Unity and Diversity in International Law: Proceedings of an International Symposium of the Kiel Walther Schücking Institute of International Law, November 4-7, 2004 [1 ed.] 9783428520190, 9783428120192

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ANDREAS ZIMMERMANN I RAINER HOFMANN (Eds.)

Unity and Diversity in International Law

Veröffentlichungen des WaIther-Schücking-Instituts für Internationales Recht an der Universität Kiel Herausgegeben von Jost Delbrück, Rainer Hofmann und A n d re a s Z i m m e r man n Walther-Schücking-Institut für Internationales Recht

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Völkerrechtlicher Beirat des Instituts:

Rudolf Bernhardt Heidelberg

Eibe H. Riedel Universität Mannheim

Christine Chinkin London School of Economics

Allan Rosas Court of Justice of the European Communities, Luxemburg

James Crawford University of Cambridge

Bruno Simma International Court of Justice, The Hague

Lori F. Damrosch Columbia University, New York Vera Gowlland-Debbas Graduate Institute of International Studies, Geneva Fred L. Morrison University of Minnesota, Minneapolis

Daniel Thürer Universität Zürich Christian Tomuschat Humboldt-Universität, Berlin Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg

Unity and Diversity in International Law Proceedings of an International Symposium of the Kiel Walther Schücking Institute of International Law November 4 - 7, 2004

Edited by

Andreas Zimmermann and Rainer Hofmann Assistant Editor:

Hanna Goeters

Duncker & Humblot . Berlin

Bibliografische Information Der Deutschen Bibliothek Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen NationaJbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar.

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten CO 2006 Duncker & Humblot GmbH, Berlin Fotoprint: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 1435-0491 ISBN 3-428-12019-1 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706@ Internet: http://www.duncker-humblot.de

Foreword This publication is the result of a symposium held at the Kiel Walther Schücking Institute for International Law on the occasion of its 90th anniversary. Together with its predecessors, this publication accordingly bears witness that after 90 years the Walther Schücking Institute is weH alive and continues to actively participate in the dialogue among academics and practioners working in the field of public internationallaw. The Walther Schücking Institute and its staff members hope that this symposium on "Unity and Diversity in International Law," held from November 4 - 7, 2004, once more continued the Kiel tradition of providing a forum for open and challenging discussion, but it is obviously for the reader alone to decide for himor herselfwhether we were successful in that endeavor. The organizers are particularly grateful to all those coHeagues, who prepared reports in their respective field of expertise, namely Doris König, Anne Peters, Eibe Riedei, Peter-Tobias StolI, and Christian Tietje, and thus enabled Robin Geiß, Monika Heymann, Beate Rudolf, Anja Seibert-Fohr, Christian J. Tarns, and Stephan Wittich to present cross-cutting analysis, which then in turn offered the possibility for commentators to pave the way for our discussions. The Walther Schücking Institute is'greatly indebted to the Thyssen Foundation, which, by its generous support, made this symposium possible. We are similarly grateful for the hospitality and support provided by the Kiel Institute on W orld Economies enabling us to use their conference room with the splendid view overlooking the Kieler Förde. Both, Rainer Hofmann and myself also want to thank the entire staff of the Walther Schücking Institute, who by their efforts made this symposium reality. Last, but certainly not least, I am - once again - personally grateful to Ms. Marianne Nilsson for her effective management of the conference, as well as for her tireless efforts in bringing about this publication from the first transcript of the audio recordings to the final proofs and convincing (most of) the 33 authors to deliver their manuscripts in a timely manner. Finally, while this symposium was planned and organized jointly with my colleague and co-director Rainer Hofmann, it became, as it were, his Kiel farewell

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Foreword

symposiwn, given that he had decided for personal reasons to accept an offer to join the law faculty ofthe Johann Wolfgang Goethe University in FrankfurtlMain. I, therefore, want to use this opportunity to thank him for the fruitful, most pleasant and friendly cooperation we had during OUT joint time here at the Walther Schücking Institute. Kiel, August 2005

Andreas Zimmermann

Contents

The Walther Schücking Institute at 90

Jost Delbrück . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Introductory Remarks

Rainer Hofmann .. ... . . . . . ... . .. ... . .. . .. . ...... .. . . . . . .... .. . . .. . . 21 Andreas Zimmermann. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23

Questionnaire International Law ofthe Sea

Doris König. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27 Questionnaire International Humanitarian Law

Anne Peters and Hans Wolfram Kessler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 65 Questionnaire Human Rights and the Unity-Diversity Divide

Eibe Riedei. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 111 Questionnaire International Environmental Law

Peter-Tobias StolI . ........................ . ........... . . . ... . ... . .. 135 Questionnaire International Economic Law

Clzristian Tietje . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 169 Unity and Diversity with Regard to International Treaty Law

Monika Heymann . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. 217 Comment by Marcelo Kohen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 241 Comment by Alain Pellet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Comment by Jürgen Bröhmer . ............ . ........ . .... .. .. . . . .. . ... . .. 253

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Contents

Unity and Diversity in the Fonnation and Relevance ofCustomary International Law

Anja Seibert-Fohr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 257 Comment by Vera Gowllan71 could indeed be cited in favor of private actors merely benefitting factually from the obligations of the WTO members. This 68 See only Steve Charnovitz, The WTO and the Rights of the Individual, Intereconomies 36 (2001), 98 (99 et seq.); Wolfgang WeißIChristoph Herrmann, Welthandelsrecht (2003), para. 237; Werner Zdouc, WTO Dispute Settlement Practice Relating to the GATS, Journal ofInternational Economic Law 2 (1999), 295 (324 et seq.). 69 Tietje (note 12), at A.II., at para. 40; Charnovitz (note 68), 98 (99 et seq.). For a comprehensive discussion, see Christoph J. Hermes, TRIPS im Gemeinschaftsrecht (2002), 220 et seq. and passim. 70 See, e.g., Charnovitz (note 68),98 (99 et seq.); WeißIHerrmann (note 68), paras. 238 et seq. with further references. 71 United States - Sections 301-310 of the Trade Act of 1974, Report of the Panel of December 11,1999, WTIDS 152/R, para. 7.72 (emphasis in the Panel Report).

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conclusion becomes even more compelling when taking into account that the phrasing of the Panel' s statement is obviously and intentionally closely related to the famous remarlcs made by the ECJ in Van Gend & Loos. In this case, the Court emphasized with regard to EC law - contrary to the Panel's fmding conceming the WTO - ''that the Community constitutes a new legal order ... and the subjects of which comprise not only Member States but also their nationals.'>72 Nevertheless, it would be premature to base an assessment whether the WTO legal order establishes individual rights for private actors only on the above-cited statement from the Panel's Report, because the Panel subsequently stated explicitly that the legal sphere of proteetion of WTO law also includes individuals and other non-State entities: "However, it would be entirely wrong to consider that the position of individuals is of no relevance to the GATIIWTO legal matrix. Many ofthe benefits to Mernbers which are rneant to flow as a result of the acceptance of various disciplines under the GATI/ WTO depend ort the activity of individual economic operators in the national and global market places. The purpose of many of these disciplines, indeed one of the primary objects of the GATIIWTO as a whole, is to produce certain market conditions which would allow this individual activity to flourish."73 Based on this and other fmdings supporting the individual-oriented dimension ofWTO law, the Panel established the "prineipIe ofindirect effect" ofthe WTO legal order with regard to the position ofindividuals in WTO law. 74 Although the direct effect ofWTO law in the domestic legal systems ofWTO members is not compulsory, the Panel's reasoning in Section 301 clearly leads to the conclusion that individuals and other private economic actors are not merely profiting factually from WTO law. Rather, theyare an integral part ofthe normative framework ofthe WTO legal order and the benefits they enjoy from it can be described as being intended and based on a legal foundation. 7S

In a sirnilar manner to the way in which their position evolved in the European Union's legal system, private economic actors are therefore also likely to become recognized as legal subjects ofWTO law in the near future. 76 72 ECJ, Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR I, 12. 73 United States - Sections 301-310 ofthe Trade Act of 1974, Report ofthe Panel of December 11, 1999, WTIDS1 52/R, para 7.73. 74 Ibid., para. 7.78. 75 See also Tietje (note 12), at A.II., at para. 43; Christian Tietje, Die Staatsrechtslehre und die Veränderung ihres Gegenstandes: Konsequenzen von Europäisierung und Internationalisierung, Deutsches Verwaltungsblatt 118 (2003), 1081 (1086). 76 For a related albeit more cautious conclusion, see, e.g., Stephan Hobe, Deutsches Recht, Europarecht, Völkerrecht - Gedanken zum Verhältnis dreier Rechtsordnungen in

