the key to interpreting the law and the constitution. They are the force driving common law forward, and include ethical values regarding morality and justice; social values related to public order, to the purity of judging and security of the state and the public; suitable modes of conduct which demonstrate reasonableness, tolerance, proportionality, good faith and propriety. These basic values include an aspiration to realise reasonable expectations, assuring certainty in law, and confidence in inter-personal relations. In the centre of aU these basic values stand human rights - political, social, and economic. The judge learns about basic values from the fundamental documents, such as the constitution itself. We learn from our constitution that the values of the State of Israel are the values of a Jewish and democratic state; that its basic rights are grounded on the recognition of the value of the human being, of the

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sanctity of human life, and of human freedom. We learn from the Declaration of Independence that Israel is to be built on the principles of freedom, justice, and peace, and the social and political equality of all its citizens. The judge learns about basic values from the statutes and precedents. Above all - he learns about them from the national experience, from the nature of the political system as a democracy, and from his understanding of the basic conceptions of the nation. "Surely it is a known axiom", wrote Justice Agranat over forty years ago, "that the law of a nation is learned from the looking-glass of its national life". Indeed, the movement of our nation throughout history, its social and religious roots, the national renaissance against the background of the Second World War and the Holocaust - all these are a powerful source from which the judge draws the basic values of the state and the political system. The democratic character of our regime, and the social values derived from it - such as separation of powers, independence of the judiciary, the rule of law - constitute a system of principles and values according to which the judge creates law. Our existence here as a state with a non-Jewish minority entitled to full equality, reflects our life; the basic values upon which the cultures and traditions of the nonJewish minority are founded, are also part of our comprehensive national experience. The judge gives expression to all these. The values which direct the judge are basic values. They are not the results of public-opinion surveys, nor of populism which sweeps the masses. These are not transient and revolving trends. These are not blaring headlines. All these are important. In the long run, they might percolate into the soul of the nation, and transform it. Yet until that occurs, these are not the standards which guide the judge. Indeed,- when society is not faithful to itself, the judge is not obliged to give expression to the fleeting winds of the hour. He or she is to stand against such winds, giving expression to the national consensus, which reflects the basic principles, and the "I believe" of society. Hence, regardless of social sympathy or antipathy toward the judge, he or she is obliged to protect the human rights of each individual. Hence, the judge has the obligation to protect the community. Human rights must not be turned into a tool for national destruction. Where there is no security for the community, there is no existence for the individual; securing the social and political framework is a condition for securing human rights themselves. Thus, the Supreme Court creates law. It does so by giving expression to the basic values of the natiori. In many cases we, the judges of Supreme Courts, are faced with a conflict between values. Free speech conflicts with public order. Freedom of religion conflicts with freedom from religion. Freedom of movement conflicts with religious feelings. The right to life conflicts with the right to choose. Our legal system obliges the judge to face the conflicts. As judges, we cannot refrain from passing judgement. But our legal system does not provide us with the necessary tools to answer the question. In many cases, we are told that the solution to the problem lies in a balance between the conflicting values. But neither our legal system nor philosophy provide us with an answer to the two questions which

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subsequently, and necessarily, arise: what weight is to be assigned to each value, and how should the judge balance the values and conflicting interests? Balancing and weighing are, of course, metaphors. In any given case, how do we decide which value is of greater importance such that it supersedes other values? One may, of course, argue that those cases that represent fundamental disputes over conflicting values should be removed from the courts and be resolved by the political branches of government. While this is possible in some cases, it cannot be done in most cases. To remove these cases would be a violation of the constitutional scheme. Moreover, the act of removal dilutes the Constitution itself: Without judicial review, human rights will no longer have any constitutional protection. In a democracy, values protect the individual from the state; they protect the individual from the majority; they limit the state in light of those values. And in this context, the political branches of government are the state, and the majority. If the role of the judiciary is to restrain the power of the current majority then the adjudication of conflicting values cannot be left to the current majority represented by the political parties. Thus, if we take constitutional democracy seriously, it appears impossible to avoid having judges deal with conflicting values. It appears impossible to divorce judicial discretion from the values of society. We, the judges of Supreme Courts, have to accept that our role - our profession, our task, our specialisation - is to solve precisely those cases where conflicting values are involved - the hard cases. This is not undemocratic. Democracy is not just the rule of the majority, formal democracy. Democracy means also the rule of values. Democracy means human rights. When judges use constitutional values in order to protect human rights, they are furthering democracy in its fullest and richest sense. But how should we solve these conflicts? Just as I have assumed that judicial discretion exists, I have also assumed that there are no binding rules regarding how to assign weight to, and balance, conflicting values. But it does not follow from these assumptions that a Supreme Court judge can do whatever he or she wishes. In a democracy, no state power-and judges use state powermay be exercised with absolute discretion. Absolute discretion for judges, as well as any other official, would be the beginning of the end of democracy. Furthermore, although there are no rules governing the resolution of conflicts between clashing values, it does not follow that, within the range of legitimate solutions, every solution is as good as the other. There are good solutions, and there are bad solutions. What makes a solution a good one? The answer to that question is individual. Every judge - and of course every scholar dealing with the same questions - develops, over the years, his own philosophy of adjudication. It reflects his personal history, life experience, and totality as an individual and as a judge. For many, this philosophy remains unexpressed and is based on intuition. For others, however, it is the result of an attempt to think through and articulate to oneself one's own approach to hard legal questions. It is the product of an attempt to identify the crucial considerations for the individual, and to order them appropriately. And, it is one's own attempt to shape one's judicial philosophy. Let me try to identify some of these considera-

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tions. In so doing, I make no claim to comprehensiveness. I make no claim to truth. I make, of course, no claim that these considerations are binding on anyone in any legal system. My only claim is that I believe that if a judge in a democratic legal system would take them into account, he would be using his discretion in a better manner than ifhe ignored them. My first point is this: the weighing and balancing of the conflicting values should be a rational process. Judicial discretion must manifest reason, not fiat. The method in which the judge weighs and balances is different than the method by which the legislature weighs and balances the same values. The legislative process is political. The judicial process is normative. The judicial weighing and balancing should, in Dworkin's term, "fit" within the normative scheme. No such requirement is imposed upon the political process. The judicial weighing and balancing should be derived from the existing normative structure. The weighing and balancing in one area of the law should be affected by the weighing and balancing in other areas of the law. Within the same legal ~ystem, a judge cannot decide, in one instance, that free speech\is of great importctnce (for example, in a conflict between free speech and public order) and in another instance that free speech is of no importance (for example, in a conflict between free speech and the reputation of another). A judge is always faced with the need for harmony within the system. When a judge exercises judicial discrption, he does not perform a one-time act isolated from an existing normative order. Judicial discretion is used within the framework of a system and must fit into it. The legal system into which the judicial decision is introduced, is not a frozen body. It is a living organism,and judicial discretion is one of the forces that fertilises its cells. There must be harmony betwetj!n the exercise of judicial discretion that develops the cells, on the one hand, and the development of the living organism that is the legal system, on the other. In general, organic growth of the legal system necessitates gradual development. The need to ensure the existence of the system demands evo~ution, not revolution. Usually, continuity, rather than a series of jumps, is involved. Of course, sometimes one cannot avoid sharp turns and dangerous leaps, but these occur in exceptional situations. Normally, the proper functioning of a legal systern requires slow and gradual movement. Judicial discretion must fit into these frameworks. The judicial process is thus based on organic growth. The judicial ship does not normally sail into the stormy sea, but rather navigates its way cautiously and slowly along the length of the safe shores, occasionally attempting to conquer the raging waves and, if it discovers that this is impossible, it returns to its usual path. The legal system's development is from one concrete case to the next concrete case, through an abstraction that must fit into the framework of the system as a whole. The integration of judicial discretion within the framework of the legal system means that the exercise of judicial discretion in the present, for the purpose of the specific controversy facing the judge, should relate itself to the past. However, today's present is tomorrow's past. Therefore, judicial discretion should look to the future. In arriving at today's decision, the judge also estab-

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lishes tomorrow's norm. Thus, the judge is influenced by yesterday and draws sustenance from it. He decides the particular dispute today. Thereby, he creates a general legal norm for tomorrow. The exercise of judicial discretion in the present should pass this triple test. The judge must decide the controversy before him. It is only natural for him to strive for a just solution. Yet, he cannot ignore the fact that his solution should fit into the existing normative fabric. Nor can he ignore the fact that his solution should be just for similarly situated parties in the future. An ideal exercise of judicial discretion meets the triple test of integration with the past, justice in the present, and an appropriate norm for the future. My second point is this: judicial discretion should be objective. The weighing and balancing of the conflicting values should be objective. Objectivity, of course, has many meanings. Here, 1 mean an intellectual process by which the judge reaches beyond himself to understand, from the perspective of his community, the social values that he is to weigh and balance. Objectivity stands in opposition to the subjective values of the judge. The judge's decision should reflect the deep values of his society, not his personal values. Objectivity means giving expression to the general scale of values, not to the judge's own scale of values. It means that the judge frees himself, as far as he can, from all personal preferences. It means neutrality in the process of balancing. Objectivity means reflecting the deep consensus and the shared values of the society. It is only then that the judge would be able to look straight into the eyes of his nation and say: "I gave expression to your shared and profound values - not to my personal values". It is only then that he will be able to say to the legislator, whose statute he struck down as unconstitutional: "I gave expression, not to my personal values, but to the values of the constitution. The conflict is not between the court and the legislature; the conflict is between the legislature and the constitution". This objectivity demands much from the judge and requires an element of introspection. He must be aware that his values may not be shared by everyone and that his personal views may be unique. He might attach great importance to issues that the general public sees as trivial and meaningless. The judge must be aware of his characteristics, and he must make every possible effort not to exercise his discretion on the basis of these subjective traits. Judicial discretion should be consistent. Only thus will discretion fit into the legal system as a whole and become an integral part of it. A reasonable exercise of judicial discretion requires that in similar cases discretion be exercised in a similar manner. This is a fundamental requirement of justice. Consequently, a consistent exercise of judicial discretion also means a neutral exercise of judicial discretion. Of course, a judge might exercise his discretion in such a way as to cause a deviation from the existing law. Consistency does not require abstention from all change. Yet, even here the judge should be consistent and neutral. He should apply the new rule in every similar case, and he should be prepared to deviate similarly when like circumstances arise. Herein lies one of the differences between the discretion of the judiciary and the discretion of the legislature. No le-

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gal obligation is imposed on the legislator to be consistent. He need not act neutrally. The same is not true for the judge. His discretion should fit into the legal fabric. As a result, he must be consistent and neutral. The judge is the product of his time. He lives at a given time and in a given society. The goal of objectivity is not to cut him off from his surroundings, but the opposite: to enable him to properly formulate the fundamental principles of his time. The goal of objectivity is not to "liberate" the judge from his past, his education, his experience, his faith and his values. On the contrary: its purpose is to stimulate him to make use of all of these in order to reflect as purely as possible the fundamental values of the nation. A person who is appointed as a judge need not change, but he must develop a sensitivity to the weight of his office and to the constraints it imposes. "You thought I was giving you power? It is slavery that I am giving you". The judge must demonstrate both self-criticism and a lack of arrogance in a way that will enable him to avoid identifying himself with all he believes to be good and beautiful. He must demonstrate self-restraint that lets him separate his personal feelings from the inner feelings of the nation. He must demonstrate an intellectual modesty that permits him to say, "I erred, for I confused what I want with what I am entitled to". A judge who does not act accordingly and who imposes on the society all that he subjectively believes will create tension between himself and his environment. As long as he or she and others persist in this, the tension between the judicial branch and the other branches will grow. The result of this tension may be hazardous for society, and above all, it may damage the status of the court and the pub Iic' s confidence in the jUdiciary. Only through the use of objectivity and consistency will the judge have the trust of his legal community, a trust given to him as neutral arbiter of conflicting values. And, without such trust, the judge cannot fulfil his function. The most important asset the judge possesses is the public's confidence in him. The public's confidence in the judicial authority is also among the most precious assets of the nation. The public must have confidence that the adjudication is done fairly, neutrally, while treating each side equally, and without any hint of a personal stake in the outcome; the public must have confidence in the high moral standard of judging. De Balzac's expression is well known: "lack of confidence in the judiciary is the beginning of the end of society". The judge has neither sword nor purse. All he has is the public's confidence in him. Public confidence is not a given. Its existence cannot be taken for granted. The public's confidence is a fluid matter. It must be nurtured. It is easier to damage than to guard. Years of effort may be lost forever because of one unfortunate decision. Therefore, in exercising his discretion, the judge should bear this need in mind. Every judge should act as though the public's confidence in the entire judicial system depended on him. Of course, there is not much one can do with just the public's confidence in adjudication. Yet, without it one cannot do anything. The need to ensure confidence does not mean the need to guarantee popularity, but rather the need to preserve the public's sense that judicial discretion is being exercised objectively, through a neutral application of the laws and of the fundamental values of the nation. Judicial discretion is exercised in order

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to maintain the articles of faith of the people and not the articles of faith of the judge; that the judge is not a party to the power struggles in the state and that he is fighting not for his own power, but for the rule of law. My third point is this: every judgement is a link in a chain. The world does not start with us, and hopefully will not end with us. Every judgement is one step in a long unending journey. We should always realise where we come from, and where we are going. In solving hard cases, a judge should hold deep respect for tradition. Tradition means a sense of history. Tradition means an appreciation of precedent. Tradition means a fusion of the horizons of the past and the present. Tradition means a dialogue between generations. Tradition creates continuity. Judicial creativity, like the writing of a book in serial installments, is a continuous activity. Judges who are no longer on the bench wrote the early chapters. Current judges write the continuation, but they do so by basing themselves on the past. And, as new chapters are written, they become part of the past, and new chapters, the fruits of new judges' labours, are written. Thus the judicial creation is achieved, which has no beginning and no end and is all continuity. My fourth point is this: the judicial decision should fit into the general structure of the institutional-governmental systems. The judge who exercises discretion does so as part of the judicial branch. His judicial decision should match the fundamental conceptions of the relations between his branch and the other authorities of the state. These fundamental conceptions stem from society's view of democracy and of separation of powers. They are affected by the society's view of the judicial function. Judicial lawmaking is not the only form of lawmaking or even the primary form. The other branches also create law. Judicial lawmaking should mesh with this overall lawmaking. The judge is not the only musician within the grand legal orchestra, and his playing must be in harmony with the rest of the music. My fifth point is this: in exercising discretion and in balancing conflicting values a judge should be open-minded; he should be receptive to new ideas. He should realise that in a pluralistic society there are many points of view and there is no single "right" solution. A judge should exercise humility. He should be aware of his personal strengths and weaknesses. He should know that he may fail. Though his decisions may be final, they are not infallible, and the judge may commit grave mistakes. He may misread the national way of life. He may not strike the proper balance between stability and change. Any theory of adjudication in a democracy should consider the possibility that mistakes can be made. But what should a judge do when all this advice fails? How should he decide a hard case when rationality, objectivity, tradition and humility fail to lead to a single answer? There is no one answer to this question. Different judges have different answers. My answer is this: in that exceptional instance - and it is a very rare instance of the very hard case - the judge should refer to his subjective beliefs. He has no other choice. At this point, subjectivity is allowed to enter. The final decision will be shaped, as Cardozo observed, by the judge's "experi-

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ence with life; his understanding of the prevailing canons of justice and morality; his study of the social sciences; at times, in the end, by his intuitions, his guesses, even his ignorance or prejudice". Of course, the judge should not cut corners in the decision-making process. He should not go straight to his subjective beliefs. There is a long objective road to travel. But, after all the objective means have been exhausted, he should be allowed to apply his subjective beliefs. Those subjective beliefs differ, of course, from judge to judge, from one generation of judges to the next, from country to country. Every judge is part of his people. At times he lives in an ivory tower, but my tower is on the hills of Jerusalem, not on Mt. Olympus. As ajudge, I am conscious of what is taking place in my nation. I am a part of it. A judge is a creation of his time. He moves with history. All of these conditions shape his judicial philosophy. I would like to point out the following two considerations that shape my judicial philosophy and my subjective beliefs when I use discretion in those very hard cases. First, law is not an end in itself. It is a means for social order. The court has a social function. A Supreme C6urt does not merely solve disputes; it also creates law. It closes the gap betwebn law and life. It preserves democracy both by protecting the political process and by guaranteeing human rights. It safeguards the rule of law. The judge is, of course, an objective arbiter. But he is an arbiter with a special function. We judges should realise that whenever we sit in trial we stand on trial. We should realise that we are a social institution with a social function. It is our function - alongside the legislature - to preserve stability and change. "Law must be stable" - said Professor Roscoe Pound - "and yet it cannot stand still". Stability without change is stagnation; change without stability is anarchy. We should recognise that our function is to effect both stability and change, within the constitutional scheme, through action that is sensitive to the other branches of government and to the idea of the separation of powers. But within these limitations, we should not view the closing of the gap between the law and the needs of the community as a function that is foreign to us. Second, whenever all other objective considerations fail, the stage is set for reflection upon the most important value - justice. Of course, justice accompanies our judging throughout the adjudicative process. But at that final stage, when the objective considerations fail to produce one and only one answer, justice is foremost. At this point, law and justice unite. Law is justice, and justice is law. The Justice does justice.

10 JUDICIAL REVIEW: A PRACTISING JUDGE'S PERSPECTIVE The Han. Stephen Breyer

As I begin this lecture I cannot help but recall this room 38 years ago, when a group of students that included me watched Professor H. L. A. Hart, standing at the lectern, his head cocked to one side with that unusual, carefully combed down, frizzle in his hair, manuscript in hand, begin to deliver a series of lectures that later became The Concept of Law. That book has had enormous influence, as has so much else that he wrote. I think particularly of his debate with Lord Devlin about law and morality. I recognize what an honour it is to have been invited to speak today at the annual lecture that honours Professor Hart's memory. And I should like to begin by acknowledging the considerable debt owed by me and innumerable others to his lucid thought and his careful analysis of the law. I also acknowledge that Professor Hart might question whether I, as a judge, am best placed to consider the merit of my own legal system! After all, he carefully distinguished between an 'internal' and an 'external' perspective upon a legal system, the first being that of a system actor (a judge, a lawyer, a citizen) directly responsive to the system's own evaluative canons, the second being that of an outside-the-system observer offering 'value free' or 'independently valued' descriptions of the system. I fear I shall mix the two. Being an American judge, I cannot entirely escape the first. And I am speaking to those who will, I hope, view what I say from the second. You are considering changes in your system that may give your judges a more independent role in interpreting and implementing a Bill of Rights. Thus you may take what you hear as raw material, helping you to evaluate those proposals in light of your own objectives. Understanding that difference in points of view, I shall try to describe our system of judicial review in a 'relevant' way-perhaps like a recipe for poulet a la reine, critiqued by the chicken, but for the benefit of a foreign chef. My description will try to help you evaluate one important criticism of'independent judicial review' by which I mean the grant of legal authority to judges to set aside statutes upon the ground that they violate provisions of a written constitution. Such a system, says the criticism, substitutes for the views of legislators the views of judges. The judges are unelected, they interpret highly abstract constitutional language, e.g. the word 'liberty', and they work in an ivory tower. The results are undemocratic, subjective, and impractical. M. Andenas (ed.), Liber Amicorum Slynn 131-143 (2000) © 2000 Kluwer Law International

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I cannot entirely refute this criticism, for it is valid - but only, as the editor says in Evelyn Waugh's Scoop, 'up to a point, Lord Copper, up to a point'. My object this afternoon is to provide you with comments and examples, expressed from the viewpoint of a practising judge, that, I hope, will help you determine just where that point lies and to evaluate its significance. I shall describe the 'democratic anomaly', trying to narrow the scope of the 'democratic' problem. Then, focusing upon decisions that remain significantly 'undemocratic', I shall illustrate through discussion and example how a judge might find constraints that make 'subjectivity' and 'administrative impracticality' somewhat less problematic than is often thought. At the outset let me remind you of several features of our Supreme Court and our Constitution, with which many of you are already familiar. I do so because of their relevance to the later discussion. First, the Court's membership reflects a diversity of backgrounds and points of view. Vacancies arise infrequently because a President must appoint, and the Senate confirm, each of its nine members (currently seven men, two women) 'for life'. American judges enter their judicial career typically in mid-life after experience elsewhere. Eight of the present justices have had previous judicial experience in lower courts; and, before that, six had experience as lawyers in government; four in private practice; four as law professors. Republican Presidents appointed seven of us; a Democratic President, two. Length of term and the appointment process tend to guarantee diversity of constitutional views. Second, the Court's role in judicial decision-making is limited. Much of our work involves the resolution of lower court conflicts about the interpretation of federal law. That law - the federal Constitution, congressional statutes, federal agency action - is itself limited, because the 50 states, not the federal government, are responsible for much of American law, including family law, property law, contract law, tort law, most criminal law, and most other commercial law. Perhaps 95 per cent or more of all judicial proceedings take place in state courts. Moreover, within the area of federal law, we hear only a handful of cases. We receive about 7600 requests for hearings each year; we grant and decide fewer than 100. (Overall, there may be more than 10 million court cases brought annually in the USA.) Third, our decisions, like those of supreme, or constitutional, courts in other nations have considerable legal and practical significance. In part that is because, like the House of Lords, the cases we take, by definition, are those that present open legal issues, with strong arguments on both sides. In part it is because most of our decisions, as a practical matter, are final. In part it is because our history includes certain decisions, such as those involving desegregation or electoral reapportionment, that have changed the life of our nation. I shall return to the way in which the finality of our decisions can affect what we do. For the moment, simply keep in mind the fact that our Court is comprised of a small number of men and women of diverse views and backgrounds, appointed for life, who decide a small number of cases involving federal law, and whose decisions are usually final and frequently have considerable practical significance.

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Let me also remind you of several relevant features of our Constitution. The document, adopted in 1789 and importantly amended after our 19th century Civil War, established the federal government and, in doing so, set forth a framework for democratic government. It initially included: an explicit delegation of powers to the federal government (reserving all others to the states); an allocation of governmental powers (among three branches of federal government); protections of certain liberties (such as free speech, press, and religion, and against unreasonable searches and seizures) from federal interference; and guarantees of fair procedures for those threatened with criminal prosecution. The Civil War amendments extended the scope of these protections by guaranteeing them against infringement by state governments; and it added guarantees to individual citizens of fair, and equal, treatment by all government. For present purposes it is important also to remember that: the document is brief - seven Articles, 27 Amendments. Often its language is open ended, e.g. 'no state shall ... deprive any person of life, liberty, or property, without due process oflaw; nor deny to any person ... the equal protection of the laws'. It is difficult to amend - amendment ordinarily requiring the affirmative vote of two thirds of each house of Congress plus approval by three quarters of the states (or a special 'convention'). And it is not simply a set of aspirations, but a legal document setting forth rules with legal force. Judicial interpretations of the Constitution have binding legal force, not subject to legislative override (except through constitutional amendment). The judicial power to set aside laws, including congressional statutes, as unconstitutional rests upon a judicial interpretation of the Constitution, which the Court made nearly 200 years ago, in Marbury v. Madison 1• The Court's Authority to set aside unconstitutional laws is now accepted. The public defers to nearly all judicial interpretations of the document, even when those interpretations are unpopular, controversial, and of debatable merit. To summarize: the framework-creating document is brief, general, permanent, and effective, Let me now describe the 'democratic anomaly', a matter central to how citizens, constitutional scholars, and judges think about constitutional decision making, and which appears frequently as the subject of public and academic constitutional debate. The question at the heart of the anomaly is why a democracy - a political system based on representation and accountability should entrust· the final, or near final, making of such highly significant decisions to judges - unelected, independent, and insulated from the direct impact of public opinion. I can narrow the anomaly by pointing out that all government, to achieve flexibility, must involve the exercise of delegated authority. Given delegation, enacted law will not necessarily reflect the views of a particular electorate; nor will law that takes the form of treaties, regulations, and administrative rulings

5 US (1 Cranch) 137 (\803).

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necessarily reflect the views of a particular legislature. Democracies also delegate authority to judges - and properly so. Who would want to convict a person accused of murder on the basis of a popular vote? Nor could one reasonably advocate a system of civil law that instantly changed to reflect the views of a popular majority, for such law would lack the stability that any form of government under law requires. For that matter, any actual democracy contains many non-majoritarian institutions (e.g. a Senate) and procedures (e.g. seniority). I can narrow the anomaly further by pointing out that many nonconstitutional judicial decisions are already, in a sense, immune from later legislative revision. As a practical matter, lack of legislative time or interest or the popularity of a judicial decision, means that the legislature usually will not overturn a judge's statutory decision despite its legal power to do so. Indeed, several nations have drawn upon this power of delay and upon the popUlarity of decisions favoring human rights to create special judicial protection that is theoretically consistent with parliamentary sovereignty. Thus Israel protects basic human rights through a statute that, in principle, its Parliament might change; Canada permits its Parliament to re-enact by simple majority a statute held unconstitutional; and New Zealand authorizes judges only to 'recommend' to Parliament that Parliament revise a statute found to violate basic rights. I may have narrowed the anomaly, but it still exists. In fact, one could claim that the very systems just described still embody that anomaly to the extent that they offer special protection from the popular will. In any event, our own system does not permit a legislative override (except through amendment). Can we 'resolve' the remaining 'democratic' anomaly by admitting it and then trying to justify it? Let me remind you of several classic efforts to do so. Some have pointed out, for example, that many, though not all, of the basic rights that our Constitution protects are themselves important preconditions of a well-functioning democratic system of government. The guarantee of free speech, for example, by helping to secure citizens' access to even the most bizarre points of view assures voters the opportunity to exercise an informed democratic choice. Many 'equal protection' guarantees mean that government wiIl not improperly weigh the voice of one citizen more heavily than that of another. Others have argued that the American Constitution, with its allocation of powers among many different governmental units, requires a 'referee' (Le. the courts) to prevent overreaching. Still others say that 'democracy' simply is, not only majority rule, but also the protection of minority rights - a method, for example, of preventing the 'people drunk' from undoing the will of the 'people sober'. Given the 20th century's history of governments unable to withstand popular demands for mistreatment of minorities and the abandonment of democracy, one might see judicial review as a kind of institutional ballast, helping to stabilize the kind of democracy that so many nations today enjoy. Still, there remains much to reconcile with 'majoritarian' democracy, for example, certain constitutional protections such as the Fifth Amendment's prohibition of 'cruel and unusual punishments', or the Fourteenth Amendment's protection of certain aspects of family life that fall within the scope of the word

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'liberty'. Nor can one easily justify, as necessary to the preservation of that democracy, the independent determination by judges of related claims, based either upon constitutiorial words such as 'liberty' (e.g. the claim ofa constitutionally protected 'right to die') or upon the words in a Court opinion interpreting those words (such as a claim about the constitutionally required implementation of a court decree forbidding certain kinds of racial discrimination). And, of course, in a sense, once one feels it necessary to justify the 'anomaly', one has thereby admitted the problem. Thus, I should like to return to narrowing: our judiciary, aware of the anomaly, tries to minimize its impact through the use of rules, standards or canons that recognize the problem. For example, the standard of constitutionality applicable to statutes focusing, not on the statute's wisdom, but on its constitutionality, which often concerns the statute's 'rationality'; the rule (stare decisis) for determining when to overrule a previous case is less strict in constitutional than in statutory matters; a canon of interpretation requires courts to try to save a statute by interpreting it in a way that will avoid a serious constitutional problem. There are others. I also believe it important to note that judges, aware of the anomaly, often seek through their interpretive attitude to reflect the constitutionally vested primacy of legislative decision-making, even in cases that do not fall squarely within an interpretive canon. But however much I may narrow, ultimately there remains an important set of cases, for example, cases involving privacy or religious freedom, that can require us, when interpreting or applying the Constitution, directly to frustrate the legislature's express objective. I tum to that set of cases - those in which there is an inevitable tension between the will of the elected legislature and the work of the unelected judge. Does judicial decision-making there mean subjective, impractical decision-making - or, to return to Lord Copper, up to what point? You are aware that language, history, and precedent will answer many constitutional questions. Moreover, some fine constitutional judges have believed that, even in more difficult cases, a single factor, such as the Constitution's language, or its history, can itself significantly constrain subjective decision making. For myself, however, I cannot find a touchstone in any such single factor. Instead, I believe that a realistic appraisal of subjectivity must take account of certain constraints, related to each other, which I shall describe in five parts and follow with an example. First, judges of a constitutional court, like all judges, find constraints in the 'rules', canons, principles, and institutional understandings of the judicial enterprise itself. Judge Learned Hand answered the charge of 'subjectivity' by pointing to 'those books'. I assume he meant metaphorically to include (in common law matters) the common law tradition, and (in statutory matters) language, structure, history, precedent, purpose, and consequences - all of which permit a judge to find a 'better' and a 'worse' answer even to the most difficult of statutory questions, even where language (for example, antitrust law's 'contract, combination or conspiracy in restraint of trade') is open-ended.