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In this connection, it is also worth noting that in the above-mentioned Report even the Panel itself did not consider its fmding regarding the possible direct effect ofWTO lawto be fmal. The Panel inSection 301 explicitly stated: "We make this statement as a matter of fact, without implying any judgment on the issue. We note that whether there are circumstances where obligations in any ofthe WTO agreements addressed to Members could create rights for individuals which national courts must protect, remains an open question. ,,77 In sum, judged by its purposes and normative construction, the WTO legal order is not only suitable for according rights directly to individuals, but is actually designed precisely for this purpose. In addition, the importance of advancing and strengthening the legal status of individuals and other non-State actors in WTO law as a necessary component of the process ofthe constitutionalization ofthe WTO legal order cannot be overestimated. 78

Zeiten sich verstärkender Europäisierung und Globalisierung, in: Mahulena Hofmann/ Herbert Küpper (eds.), Kontinuität und Neubeginn - Staat und Recht in Europa zu Beginn des 21. Jahrhunderts (2001), 523 (532 et seq.); Meinhard Hilf, Die Konstitutionalisierung der Welthandelsordnung: Struktur, Institutionen und Verfahren, Berichte der Deutschen Gesellschaft fiir Völkerrecht 40 (2003), 257 (274). 77 United States - Sections 301-310 ofthe Trade Act of 1974, Report ofthe Panel of December 11, 1999, WTIDS 1521R, para. 7.72, note 661. 78 See only Tietje (note 12), at A.ll., at para. 38; Martin Nettesheim, Von der Verhandlungsdiplomatie zur internationalen Verfassungsordnung, in: Claus-Dieter Classen et al. (eds.), Liber amicorum Thomas Opperrnann (2001), 381 (397); and especiaIly the numerous contributions by Ernst-Ulrich Petersmann, e.g., Petersmann, Constitutionalism and WTO law: From a state-centred approach towards a human rights approach in international economic law, in: Daniel Kennedy/James Southwick (eds.), The Political Economy of International Trade Law (2002), 32; Petersmann, Human Rights in European and Global Integration Law: Principles for Constitutionalizing the World Economy, in: Armin von Bogdandy et aI. (eds.), Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann (2002), 383.

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B. Sources of Law I. Overall Questions

- AIe relevant mIes generally considered to contain obligations erga omnes? If so, which? AIe certain mIes considered to fonn part ofjus cogens? If so, which? Jus cogens does not yet playa significant role in international economic law. However, it is highly disputed whether WTO law contains obligations erga omnes. One may deny this with regard to the preamble in which it is stated that WTO Members entered "into reciprocal and mutually advantageous arrangements" in order to pursue economic goals. This could be interpreted to mean that WTO law only protects bilateral trade relations and individual economic interests of States, and that thus economic welfare as such is not a legal value under WTO law. 79 However, one may very weB argue that WTO law has an erga omnes effect,80 since according to constantjurispmdence ofWTO Panels and the AppeBate Body, a violation ofWTO law does not require an actual impact on trade on the side of one specific WTO Mernber. Instead, the rationale of the major WTO mIes has been described as U[ .. .] to protect expectations ofthe contracting parties as to the competitive relationship between their products and those ofthe other contracting parties. Both artic\es [GATI Artic\es III and XI] are not only to Rrotect CUTTent trade but also to create the predictability needed to plan future trade." I

lt is in line with this overall rationale that WTO Members may bring a case before the Dispute Settlement Body even though they are not directly affected by a certain trade measure ofanother WTO Member. 82

79 For details see Joost Pauwelyn, A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?, EJIL 14 (2003),907 et seq. 10 For details see Tietje (note 12), at A.II. paras. 20 et seq.; Tietje (note 64), 163 et seq. 81 Untited States - Taxes on Petroleum and Certain Imported Substances, Panel Report adopted June 17, 1987, BISD 34S/136, para. 5.2.2.; morerecently, e.g., Section 301, Panel Report ofDecember 22,1999, WT/DSI52/R, paras. 7.84 et seq. with further references. 12 See, e.g., European Communities - Regime for the Importation, Sale and Distribution of Bananas, Appellate Body Report adopted September 25, 1997, WT/DS27/ AB/R, paras. 136 et seq.; for futher details see Tietje, Normative Grundstrukturen (note 64), 163 et seq.; David PalmeterlPetros C. Mavroidis, Dispute Settlement in the World Trade Organization, 2nd ed. (2004), 33 et seq.

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As yet, there is no WTO jurisprudenee to clearly rnake a statement on the question of whether WTO law has erga omnes effeet or not.

II. Treaty Law J. Conc/usion of Treaties

- How have relevant multilateral treaties been generally been developed (ILC drafts, diplomatie conferences, UN GA resolutions ete.) and who took the initiative to start the respective negotiations? - Do relevant treaties possess a (quasi-) universal charaeter? - Are there important States or groups of States that do not participate or actively oppose sueh treaties? International eeonornic law is mainly treaty law. Irnportant areas of international eeonornie law are regulated by treaties that have been ratified more or less on a universal basis (e.g., WTO, World Bank, IMF). However, international investment protection law still lacks any major multilateral treaty. International investment proteetion is still being regulated by BITs (eurrently around 2,300 worldwide). The only real multilateral treaty in the investment area is the Energy Charta Treaty, which is, however, lirnited to investment protection in the energy seetor. Other multilateral treaties that include investment protection provisions are lirnited to specific geographical regions (NAFTA Chapter 11; Central America Free Trade Agreement (CAFTA) ete.). The treaties establishing the Bretton-Woods-Organizations have their roots in the Atlantie Charta, the conferenee ofBretton Woods (July 1-22, i944) to whieh the U.S.A. invited 44 States, and later on ECOSOC Res. 13 (February 1946) establishing the "United Nations Conference on Trade and Employment" as the founding conferenee for the International Trade Organization (ITO). With regard to GATT/WTO, the members ofthe so-ealled quad group (EU, USA, Canada, Japan) have traditionally played a forceful role in proeesses modifying and further developing the relevant treaties. Specifically the Uruguay Round goes back to strong pressures from the USA. Major parts ofthe Doha Declaration were included beeause of pressures from the EU. However, deeision-making within the WTO is strictly based on the consensus principle. The developing eountries, which are holding a majority position in WTO membership, are increasingly using their power in order to pursue negotiation goals in their interests. Thus, for example, the so-called Singapore issues which are part ofthe Doha Declaration

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will no longer be part ofthe Doha Development Agenda (Decision Adopted by the WTO General Council on August 1,2004, WTO Doc. WT1L/579) because of increasing pressures from developing countries. In surn, major parts of international economic law have been developed under the auspices of, or at least in relation to, the UN system However, especially in the areas of world trade and investment proteetion, States have still a dominant position.

2. Application ofTreaties - Have specific mIes been developed with regard to the territorial application of treaties as compared to Artic1e 29 VCLT or are such mIes already contained in the relevant treaties themselves? - Have specific mIes been developed with regard to the temporal application of treaties (e.g., notion of continuous violations etc.) as compared to Artic1e 28 VCLT? The temporal application of WTO law has been discussed with regard to the TBT - and the SPS-Agreement. According to the jurispmdence of WTO Panels and the Appellate Body, both agreements also apply to technical regulations and standards (TBT), and also to SPS measures which were in effect prior to entry into force ofthe WTO Agreement (January 1, 1995). However, according to Artic1e 28 VCLT, this retrospective effect applies only to circumstances which had not yet been completed prior to that date. 8l - Have treaties that have not yet entered into force been provisionally applied andlor were the mIes contained in Article 18 VCLT considered ofparticular relevance? The GATT 1947 is probably the most prominent example of a provisional application of a multilateral treaty. It entered into force on J anuary 1, 1948 according to the "Protocol ofprovisional application ofthe General Agreement on Tariffs

13 European Communities - Measures concerning meat and meat products, Report of the Panel of August 18, 1997, WTIDS26/R1USA, paras. 8.24 et seq.; European Communities - Trade Description of Sardines, Report ofthe Panel of May 29, 2002, WTIDS231 IR, paras. 7.53 et seq. and Report ofthe Appellate Body ofSeptember 26, 2002, WT/DS2311 ABIR, paras. 196 et seq.