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Second, as is true of any craft, experience both teaches and constrains its practitioners. And constitutional court judges do develop a kind of special experience. Our work differs in kind from most trial court work, for unlike trial courts we do not determine facts or apply previously elaborated law to those facts. It also differs in kind from some of the work of the courts of appeals, in that we do not review for error the trial court's application of previously elaborated law to the facts of a particular case. As Chief Justice Taft pointed out in 1921, 'Litigants ... have [already] had two chances'. Rather we most frequently hear and decide cases that involve conflicts of interpretation among the lower courts, thereby producing uniform national law. That 'law interpreting' work resembles that of the courts of appeals when it involves statutes. Our work does not resemble theirs when we interpret the Constitution. Since all federal and state courts have the power to interpret the Constitution, the difference is one of degree, not kind. But it is one of considerable degree, for open questions of constitutionallaw in our Court become a steady diet. And the difference in degree is important in that the experience, the steadiness, and diversity of a constitutional diet, naturally lead a judge to try to see, and to understand, the Constitution as a coherent whole. Third, that effort, in my view, leads one to see the Constitution as a 'framework' - a concept that I believe plays as central a role in our Constitutional decision-making as does the notion of 'legislative purpose' in statutory interpretation, or 'comparative institutional expertise' in administrative law. The concept acts as a functional limitation, for it reminds us that we almost always must determine, not whether a statute or other legal rule is wise (e.g. whether handguns should be regulated or whether doctors should be free to assist a patient's suicide), but rather who has the legal power to make such a decision: individual or government? state or federal government? executive, legislative, or judicial branch? And it reminds us (as does our small size and limited docket capacity) that a constitutional power-allocating answer must last, irrespective of today's politics, for many years to come. The concept acts as a substantive limitation in that the Constitution's provisions (read together) create a framework for a certain kind of workable government: that government is characterized by the rule of law; democratic responsibility for decision-making; the protection of basic human liberties; fair procedures; equal, treatment of citizens; and widespread dispersal of governmental powers (among different levels and branches of government) to assure that no small group of individuals becomes too powerful. The framework viewed substantively helps to explain individual provisions, as does the historical origin of each provision, for that origin typically tells a story that helps a judge identify the provision's central objective or value, thereby providing an interpretive key that promises a degree of interpretive consistency over time despite the fact that the content of highly general phrases, such as 'interstate commerce' or 'fundamental fairness' now may differ dramatically from that of 200 years ago. I recognize that talk of a framework for, say, workable, liberal (in the libertyprotecting sense) democratic government, as well as descriptions of the 'central

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values' embodied in particular provisions sounds abstract. Still those characteristics, particularly when seen as part of a coherent framework, can help guide a judge's response to particular questions, by ruling out some answers and by highlighting the merits of others. Fourth, I find constraint in the need for each decision to fit within what one might call the legal 'fabric', a fabric that is itself tied, through purpose and through consequence, to actual human behavior. To say this is, in a sense, to repeat my first point, for every legal decision interacts (one might say 'horizontally') with other decisions, principles, standards, practices, and institutional understandings, always modifying the 'web' of the law; and every decision affects (one might say 'vertically') the way in which that web, in tum, affects the world. Judges must often take account of 'vertical' effects both because individual laws have particular individual purposes that guide legal interpretation and because legal institutions themselves are designed to help us solve the human problems that called them into being. I suggest, however, that, in respect to constitutional matters, estimates of 'vertical' effects, i.e. the real world consequences of 'horizontal' interactions, have a particularly important role to play. In order to write an opinion, one might for example, ask not only the obvious 'horizontal' questions, about say language, history, and precedent, but also such 'vertical' questions as: (a) How will lower courts, lawyers, government officials, and other institutions (e.g. businesses, trade unions), who must rely upon the Court's cases for authoritative guidance, implement the opinion's holding? For example, should a constitutional rule that excludes illegally seized evidence from criminal trials be applied to court officials who negligently fail to check a computer-generated suspect list, in light of the need for a uniform, easily administered basic rule, or should it except them from the rule on the ground that their inclusion is administratively unnecessary? (b) What theme or 'music' does the opinion's rhetorical language generate? Consider the powerful practical effects, above and beyond an opinion's holding, that use of a word like 'sovereignty', or a metaphor such as 'public forum', can have in cases involving, say, Indian tribes or free speech. Think, too, of the disastrous practical impact of the phrase 'separate but equal' on American life and the Court's consequent difficulties in extricating the law from the phrase's implication in the segregated society that it helped to bring about. (c) What effect will the opinion have upon the working relations between courts and other major governmental institutions? How will it affect the way in which the Court itself works as an institution? (d) Should the opinion focus only on the facts characterized narrowly - say, to avoid commitment to a 'theme', where consequences are not known, or where such commitment might mislead the public, or will so narrow a focus prevent the opinion from generating any clear and important principle? Ultimately, what is the opinion's real-world impact (its effect, not its popularity), considered in light of basic constitutional objectives? The answers to these practical questions constrain. Where a serious discrepancy develops between the world as described in terms of the Constitution's ul-

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tim ate objectives and the world a particular decision helped to create, the constitutional rule will change. The Supreme Court realized by 1954, for example, that the Constitution's Equal Protection Clause could not tolerate the racially segregated society that the Court's earlier 'separate but equal' cases had helped to establish. It properly overruled those cases, thereby indicating that constitutional interpretation itself is an ongoing, iterative, and self-correcting process. Fifth, constraints arise out of the judge's own need for personal consistency over time. Justice O'Connor has described ajudge's initial decisions as creating footprints that later decisions will follow. Moreover, the appointment process likely assures that judges have awareness, through prior experience of the nation's history and cultural heritage. Those facts, combined with diversity of membership and longevity of service, help to dampen radical swings in the Court's approach to constitutional problems. Let me provide an example designed to isolate an area where history, language and precedent do not easily resolve the question - an area of potential subjectivity - and thereby illustrate how some of these constraining factors might work. Consider the 1995 case, U S Term Limits v. Thornton 2 . It focused on the Constitution's requirements for membership in the House, of Representatives, namely: No person shall be a Representative who shall not have attained to the Age of Twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that state for which he shall be chosen.

The State of Arkansas enacted a statute that forbade an otherwise eligible candidate to place his name on the ballot if he had previously served three (twoyear) terms. Is this 'term limit' requirement, adopted by Arkansas voters at a state election, consistent with the federal Constitution? Does the Constitution mean the three requirements it lists - age, citizenship, and residence - to be exclusive or does it permit a State to add others? The ordinary 'non-subjective' factors that guide interpretation are in almost perfect balance. The constitutional language, read literally, helps Arkansas a little, for it is negatively phrased ('no one shall be a Representative who does not') but one can still read the passage as setting forth an exclusive list. Precedent hurts Arkansas a little, for the Court in an earlier case (which discussed a history that included John Wilkes' fight to gain a seat in Parliament) held that the Constitution's three qualifications were.exclusive; but that case concerned only the constitutional power of the federal Congress, not constitutional limitations on the authority of a State, to add other qualifications. Perhaps a draw. History left the question open. Among the Founding Fathers, Alexander Hamilton wrote that the Constitution's 'qualifications ... are defined and fixed ... and are unalterable by the legislature'. And James Madison implied agreement 2

514 US 779 (1995).

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by adding that 'no qualification of wealth, of birth, of religious faith' could 'fetter the judgment of the people'. But Thomas Jefferson said that the Constitution does 'not declare ... that the member shall not be a lunatic, a pauper, a convict ... or a non-resident of his district; nor does it prohibit to the State the power of declaring these, or any other disqualifications ... '. Jefferson argues for a nonexclusive reading by asking why the Constitution would forbid the states to disqualify lunatics and convicts, while Madison argues for an exclusive reading by asking why a democratic constitution would permit states to disqualify on the basis of property or class. Another draw. The historical practice shows that in 1789 many states set property qualifications for legislators, but only one (Virginia) applied them to federal legislators. It also shows that several states insisted on local district (not just state) residence, but Congress later (with many dissenting voices) found that this kind of state requirement was contrary to the Constitution. Draw again. Nor do other constitutional provisions answer the question. The Tenth Amendment favours the Arkansas position, for it says that powers 'not delegated to the United States' are 'reserved to the States' (or to the people). But the fact that the office in question is a federal office hurts it, for one might expect the federal Constitution to specify the necessary qualifications for a federal office holder. Still close to a draw. Ifl am right in stating that the arguments from language, precedent, history, purpose, and structure (set forth in 150 pages of opinions) were close to equipoise, what now could determine the result? Have we reached a zone where the judge decides 'as he wishes' - a zone of 'subjective preference'? Consider this. The question, like most constitutional questions, concerns the allocation of power: Does an individual state have the power to determine qualifications, or does that power rest only in Congress and the states together, acting through constitutional amendment? The Court's decision would likely have significant consequences in the world: To decide against Arkansas would impose a significant obstacle to any 'term limits' change. To decide for Arkansas would seem likely to lead to significant change in the make-up of, and workings of, the federallegislature, by increasing turnover dramatically. And it is difficult to predict whether that change would mean more 'democracy' (e.g. by producing legislators who are more closely 'in touch' with their 'grass roots') or would mean less democracy (e.g. by making it more difficult for voters to hold individual legislators, or their parties, responsible for what occurs over time). These consequences, viewed through the lens of the Constitution's framework, help to generate an answer - though one that may vary among different judges. The more one sees the Constitution as providing for stable democratic government over time, the more one sees a state 'term limits' requirement as making a major change (with unforeseeable but certainly important institutional consequences) in the workings of that government, the more one would likely believe that the Constitution intends a structural change of that magnitude to flow only from the widespread durable consensus that must underlie a constitutional amendment. The more one sees in the Constitution's division of powers

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an insistence upon the continued influence, power, and authority of the individual states, the more one would likely believe that the Constitution, without amendment, permits a state to impose the additional requirements. I can understand how ajudge's experience as well as expressions of view in prior opinions, i.e. 'footprints', may be relevant as to which ofthe two constitutional elements' or policies just mentioned weighs more heavily in the mind of a particular judge. And I understand that the matter presents a very close question - one on which our Court split five to four (ruling against Arkansas). But I find it difficult to characterize the resulting conclusion as unusually 'political' or particularly 'ideological' or even highly 'subjective', as those terms are normally used. Rather, differences in outcome reflect somewhat different views of the same constitutional framework, differences in emphasis perhaps reflecting differences in background or experience that are inevitable, perhaps highly desirable, among judges. I have not yet mentioned the third part of the classical criticism - that associated with administrative workability. I shall conclude with two examples that focus upon what I have called the problem of the 'ivory tower'. They illustrate both the need for, and the difficulty of, taking account of practical administrative concerns in constitutional decision-making. The first example focuses upon one way that the Court seeks administratively to implement constitutional law. In the recent Internet case 3 the Court considered a statute 4 that made it a crime 'knowingly' to transmit across the Internet a 'patently offensive description of sexual activity (i.e. an 'indecent communication') to a 'recipient' known to be 'under the age of 18'. Did this statute violate the First Amendment's prohibition of laws that' abridge [ ] the Freedom of Speech'? Here, as in many related .matters, the Court begins to answer the question by putting the government activity into one of three categories. Where Category One, called 'strict scrutiny', applies, the Court will presume a constitutional violation unless the government can justify its action as necessary to serve a 'compelling interest' that cannot be achieved in 'less restrictive' ways. Where Category Two, called 'intermediate scrutiny', applies, the Court seeks justification in terms of an 'important interest' that does 'not burden more speech than necessary to further that interest' (rather like a European 'proportionality' test). Where Category Three, called 'rational basis' applies, the Court presumes the law valid unless it could not be seen as rationally connected to some permissible governmental interest. The Court placed the Internet statute in Category One, 'strict scrutiny', because it regulated the content of speech (perhaps even that of literary or scientific works). It accepted the Government's justification, the need to protect children, as 'compelling'. But the Court found the statute invalid on the ground that children might be protected in other, 'less restrictive', ways, such as requiring

3 4

Reno v American Civil Liberties Union 521 US 844 (1997). Communications Decency Act.

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electronic tags that could make it easier for censoring programs, like NannyNet, to screen out what parents thought undesirable. For present purposes, I want you to consider the three categories, not their application. You may have noticed that I did not explain very clearly where, how, and when they apply. Indeed, my description is ambiguous as to whether the word 'scrutiny' and its accompanying test refers only to a judicial activity amounting to a general signal with little more precision than a traffic light or whether it amounts to a more precise legal instruction about the strength of a justification, or, perhaps sets forth a kind of legal presumption. These uncertainties once led Justice Thurgood Marshall to suggest (in respect to racial segregation and the Equal Protection Clause) that the Court simply use one, 'rational basis', test, (for segregation is not rational), applied according to a kind of sliding scale. Why proliferate tiers and tests if use of a single word 'rational' could bring about the same results? The answer is administrative. The Court is, as I have said, a small body able to decide only a handful of cases. The legal system is large; those who depend upon it are many; the factual circumstances are various; and the need for speedy decision is great. Were we to use a single notion, say 'rational basis', we should have to illustrate its use by applying it in many in different circumstances, a common law method. And we should thereby lose the rule-related administrative guidance that even a crude 'three-tier' system can offer. Is the constitutional effectiveness that the system offers worth its costs, in terms of the oversimplification, rigidities, and the consequent need for refinement, that the tests themselves create? That is a basic constitutional 'administrative' question, to which our Court has answered 'yes'. Consider a second example, provided by the difficult question of how to apply the First Amendment's protection of religious freedom (government may not 'abridge ... the Freedom of Religion') to laws with a purely 'secular' purpose, i.e. laws that do not seek to interfere with the practice of religion but nonetheless have that effect. In 1963, in Sherbert v. Verner 5 , the Court, applying 'strict scrutiny', said that the First Amendment requires the government to create exceptions in those 'secular purpose' laws, thereby permitting the sincere practice of religion to proceed unimpeded, unless an exception-free law is needed to serve a 'compelling interest' that cannot be achieved in a 'less restrictive' way. The Court held that a state unemployment compensation law requiring recipients to seek work even on Saturdays, must make an exception for those for whom Saturday is the Sabbath. In 1990, however, in Employment Division v. Smith, 6 the Court disowned the Sherbert test. It said that the First Amendment did not require any religion-based exception in a law with a secular purpose. States can enforce laws so long as they are not specifically directed at religious practice even if they incidental burden that practice. Hence a state law denying unemployment compensation to drug users need not contain an exception for Ameri5 6

374 US 398 (1963). 494 US 872 (1990).

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can Indians who used peyote, a hallucinogenic drug, for sacramental purposes. In a 1996 case several members of our Court suggested re-examining Smith. Administrative concerns play an important role in this dispute, for any interpretation must satisfy the Constitution's demands for government that both protects religious freedom and, as I have previously said, is workable. Constitutional judges recognize that their decisions will have to be understood and applied by thousands of judges and lawyers and public officials to hundreds of different laws. They therefore must ask whether Sherbert's 'strict scrutiny' rule will prove unworkable in practice, riddling the vast body of state and federal law with too many exceptions too easily claimed. Alternatively, will Smith's 'secular purpose' rule prove unnecessarily restrictive, unreasonably burdening religious practice even where it would be administratively easy for officials to make an exception (say, from a parking regulation)? Is there some middle way? I am not advocating a particular rule. I am pointing to questions that judges might ask and therefore to the significance of 'administrative workability' -how it makes a difference to the opinions of judges, even if they work in an 'ivory tower'. Constitutional courts throughout the world increasingly ask similar questions. Must secular authorities, for example, make exceptions from secular laws to accommodate religious practices, - an exception, say, from a school dress code to permit Muslim girls to wear the chador; from traffic rules, for a religious group wishing to march on a religious holiday; or from alcohol or drug laws, for a religious group that makes sacramental use of wine or peyote? Answers may differ as customs and histories differ. In France one might appeal to the school system's traditional secularizing mission; in India one might appeal to the historical need to maintain religious pluralism. Regardless, if that cliche 'shrinking world' means greater relian~e upon the constraining power of judges, it also means ever greater similarities in the way those judges approach the law determining constraints that lead to their decisions, whether or not they reach similar conclusions. And that fact leads to my conclusion. I have tried to put the classical criticisms - 'undemocratic', 'subjective', 'impractical' - in perspective. Since the interpretive system I describe is not mechanical but depends upon human judgment, since the constraints I mention only bind to a degree, and since the Court at certain times in its history has gone seriously awry, I cannot deny that the criticisms retain validity - 'up to a point'. Why then, why, one might ask, as democratic forms of government have become increasingly prevalent, in for example, Latin America and the former Eastern Bloc, have democratic societies increasingly tried to create independent judiciaries with final, or near final, authority to interpret basic legal documents that guarantee basic rights? The obvious answer is that these nations increasingly have measured the criticisms against what they see as a need, a need for the protection of democratically structured government and of basic liberties that an independent judiciary can help to provide. The independent judiciary may protect them by helping gradually to develop among citizens and legislators liberty-protecting habits based in part upon their expectation that liberty-infringing laws will tum out not

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to be laws. And such protection might seem particularly necessary in a new democracy or one with a highly diverse citizenry or sizeable minority groups. That independent judiciary may also protect through the kind of force - ultimately based upon habit and expectations - that a court can bring to bear when, faced with a law that dearly violates a constitutional provision, that court says 'no'. Several months ago I heard Justice Kennedy at New York University Law School welcome members of Russia's constitutional court into a profession that he said was both lonely and demanding of 'courage'. He was not then referring to the need to resolve difficult line-drawing problems correctly; but rather to the courage required at some times and in some places, to provide the proper answer to a clear violation. These countervailing benefits, considered in light of the size of the USA, the diversity of its population, its history, its reliance upon law, may help to explain why, in my country, there is general public support for the institution of judicial review, whether or not that public praises or deplores the result in any particular case. You may understand both need and benefits if, of the many cases I might mention, I remind you of only one, the desegregation case Brown v. Board of Education7 . But I now reach beyond my current subject. To return to Professor Hart, you must make your own 'external' evaluation of 'independent judicial review'. As you do, perspective in respect to the classic criticisms is necessary. It is that perspective that I have tried to provide this afternoon. 8

7 8

347 US 483 (1954). This is the text of the H. L. A. Hart Memorial lecture given at University College, Oxford on 7 May 1998, also published in (1999) 19 OJLS 153.