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and Trade."84 Tbe provisional application ofthe GATT 1947lasted until December 31,1995, the date the old GATT 1947 ceased to exist. 8S Do relevant treaties contain specific mIes as to domestic implementation (e.g., make direct application in domestic law mandatory)? Tbe different WTO agreements contain numerous provisions requiring specific measures of domestic irnplementation, e.g., mIes for administrative procedure in antidumping investigations, and provisions requiring domestic juridical protecting proceedings in TRIPS. Tbe general mle for domestic irnplementation is contained in Article XVI:4 WTO Agreement. Tbe Panel in the Section 301 Case made the following statement concerning Article XVI:4: "As a general proposition, GATI acquis, confirmed in Artic1e XVI:4 of the WTO Agreement and recent WTO panel reports, make abundantly c1ear that legislation as such, independently from its application in specific cases, rnay breach GATIIWTO obligations: (a) In GATI jurisprudence, to give one example, legislation providing for tax discrimination against imported products was found to be GATI inconsistent even before it had actually been applied to specific products and thus before any given product had actually been discriminated against. (b) ArticIe XVI:4 of the WTO Agreement explicitly confirms that legislation as such falls within the scope of possible WTO violations. lt provides as folIows: 'Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements' (emphasis added). Tbe three types of measures explicitly made subject to the obligations imposed in the WTO Agreements - 'laws, regulations and administrative procedures' - are measures that are applicable generally; not measures taken necessarily in a specific case or dispute. Artic1e XVI:4, though not expanding the material obligations under WTO Agreements, expands the type of measures made subject to these obligations. (c) Recent WTO panel reports confirm, too, that legislation as such, independently from its application in a specific case, can be inconsistent with WTO rules. Legislation my thus breach WTO obligations. This must be true, too, in respect of Artic1e 23 ofthe DSU. This is so, in our view, not only because ofthe above-mentioned case law and Artic1e XVI:4, but also because of the very nature of obligations under Artic1e 23. "16

It is undisputed that WTO law requires a WTO Member to bring into conforrnity with WTO law concrete domestic measures which violate provisions ofWTO law. However, the statement ofthe Panel in Seetion 301, according to which WTO law also establishes an obligation to bring abstract laws that have not yet been 14 55 UNTS 308. IS For details see Gabrielle Marceau, Transition from GATI to WTO - A Most Pragmatic Operation, 29 JWT (No. 4, 1995), ) 47 et seq. 16 Panel Report on U.S.-Section 30) Trade Act, paras. 7.4) -7.42.

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applied in conformity with WTO law in case their application would violate WTO law, is bighly disputed. Namely WTO jurisprudence with regard to the Antidumping Agreement might indicate that a violation of WTO law only occurs if a law is applied in a concrete case. 87 The question of direct applicability ofWTO law within domestic legal systems ("principle of indirect effect") has already been discussed above. - Do relevant treaties contain rules that affect third States (e.g., by providing for jurisdiction oftreaty organs vis-a-vis third States or their nationals)? - Have treaty organs dealt with conflicts between various treaty regimes? - Did these conflicts (if ever) only concem conflicts between treaties covering the same subject-matter (e.g., various environmental treaties) or where these also conflicts between various subject-matters (e.g., treaties dealing with international economic law v. environmentallaw treaties)? The relationsbip between WTO law and other multilateral treaties concerns in a fIrst step those cases in wbich WTO law refers to other Agreements. The most important reference in tbis regard is contained in Article 1:3 TRIPS, referring to WIPO Treaties. 88 Another set of problems occurs with regard to possible conflicts between commitments of WTO Members under the WTO Agreements, and under other Agreements establishing international organizations. This is true namely with regard to obligations under the Agreement Establishing the International Monetary Fund. The Appellate Body addressed tbis issue in Argentina Footwear: "72. The Agreement Between the IMF and the WTO, however, does not modify, add to or diminish the rights and obligations ofMembers under the WTO Agreement, nor does it modify individual States' comrnitments to the IMF. It does not provide any substantive rules concerning the resolution of possible conflicts between obligations of a Member under the WTO Agreement and obligations under the ArticIes of Agreement of the IMF or any agreement with the IMF. However, paragraph 10 of the Agreement Between the IMF and the WTO contains a direction to the staff of the IMF and the WTO Secretariat to consult on 'issues of possible inconsistency between rneasures under discussion. ' 73. In the 1994 DecIaration on the Relationship ofthe WTO with the IMF, Ministers reaffirmed that, unless otherwise provided for in the Final Act Embodying the Results ofthe Uruguay Round ofMultilateral Trade Negotiations, 'the relationship ofthe WTO with the International Monetary Fund, with regard to the areas covered by the Multilateral Trade Agreements in Annex 1A of the WTO Agreement, will be based on the provisions that have governed the relationship ofthe CONTRACTING PARTIES to the GATI 1947 with the International Monetary Fund.' We note that certain provisions of 87 For details see Yoshiko Naiki, The MandatorylDiscretionary Doctrine in WTO LawThe U.S.-Section 301 Case and Its Aftermath, JIEL 7 (2004), 23 et seq. 88 For further details see PalmeterlMavroidis (note 82), 69 et seq.

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the GA TI 1994, such as Articles XII, XIV, XV and XVIII, pennit a WTO Member, in certain specified circurnstances relating to exchange matters andJor balance of payments, to be excused from certain of its obligations under the GA TI 1994. However, Article VIII contains no such exception or pennission. 74. We agree, therefore, with the Panel that there is 'nothing in the Agreement Between the IMF and the WTO, the Declaration on the Relationship ofthe World Trade Organization with the International Monetary Fund and the Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policymaking'[] that modifies Argentina's obligations under Article VIII ofthe GATI 1994. We also agree with the Panel that there is ' ... no exception in the WTO Agreement that would excuse Argentina's non-compliance with the requirements of Article VIII ofGATI.'[] There does not appearto be anything in the WTO Agreement or in the other legal instruments cited by Argentina that would re1ieve a Member from its obligations under Article VIII of the GATI 1994."89 Not yet resolved, however, is the question of the relationship between WTO law and multilateral environmental agreements (MEAs). Even though the problem is highly discussed in academic literature, no case before the Dispute Settlement Body has yet concerned a direct conflict between WTO law and MEAs. However, the relationship between WTO law and MEAs has been on the agenda 90 of the WTO Committee on Trade and Environment for a long time, but any substantive agreement has yet to be reached. In general terms, the relationship between WTO law and MEAs can be described as follows: 91 MEAs are not directly applicable in WTO dispute settlement procedures. This is due to the restrictive jurisdiction of the WTO Dispute Settlement System (see Articles 1.1,3.2, 7.1, and 11 DSU). However, WTO law is not a self-containedregime and can thus not be seen in clinical isolation from public internationallaw in genera1. 92 This is already indicated in Article 3.2 DSU, which refers to "customary rules of interpretation of public international law" for the interpretation of the WTO Agreements. An important rule of customary internationallaw for treaty interpretation is contained in Article 31 (3) lit. c) VCLT. It provides that "any relevant rules of international law applicable in the relations between the parties" shall be taken into account while interpreting a treaty. This means that MEAs have to be taken into ac count while interpreting the WTO Agreements. Consequently, the Appellate Body in Shrimp/Turtle referred, 19 Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other ltems, Report ofthe Appellate Body of March 27, 1998, WT/DS56/ AB/R, paras. 72 et seq. 90 See, e.g., Committee on Trade and Environment, Report 2002, WTO Doc. WT/ CTEl7 ofOctober 16,2002, para. 7. 91 For details see, e.g., Bernhard Kluttig, Welthande1srecht und Umweltschutz Kohärenz statt Konkurrenz (2003),28 et seq. with further references. 92 For details see Gabrielle Marceau, A Call for Coherence in International Law Praises for the Prohibition Against "Clinicallsolation" in WTO Dispute Settlement, JWT 33 (No. 5, 1999), 87 el seq.

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amongst others, to UNCLOS and the Convention on Biological Diversity in its interpretation of Article XX lit. g) GATT 1994. 93 Taking MEAs into ac count while interpreting WTO law, however, does not solve the problem of areal conflict between provisions in WTO law and in MEAs. As there is no hierarchy of sources of public intemationallaw (except jus cogens), in principle the general mIes on solving conflicts in law apply (lex posterior; lex specialis). However, it has been recognized that the application ofmles of conflict is always subject to the presumption that the contracting parties did not intend any confliCt. 94 There is thus a presumption of a conflict-free relationship between WTO law and MEAs. Such a presumption has been explicitly included in more recent MEAs. The preamble ofthe Cartagena Protocol on Biosafety, for example, reads in part as folIows: "Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements, Understanding that the above recital is not intended to subordinate this Protocol to other international agreements.,,9S The coherence-, rather than conflict-oriented approach is also convincing because applying conflict of law provisions would mean having to determine which treaty is later in time. This is hardly possible, as WTO law arguably is a "continuing treaty. "96 Moreover, one would also have to decide whether an inter se modification ofWTO law is possible. This depends on the legal nature ofWTO law, namely the disputed question whether WTO law is of an erga omnes character (see above). In sum, a conflict-oriented approach towards WTO law and MEAs is neither convincing nor desirable. 97

93 United States - Import Prohibitions of Certain Shrimp and Shrimp Products, Report of the Appellate Body of OctobeT 12, 1998, WT/DS5 81ABIR, para. 130. 94 Georg Dahm/Jost DelbrücklRüdiger Wolfrum, Völkerrecht, Bd. 1/3 (2002),680 et seq. 95 Available at: http://www.biodiv.orglbiosafety/protocol.asp. 96 For details see Joost Pauwelyn, The Role of Public International Law in the WTO: How far can we go?, AJIL 95 (2001),535 (546). 97 Meinhard Hilf, Freiheit des Welthandels contra Umweltschutz?, NVwZ 2000, 481 et seq.; Kluttig (note 91), 31 et seq.

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3. Interpretation ofTreaties - Have specific rules of interpretation been developed by the various treaty organs? If so, which? It is constant jurispmdence that WTO law has to be interpreted in accordance with Articles 31,32 VCLT (see Article 3.2 DSU).98 In line with Article 31 VCLT, the WTO Appellate Body also applies the principle of "effectiveness" while interpreting WTO Agreements. 99 4. Termination ofTreaties - Do relevant treaties normally contain specific mIes on termination? The Agreement Establishing the WTO does not contain a provision on termination. However, Article XV WTO Agreement grants a right to withdraw from the Agreement. Provisions on termination bad been included in the International Dairy Agreement and the International Bovine Meat Agreement, both being plurilateral agreements under WTO law. Both Agreements were terminated at the end of 1997. 100 - Have treaty organs/meetings ofparties etc. considered certain treaties not to be subject to tennination at will? - Has the concept of the clausula rebus sie stantibus been either incorporated in relevant treaties or otherwise been applied? Reference to the c1ausula rebus sie stantibus has been made only in one GATI 1947 case. However, it did not have any legal impact on the final decision of the Panel" 01 98 Constant jurisprudenee sinee United States - Standards for Reforrnulated and Conventional Gasoline, Appellate Body Report adopted May 20, 1996, WTIDS2I AB/R, para. III.B, 17; for further details see PalmeterlMavroidis (note 82), 80 et seq. 99 Argentina - Measures Affeeting Imports of Footwear, Textiles, Apparel and Other Iterns, Report of the Appellate Body of Mareh 27, 1998, WTIDS56/ ABIR, para. 88; see also PalmeterlMavroidis (note 82), 84. 100 See WTO Doe. IOAl8 of September 30, 1997 and WTO Doe. IMAl8 of September 30,1997. 101 United States - Restrietions on the Importation of Sugar and Sugar Containing Produets Applied under the 1955 Waiver and under the Headnote to the Sehedule ofTariff Coneessions, Report of the Panel adopted on November 7, 1990, U663 I, 37S/228, para. 3.22.

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5. Succession to Treaties - Have speeifie rules oftreaty sueeession been developed, e.g., automatie suceession? If so, whieb? Tbe question of treaty sueeession with regard to the ( old) GATT 1947 and the WTO Agreements is explicitly regulated in the GATT 1994 and in Article 11:4 WTO Agreement. It follows from these provisions that the GATT 1994 is not a suceessive treaty ofthe GATT 1947 in the sense of Article 30 VCLT. 102 Another issue oftreaty suecession eame up in Turkey - Textile. In this case, the Panel bad to address "the argument that when, prior to forming a eustoms union, a eonstituent member bas a WTO right, that Member may, on the occasion of the formation ofa eustoms union, 'pass' or 'extend' such right to the other constituent members." Tbe Panel held: "We find that this proposition cannot be sustained for the following reasons. 9. I 84 We note that such a legal fiction or concept is not referred to in Artic\e XXIV, in the WTO Agreement or in public international law.[] The WTO system of rights and obligations provides, in certain instances, flexibility to meet the specific circumstances of Members. For instance, the ATC has grand-fathered certain MFA derived rights regarding import restrictions for specific Members and Articles XII, XIX, XX and XXI of GATI authorize Members, in specific situations, to make use of special trade measures. We consider that, even if the formation of a customs union may be the occasion for the constituent rnember(s) to adopt, to the greatest extent possible, similar policies, the specific circumstances which serve as the legal basis for one Member's exercise of such a specific right cannot suddenly be considered to exist for the other constituent members. We also consider that the right ofMembers to form a customs union is to be exercised in such a way so as to ensure that the WTO rights and obligations of third country Members (and the constituent Members) are respected, consistent with the primacy ofthe WTO, as reiterated in t.he Singapore Dec\aration.,,103

6. Reservations to Treaties Do relevant treaties normally contain speeific mIes on reservations (general prohibitions, exc1usion with regard to certain parts etc.)?

102 See European Communities - Measures Mecting the Importation ofCertain Poultry Products, Report ofthe Appellate Body of July 13, 1998, WTIDS69/ABIR, para. 79. 103 Turkey - Restrictions on Imports of Textile and Clothing Products, Report of the Panel ofMay 31,1999, WTIDS341R, paras. 9.183 et seq.

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- Have specific mIes with regard to reservations to multilateral treaties/objections to reservations (other than those contained in the VCLT) been developed by courts/tribunals/sirnilar organs? - Have States accepted such mies and follow them in their practice? - Do treaty organs in your field consider thernselves to be in a position to decide upon the legality/illegality of reservations? According to Artic1e XVI:5 WTO Agreement, "No reservations may be made in respect of any provision of this Agreement. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements. Reservations in respect of a provision of a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement." Exceptions to the principle of non-reservation are provided in the following artic1es: - Agreement on Irnplementation of Artic1e VII of the General Agreement on Tariffs and Trade 1994 - Artic1e 21 and paragraph 2 of Annex III; - Agreement on Irnplementation of Article VI of the General Agreement on Tariffs and Trade 1994 - Artic1e 18 (2); - Agreement on Technical Barriers to Trade - Article 15 (1); - Agreement on Subsidies and Countervailing Measures - Artic1e 32 (2); and - TRIPS - Artic1e 72. To date, no reservation has been made under these provisions. With regard to Plurilateral Agreements, the following provisions provide for reservations: - Agreement on Civil Aircraft - Artic1e 9 (2) (1); Agreement on Govemment Procurement - Artic1e XXIV:4; - International Dairy Agreement - Artic1e VIII: 1(b) (not in force anymore) - International Bovine Meat Agreement - Artic1e VI: 1(b). (not in force anymore) No reservation has been made under any ofthe mentioned provisions.

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ill. Customary Law J. Applicability 0/ Customary Law

- Is customary law still considered to play an important role in YOUT field? If so, why? - Where does customary internationallaw become relevant (in regard ofwhich aspects)? Also with respect to newly created problems?

2. Relationship to Treaty-Based Law - Do you consider that special rules exist as to the relationship between customary law and treaty-based law? - Which role does customary law play vis-a-vis treaty law? Is it of equal significance? - What happens in cases of conflict? - To what extent have treaties influenced the development of customary law and vice versa? - Do you consider that special mIes exist as to the relationship between customary law and treaty-based law? As has already been pointed out, WTO law can not be seen in "clinical isolation" from public international law. in general. 104 However, the Panel in ECHormones held that even ifthe precautionary principle - which was in dispute in this case - would be customary internationallaw, "this principle would not override the explicit wording" ofthe relevant provisions ofWTO law. los The Appellate Body in this case did not made a clear statement on this issue. 106 A more detailed holding on the relationship between WTO law and customary internationallaw has been given by the Panel in Korea - Procurement. The Panel held: "7.96 We take note that Article 3.2 ofthe DSU requires that we seek within the context of a particular dispute to clarify the existing provisions of the WTO agreements in (Note 27). EC Measures Concerning Meat and Meat Products (Hormones) - Cornplaint by the United States, Report ofthe Panel of August 18, 1997, WT/DS26fRIUSA, para. 8.157. 106 See PalmeterlMavroidis (note 82), 65. 104 lOS

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accordance with customary rules of interpretation of public international law.[] However, the relationship ofthe WTO Agreements to customary internationallaw is broader than this. Customary international law applies generally to the economic relations between the WTO Members. Such intemationallaw applies to the extent that the WTO treaty agreements do not 'contract out' from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to the WTO treaties and to the process oftreaty formation under the WTO."107

Tbe problem, however, remains that international econornic law does not know many specific mIes of customary intemationallaw. Tbus, an additional function of customary international law with regard to the WTO Agreements is rather unlikely. Instead, the main importance of customary intemationallaw will probably continue to lie in the interpretation of provisions of WTO Agreements. 108 Another issue in this regard concerns the question ofwhether there is customary law within the WTO legal order. An indication for the existence of specific customary law which has been created by, and is binding on, the WTO members may be found in Article XVI: 1 WTO Agreement. This provision stipulates that "the WTO shall be guided by the decisions, procedures and customary practices followed by the CONTRACTING PARTIES to GATT 1947." Indeed, one may argue that a specific kind of customary law has been developed within the legal regime ofGATT 1947. 109 However, it is unclear whether the contracting parties to GATT and the WTO Members really regarded certain practices they then followed and continue to folIowas being law in the sense of opinio juris .110 Moreover, the main areas of customary practices in GATT 1947 (e.g., application of the consensus principle contrary to Article XXV:4 GATT 1947; dispute settlement procedures) have now been explicitly codified in the WTO legal order. 3. Uniform Practice and opinio juris

- Are uniform practice and opinio juris treated as equal elements of customary intemationallaw? - Howand to what extent is the existence of opinio juris established (for example by courts and treaty bodies)?

107 Korea - Measures Affecting Government Procurement, Panel Report adopted June 19,2000, WTIDS1631R, para. 7.96. 101 See also PalmeterlMavroidis (note 82), 66. 109 Benedek, (note 64), 126 et seq. 110 PalmeterlMavroidis (note 82), 66.