11 THE CONSTITUTIONAL COUNCIL AND THE EUROPEAN CONVENTION OF HUMAN RIGHTS: THE FRENCH PARADOX

The Hon. Noelle Lenoir'

THE LONG HISTORY OF THE FRENCH ACCEPTANCE OF THE ECHR Considering that France was one of the supporters of the ECHR, it may appear surprising that this Convention was introduced into French domestic law much later than in most other European countries. France was indeed the sixteenth country to ratify the Convention in 1974,1 long after the UK in 1951. Moreover, before 1981 France did not recognise the right of individuals to have direct recourse to the European Court of Human Rights provided for by Article 25 of the Convention. The British government recognised this right from the very beginning and it entered into force in the UK in 1953. This contrasts with the fact that prominent French politicians played a decisive role in promoting the idea of the Convention and also in participating in the drafting. One of the main parents of the Convention, who had the very bold idea to create for the first time a European Court accessible to the citizens, was Pierre-Henri Teitgen, a minister several times during the French Fourth Republic (1946 -1958). As President of an Non-Governmental Organization called "Le Mouvement Europeen", it was he who recommended to the Assembly of the Council of Europe (together with Sir David Maxwell-Fyfe) the adoption of a Resolution to the Committee of Ministers for a "collective guarantee for Human Rights". The European Convention of Human Rights follows directly from this proposal. The political class in France was, at that time overall, in favour of such an approach. Indeed, most French politicians agreed with Teitgen's wording when he said "I do not understand ... why a European State would refuse to yield its sovereignty to a Court of justice that insures equity, impartiality and conscientiousness .. .It would be state sovereignty audaciously rising up against the sovereignty of the law".2

*

2

In this article is set out and peveloped further the argument of the Centre of European Law 1998 Annual Lecture that the author delivered at King's College, University of London. The lecture was chaired by Lord Slynn of Hadley who is the President of the Centre. Alain Pellet "La Ratification par la France de la Convention europeenne des droits de I'homme" Revue de Droit public, 1974, page 1319. Quoted by Christian Daurie in Revue des Droits de [,Homme, 1973, page 753.

M. Andenas (ed.), Liber Amicorum Slynn 145-175 (2000) © 2000 Kluwer Law International

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How can one explain that such an open attitude changed so profoundly within a few years? How can one justify that France, for 23 years, set aside the very system of protection of human rights that it had originally supported? The reasons for such a curious reversal in French attitude towards the ECHR are obvious to anyone who knows the history of decolonisation in France, especially regarding Algeria. From 1956 on, the Algerian war, which showed that traditional political parties could not find a solution to this very violent conflict, changed the point of view of the French government. The government began to fear there would be outside control of its military activities in the Algerian territory (then part of the French Republic). France did not intend to accept at once the right to individual petition. Nevertheless, politicians became more and more reluctant to recognise the jurisdiction of the Court in Strasbourg for fear of seeing France condemned by the court for violating human rights in Algeria at the behest of other member States of the Council of Europe. Indeed, as was recently underlined by Pierre Messmer, former Prime Minister to General De Gaulle,3 in a speech given on the occasion of the twenty-fifth anniversary of the ECHR, the Algerian war gave reason to believe that there would be a flood of complaints against the way the French army had acted. One must not forget that at that time many protests were lodged against France for torture. Some books written by intellectuals stirred up controversy such as Contre la Torture ( Against Torture) by Pierre-Henri Simon, in 1957, and La Question (The Rack) by Henri Alleg, in 1958. Moreover, a special committee, designated by the socialist government in power in 1957 to inquire into the practices of the French army in Algeria, concluded that there were human rights violations,4 invoking specifically ~rticle 3 of the Convention according to which no one shall be subjected to torture or to inhuman or degrading treatment or punishment". This situation explains why the ratification of the Convention was delayed. It implicitly influenced the socialist government of Guy Mollet, which nevertheless in 1958 submitted to Parliament a bilI in order to ratify the Convention. The political crisis of May 1958, which resulted in De Gaulle's return to power after ten years, prevented this bilI from even being debated in Parliament. During the Fifth Republic, things became much clearer. De Gaulle and his government were vehemently opposed to the Convention's ratification. One of the reasons invoked was the contradiction between Article 15 of the Convention and Article 16 of the new French Constitution, approved by referendum in June 1958. Article 16 of the Constitution of 1958 provides that "Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and 3

4

La France et la Convention europeenne des droits de l'homme et des libertes fondamentales, 25 th anniversary of the Convention, Europe nO lOb is, October 1999, Editions du Jurisclasseur, page 6. See the report of this committee called "Commission de sauvegarde des droits et des Jibertes" made public in the press in December 1957 (Le Monde, 14 December 1957).

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immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take the measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the Assemblies and the Constitutional Court ... ". These emergency powers, which General De Gaulle had instigated in order to be personally in control of the Algerian war, were of unusual importance in the French Republican system. Indeed, they allowed the French Head of State to consolidate power in his own hands, not only executive, but also legislative as well as the power to interfere with the judicial branch. 5 De Gaulle, as everyone knows, used these powers extensively in 1961, even dismissing judges in Algeria. However, the French government was aware that such measures were not in accord with Article 15 of the Convention which limits the scope of powers in time of emergency.6 Another reason for the French government not wanting to ratify the ECHR was the military courts. They had wide latitude and their proceedings apparently did not comply with the requirements of the Convention. 7 However, Gaullist opposition to the ECHR was due not only to temporary circumstances. The opposition continued even after the Algerian ended in 1962. Why? Simply because it was based on the fundamental idea that French sovereignty would be endangered by human rights principles competing with French juridical traditions and by the existence of a supranational tribunal such as the Court in Strasbourg. Nationalism was part of the ideology of the founding fathers of the Fifth Republic, as is evidenced by the introduction of new restrictive 5

6

7

Article 16 was enforced once precisely when De Gaulle wanted to exert emergency powers to manage the Algerian war. Those emergency powers were maintained from April to September 1961 (five months) and allowed De Gaulle to infringe the constitutional principle of irremovability of sitting judges in Algeria. According to Article 15.1 of the ECHR "In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law ... ". Two articles of the Convention were especially at issue: Article 6.1 about the right to a fair trial which provides that "In the determination of... any criminal charge against him, everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice". Article 7.1 about the principle of "no punishment without law "which states that "No one shall be held guilty of any criminal offence on account of any act or admission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time that the criminal offence was committed .... "

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provisions to the Constitution of 1958 regarding international and domestic law (as will be shown later). In response to parliamentary questions on ratification of the ECHR, ministers frequently invoked technical reasons to explain or justify the government's refusal. But, in the view of these parliamentarians, those reasons were only a pretence. For instance, it was asserted that the Convention laid down rules incompatible with French criminal procedure. But referring to these rules, prominent jurists easily proved otherwise, especially after the adoption in 1970 of a law "guaranteeing individual rights of citizens" limiting the time of preventive detention and allowing damages in case of abusive detention before condemnation. It was also stated that the Convention reflected an Anglo-Saxon bias and that its application in France would cause a loss of national identity. Rene Cassin, a drafter of the Constitution of 1958 and someone close to De Gaulle, and well known as the inspirator with Eleanor Roosevelt of the Universal Declaration of Human Rights of the UN, considered this argument "pure invention".8 One recalls the words of Jean Foyer, Minister of Justice in 1964, stressing that the European Convention was "written along the lines of English rules of criminal procedure and totally disregarding our national rules of criminal procedure".9 Here one senses again how emotionally charged national identity issues are, especially in light of the rivalry between Napoleonic law and common law systems. Broadly speaking, the idea was that international law must only deal with interstate relationships and should not challenge national sovereignty using supranational powers. This was really the issue at stake with the ECHR. The opposition of the French Gaullist government shows that it was well aware of the true nature of this Convention which, according to the Strasbourg court itself, not only has to do with "reciprocal engagements between contracting states", but "creates, over and above a network of mutual and bilateral undertakings, objective obligations, which in the words of the preamble, benefit from a collective enforcement". 10 In spite of this hurdle, Pompidou's presidency between 1969 and 1974 was forced to start the European Convention ratification process because of rising pressure from French parliamentarians and from Europe. Nevertheless, ratification only took place thanks to, Alain Poher, a Christian Democrat and strong supporter of Europe. In his brief term as interim President of the Republic after 8

Quoted by Andre Chandernagor, member of the French Parliament in his report on the government's bill submitted to Parliament in order to allow the ratification of the Convention in 1974. (Official Journal of the French Republic, National Assembly, 19731974, n° 829). 9 Quoted by Alain Pellet in his article on the ratification of the ECHR y France, abovementioned. 10 See Article 1 and Ireland v. UK, Series A,vol.25, 1978, pages 90-1; 58 ILR, page 188, 290-1.

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the sudden death of Pompidou, he pushed through the ratification of the Convention in 1974. However, ratification was not all smooth sailing. France made several reservations when addressing the instruments of ratification to the General Secretary of the Council of Europe on 3 May 1974. Firstly, France did not agree to apply the Convention in every respect. It believed that, although applicable to the whole territory of the Republic and thus including overseas territories, it would have been possible to adapt its provisions to the "local requirements" of those territories. Moreover, the French government accepted the jurisdiction of the Court in Strasbourg only on a limited scale since it did not agree to be subject to Article 25 which establishes the rights of individuals, groups of individuals or non governmental organisations to petition before the Coud I as victims in violation of the Convention. Secondly, the French government made interpretative reservations on different Articles of the Convention. For instance, it stated that Articles 5 and 6 of the Convention concerning the right to lawful arrest and lawful detention, and the right to fair trial "shall not hinder the provisions governing the system of discipline of the armed forces" in France. 12 But what is the real significance of such discrimination? One wonders why the military forces should be deprived of their rights under the Convention, except as regards to precise restrictions provided for in Article lIon the exercise of their rights to form and join trade unions in particular? The second reservation was made to ensure that the then monopolistic status of the French Radio and Television was in accordance with Article 10 of the Convention on freedom of expression. But this reservation has now become pointless because of the abolition of this monopoly. The last and foreseeable reservation had to do with the French system of emergency powers. According to France, Article 15 of the Convention concerning the time of emergency shall not be construed as restricting "the power of the President of the Republic to take the measures required by the circumstances" on the basis of Article 16 of the Constitution. One recalls that France did not have the opportunity to invoke these provisions after 1961 and that the issue is no currently debated. In 1974, the adhesion of France to the ECHR thus remained highly qualified. This was not only or even mainly due to the above-mentioned reservations contained in the instrument of ratification. After all, other countries acted in the 11

In 1974, individual petitions were at first received by the European Commission of Human Rights which then decided to refer them to the Court. Since the entry into force of Protocol nO lIon 31 October 1998 and the setting up of the new European Court of Human Rights, every Contracting State as well as every individual claiming to be a victim of a violation of the Convention may lodge directly with the Court in Strasbourg an application alleging a breach by a Contracting State of one of the Convention rights. 12 This reservation was justified by fear of a possible future condemnation of France in a case concerning its system of discipline of the military forces, since the European Commission of Human Rights had just deemed admissible two years before (in 1972) an application brought before by five Dutch serving officers who claimed to be victims of violations of the Convention.

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same way: Among the countries belonging to the European Union, Austria, Portugal and Spain, for instance, expressed reservations similar to those of France, namely as regards the compatibility of Article 5 and 6 of the Convention with the disciplinary provisions concerning national armed forces. Furthermore, the reservations made by the French government did not prevent the Convention by and large from having direct effect in France. Even more important is that in France the relationship between international law and domestic law is based on a unitary system. Consequently, contrary to what is the case in dualist countries, such as the UK, Ireland, Italy and Germany, where a treaty cannot operate in of itself within the State and requires the passing of an enabling statute, in unitary countries, there is no need for a treaty to be naturalised to be made enforceable. In particular, in the UK it was necessary to legislate to ensure that the ECHR became part of English law. The Human Rights Act of 1998, which will be brought into full force on 2 October 2000, was essential for this purpose. The way it was debated and adopted as well as the way it is now subject to the scrutiny of a Joint Parliamentary Committee on Human Rights demonstrates how important the role of Parliament is for giving force to a treaty. For in the UK, "the royal prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights on individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament".13 In France, the Executive branch has primacy over the Legislature. Of course, Article 53 of the Constitution of 1958 requires statutory authorisation for the ratification of the most important treaties. 14 But it is a simple authorisation which does not have the same meaning as the adoption of a statute transposing all or part of the provisions ofa treaty into domestic law. In principle, a treaty is part of domestic law as soon as it has been ratified and published by the Executive in the Journal Officiel of the French Republic. In this case, it is meant to take immediate precedence over statutes. Article 55 of the French Constitution of 1958, partly based on the wording of the previous Constitution of 1946, clearly states that "treaties and agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament...". The idea behind this provision is that international law and domestic law constitute a single legal order in which international law dominates. This theory, developed after the first World War by famous law scholars such as the Austrian constitutional law scholar Hans Kelsen l5 and the French international law professor Georges Scelle,16 ob13

See Lord Oliver in the House of Lords decision in Maclaine Watson v. Department of Trade and Industry (1989, 3 All ER 523, 531; 81 ILR, page 671) quoted by Malcom N. Shaw International Law, (Cambridge University Press, fourth edition, 1997) page III. 14 Namely: peace treaties, treaties relating to international organisations, treaties that commit the finances of the State, those relating to the status of persons and those that involve the cession, exchange or addition of territory. 15 "Les rapports de systeme entre Ie droit international et Ie droit interne", in RCADI, 1926-

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viously very much favours the application of international instruments in domestic law. It was put forward at a time when great hopes were placed in the building of a world community through the creation of the League of Nations in 1919 and the setting up of the Permanent Court of International Justice in 1921. It is a rather idealistic theory. For instance, from the point of view of Georges Scelle, whose prestige and influence were considerable, international law and domestic law both constitute "a social imperative revealing the necessity of a natural solidarity" between human beings. And this solidarity means a unitary juridical order in which law creates direct obligations for individuals independently of the will of the States. Although far from political realities, this theory now appears prophetic in that it foretells the emergence of the individual as a subject of international law. It is interesting to note that in France the primacy of international law has never really been put into question, since its introduction into constitutional law - more precisely in the Constitution of 1946. It is now part of French juridical culture, however "sovereignty-oriented" some French governments may have been, especially at the beginning of the Fifth Republic. Consequently, the ECHR as soon as 1974 became part of French law. It thus began to be invoked by applicants before national courts. And as soon as 1975, one of the two French supreme courts - namely the Court of Cassation, the highest general court - upheld the primacy of a treaty over domestic legislation subsequently enacted. The case in question, "Administration des Douanes v. Societe des Cafes Jacques Vabre (judgment given on 24 May 1975),17 concerned the Treaty of Rome and not the ECHR. But the principle it laid down was meant to be applicable to all treaties. In that case, the Court of Cassation held that Article 95 of the Treaty of Rome, prohibiting barriers to competition, prevailed over statutory provisions regulating the taxation of imported coffee even though they had been enacted after the treaty. This solution was far from obvious because the Constitution of 1958, as regards the role of international law, was much less explicit than the Constitution of 1946. The latter Constitution declares unequivocally that treaties prevail over domestic statutes, whether they predate (Article 26ys or post-date (Article 28Y9 them. Nevertheless, its clear provisions went unheeded as there was no judicial review oflegislation during the Fourth Republic. The Constitutional Council did IV, volume 14, page 231. 16 "La doctrine de Leon Duguit et les fondements du droit des gens", in Archives de Philosoph ie, 1932, page 83. 17 See the text of judgment with submissions by the General Prosecutor at the Court of Cassation, Adolphe Touffait, in Revue Dalloz-Sirey, 1975, jurisprudence, page 497. 18 Article 26: "Diplomatic treaties that have been properly ratified and published shall have the force of statute even if they are contrary to French statutes, and their application shall require no further legislative provisions than those whereby they were ratified." 19 Article 28: " Since diplomatic treaties that have been properly ratified and published enjoy greater authority than domestic statutes, their provisions may be repealed, amended or suspended only by virtue of a proper denunciation, notified by diplomatic channels."