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- Have specific rules been developed with regard to the requirement of unifonn State practice (intensity, duration and uniformity ofsuch practice)? - Who are the relevant actors (Is there indication for a majoritarian approach or a focus on the performance of specific States?) 4. Persistent Objector

- Is the notion of persistent objector still relevant? Do you consider that certain States do act and may be considered as persistent objectors? If so, with regard to which norms? No significant relevance in WTO law. IV. "Soft Law" J. Existence

- Are there documents (apart from treaties) which have significantly influenced State practice or pronouncements by treaty bodies? - Have documents that were - as such - not considered to be legally binding (e.g., recommendations of international organizations, "political agreements," memoranda ofunderstanding etc.) played an important role in the nonn-creating process? If so, which, why and how (influence on later treaties and/or custornary law)? - Who are the authors of such documents? 2. Role 0/ Soft Law

What is the function of soft law? - To what extent do the relevant actors abide by such documents? - What is the result of a breach?

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3. Recognition and Legal Qualification - Where do such documents derive their legitimacy from? - Have treaty bodies applied and/or referred to such documents in their practice? How? - Have treaty bodies made statements as to the legal status of such documents (are they qualified as aseparate body of law or an element of the traditional sources of law)? - What is the legal relevance oftreaty body pronouncements? Soft law within the WTO legal order is hard to detect. This is mainly due to the fact that resolutions of a general political nature are not issued by WTO organs. It is generally accepted among WTO Members that the passing of general political resolutions concerning world trade law is part of the work of the UN General Assembly.11I However, in other areas of international economic law, soft law plays quite a significant role. This is namely true with regard to international standard setting bodies, e.g., ISO. Another telling example in this regard is the Basle Accord. 1I2 Numerous other examples highlighting the importance of soft law in international economic law have been analyzed by this author elsewhere. l13 With regard to WTO law, soft law is incorporated in different WTO Agreement. The WTO Agreement on Technical Barriers to Trade (TBT Agreement) I 14 provides in Artic1e 2 (4) that WTO Members shall use appropriate technical norms as set up by international standardization organizations. This refers to such standardization organizations as ISO (International Organization for Standardization) and IEC (International Electrotechnical Commission); both of which are non-

\11 See, e.g., Resolution 58/197 "International trade and development" AlRES/58/197 of January 30, 2004; see also Benedek (note 64), 123 et seq. \12 For details see Daniel E. Ho, Compliance and International Soft Law: Why Do Countries Implement the Basle Accord?, JIEL 5 (2002), 647 et seq. 1\3 Christian Tietje, Transnationales Wirtschaftsrecht aus öffentlich-rechtlicher Perspektive, Zeitschrift rur Vergleichende Rechtswissenschaft - Archiv rur Internationales Wirtschaftsrecht 101 (2002),404 et seq.; Christian Tietje, Recht ohne Rechtsquellen? Entstehung und Wandel von Völkerrechtsnormen im Interesse des Schutzes globaler Rechtsgüter im Spannungsverhältnis von Rechtssicherheit und Rechtsdynamik, Zeitschrift rur Rechtssoziologie 24 (2003), 27 et seq. \14 GATT Secretariat (ed.), The Results ofthe Uruguay Round ofMultilateral Trade Negotiations, The Legal Texts (1994), 138 et seq.

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governmental international organizations. 115 The far-reaching significance of this reference has been made clear by the Appellate Body in Ee - Sardin es .116 A similar, even more far-reaching provision is contained in Article 3 (2) ofthe WTO Agreement on the Application ofSanitary and Phytosanitary Measures (SPS Agreement),117 providing that "[s]anitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATI 1994." The international standards mentioned are mainly those created by the Codex Alimentarus Conunission ofthe FAO and WHO, the International Plant Protection Convention and the International Office of Epizootics. 1\8 The importance of the technique in the SPS Agreement to incorporate legally non-binding international standards has been discussed by the Appellate Body in, arnongst others, Hormones. 119

Finally, an interesting reference to soft law has been made by the Appellate Body in Shrimp. In its decision, the Appellate Body heavily relied upon the non-

I \S F or an overview on all international and regional standardization organizations see ISO/IEC, Directory ofinternational standardizing bodies, 7 d1 ed. (1995). 116 European Communities - Trade Description of Sardines, Report of the Appellate Body of September 26, 2002, WTIDS231 / ABIR, paras. 229 et seq.; for details see Christian Tietje, Übereinkommen über technische Handelshemmnisse, in: Hans-Joachirn Prießl Georg M. Berrisch (eds.), WTO-Handbuch, 8.1.5., paras. 95 et seq. 117 GATT Secretariat (ed.), The Results ofthe Uruguay Round ofMultilateral Trade Negotiations, The Legal Texts (1994), 69 et seq. 118 See Annex A, para. 3 SPS-Agreernent; for details see Terence P. StewartlDavid S. Johanson, The SPS-Agreement ofthe World Trade Organization and International Organizations: The Roles ofthe Codex Alimentarius Commission, the International Plant Protection Convention, and the International Office ofEpizootics, Syracuse J. Intl L. & Comm. 26 (1998), 27-53. 119 EC - Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body of January 16, 1998, WTIDS26/ABIR and WT/DS48/ABIR; for details of the case see, e.g., Vern Walker, Keeping the WTO frorn Becoming the "World Transscience Organization": Scientific Uncertainty, Science Policy, and Factflnding in the Growth Hormones Dispute, Cornell Intl Law Journal 31 (1998),251-320; Marco Slotboom, The Hormones Case: An Increased Risk of II1egality of Sanitary and Phytosanitary Measures, Common Market Law Rev. 36 (1999),471-491; Dale McNiel, The First Case Under the WTOs Sanitary and Phytosanitary Agreement: The European Unions Hormone Ban, Virginia Journal oflntl L. 39 (1998), 89-134; Meinhard HilflBarbara Eggers, Der WTOPanelbericht im EG/USA Hormonstreit, EuZW 1997,559-566.

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binding Rio Declaration in order to establish a duty to cooperate with regard to measures aiming at protecting global environmental goodS. 120

C. Domestic Implementation I. To Wh at Extent is International Treaty Law Applied / Referred To in Your Field by National Authorities / National Courts? - If so, how? (e.g., direct application, interpretation of domestic law in light of international norms, reference to decisions ofrespective treaty-bodies I international courts and tribunals). - Are international treaties, where applicable, interpreted in light of the mIes of the Vienna Convention on the Law ofTreaties or by applying regular domestic mIes of interpretation? The regulation of external trade is to a large extent an exclusive competence of the EC (Article 133 ECT). Thus, the application of WTO law in the domestic sphere is mainly a question of EC law. The ECJ in constant jurispmdence denies any direct applicability of WTO law. However, the Court also recognizes four important exceptions: 121 First, WTO law has to be observed by competent EC organs and organs of EC Member States if secondary legislation confers on individuals a right to rely on GATT/WTO law (e.g., Trade Barriers Regulation).122 Second, the same is true, if secondary legislation explicitly serves the implementation of GATT/WTO (e.g., anti-dumping).123 Third, EC law and nationallaw ofEC Member States have to be interpreted in accordance with WTO law ifthe respective area of law is part of EC competences. 124 Finally, the ECJ recently made the following statement with regard to the argument that a harmonization measure under Article 95 ECT is illegal because it prevents a Member State from fulfi11ing its WTO!TRIPS obligations: ,,Moreover, and in any event, this plea should be understood as being directed, not so much at a direct breach by the Community of its international obligations, as at an obligation imposed on the Member States by the Directive to breach their own obligations under international law, while the 120 United States - Import Prohibition of Certain Shrimp and Shrimp Products, Report ofthe Appellate Body ofOctober 12,1998, WT/DS58/AB/R, para. 168. 121 For details see, e.g., Prieß/Berrisch, (note 54), at C.Il. I. paras. 29 el seq. 122 ECJ, Case 70/87, Fediol, ECR 1989, 1781 et seq. 123 ECJ; Case 69/89, Nakajima ECR 1991,1-2069 et seq. 114 ECJ, Case 300/98, Dior, ECR 2000,1-11307 et seq.

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Directive itself claims not to affect those obligations. For that reason at least, the plea is admissible."125 Even though the Court did not see any conflict between the respective Directive and TRIPS, one mayargue that there is a general prohibition of harrnonization of laws under Article 95 ECT should such a measure violate WTOlaw. International Agreements that have been concluded by the EC are generally interpreted according to Articles 31 et seq. ECT. 126

11. To Wh at Extent is International Customary Law Applied I Referred To in Your Field by National Authorities I National Courts? - If so, how? (e.g., direct application, interpretation of domestic law in light of international customary law, reference to decisions ofrespective treaty-bodiesl international courts and tribunals). - Is State practice regularly analyzed when referring to customary international law? The main area of customary international economic law applied by national authorities and courts concems the extraterritorial application oflaws (narnely in the antitrust area).127

111. To Wh at Extent is International "Soft Law" Applied I Referred To by National Authorities I National Courts? - If so, how (direct application, interpretation of domestic law in light of rules of soft law)? IV. Have Rules ofInternational Law Been Granted a Special Status in Various Domestic Legal Systems? - Have they been granted superior status vis-a-vis regular laws? - What is the relationship to constitutional provisions? 125 ECJ, Case 377/98, Netherlands v Parliament and Counci/, ECR 2001,1-7079. 126 See, e.g., ECJ, Opinion 1/91, EEA, ECR 1991,1-6079 paras. 13 et seq.