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not even exist. Article 55 of the Constitution of 1958 is much less clear about the statutes enacted after a treaty has come into force. That is why the solution adopted by the Court of Cassation was rightly seen as very innovative in French constitutional law, for it fully supported the rule in Article 55 whatever the statute date. Indeed, as early as in 1975, the Cour de Cassation declared the whole Convention "self executing"/o which is to say it is directly applicable in domestic law without implementing measures, in the form of primary or subordinate legislation. 21 Anyone in France was from that time on war able to base an argument on a violation of the Convention before any court or tribunal in the land. Nevertheless, French courts, as well as lawyers and applicants, did not realise at first the important of the ECHR. It is well known that the Council of State - the highest administrative court in France - did not immediately conclude that, as had been decided by the Court of Cassation, it had jurisdiction to exercise a review for conformity of laws with treaties. It is not until 1989 that it allowed setting aside a law contrary to a treaty, on the ground that international law must prevail over a statute. 22 It also took some time for the Cour de Cassation, in spite of its approach of the supremacy of international law, to develop a jurisprudence based on the ECHR. In that respect, the situation changed when France, under President Fran~ois Mitterrand, recognised, on 2 October 1981, the right to individual petition established by Article 25 of the ECHR. From that moment, the jurisprudence of both the European Commission of Human Rights and the Court in Strasbourg became better known by national courts. National courts began to realise that their decisions could possibly be challenged in Strasbourg. It is interesting to note that this jurisprudence, far from arousing hostility, progressively developed a European consciousness in all courts of France. France is only the sixteenth to have accepted the right to individual petition before the Commission and the Court in Strasbourg. And this explains why the first case involving France examined by the Court was discussed in 1986.23 However, France has made up very quickly for the lost time. 20 See the decision Raspino of 3 June 1975. 21 In spite of the principle of the French unitary system, a treaty may not be automatically capable of being pleaded against an individual if the national judge holds its provisions are not sufficiently precise to operate without national implementing measures. For instance, the Convention on the Rights of the Child signed in New-York in 1990 is not considered by the Court of Cassation as self-executing. 22 The decision dealt with European community law, but its principles are applicable to all kinds of international norms. In this decision Nicolo of 20 October 1989, the Council of State held that the Treaty of Rome Must prevail over a French statute of 1977 on the organisation of the elections to the European Parliament ( See the text of the judgement in the Recueil of the decisions of the Council of State, page 190, with the submissions by the Government Commissioner ( who acts as prosecutor with full independence from the Executive). 23 Bozano, judgment given the 18th of December 1996, n° Ill, serie A.

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Indeed French citizens and residents rapidly got into the habit of bringing cases before the Commission (now the Court directly after the demise of the Commission) in Strasbourg. Although they might only deal with a matter once all domestic remedies have been exhausted, the Commission and the Court (now only the Court) were brought an increasing number of cases. Statistics speak for themselves. Out of 800 cases dealt with the Court from the beginning of its existence till 31 December 1997, 190 cases concerned France! At the present time, France is the fourth country for the number of appeals brought before the Court, after Turkey, Italy and Poland, just before the UK. In addition, France is more and more often condemned in Strasbourg: in 1998, it was condemned 18 times; comparatively speaking, between 1981 and 1997, these condemnations were only 7 each year. A recent judgment condemned France because of tortures inflicted by the police forces in contradiction with Article 3 of the Convention. The case in question - Selmouni v. France, 28 July 199924 - is very regrettable. The applicant, a Netherlands and Moroccan national, held in custody near Paris in 1991 and questioned by police officers in connection with drug-trafficking proceedings, was severely injured during its interrogation. What is noticeable concerning this case is that the complaint lodged by Selmouni was declared admissible by the Court in Strasbourg although he had not exhausted all domestic remedies. The Court considered that the criminal proceedings in France, still pending after 7 years, were abusively long and deprived the applicant of his right to a fair trial "within reasonable time" prescribed by Article 6.1 of the Convention. And thus the Court exempted the applicant from having to go through all domestic remedies. This example shows how rigorous the control exerted can be, not only on the Executive or the Legislative, but also on the Judiciary. In spite of this, the ECHR and the Human Rights Court are generally speaking far from being deemed a threat by French courts. Of course, French courts are perfectly aware that the Court in Strasbourg may contradict them. However, they also realise that the principles of the ECHR give them new avenues for reviewing domestic legislation. Thanks to international law, and especially to international human rights law, for the first time in French history, French courts have the opportunity to challenge domestic law. One must always keep in mind that before the creation of the Constitutional French Court in 1958, the law was infallible, according to the cherished French belief that the will of the people expressed by law must prevail in any case. 25 In principle the Constitutional Council is the only instance to have the power to review the law. It is understandable that other courts would want to take advantage of a ECHR playing the role of some form of European Constitution.

24 Judgment commented on by Frederic Sudre, in Jep, nO 44, 3 November 1999, page 1986. 25 "The general will of the people is always right and is always aimed at complying with public interest", wrote Rousseau in The Social Contract, in 1762.

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THE RELATIVE ISOLATIONISM OF THE FRENCH CONSTITUTIONAL COUNCIL

The attitude of the French Constitutional Court has been criticised by some as somewhat isolationist. This reproach is certainly excessive. Nevertheless, it is true that the Constitutional Council, contrary to all other national courts, either administrative or judiciary, is alone in refusing to refer to the ECHR. This seems all the more surprising since its dedicated mission is to ensure the respect of fundamental rights by the legislator. How can one explain the juridical and historical reasons for this apparently paradoxical situation? Since the 1970s there has been a marked contrast between the boldness of the Constitutional Council when applying the principles of the Constitution and its refusal to refer to international law. It is not a very simple situation to understand since it deals with the French Constitutional Court, a quite peculiar institution whose jurisdiction is even more specific in comparison with that of other constitutional Courts. It is well known that the Constitutional Council's jurisdiction is unique in Europe regarding its review of the constitutionality of legislation. Indeed, the control exerted by the French Constitutional Court is in fact what one could call a "preventive review" or "preview". That is to say that the law can be challenged before the Court only for a very short time: after its adoption by Parliament and before its promulgation by the President, which takes place within fifteen days following the final adoption of the Act in question. In other words, its an abstract review of the law undertaken independently of any concrete dispute, for the simple reason that the law challenged has not yet entered into force. In addition, only governmental authorities can appeal to the Court. According to Article 61 of the Constitution of 1958, Acts of Parliament may only be referred to the Constitutional Council by the following authorities: the President himself, the Prime Minister, the President of the National Assembly, the President of the Senate, or sixty deputies (out of 577) or sixty senators (out of 324). In spite of these restrictions, the Constitutional Council is actually quite powerful. First of all, it can strike down an Act of Parliament preventing it from ever being applicable. This is done very quickly since the Court has only one month, under Article 61 of the Constitution, to reach a decision. It is probably the most radical procedure in the area of judicial constitutional review. Indeed, it can lead to declaring void an Act which could have been adopted a few weeks before by a large majority in Parliament. A legislative provision held to be unconstitutional is never introduced in the domestic legal order; it is as if it had never been discussed in Parliament. A statute censured by the French Constitutional Court is published in the Official Journal ofthe Republic without the provisions found to be contrary to the Constitution, Article 62 of the Constitution stating that "a provision declared unconstitutional shall be neither promulgated,

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nor implemented". The Constitutional Council can even hold an entire statute to be contrary to the Constitution and annul it ex 1010. 26 Secondly, Article 62 of the Constitution provides that the decisions of the Court are "binding on public authorities and on all administrative authorities and all courts", which means that those authorities must abide by the Constitutional Council's interpretation of the law when it is deemed to conform to the Constitution under certain conditions. The power of the Constitutional Council to oblige other courts and tribunals to comply with its interpretation of a law is all the more important as the Council makes extensive use of the technique of the so-called "qualified interpretations". Sometimes, those interpretations are so innovative that they contradict the traditional French idea according to which judges do not create, but simply apply the law. For example, in its decision on an Act concerning the entry and stay of aliens in France, the Constitutional Council stated that" an alien who has requested entry into France to seek asylum may only be detained in a transit zone pending his or her departure, with adequate guarantees, if hislher request for asylum seems to be clearly groundless" and that only "under this qualification of interpretation, the article of the statute under review ... does not disregard the principle of the right of asylum proclaimed by the Constitution".27 Provisions such as Article 62 of the 1958 Constitution, whose purpose is to ensure the effectiveness of the decisions of the Constitutional Council, are not aimed at reinforcing its role as a court. Indeed, the Constitutional Council was not created as a court, but as an independent body empowered to watch Parliament, like a watchdog. Its jurisdiction was originally quite limited. The Constitutional Council's role was never to protect citizens against the State; its only scope of authority was to prevent Parliament from interfering with the executive branch, which meant at the time keeping hands off De Gaulle's power. Let us recall that De Gaulle came into office under the cover of the Algerian war because traditional political parties could not end it. Consequently, the main purpose of the new Constitution was to reinforce the power of the executive branch and to reduce the power of the legislative branch. This is why the Constitution of the Fifth Republic is said have established a "rationalised parliamentarism". One of the results of this policy is that since 1958 Parliament's jurisdiction to deal with legislative matters has been limited. According to Article 34 of the Constitution of 1958, statutes can only be passed in specific areas which are all enumerated in this article. Article 37 of the Constitution of 1958 is still more explicit, for it states that "matters other than those that fall within the ambit of 26 It is rare, but it has happened, for instance in 1977 to an Act allowing the police forces to undertake searches of vehicles without strict limits to ensure the protection of individual rights (DC nO 76-75, 12 January 1977, Published in the Recueil of the decisions of the Constitutional Council, page 33. This was what also happened to the "Falloux Act" on investment aid to private educational establishments by local authorities. (DC nO 93-329, 13 January 1994, in the Recueil, page 9). 27 DC 92-307, 25 February 1992, published in the Recueil, page 137.

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statute shall be matters for regulation" defined by the executive branch by decree. In this context, the role of the Constitutional Council was mainly to review the law in order to ensure that Parliament does not blur the domain of competence of the executive. As was declared by Michel Debre, De Gaulle first Prime Minister, in his speech presenting the new Constitution to the Council of State on 27 August 1958,28 the Constitutional Council was created as "a defensive weapon against the abuses of power of the parliamentary regime". It was clear that the Constitutional Council, in the role that was envisaged for it, would not be the guardian of the Constitution, but would rather only be able to solve certain juridical disputes between the executive and legislative branches. And in doing so, it was agreed by the founders of the Constitution that the Constitutional Council would guarantee the viability of this new distribution of powers in favour of the supremacy of the executive. "The Constitutional Council is the guardian of the constitutional provisions regarding executive-legislative relations with particular reference to law-making rather than the ultimate court of appeal for the protection of the law of the land at the request of an individual against legislative or administrative infringements".29 It is perhaps surprising that the Constitutional Council could evolve as it did to become a Constitutional Court. It is still more amazing, in a country where more stock is put in written law than in common law, to see that this transformation is based only on the will of the Court itself. It is not possible to give here all the details concerning the decision made by the Constitutional Council on 16 July 1971 about freedom of association. But it is now universally accepted that this judgment is the real birth certificate of the Court, as was Marbury v. Madison, two centuries before, in the United States.30 What was the law challenged before the Constitutional Council? The law in question, restricting freedom of association, was in fact aimed at prohibiting the activity of an association called "Les Amis de la Cause du Peuple", created by Jean-Paul Sartre and Simone de Beauvoir to replace a political party "Ia Gauche Proletarienne"/l previously dissolved by the executive. The President of the Senate challenged this law, arguing that it imposed unconstitutional restrictions on the right to form a public non profit association with full personality. He had in mind, not only political, but also religions associations. His appeal was more successful than expected by politicians and lawyers. In an unprecedented way, the decision was heralded on front pages. Indeed the Constitutional Council, for 28 See, for example, Michel Debre," Trois caracteristiques du regime parlementaire franyais" in Revue Franr,:aise de Science Politique, volume 5, nO I, January-March 1955. 29 Bernard Brown, The De Gaulle's Republic: Quest for Unity, Boston, 1960. 30 See George Haimbaugh, Jr "What is France's Marbury v. Madison?" Ohio State Law Journal, volume 35, 1974, page 910. 31 At this time, after the events of 1968, several leftist political parties appeared whose members were especially recruited among students. One of this party, "La Gauche Proletarienne" was thought to have revolutionary aims. It was thus dissolved by the French Council of Ministers, which proceeded pursuant to a 1936 statute allowing such action with regard to private militias.