127 See extensively Werner Meng, Extraterritoriale Jurisdiktion im öffentlichen Wirtschaftsrecht (1994).

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- Do nonns of internationallaw in your field make their internal applicability (or their respective content) mandatory? Ifso, how? (see, e.g., Article 146 Geneva Convention IV) - AIe there other mechanisms favoring the enforcement of the content of the respective international nonns? (e.g., principle of complementarity in Article 17 Rome Statute) - AIe individuals in your fie1d generally considered to have standing to claim violations of nonns of intemationallaw in domestic fora? The main problems of the status of WTO law within domestic legal systems have already been discussed. However, two additional problems that occur under the WTO Agreement on Subsidies and Countervailing Measures (SCM) have to be mentioned: The first point with regard to the interrelation of international and domestic economic law concerns the question whether the obligation to withdraw a subsidy that is illegal under the SCM Agreement (Article 4.7 SCM Agreement) might depend on existing legal obligations under domestic law. The relevance of this question is obvious if one takes into account that govemments usually get into a contractual relationship with the recipients of subsidies or grant the subsidies on the bases of administrative law without having necessarily the possibility to withdraw the respective obligation unilaterally. Brazil for example made the argument before the WTO Appellate Body that it had a contractual obligation under domestic law to grant the subsidy at issue and that not granting the subsidy could lead to liability for damages for breach of contract. 128 Moreover, one has also to bear in mind that the recipient of a subsidy might get into contractual relations with other private parties in order to spend the money received. In such a case the recipient ofthe subsidy himselfwould be liable for damages for breach of contract if he or she would not be able to fulfill the contractual obligations because the subsidy would not be issued by the govemment. WTO Members are according to Article 4.7 SCM Agreement under the obligation to "withdraw" an illegal subsidy "without delay." As this is an obligation under public internationallaw, Article 27 ofthe Vienna Convention on the Law of Treaties (VCLT) has to be taken into account. Article 27 VCLT provides that "[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." It is in accordance with this general concept ofpublic international law that the Appellate Body made the convincing statement that 121 WTO, Brazil- Export Financing Programme for Aircraft - Recourse by Canada to Article 21.5 DSU, Report ofthe Appellate Body of July 21,2000, WTIDS46/ AB/RW, para.

46.

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,,[a] Member's obligation ... to withdraw prohibited subsidies ,without delay' is unaffected by contractual obligations that the Member itself rnay have assumed under municipal law. Likewise, a Member's obligation to withdraw prohibited export subsidies ... cannot be affected by contractual obligations which private parties rnay have assumed inter se in reliance on laws conferring prohibited export subsidies."129 Even though this holding by the Appellate Body is in accordance with general public internationallawand is thus not surprising, the consequences in domestic legal systems are far-reaching. Any WTO Member and any actual or potential recipient of a subsidy must be aware ofthe fact that the illegality of the subsidy under WTO law would actually interfere with respective rights and obligations relating to the subsidy under domestic law. It is thus always necessary to take a potential violation ofWTO law into account while considering the application for and the granting of a subsidy within a domestic legal system. A second point conceming the relationship ofWTO law and domestic law has been indicated in the decision of the WTO Panel in the Australian Leather Case. The Panel in the implementation procedure (Article 21.5 DSU) had to decide on the meaning of Article 4.7 SCM Agreement. This provision stipulates that "[i]fthe measure in question is found to be a prohibited subsidy, the panel shall recommend that the subsidizing Member withdraw the subsidy without delay." In the Australian Leather Case the question came up whether this wording also includes an obligation for (retrospective) repayment of a prohibited subsidy. In discussing this question, the Panel fIrst referred to the applicable means of treaty interpretation as codifIed in Articles 31 et seq. VCLT. While doing so, the Panel also stated that "[t]he applicable fundamental principle of effet utile is that a treaty interpreter is not free to adopt a meaning that would reduce parts of a treaty to redundancy or inutility."130 The Panel continued its analysis ofthe meaning of Article 4.7 SCM and came to the following conclusion: "Based on the ordinary meaning ofthe term 'withdraw the subsidy', read in context, and in light of its object and purpose, and in order to give it effective meaning, we conclude that the recommendation to 'withdraw the subsidy' provided for in Article 4.7 SCM Agreement is not limited 129 WTO, United States - Tax Treatment for "Foreign Sales Corporations", Recourse to ArticIe 21.5 DSU by the European Communities, Report ofthe Appellate Body of January 14, 2002, WT/DSI08/AB/RW, para. 230; see also WTO, Brazil - Export Financing Programme for Aircraft - Recourse by Canada to ArticIe 21 (5) DSU, Report of the Appellate Body of July 21,2000, WT/DS46/AB/RW, para. 46. 130 WTO, Australia - Subsidies Provided to Producers and Exporters of Automotive Leather - Recourse to Article 21. 5 DSU by the United States, Report of the Panel of January 21,2000, WT/DSI26/RW, para. 6.24.

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to prospective action only but may encompass repayment of the prohibited subsidy.,,131 The decision of the Panel has caused a very intensive and even heated discussion among WTO Members. Quite a few members disagreed with the decision in strong language. 132 Legal scholars also criticized the decision as being unfounded, contrary to basic principles ofWTO law and domestic constitutionallaw, and thus - quoting from the respective meeting of the Dispute Settlement Body l33 - being "a one-time aberration of no precedential value. "134 This conclusion seems to be exaggerated, namely if one takes a look at the different arguments that are up forward in order to support the critic: A first aspect that has to be taken into ac count is that there are at least five Panel reports under the old GATT 1947 which recommended a retrospective remedy. J3S Simply arguing that these Panel reports "were exclusively anti-dumping or countervailing duties cases under the Tokio Round Subsidies Code" and that they therefore can not stand as a general precedence l36 is not convincing. In order to judge on the value of these decisions one must look at their overall rationale. This is essentially based on economic factors in conjunction with the general principle of law that no legal act can stern from an illegality (ex injuria non oritur juS).137 These considerations do not only apply in anti-dumping cases or in cases under the "old" subsidy code, but in any case that concerns a trade distorting governmental measure that has fmancial implications for private parties. Namely anti-dumping and subsidy cases are similar in this regard. Both are concemed with a governmentat market intervention by financiaI means. Thus, it is very weIl possible and even necessary to apply the same rationale as put forward in the antidumping decisions and in the subsidy cases under the Tokio codes to anyantidumping and subsidy case under WTO Iaw. 131 WTO, Australia - Subsidies Provided to Producers and Exporters of Automotive Leather - Recourse to Article 21.5 DSU by the United States, Report of the Panel of January 21,2000, WTIDSI26IRW, para. 6.39. 132 See the discussion in the Dispute Settlement Body on February 11,2000, WTO Doc. WT/DSB/MI75 of March 7, 2000; for further details see GohlZiegler, Journal of International Economic Law 6 (2003), 545 et seq. 133 See the discussion in the Dispute Settlement Body on February 11,2000, WTO Doc. WTIDSBIM175 ofMarch 7, 2000, at 8. 134 GohiZiegler (note 132), 545 et seq. 135 See Ernst-Ulrich Petersmann, International Competition Rules for the GATT-MTO World Trade and Legal System, Journal Qf World Trade 127 (No. 6, 1993),5 et seq.; Mavroidis, European Journal of International Law 11 (2000), 763 (775). 136 See the argument by GohlZiegler (note 132),545 (553). 137 Mavroidis (note 135), 763 (775 et seq.).

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Another argument put forward against the Panel decision in the Australian Leather Case concerns the relationship between public international law and WTO law. It is argued that the possibility under general public internationallaw to apply retrospective remedies can not be applied under WTO law because of the very special nature of the WTO legal system 131 Thisargumentation is in conflict with the explicitjurisprudence ofthe Appellate Body according to which the ILC draft articles on State responsibility have to be taken into account while interpreting WTO law. 139 The ILC draft articles on State responsibiIity explicitly provide that aState being responsible for an international wrongful act is under an obligation to cease that act, ifit is continuing (Article 30 lit. a] ILC-Draft), and to make fu11 reparation for the injury caused (Article 31 (1) ILC-Draft):40 The meaning ofthe notion of "reparation" in the sense of Article 31 (1) ILC-Draft is we11 established in public intemationallaw. Already the Permanent Court of International Justice made clear that ,,[t]he essential principle contained in the actual notion of an illegal act . .. is that reparation must, so far as possible, wipe out a11 the consequences of the illegal act and reestablish the situation which would, in a11 probability, have existed if that act had not been committed."141 Such a "wiping out of a11 consequences ofthe illegal act" in terms of Article 4.7 SCM Agreement can only mean that there is an obligation to enforce a repayment of the prohibited subsidy. Furthermore, it is rnisleading to argue that the overall objective of the WTO legal system is to "preserve future trading opportunities rather than redress past injury."142 Future trading opportunities and the necessity to redress past injury are interrelated in cases of an illegal subsidy. Once a subsidy is granted to the recipient, a fair competitive market situation is destroyed. This situation that is caused by a govemrnental intervention into the market lasts as long as the recipient of the subsidy has a fmancial advantage. It will not cease to exist until the money received is paid back to the govemrnent. Thus, fair and competitive market conditions can only be re-established by retroactive remedies under Article 4.7 SCM

138 GohlZiegler (note 132),545 (553 et seq.). WTO, United States - Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, Report ofthe Appellate Body ofFebruary 15, 2002, WTIDS202/ABIR, para. 259; WTO, United States - Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, Report ofthe Appellate Body adopted November 5, 2001, WTIDSI92/ABIR, para 120. 140 Repr. in: James Crawford, The International Law Commissions Artic\es on State Responsibility, 196 et seq. 141 Factory at Chorzow, Jurisdiction, PCIJ, Series A, No. 9,21. 142 GohlZiegler (note 132), 545 (555). \39

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Agreement. As demonstrated by Mavroidis, this conclusion is also in line with a proper interpretation of Article 19 DSU. 143 Finally, it is at least misleading to argue that retrospective remedies under the SCM Agreement are not possible because they would be in conflict with constitutionallaw provisions of WTO Members. First, this is also the case with regard to the already mentioned jurisprudence that domestic law does not effect obligations under the SCM Agreement. Under German constitutional law, for example, a person who received a positive administrative order that he or she will be granted a subsidy has under certain circumstances a constitutional right that the govemment will not revoke this order. 144 Thus, constitutionallaw issues are raised in any case of an illegal subsidy, disregard the question whether a prospective or a retrospective remedy under internationallaw applies. These problems have to be solved by including a principle of good faith and legal certainty as a human right into the WTO legal order. If the recipient of a subsidy is in good faith that he or she has received a legal subsidy, basic considerations ofhuman rights standards under the principle of good faith and legal certainty prevent the application of a retrospective remedy.145 This is a further argument in favor of including human rights law into the WTO legal order. 146 In sum, the Panel decision in the Australian Automotive Leather Case is economically and legally convincing. 147 It is moreover in line with the respective jurisprudence of the ECJ that is just as the decision of the Panel not based on explicit provisions ofthe underlying treatyl48 but a result ofthe consequent application ofthe effetutile principle. Possible negative consequences ofthis approach have to be solved by applying human rights standards within WTO law. However, it certainly is not a solution to give govemments the possibility to grant illegal subsidies without consequences until they have stopped such a practice because of adecision ofthe Dispute Settlement Body that only applies prospectively. 143 Movroidis (note 135), 763 (789 et seq.). 144 Helmuth Schulze-FielUz, in: Horst Dreier (ed.), Grundgesetz-Kommentar, vol. 2, Art. 20 GG (Rechtsstaat), paras. 135 et seq. 145 See, e.g., ECJ, Case C-24/95, Land Rheinland-P/alz v. Alcan 0/ March 20, 1997, ECR 1997,1-1591, paras. 24 et seq.; Ste/an Kadelbach, Allgemeines Verwaltungsrecht unter Europäischem Einfluss (1999), 470 et seq. 146 See in general, e.g., Ernst-Ulrich Petersmann, The WTO Constitution and Human Rights, Journal oflnternational Economic Law 3 (2000), 19 et seq.; Petersmann, European integration and international co-ordination, in: Armin von Bogdandy et al. (eds.), Studies in Transnational Economic Law in Honour ofClaus-Dieter Ehlermann (2002), 383 et seq. 147 Mavroidis (note 135), 763 (790). 141 This is misunderstood by GohlZiegler (note 132), 545 (557).

Questionnaire International Economic Law

211

D. Role of Dispute Settlement Bodies I Other Dispute Settlement Mechanisms I. Substantive Law - To what extent is general internationallaw (such as the VCLT etc.) appliedl referred to in their decisions? See above. - How have those bodies addressed possible conflicts between various normative sub-systems (e.g., between GATI and environmental treaties or between human rights treaties and treaties in the field of international humanitarian law)? See above. - Have those bodies, and if so, how, referred to decisions of other dispute settlement bodies (decisions of other int. courts and tribunals etc.)? - To what extent and in regard of what specific issues have such institutions contributed to the developrnent of internationallaw in your field? It has become common practice ofWTO Panels and the Appellate Body to refer to decisions of other international tribunals, most notably the ICJ}49 Use of other international decisions is made with regard to almost any relevant question under WTO law that is similar to a question that has been dealt with by other international dispute settlement bodies (e.g., similarity in legal terms; prove of customary law; existence of a general principle of law; procedural questions ).ISO

11. Procedure, Jurisdiction and Enforcement - Is the jurisdiction of the respective dispute settlement mechanism, where available, compulsory or optional (optional protocol, declarations of acceptance of jurisdiction, possibility of reservations as to third-party dispute settlement)? 149 See, e.g., V.S.-Standards for Refonnulated and Conventional Gasoline, Report ofthe Appellate Body, adopted May 20, 1996, WTIDS2I ABIR, note 34; Vnited States - Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, Report ofthe Appellate Body adopted March 8, 2002, WT/DS2021 AB/R, notes 256 and 257. ISO For further details see PalmeterlMavroidis (note 82), 79.

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WTO Dispute settlement is compulsory (see Article 6.1 DSU). Moreover, WTO Members are under an obligation to settle their disputes concerning WTO law exclusively according to the rules ofthe DSU (see Article 23.1 DSU). - Are there specific mechanisms for fact-fmding available? Fact-fmding by Panels is regulated by Article 13 and Annex 4 DSU. 151

- 00 the respective dispute settlement bodies have the power to issue provisional measures? If so, under what circurnstances? Are they considered to be legally binding? The DSU does not provide for provisional measures. The only possibility to speed up the dispute settlement procedure is provided by Article 4.8 DSU. However, this provision fmds little application in practice. 152 - Are decisions Uudgments, views etc.) of the respective dispute settlement mechanism considered to be legally binding? A Panel or Appellate Body report is legally binding once it is adopted by the WTO Dispute Settlement Body (DSB). The DSB adopts a Panel report within a given time frame "unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report" (Article 16.4 DSU). The same rule of quasi-automatic adoption applies to Appellate Body reports (Article 17.14 DSU). - Have States generally abided by decisions of such bodies? - How is the enforcement of such "decisions" secured (by other international bodies, meetings of States parties etc.)? Recommendations by Panels or the Appellate Body are in most cases implemented by WTO members. The DSU provides for a complicated system of surveillance ofimplementation ofrecommendations and rulings ofthe DSB (Article 21 DSU), and for compensation and the suspension of concessions in case of noncompliance (Article 22 DSU).

151 152

For details see PalmeterlMavroidis (note 82), 116 et seq. PalmeterlMavroidis (note 82),95 et seq.

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Questionnaire International Econornic Law

For details see the following statistical overview (as of June 2005):

CompIaints notified to theWTO

Active Panels

Appellate Bodyand Panel Reports Adopted

Mutually Agreed Solutions

Other Settled or Inactive Disputes

Reporting periodl date

since 1.1.1995

on reporting date

since 1.1.1995

since 1.1.1995

since 1.1.1995

Number

330

27

89

46

28

Active Compliance Panels

AdoptedAppellate Body and Panel Compliance Reports

Arbitrations on Level of Suspension of Concessions

WTO Authorizations of Suspension ofConcessions

Reporting periodl date

on reporting date

since 1.1.1995

since 1.1.1995

since 1.1.1995

Number

6

12

16

15

Source: WTO Doc. WTfDS/OV/24 of 15 June 2005.

E. Role of Contracting Parties and Issues of State Responsibility I. To What Extent Have Contracting Parties Relied On I Referred To Norms of International Law in International Disputes? (Norrns of public international law in general are frequently invoked in WTO dispute settlement procedures) See above.

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Christian Tietje 11. To What Extent Have Contracting Parties Contributed to the Further Development of the Respective Treaties?

- If so, how (subsequent practice, additional protocols, inter-se agreements etc.)? The further development of WTO law is subject to decisions by the WTO Ministerial Conference (Article X WTO Agreement). WTO Members still take the attitude that the WTO in total is a "member driven" organization. 153 111. State Responsibility J. Basic Issues

- 00 the respective legal regimes address issues of responsibiIity at all? - What are the requirements under which States incur responsibility? - Can other (non-State) actors also incur responsibility? - Is there any mechanism setting in place a system ofindependent (third-party) compliance control?