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the first time, made void a law on the grounds that it was contrary to fundamental principles of the Constitution. It asserted itself as the defender of the rights of citizens, rather than only as an arbitrator of disputes between public powers. Even more astonishing, the Constitutional Council chose not to stick to the text of the Constitution of 1958, but to refer to the vaguer Preamble to the Constitution of 1946 mentioned by the Constitution of the Fifth Republic. This was essential since the Constitution itself says little about fundamental rights, which are enunciated in the Declaration of the Rights of Man and of the Citizen of 1789 and in the Preamble to the Constitution of 1946, now both included in the Constitution by the Constitutional Council. Moreover, the Constitutional Council even recognised the constitutional value of freedom of association although it was not mentioned in any provision. It was thought that the principle of liberty of association was part of the "fundamental principles recognised by the laws of the Republic" referred to by the Preamble of 1946. This is similar to the approach of the US Supreme Court which, for instance, declared in a judgment made in 1972: "Among the rights protected by the First Amendment is the rights of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly and petition ... ".32 The Constitutional Council followed these lines. On December 27, 1973, two years later, in a case regarding equality before the law of taxpayers and possible discriminatory practices against them, it was concluded that the 1789 Declaration of the Rights of Man and of the Citizen was also part of the constitutional basic document and had to be respected too. What conClusions can one draw from this? Certainly, thanks to the case-law of the Constitutional Council, the French Constitution is, like all other modern written Constitutions, made up of a bill of rights on one hand and of additional provisions describing the balance of powers between the executive, the legislative and the judicial branches, on the other. Originally made up of about 90 articles, the French Constitution suddenly was transformed into a Constitution of more than 130 articles, including the Bill of Rights derived from the 1789 Declaration and the Preamble of 1946 and the "fundamental principles recognised by the laws of the Republic" defined in accordance with French republican traditions, in a case by case way, by the Constitutional Council. In the 1970s the Constitutional French Court effectively killed two birds with one stone. Two strong principles were affirmed. Briefly, it ensured separation of powers and Court autonomy vis-a.-vis the executive; it also asserted the primacy of the rule of law vis-a.-vis the general will of the people. "The law adopted by Parliament expresses the general will of the people only if it complies with the principles of the Constitution" stated the Constitutional Council in a judgment of 1985.33

32 Healy v. James (408, U.S., 169, 1972). 33 See the judgment, DC n° 85-197 of 23 August 1985, concerning the New Caledonian Territory, published in the Recueil page 70.

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In this context, one would have expected the Constitutional Council to take advantage of the first opportunity to assert its role as warrant of the respect of supremacy of treaties established by article 55 of the Constitution. On the contrary, in a decision of 15 January 1975,34 it rejected jurisdiction. The Council firmly refused to review statutes for conformity with rules of international law. One must acknowledge that this decision came as a bombshell. It had not been expected that the French Constitutional Court would declare an ordinary law beyond the reach of its own control only because of article 55 of the Constitution. Indeed the only case in which it had previously denied its own jurisdiction concerned a constitutional law furthermore adopted in very peculiar circumstances. In late September 1962, De Gaulle decided to institute elections to the office of the Presidency by universal suffrage - instead of by a decision by Parliament and to do it through a national referendum directly submitted to the people. The parliamentary procedures were bypassed that could provide for constitutional revision under article 89 of the Constitution. After the constitutional law was passed, the President of the Senate brought the case before the Constitutional Council. The complaint was rejected in November 1962 on the grounds that the Constitution only grants the Council jurisdiction over ordinary legislation, to "regulate the activity of public authorities", and not over laws "adopted by the people following a referendum which constitutes the direct expression national sovereignty". The revision of the Constitution of 1958, the most important ever adopted, was thus promulgated on November 8. By 1975 the role of the Constitutional Council had greatly changed. Since 1971 its legitimacy as a court had been recognised. Since 1974 this legitimacy had been further reinforced thanks to a constitutional amendment supported by President Giscard d'Estaing in order to allow opposition parliamentary groups to refer pending legislation to the Constitutional Council. 35 How then does one explain the fact that the Council refused, for the first time since 1962, to recognise its jurisdiction and didn't apply the principle of the primacy of treaties when article 55 of the Constitution indicated it should? Indeed, with very few exceptions, commentators deplored the decision which seemed to them to deprive the article in question of its effectiveness by allowing statutes that were contrary to treaties to enter the domestic legal order. 36 34 See commentary on decisions DC 74-54 of January 1975 in Louis Favoreu and Lorc Philip Les grandes decisions of the Constitutional Council, (Dalloz, 9th Edition, 1997) page 305, which gives references to all commentaries on that decision that have appeared in the French legal journals. 35 This amendment of the Constitution, whose adoption showed a relative lack of interest of Parliament, was of considerable impact for it gave the Constitutional Council the opportunity to be appealed to much more frequently than before. 36 For instance, Professor Fran~ois Luchaire, who subsequently became member of the Constitutional Council, pointed out that in an earlier decision of 19 June 1970 (DC 7039), the Constitutional Council had brought" the entire body of international law ... into the legislative category" by treating all kinds of European Community law (in that particular case, a decision of the Council of Ministers of the European Community) in the

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Justification for this decision is all the more difficult to identify as the Council's proceedings are strictly secret: Secrecy in deliberations, secrecy in voting, secrecy in the name of the judge who drafts the decision submitted to the Court, secrecy in the meetings which take place in closed chambers and out of the presence of both applicants (in general members of parliament) and lawyers, secrecy outside chambers, no dissenting opinions etc etc. Doubtless the Constitutional Council is the most secretive body in the land. In spite of this, it is not difficult to understand why the Constitutional Council, acted the way it did in 1975. Let us recall what the judgment in question was. This was not a trial case: the Act referred to the Court was aimed at permitting abortion till the tenth week of pregnancy and consequently abolished provisions of the criminal code under which voluntary abortion was previously severely punished. The Act was eventually passed after lengthy and very hot debate led on the Government side by Simone Veil, Minister of Social Affairs at the time,37 thanks to the vote of a part of the right-wing majority bench and of the left-wing opposition in the National Assembly. This explains why the Constitutional Council went to great pains to avoid entering the political arena and re-Iaunching yet another a debate when one had only just closed. The Council's judgment is unusually briefly argued. Moreover, for the first time, the Council by way of obiter dictum uses an expression now referred to whenever it feels necessary to restrain the scope of its scrutiny of a statute. In such cases, it states that "the Constitutional Council does not enjoy the same power of discretion or the same decision-making power as Parliament". In spite of its will to selfrestraint, the Council was faced with the necessity of dealing with a quite straightforward argument raised by the President of the Senate (who one year before as interim President of the Republic managed to ratify the European Convention of Human Rights) who pleaded that the Abortion Act violated the right to life secured by article 2 of this Convention. 38 How was the right to life to be reconciled with a woman's freedom to "manage" her own body to the point of being able to terminate her pregnancy? Many Constitutional Courts have had to tackle this dilemma. Courts have approached the dilemma in all sorts of different ways. Indeed the right to life is highly ambiguous in its application when it concerns an as-yet unborn child. This explains the fact that certain courts recognise the embryo's right to life, specifying that this right is nevertheless only relative This is the case of the German Constitutional Court, in its decisions of

same way as treaties. He saw consequently that the Constitutional Council failed to draw the obvious conclusion as regards the constitutional review of statutes. See" Le Conseil Constitutionnel et la protection des libertes" in Melanges Waline, Tome n, page 561. LGDJ,1974. 37 She became a member of the Constitutional Council in 1998. 38 This article states that" Everyone's right to life shall be protected by law ... ". See Abortion I Case (1975) 39 Bverf GE I, commented on in Donald P. Kommers, The constitutionaljurisprudence a/the Federal Republic a/Germany (2nd edition, Duke University Press, Durhamand London, 1997) page 336.

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1975 and 1993, while others (such as the Austrian Constitutional Court) hold that the right to life can be guaranteed only after birth. 39 The European Human Rights Commission, too, was called upon to give an opinion on this issue. And in a ruling in the case X v. The United Kingdom, dated 13 May 1980,40 it clearly excluded the embryo from the scope of article 2 of the ECHR relating to the right to life. As far as the French Court is concerned, the question was not even dealt with. The Council simply refused to consider the argument, declaring it inadmissible because it exceeded its jurisdiction. The decision holds that it is not for the Constitutional Council to "review a statute for conformity with a treaty or any other international agreement". This radical assertion obviously contrasts with the broad conception the Constitutional Council has had of itself since 1971 when it was founded on the basis of freedom of association. In a commentary entitled "Judges declining to govern" made in a well known journal of law,41 Professor Rivero considered this decision as a sign of the difficulties the Constitutional Council had in breaking with a long tradition of regarding the law as infallible. This is a plausible interpretation. But it does not suffice. Indeed when one looks back to the past and especially to 1975, the abortion case appears open to the idea that international law is the law of the land. At that time, it was not clear whether, under article 55 of the Constitution of 1958, international law should prevail over domestic law in the case of a law adopted after the entry into force of a treaty. Undoubtedly, in its decision of 1975 on abortion, the Constitutional Council implicitly, but crucially, takes a stand in favour of the prevalence of international law even in this case. It only considered that, as a court whose decisions are "absolute and definitive", it was unable to review statutes for conformity with instruments of international law on the grounds that the principle of the primacy of treaties is "both relative and contingent". To justifY its decision, the Council underlined the fact that the application of a treaty is indeed "subject to a condition of reciprocity"; treaties prevail over Acts of Parliament "subject, in regard to each agreement or treaty, to its application by the other party" as is expressly stated in article 55 of the Constitution itself. This is a deep seated highly traditional approach to international law. International law is seen in purely contractual terms and its application depends on the goodwill of the States. This reasoning does not take into account the fact that some treaties, especially Human Rights treaties such as the ECHR, establish a common public order and protect the fundamental rights of individuals against encroachments 39 See Noelle Lenoir "Respect for life and the law of the living", in The Ethics of Life, edited by Denis Noble and lean-Didier Vincent, (UNESCO Publishing, 1997) page 165. 40 In this case, the applicant, whose wife aborted according to the English 1987 law, complained that his consent had not been previously obtained. His request was deemed admissible, but the Commission rejected it, stating that the right to life was secured only after the birth of the person. (request n08 416179, DR, 19, page 244). 41 See his article in the March 1975 issue of the Actualite Juridique du Droit Administratif (AJDA), page 134.

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by the States which are obliged to respect those rights. However, after the decision of the Constitutional Council not to use its jurisdiction to directly apply article 55 of the Constitution, the way was opened for other courts to take its place. The message was perfectly well understood, four months later, by the Court of Cassation in the case of Administration des Douanes v. Societe des Cafes Jacques Vabre of May 1975 where it set aside French legislation contrary to the Treaty of Rome. If the Council of State developed the same jurisprudence only fourteen years later, from its decision Nicolo of October 1989, it is clear through the submissions of the commissaire du gouvernement (an advocate general assisting the Council of State) that this decision is based on the grounds that the Constitutional Council deemed inadmissible all actions against legislation based on article 55 of the Constitution. These developments in case law have radically transformed the legal landscape in France. In a very short period of time the courts at all levels, not just the Court of Cassation and the Council of State, acquired the power to apply international law and to set aside any Act of Parliament infringing it. And the Constitutional Council? Did it stay on the sidelines during this unrelenting globalisation of law? Not really. First, the Constitutional Council is always ready to state again how necessary the binding force of international law is as well as the obligation of the legislator to respect it. The case law which reflects this approach is not specifically related to the ECHR, but could very well have concerned it. In a decision of on 3 September 198642 on a statute to regulate immigration and dealing with the right of asylum for refugees in France, it cited the Geneva Convention on the status of refugees of 1952 and said it must be respected "even if there is no statutory provision to that effect ... and the various authorities of the State must ensure that the provisions of international conventions are applied in their respective areas of responsibility" (legislative, judicial and administrative). In the same spirit, in a judgment of on 20 July 1993 on a statute amending the act of nationality, it interpreted the act as conforming to a bilateral convention between France and Algeria. According to the Constitutional Council, the provision of the act, which required persons with dual nationality to do military service in France, would not jeopardise the exception provided for by the convention whereby FrancoAlgerian youths were free to decide to perform national service either in France or in Algeria. 43 As is shown through this case law, each time it deems it possible, the French Constitutional Court strives to construe legislation that avoids conflict with international law. In this respect, one could perfectly apply to the French constitutional jurisprudence what Lord Diplock has pointed out with regard to English law, that "Parliament does not intend to act in breach of internationallaw, including therein specific treaty obligations".44 42 DC 86-216 of 3 September 1986 on the conditions of entry and stay of aliens in France published in the Recueil, page135. 43 DC of 20 July 1993 on the Nationality code published in the Recueil, page 196. 44 Quoted by Malcolm N. Shaw, in International Law, (fourth ed, Cambridge University

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There is other case law which shows the concern of the Constitutional Council to ensure that international Human Rights law is duly taken into account. This case law grew from the application of specific jurisdiction of the French Constitutional Court concerning the treaty ratification process. Indeed according to article 54 of the Constitution of 1958, a reference can be made to the Constitutional Council either by the President, the Prime Minister, the President of one or the other assembly, or by any of the sixty deputies or sixty senators, in order to check if a treaty not yet ratified by France contains provisions contrary to the Constitution. In this case, "if the Constitutional Council has declared that an international commitment contains a clause contrary to the Constitution, authorisation to ratify or approve the international commitment in question may be given only after amendment of the Constitution". This procedure for prior constitutional review of treaties is unprecedented in French constitutional history. Once again, this innovation was not inspired by the desire to give extensive jurisdiction to the Constitutional Council, but rather to strengthen the power of the executive and to make it possible to prevent the entry into force of treaties that encroach on national sovereignty. The creation of such a judicial review of the constitutionality of treaties must be seen on the background of the French experience with the European Defence Community Treaty, the ratification of which was rejected by the French Parliament in 1954.45 Oddly enough, as was the case with regard to the judicial review of the constitutionality of the law, this review was much more in favour of international law than was originally foreseen. The first time a treaty was declared as containing provisions contrary to the Constitution was when the Treaty of Maastricht of 1992 was submitted to the Constitutional Council. In its judgment of 9 April 1992,46 the Council found unsurprisingly that the creation of a single currency was not foreseen and that the Constitution had to be amended in that respect before the Treaty could be ratified. That is why the Constitution of 1958 contains a specific provision referring to this treaty, as well as to the Treaty of Amsterdam, which was also declared partly unconstitutional by the French Constitutional Court in a judgment of 31 December 199r7 (see articles 88-1, 88-2 et 88-3 of the Constitution alPress, 1997). 45 Article 54 of the Constitution reflects a reluctance of the framers of the 1958 Constitution to accept international law, and this reluctance stems from the debates on this treaty establishing the European Community Defence (EDC) the ratification of which was ultimately rejected by the National Assembly on 30 August 1954. The parties, which opposed it ostensibly purported that it was detrimental to national sovereignty. In particular, Michel Debre, then senator, and afterwards one of the main inspirers of the 1958 Constitution, stated that "the EDC treaty is thoroughly unconstitutional" because it involved the abandonment of France sovereignty. ( See the article written by Professor Nguyen Quoc Dinh "La Constitution de 1958 et Ie droit international", in Revue de Droit Public, 1959, page 516. 46 DC 92-308 published in the Recueil, page 55, commented on by Bruno Genevois, in Revue Franr;:aise de Droit Administratif, May, June 1992, page 373. 47 DC 97-394 published in the Recueil, page344.

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lowing France to transfer the powers necessary to implement these treaties). Regarding human rights, the decisions of the Constitutional Council are interesting because they mention the article of these European Treaties (article 6 of the Treaty of Amsterdam) which states that "the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of law". It is because this provision directly refers to the ECHR as a source of inspiration of European Community law that the Council confirmed that the Treaties of Maastricht and Amsterdam ensured the respect of human rights and of constitutional principles. This section regarding the Constitutional Council decisions on the European treaties of 1992 and 1997 was not focused on, but is nevertheless important as it establishes the strict conformity of the ECHR with French constitutional principles. The French Constitutional Court dealt with the ECHR on one occasion. In 1985, President Fran~ois Mitterrand referred to it in order to know if Protocol n06 of the ECHR obliged member States of the Council of Europe to abolish the death penalty.48 The Council's answer was very simple and short. Even if the 1958 Constitution is mute on the question of the death penalty, it confirmed the conformity of its abolition with the Constitution, for "it did not infringe the essential conditions for the exercise of national sovereignty". This expression and especially the use of the word "essential" - favours international law. France can accept most of the transfers of sovereignty brought about by treaties. It is only when these transfers imperil the core of national sovereignty that their ratification requires a revision of the Constitution. After Council's decision, the protocol in question was very quickly ratified on 17 February 1986. The Constitutional Council seized the opportunity to judicial review of the constitutionality of treaties under article 54, and to watch over the respect of fundamental rights by the treaties whose ratification is sought by the French government. Apart from the preservation of national sovereignty which leads the Constitutional Council to deem unconstitutional any clause of a treaty which imperils the "essential conditions for the exercise of national sovereignty", the respect of fundamental rights is the main concern of the Constitutional Council when it examines a treaty. Any clause of a treaty jeopardising constitutionally guaranteed rights and freedoms would be contrary to the Constitution. This criterion, which is similar to the one used by the German Constitutional Court of Karlsruhe 49 in its analysis of European treaties, was brought to the fore for the first time in the Constitutional Council in the 1999 decision on the International 48 This protocol "concerning the abolition of the death penalty" was signed in Strasbourg on 28 April 1983 . 49 Decisions of the German Constitutional Court on the level of protection of fundamental rights secured by the Community legal order echo this approach by the Constitutional Council. See decisions of29 May 1974 "Solange I", B. Verf.GE 37, 271, and 22 October 1986, "Solange II", B, VerfGE, 73, 339.

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Criminal Court of Justice (ICC).50 The treaty establishing the ICC called the "Rome Statute" gives all the details about the Court's jurisdiction and functioning. Article 1 states that the Court "shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern", namely genocide, crimes against humanity, war crimes and the crimes of aggression. 51 Although admitting that such grave crimes could not go unpunished and thus justify an effective prosecution and an efficient procedure before the Court, the Constitutional Council thought it indispensable to see if its functioning was in accordance with the rights and freedoms recognised by the French Constitution. Had this not been the case, 'if the Constitutional Council had declared the Rome Statute unconstitutional on these grounds, one might have reasonably expected the Government to abandon the plans to ratify the treaty. But this decision on the ICC was especially innovative in other respects. First, it is the first to elevate, "the general principles of public international law" to the status of being within constitutional review. Not only treaties are covered, but also customs and general principles of law. 52 Among those principles, the Constitutional Council refers to the punishability of international crimes that are regarded as exempt from all limitations rules because of their exceptional seriousness. The Court of Cassation has for years accepted that certain customary principles - such as State immunity and humanitarian rights - are mandatory. As far as the Constitutional Council is concerned, it is interesting to note that it followed this jurisprudence in the area of human rights. The fact that now the French Constitutional Court takes into account international customary illustrates the transformation of national legal cultures by human rights international law. The 1999 judgment on the ICC goes still further in this direction by removing the ambiguity as to the implementation of the principle of the primacy of treaties, especially in the field of human rights, established by article 55 of the Constitution of 1958. It will be remembered that this article states that treaties prevail over Acts of Parliament "subject, in regard to each ... treaty, to its application by the other party". The condition in question in known as the "clause of reciprocity". This unprecedented provision in the constitutional history of France immediately aroused considerable academic hostility. Indeed, it theoretically allowed the government to free itself of its own commitment in cases where it considered that a Contracting Party had not respected a treaty. Applied 50 DC 98-408 of 22 January 1999 on the Statute of Rome establishing an International Criminal Court. 51 Nevertheless, the Court shall not exercise its jurisdiction over the crime of aggression immediately. 52 The "general principles of law", referred to in article 38 of the Statute of the international Court of Justice in The Hague, are those "recognised by civilised nations", a traditional concept in international human rights law. See Bin Cheng, "General Principles of Law as Applied by International Courts and Tribunals", Stevens, London, 1953.

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to European treaties and especially the ECHR, the reciprocity clause appeared quite perilous. The Constitutional Council neatly circumvented the difficulty in two stages. First, in a judgment of 20 May 199853 about the right to vote and the right of all Union citizens to stand in at municipal elections, it held that the reciprocity clause was inapplicable to Community treaties, which had their own judicial review machinery with the Court of Luxembourg. This decision was regarded as transposable to the ECHR given the existence of the European Court in Strasbourg. In the 1999 decision, the Constitutional Council is still clearer, for it expressly holds that the reciprocity clause is inapplicable to humanitarian and human rights treaties. Of course, this is already mentioned in article 60 (5) of the Vienna Convention on the law of treaties, but this Convention has not yet been ratified by France. 54 It is thus important to see the French Constitutional Court commanding respect for a conception of international public law favouring to human rights. Furthermore, one must be aware that the 1999 decision is quite creative case law it is no easy matter for a constitutional court to deprive a provision of the Constitution, even if only partially, of its legal effects. Accordingly, French constitutional law has now officially confirmed that individuals can be the subjects of international law and that, as had long been said by international courts, human rights treaties directly generate rights and obligations for individuals irrespective of the conduct of the State to which they are attached. It is a modem concept of international law, a concept in harmony with the necessity to counterbalance the power of the States in order to protect human rights, which is thus now taken into account by the French Court.

53 DC 98-400 of 20 May 1998 on the right of Community nationals to vote and stand as candidates in municipal elections, published in the Recueil, page 253. 54 France is reluctant to ratifY this Treaty since the French government does not accept that jus cogens has a normative value. Jus cogens is the technical term given to those norms of general international law which are of a peremptory force and from which, as a consequence, no derogation may be made except by another norm of equal weight. A treaty, for instance, which conflicts with such a norm is void ... " . (See Rebecca M.M. Wallace International Law (third edition, London, 1997) page 33. Those norms are uncertain because they are defined by the Courts, and that is why the French government is opposed to their recognition. It is not opposed to them as such, since they are common values of modern international law, such as the prohibition on the use of force or the prohibition on genocide or torture.

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III Is IT TIME FOR THE CONSTITUTIONAL COUNCIL TO OVERTURN ITS 1975 DECISION ON ABORTION AND JUDICIALLY REVIEW THE CONFORMITY OF LEGISLATION WITH INTERNATIONAL LAW UNDER ARTICLE 55 OF THE CONSTITUTION?55

This question is at present very prominent. It is indeed very much debated among jurists and politicians. The fact that the last issue of the Cahiers du Conseil Constitutionnel - the official law journal of the French Constitutional Court - is entirely dedicated to this subject, indicates its currency. At this point I shall give some more details on the main terms of the debate and look at the controversies which are currently taking place regarding possible review by the Constitutional Council as to the conformity with international law of Acts of Parliament under article 55 of the Constitution. Within this framework will be examined the arguments for and against overturning the 1975 abortion case where the French Constitutional Council declined its jurisdiction to review the conformity of legislation with treaty obligations. The central question is the following. Is the Constitutional Council justified in still refusing to declare invalid a law contrary to a treaty, in particular to the ECHR, whereas all other courts in France - from one-judge tribunals to the Court of Cassation and the Council of State - can now set aside any legislation which proves to infringe on international law? The debate has become more inflamed recently when people become aware of the formidable progress of judicial review and the "conventionality" of the law, that is to say the review of the conformity of a law to international norms. This review, based on article 55 of the Constitution, is currently applied by all French courts except one: the Constitutional Council. Paradoxically, this Court, although entrusted with the mission to apply the Constitution, implements all constitutional provisions but one - article 55 - which, as it happens, is one ofthe most important since it requires the legislator to abide by international law. As has been rightly stressed by one French professor of law in a brilliant comment on the present situation entitled "Malaise in the Constitution",56 the rise of the control of "conventionality" establishes a new basis for review of legislation. It transforms profoundly the French judicial review system of legislation which is quite similar to the American one, contrary to what might originally have been expected at the beginning of the Fifth Republic. Theoretically, the difference between the two great patterns of constitutional review seems radical. The American judicial review system is said to be "dis55 Les Cahiers du Conseil Constitutionnel n° 7 (Editions Dalloz, 1999) with articles either by members of the Council of State - those opposed to any change of the present case law of the Constitutional Council - or by Professors of Law at French Law Schools which are on the contrary in favour of a turn off. 56 Denys Bechillon " De quelques incidences du contr61e de la conventionnalite intemationale des lois par Ie juge ordinaire, Malaise dans la Constitution" Revue Franr;aise de Droit Administratif, 14 (2) March-April 1998.

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seminated", which means that every court, and not only the Supreme Court, has the power to invalidate government action - notably legislation - which is repugnant to the Constitution. The American Supreme Court exerts this power mainly as part of its appellate jurisdiction. In continental Europe, the system of judicial review of the constitutionality of legislation is in principle quite different. Constitutional Courts have monopolized this jurisdiction. The only way in which applicants - especially if they are ordinary citizens- can challenge a law (for example, in the course of an action brought before a court) is by reference to the Constitutional Court. Only the Constitutional Court can determine the constitutional merits of the law in question. This system is in practice in Germany, Italy, Portugal, and Spain. In France, the exclusive powers ofthe Constitutional Council are still more striking since it exerts a preventive control open only to a limited number of public authorities, thus excluding the citizen, who is deprived of the right to bring a case before the Council. Abstract judicial review proceeding also exists in other countries than France, but it is a marginal system. It is the case, for instance, with respect to the Constitutional Court of Karlsruhe which was asked to rule on the Abortion I case, in 1975, by 193 members of the Bundestag and five State governments. However, the French reality is now far from being in accordance with the theory. The rise of the control of conventionality has completely changed the judicial landscape. Thanks to the new jurisdiction, as delegated by the Constitutional Council, ordinary courts feel now empowered to set aside a law contrary to fundamental rights. This is done in a way almost similar to the one used by the Council when it makes void such legislation. Only the grounds on which the decisions are made, in both cases, differ. The ordinary judge's decisions are indeed founded on international norms - in particular the ECHR and European Community law - whereas the Constitutional Council refers exclusively to the "block of constitutionality" (formed from the 1958 Constitution itself, the 1789 Declaration and the Preamble to the 1946 Constitution as indicated before). Moreover, there are proceedings inter partes before ordinary courts, whereas these proceedings are erga omnes before the French constitutional court. Consequently, judicial review of the law is now twofold: the ordinary courts may review the conformity of any Act of Parliament already into force with human rights principles derived from international law, especially the ECHR, whereas the Constitutional Council can only review Acts not yet enacted and has decided to do so only in referring to human rights principles derived from the "block of constitutionality". In his article "International Law and Domestic Law" in France, Professor Denis Tallon57 explains how this situation gives rise to difficulties. He underlines the contradictions between the case law of the Constitutional Council, which, in his view, has adopted a strange position on the question of primacy of treaties, and the case law of the Court of Cassation and the 57 See The Gradual Convergence, (Oxford, 1994) page 133.

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Council of State which do not always coincide, and which have recently brought about major changes through spectacular reversals of judgments. Professor Tallon concludes that "the situation is neither entirely coherent nor finally settled". There may also be serious divergences in interpreting the meaning and the juridical value of basic principles between the Constitutional Council on one hand and the Court of Cassation or the Council of State on the other hand. The divergent interpretations of the principle of respect of the right to life are, in this respect, very illustrative. According to the case law of the Constitutional Council, the right to life, which is not expressly mentioned in the Constitution, is not a principle of constitutional value. This has been clearly stated by the Council in its judgment of 27 July 1994 on bioethics. 58 This judgment asserts the constitutional value of the principle of human dignity but not to the right to life, which is deemed to have a legislative value even if it is a principle which "helps to secure the constitutional principle of human dignity". Indeed the Constitutional Council did not wish to decide the status of the human embryo. That is why it also decided to simply note, in this decision on bioethics, that the legislators had chosen not to apply the principle of the respect to life from the very beginning of life to embryos fertilised in vitro. And that was all he stated. As was the case when it reviewed the Abortion Act in 1975, the Council strove to display extreme caution in a particularly sensitive field. 59 Faced with the same issue in 1990, the Council of State took a different stand. Indeed it accepted to recognise that human embryos benefited from the right to life, based on article 2 of the ECHR (and not the Constitution) and that French law had to take this into account. The case had been brought before the Council of State by two interest groups which militate against abortion and, in the case in question, which challenged a decree authorising the commercialisation in France of an abortion pill called RU 486. If the appeal was dismissed because of the strict conditions limiting the use of this drug, nevertheless the French administrative court decided that the right to life of the embryo was based on the ECHR and might consequently prevail over legislation. 60 How to solve the contradiction between this decision which gives a super-legislative value to the right to life and the approach of the Constitutional Council which gives it only legislative value? Other ambiguities have surfaced because of the duplication of the French judicial review system. Under article 54 of the 1958 Constitution gives the Constitutional Council, as the only court in France, the competence to review trea58 DC 93-343/344 of 27 July 1994 on the law concerning the respect of the human body, the use of body parts, human fertilisation and prenatal diagnosis, page 100. 59 See the commentaries on the decision by the Constitutional Council in Louis Favoreu and Lorc Philip Les Grandes Decisions du Conseil Constitutionnel" (tenth edition, Dalloz, Paris), page 879. 60 See the submissions of the Commissaire du Gouverment who plays the role of an independent advocate general before the Council of State, in the two cases Confederation des Associations familiales catholiques and Association pour I 'objection de conscience a toute participation a I 'avortement et autres of 21 December 1990, in Revue Fram;aise de Droit Administratif, November-December 1990, page 1065.

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ties for compatibility with the Constitution. A treaty just signed by the French government, but not yet ratified, can indeed be submitted to the Constitutional Council as the only court to have jurisdiction to review it. As has already been said, if the treaty is deemed unconstitutional, its ratification is not possible before the Constitution is duly amended. 61 One could imagine that this implies that treaties have at least the same hierarchical place as the Constitution itself. Otherwise it would not be understandable why the Constitution should be revised to be made compatible with a Treaty. This approach refers to the principle of Pacta sunt servanda expressed by article 27 of the Treaty of Vienna on the Laws of Treaties which provides that "a State cannot invoke provisions of its domestic law to justify the non execution of a treaty". In the same way, the Permanent Court of International Justice in The Hague has long enunciated that a State cannot plead its Constitution in order to evade its international commitments. 62 But in a decision of 1998 Mr Sarran and others concerning the right to vote of French citizens residing in the autonomous territory of New Caledonia, the Council of State took a different position. It held that "the supremacy conferred on international commitments does not apply in the domestic legal order to constitutional provisions".63 This judgment has immediately been commented on and remains quite controversial. For some commentators, the risk is that this case law gives the ordinary courts, in any case administrative ones which are bound to follow the decisions of the Council of State, a basis for keeping France from fulfilling its international commitments. Other commentators on the contrary are in favour of this case law, considering that the principle of Pacta sunt servanda must not prevent the Constitution to be used in the domestic legal order as a screen between statutes and subordinate legislation on the one hand, and treaties on the other. 64 The very least that might be said is that if France contin61

As noted before, the ratification of the Community Treaties of Maastricht and Amsterdam and of the Rome Agreement for the establishment of the International Criminal Court, respectively in 1994, 1997 and 1999, required declarations of unconstitutionality and constitutional revision. 62 The opinion referred to was expressed on 4 February 1932 and concerned the situation of Polish citizens living in Danzig (now Gdansk, then in Prussia, Germany). One recalls that the Permanent Court of International Justice was set up in 1921 and has been succeeded since 1946 by the International Court of Justice which is the "principal judicial organ" of the United Nations. 63 See Council of State" Mr Sarran and others ... " of 30 October 1998. In this case, the applicant, an inhabitant of New Caledonia, contested the decree summoning voters to the referendum of 8 November 1998, arguing that, since it summoned only citizens of New Caledonia who had taken part in the referendum of 9 November 1988, in accordance with an agreement signed between the government and the local authorities of this autonomous territory and incorporated in the Constitution by the Constitutional Act of 20 July 1998, it was contrary to the ECHR ( First Protocol) with regard to the right to equality in the exercise of the universal suffrage. 64 See Maugue, " L'arret Sarran: entre apparence et realites" in Les Cahiers du Conseil Constitutionnel nO 7, November 1999, page 87. See also R.Ricci, in Les Petites Affiches of7 October 1999; L.Dubouis, in Revue Fran~aise de Droit AdministratifnO 1 January-

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ues to claim that it has a unitary system, then it is a unitary system in which constitutional domestic law prevails and which consequently has great similarities with dualist systems such as the English and American ones. Quite apart from the sheer audacity of devising constitutional rules, one must admit that the Council of State, through Sarran case law, has opened the way for a quasidualist approach in the relationship between international and domestic law. What are the consequences of such a decision? They are unknown. But they are no doubt of great importance. In this context, more and more constitutional and institutional specialists deem unsatisfactory the present situation and claim for a change of the abortion case law. In their view, the Constitutional Council, which according to article 62 of the Constitution has the last word, must now have its say on the implementation of international law, namely the ECHR, which contains fundamental rights that the Council - as with all other Constitutional Courts - is commissioned to protect. Moreover, is it not only logical to leave to the French Constitutional Court to establish the principles according to which international and constitutional norms are to be reconciled? The first argument against a change in the abortion case law is grounded on the specificity of the decision-making process of the Constitutional Council. This argument refers to the reasoning of the Constitutional Council itself in the case law in question. Indeed in its 1975 decision, the Council stated that it was difficult to review statutes for conventionality since the principle of supremacy of treaties is relative and subject, among other things, to the condition of reciprocity whereas constitutional review is absolute. But this consideration does not fit with ECHR provisions which are binding in every contracting State regardless of the State's position. As the Constitutional Council quite explicitly enunciated in its 1999 decision on the International Criminal Court, the clause of reciprocity provided for by article 55 of the 1958 Constitution does not apply in the case of humanitarian and human rights agreements. Such is the case in particular for the ECHR, which has long been ranked in the category of treaties that directly engender rights and obligations for individuals, irrespective of the will of the States that sign them. 65 In putting on ice the reciprocity clause as far as the ECHR is concerned, the Constitutional Council contradicted the ratio decidendi of its 1975 judgment and its juridical justification. That is the reason why those who think it is better to leave things as they are, set out other reasons than those linked to the reciprocity clause written in article 55 of the Constitution. They point out that it is needless to change the February 1999, page 56; D. Simon, in Revue Europe, March 1999, page 4. 65 This has been stated for a long time by the Human Rights Commission (now discontinued). For instance, in the Fall case on 11 January 1961, this Commission declared that, by concluding the European Human Rights Convention, the contracting States had not sought to confer reciprocal rights and obligations for the purpose of pursuing their respective national interests but of attaining the objectives and ideals of the Council of Europe as set out in the Statute and of establishing a communal public order".

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abortion case law insofar as the Constitutional Council already integrates in its own case law most of the principles established by the Court in Strasbourg. They emphasise that the ECHR plays in practice a growing role in the Constitutional Council rulings. Even if the Convention is not explicitly mentioned in those rulings, it is a major source of interpretation of constitutional principles. In fact, this results in a system which is comparable to what is prescribed by article 10.2 of the Spanish Constitution which states that "the rules relating to fundamental rights and freedoms recognised by the Constitution shalI be interpreted in conformity with the Universal Declaration of Human Rights and with international treaties and agreements covering the same subjects which have been ratified by Spain". This is not far from the reality. Indeed, although the Constitutional Council, in the French way, never indicates where it has been inspired by the Court in Strasbourg's case law, the Council is more and more open to the decisions of the European court. During the Ninth Conference of European Constitutional Courts, which gathered alI national courts at the highest level existing in the member-States of the Council of Europe, held in Paris in 1993, the Constitutional Council highlighted the influence of the Court in Strasbourg. However it specified that "similarities in interpretation and review techniques are the result of convergence factors that have emerged over the years rather than of any direct influence of European case-law". Is it still true? Probably not since the case law of the Strasbourg Court interferes now directly with the Constitutional Council rulings, as will be shown later. Moreover the fact remains that the case law of the European Court is being followed more and more perceptibly by the Constitutional Council which does not hesitate to reproduce the exact wording of the Strasbourg Court's decisions. The Constitutional Council's "borrowings" from Strasbourg care law concepts are now so numerous that they cannot all be quoted here. Let a few examples suffice to illustrate the convergence that now exists between both jurisprudence and thus between the French constitutional system and the European system for the protection of fundamental rights. The inspiration of the ECHR is notable at three levels. First, when the Constitutional Council deduces new rights from the general provisions of the "block of constitutionality", it occurs that these rights square with those asserted by the Strasbourg Court on the basis of the ECHR. The right to private life grounded on article 8 of the ECHR is an example. Neither the 1958 Constitution, nor the Preamble to the 1946 Constitution, nor a fortiori the 1789 Declaration mentions such a principle which corresponds to a yearning of modern society. The Council deduced it, for the first time in 1995, from the principle of liberty set out in the Constitution. In fact it was inspired by Strasbourg case law, namely the cases dealing with the use of personal computerised data or of video-surveillance systems. 66 The same applies to freedom of mar66 See "Malone v. the United Kingdom" of 1984 which deals with the compatibility of police interception of phone calls (wiretapping) regulations deemed too vague to be" in ac-

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riage. The French Constitution does not mention it, but it was held by the Council to be a component of individual freedom in 1993.67 There is no doubt that the Council in a judgment of 1993, took followed article 12 of the ECHR and the precedent of the Strasbourg Court's case law. 68 In the same judgment made in 1993, the Constitutional Council attached constitutional status to the "right to lead a normal family life". This principle, drawn officially from the 1946 Preamble which states that" "the Nation shall provide the individual and the family with the conditions necessary to their development", is once again inspired by the Court in Strasbourg decisions. Like this Court, the Constitutional Council recognised this right particularly in relation to immigrants wishing to have their family join them in their country of residence. 69 Last but not least, in its judgment on an Act commissioning the executive to codify several legal regulations by means of delegate legislation, of 18 December 1999/° the Constitutional Council gave constitutional status to the objective of "accessibility and clarity of the law". Only this purpose could justify the authorisation given to the executive to rewrite statutory provisions bound to be introduced into codes and possibly to repeal those appearing as contradictory or undoubtedly and seriously unconstitutional. Obviously, this judgment is inspired by the Strasbourg Court's decisions interpreting the right of the State to restrict liberties recognised by the ECHR. One remembers for instance, that in the Sunday Times case/ l the European Commission and Court established that "the law must be adequately accessible ... [and that] a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.. .". Without actually defining new principles, the Constitutional Council can also review traditional ones in the light of decisions from Strasbourg. It did so in a case concerning the freedom of expression, "one of the most precious rights of Man", as stated by article 11 ofthe Declaration of 1789. In asserting this principle, the Constitutional Council had to take into account the context created by the emergence of an information society. In the Ancient Regime, before the French Revolution of 1789, the point at issue was to banish State censorship, which consequently obliged many writers, mainly philosophers of the Enlightenment, to publish their books abroad. Nowadays, censorship has disappeared and free thinking depends essentially on access to pluralistic sources of infor-

67 68 69 70 71

cordance with law". In its judgment of 18 January 1995 (DC 94-352), published in the Recueil page 45, the Constitutional Council regarded the video-surveillance system set up by the Act submitted to its review compatible with the principle of the right to privacy, but only under strict conditions referring to the necessity to ensure the individuals concerned adequate protection against arbitrary interference. DC 93-325 of 13 August 1993 on aliens, published in the Recueil, page 224. See for instance, "Cossey v. The United Kingdom", of27 September 1990, Serie A, vol 184. For example decision" Abdulaziz, Cabales and Balkandali v. United Kingdom" of 29 May 1985, Serie A, n° 94. DC 99-421 Codification. Sunday Times of 26 April 1979, Serie A, vol. 30.

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mation to ensure freedom of thought for those who read the newspapers, listen to the radio or watch television. This idea is reflected in decisions of the French Constitutional Court that hold that pluralism is "a condition of democracy".72 It echoes directly a series of judgments of the Court in Strasbourg which described freedom of expression as being grounded on article 10 of the ECHR and as "an essential foundation of a democratic society".73 Since the Handyside judgment in 1976,74 the European Court has repeatedly held that freedom of expression "shall include freedom to hold opinions and to receive and impart information and ideas" and " is not only applicable to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population". The Council's concept of freedom of expression is somehow less extensive, but it is very close. The area in which the influence of Strasbourg on domestic law is strongest is undoubtedly criminal procedure. The influence of criminal procedure is most perceptible to the French, who are not familiar with principles of the ECHR such as the principle of respect of "fair trial" implying "equal rights for both sides" derived from article 6 of the ECHR. Nevertheless, the Constitutional Council progressively introduced into its case law this idea. It did so for the first time in a decision of 1989 on the Stock Exchange Commission (SEC) when the Commission took court action to have violations of the Companies Acts penalised. The Council, relying on the principle of respect for natural justice, held that "in criminal matters, it [the principle in question] implies that there must be a fair procedure securing equal rights for both sides".75 Likewise, in the 1999 decision on the International Criminal Court, the Council held that the procedure before that Court complied with the conditions required for a fair trial. In the same spirit, the Council is eager to ensure the right of every person to "effective remedy" as it is set forth by article 13 of the European Convention. 76 Although it was proceeding on the basis of article 16 of the 1789 Declaration which establishes the right to "guaranteed rights",77 the Council used the ECHR, repeatedly asserting the right of every person to "an effective remedy". For example, the Council held that aliens must have the right to contest decisions refusing them admission to France and thus must be allowed to stay in France ac-

72 73 74 75 76 77

See for instance, DC 86-217 of 18 September 1986 and DC 93-33 of21 January 1994 on audio-visual communication. See "Observer and Guardian" of26 November 1991, Series A, Volume 216 §59. See "Handyside v. The United Kingdom" of29 April 1976, Series A, volume 24. See DC 89-260 of 28 July 1989 on the security and transparency of the finance market, published in the Recueil, page 7 I. This article states that" everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity". According to this article" any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution".

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cording to the time needed for an effective remedy.78 In the same way, when reviewing the statute defining a new offence of driving at very high speed in the Road Traffic Code, the Council stressed that the provisions challenged actually secured "respect for natural justice and for the right to redress" for the offender. 79 This overview shows how influential the ECHR and its interpretation by the Strasbourg Court is on domestic constitutional law. In this context, is it necessary to reverse the abortion case law? Why change a jurisprudence which has resulted in a division of tasks between the Constitutional Court and other courts without preventing the latter to enrich its case law with principles derived from European law? What will be the added value in terms of the protection of human rights if this is done explicitly rather that implicitly? Could one reasonably hesitate to foster a change since the situation created by the abortion case law was that of a balance of powers inside the judiciary system non detrimental to citizens' rights? But the real question is the following: is the present situation tenable in the long term? Likely not, and for two main reasons: 1. The first is that due to the increasing court action in Strasbourg, the European Court is bound to extent the scope of its jurisdiction. This explains how it recently set aside two Acts of Parliament. One - dealing with the right to hunt and adopted in 1984 - had never been submitted to the review of the Constitutional Council. Nevertheless, it is the first time that the Strasbourg Court interfered with the sphere of competence of the Constitutional Council with regard to the judicial review of legislation. 80 It stated that ti:Je Verdeille Act of 1984, from the name of the parliamentarian who proposed the bill, infringed on property rights as it obliges any land owner, even if he/she is philosophically opposed to hunting, to leave free his/her estate to hunters. How would the Constitutional Council have reacted if the Act in question had been challenged before it in 1984? Again, unknown, but this shows that the Constitutional Council may be contradicted by the Court in Strasbourg. As a matter of fact that is what was done recently by the European Court in a decision made at the end of 1998. 81 In this judgment, the Strasbourg Court held that a validating legislative provision retroactively interpret-

78 DC 93-325 of 13 August 1993 (supra). This decision of the Council was regarded as an excessive constraint by the government and therefore the Constitution was amended to override the opinion of the Council. ( see article 53-1 of the Constitution introduced on 25 November 1993). This is in French constitutional history a unique example of a modification of the Constitution entailed by the desire to override a decision of the Constitutional Council. 79 DC 99-411 of 16 June 1999 on road safety. 80 See "Chassagnou v. France" of29 April 1999. 81 See" Zelinski and Pradal v. France" of 28 October 1999.

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ing contracts giving social security staff in Aisace-Moselle a bonus if they agreed to speak Alsacian patois when dealing with their clients was contrary to the requirement of a fair trial and to the right to recourse to a judge. This Court in Strasbourg decision is all the more illustrative of the complex relationship between the French Constitutional Court and the European Court. The latter radically disavowed what had been decided some years before in the same case by the Council. 82 Consequently, one can imagine that the best way for the French Constitutional Court to adapt itself to the new constraints entailed by the ECHR in addition to being able to influence the attitude of the Court in Strasbourg is to apply the ECHR directly. Which implies that the Council overrides its abortion decision and gives effect to article 55 of the Constitution. 2. The second reason is put forward more and more frequently in favour of a change. This reason has to do with the attitude of other Constitutional Courts in Europe. Almost all of them refer explicitly to the ECHR and to the Strasbourg Court case law. Sometimes, as in Austria, the ECHR is of constitutional value and is therefore applied as part of the Constitution of the country. In other countries, such as Germany, for instance, the ECHR even if only theoretically, is only "the law of the land" and thus has a limited legislative value. In practice, the Constitutional Court refers to the principles of this Convention concurrently with the provisions of the Constitution. Both kinds of provisions combine to ensure the compatibility of the case law of the Court with the case law in Strasbourg. The same practice is seen in Spain, whose Constitution, as said before, entitles the courts to interpret the constitutional provisions in the light of the ECHR. Is it appropriate that the French Constitutional Court remains the only one to officially ignore the ECHR and live in a sort of desert island where European law is deprived of alienable rights? The question is of course provocative. It is nevertheless being raised by an increasing number of commentators on Constitutional Council jurisprudence. 8) It is likely that the Constitutional Council will evolve and integrate the ECHR at some time or another. When and how? One can only ask. This article does not pretend to offer solutions, but to expose the importance of the challenge that Constitutional Court has in the face of a stronger and stronger juridical European realm.

82 DC 93-335 of 21 January 1994, the Recueil p.40. 83 Olivier Cayla "Lire l'artic1e 5.5: comment comprendre un texte etablissant une hierarchie des normes comme etant lui-meme Ie texte d'une normeT; and Guy Carcassonne "Fautil maintenir lajurisprudence issue de la decision n° 74-54 DC du 15 janvier 1975? " Les Cahiers du Conseil Constitutionnel n07, 1999, Jean-Fran