- 00 the regimes provide for separate regimes of(international or civil) liability? The OSU establishes a detailed system of responsibility ofWTO members. The requirements for responsibility are basically the same as those in general public internationallaw. However, the concept of violation complaints, non-violations complaints and situation complaints 154 modifies the concept of responsibility under WTO law to a certain extent. Moreover, WTO law provides for specific mIes on remedies modifying at least to a certain extent the rules on remedies in general public internationallaw. 155 2. Consequences of Wrongful Acts

What are the legal consequences of international wrongful acts? (restitution, compensation, satisfaction, guarantees ofnon-repetition?) Jaclcson (note 4), 67 et seq. See, e.g., PalmeterlMavroidis (note 82),162 et seq. ISS Fordetails see Patricio Grane, Rernedies under WTO Law, JIEL (2001),755 et seq.; Mavroidis (note 135), 763 et seq. 153

154

Questionnaire International Economic Law

215

- Does any of these enjoy primacy as a matter of legal principle? - Is any of them particularly relevant in practice? Article 3.7 DSU highlights the hierarchical order of available remedies in WTO law. The provision reads in part as folIows: "In the absence of a rnutually agreed solution, the first objective of the dispute settlement rnechanism is usually to secure the withdrawal ofthe measures concemed ifthese are found to be inconsistent with the provisions of any of the covered agreements. The provision of cornpensation should be resorted to only ifthe immediate withdrawal ofthe measure is impracticable and as a temporary measure pending the withdrawal of the measure which is inconsistent with a covered agreement. The last resort which this Understanding provides to the Member invoking the dispute settlement procedures is the possibility of suspending the application of concessions or other obligations under the covered agreements on a discriminatory basis vis-a-vis the other Member, subject to authorization by the DSB of such measures." (see also Articles 19.1 and 22.1 DSU).

3. Forms o[Compliance Control - What are the means available to secure compliance with the rules of intemationallaw under the respective regime? - Do the respective regimes provide for judicial, quasi-judicial or other thirdparty means of dispute settlement? - Do they (expressly or by implication) exclude recourse to countermeasures? - Do they (expressly or by implication) recognize other, less coercive, forms of safeguarding compliance? If so, which? - Which of the various forms of c;ompliance control is the most relevant in practice? Compliance control - control over implementation of DSB decisions - is extensively regulated in Articles 21 et seq. DSU. Unilateral countermeasures outside the provisions ofthe DSU are prohibited. 156 This is also true with regard to antidumping and antisubsidies measures, as the rulings of a Panel and the Appellate Body conceming the so-called U.S. Byrd Amendment (the Continued Dumping and Subsidy Offset Act of 2000) clarified. 157 The case concemed U .S. legislation requiring U.S. customs authorities to forward duties collected from an antidumping or countervailing order to affected domestic producers for their qualify156 See extensively U.S.-Sections 301-310 ofthe Trade Act ofl974, Report ofthe Panel ofDecember 22, 1999, WTIDS I 521R, paras. 7.32 et seq. 157 WTO, United States - Continued Dumping and Subsidy Offset Act of 2000, Report ofthe Appellate Body of January 16, 2003, WTIDS2171 ABIR and WTIDS2341 ABIR.

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Christian Tietje

ing expenses. The Appellate Body held this mechanism to be "a non-permissible 'specific action against a subsidy', contrary to SCM Article 32.1" - and in the same sense a violation of the Anti-dumping Agreement. 158 A totally different system to ensure compliance with WTO law on a non-legal basis was established by the Trade Policy Review Mechanism (TPRM). The TPRM may be adequately described as being a means of soft implementation of WTOlaw. 159 4. Actors Entitled to Respond Against Breaches

- Under which circurnstances can States invoke responsibility for breaches of internationallaw under the respective regime? - Can other (non-State) international legal actors (such as individuals or institutions) also seek to secure compliance? Only WTO Members can be parties to disputes under the DSB. However, the indirect participation of private parties - amicus curiae; Section 301 ; Trade Barrier Regulation - is quite important. It has been described above. - Ifyes, is their role greater or smaller than that ofStates? On a strictly legal basis, WTO Members have a dominant role in WTO dispute settlement. However, as aIready indicated, private parties have a significant impact on the enforcement ofWTO law on a factual basis, and with regard to the different legal possibilities to domestically initiate WTO proceedings and to influence actual WTO dispute settlement proceedings (see extensively above).

ISI

159

Ibid., paras. 224 et seq. For details see Christian Tietje, Der Trade Policy Review Mechanismus, in: Prießl

Berrisch (eds.), WTO-Handbuch, C.I.I.

Unity and Diversity with Regard to International Treaty Law By Monika Heymann

A. Introduction Treaties are the rnain source of international law ' and of each field of law examined in this report, namely: Law of the sea, human rights, humanitarian, economic and environmentallaw. Thus, treaties cover a variety of subject-rnatters. They regulate the use of the sea-bed, the transboundary movements of hazardous waste, the use of chemical weapons during an anned conflict, the trade between two and more nations as weIl as the prohibition oftorture. The following questions, examined in this report, arise from the diversity of subject rnatters covered by international treaties: Is the general international treaty law which is rnainly embodied in the Vienna Convention on the Law ofTreaties (VCLT)2 still relevant for each particular subject rnatter? Or has every field oflaw developed its own treaty law? This report is divided into three parts. In Part B the general structure of the different fields of law is reviewed. In Part C, the differences conceming the conclusion, application, interpretation and termination of a treaty are discussed. Finally, in Part D the relationship between treaties covering the same and different subject rnatters is reviewed.

I Alfred Verdross/Bruno Simma, Universelles Völkerrecht (1984), § 533; Rudolf Bernhardt, Treaties, EPIL 4 (2000), 926, 926; Georg Dahm/Jost DelbrücklRüdiger Wolfrum, Völkerrecht, 1/3 (2002),512. 2 UNTS 1155,331.

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B. The General Structure of the Different Fields of Law Generally, environmentallaw, humanitarian law, hwnan rights law, economic law and the law of the sea reveal the same structure. Theyare composed of universal and - with the exception ofhumanitarian law - regional multilateral treaties. 3 Additionally, fundamental multilateral treaties with a (quasi-)universal character also exist. 4 The importance and number ofbilateral treaties vary according to the relevant subject matter. Whereas bilateral treaties still playa crucial role in some areas of economic law, particularly with regard to investment law (currently around 2100 bilateral treaties worldwide), their importance in environmentallaw and the law of the sea is lirnited and they do not exist in humanitarian and hwnan rights law.

) An example for aglobaI environmental treaty is the United Nations Convention on Biodiversity 1992 (ILM 31 (1992), 851), a regional treaty is the Convention on the Protecti on of the Environment through Criminal Law 1998 (ETS No. 172). An example for a global humanitarian law convention is the Geneva Convention Relative to the Treatment of Prisoners ofWar 1949 (UNTS 75, 135). An example for a global human rights treaty is the International Covenant on Political and Civil Rights 1966 (UNTS 999, 171), a regional treaty is the European Convention on Human Rights (ETS No. 005). An example for a globallaw ofthe sea-convention is the United Nations Convention on the Law ofthe Sea 1982 (UNTS 833, 3), a regional treaty is the Convention for the Protection ofthe Marine Environment of the North-East Atlantic 1992 (ILM 32 (1993), 1068). An example for a global econornic treaty is the Marrakesh Agreement Establishing the World Trade Organization 1994 (UNTS 1867, 154), an example for a regional treaty is the North American Agreement Free Trade Agreement 1992 (ILM 32 (1993), 289). 4 An example for an environmental convention with a (quasi-) universal character is the United Nations Framework Convention on Clirnate Change 1992 (ILM 31 (1992),849) with 189 State parties (unfccc.intiessential_backgroundlconventionlstatus_ of_ratificationl items/2631.php, last visited 17 October 2004). The United Nations Convention on the Law ofthe Sea (note 3) with 145 members (www.un.orgIDeptsl1oslreference_fiIesistatus2003. pdf, last visited 22 September 2004) is an example for a quasi universal treaty ofthe law of the sea. The four Geneva Conventions of 1949 ratified by 192 States (www.eda.admin.chl edaif/home/foreignJintagr/framliprotection.html, last visited 16 October 2004) epitomize the (quasi-) universal character of some humanitarian law conventions. The International Covenant on Civil and Political Rights (note 3) has 149 State parties (www.ochhr.org, last visited 15 October 2003) and is an example of a quasi-universal human rights treaty. Finally, the WTO Agreement (note 3) has 148 contracting parties (www.wto.org, last visited 16 October 2004) and epitomize a (quasi-) universal convention in the area of economic law.

Unity and Diversity with Regard to International Treaty Law

219

C. Conclusion, Application, Interpretation and Termination of Treaties I. Conclusion oe Treaties 1. The Development ofTreaties The way treaties are developed varies according to the relevant subject matter. Human rights treaties are virtually developed exclusively by International Organizations. s All main universal human rights instruments have been adopted by the General Assembly.6 This means that they have been elaborated by the UN Commission on Human Rights, which could be described as having a quasi-monopoly in this area. Tbe maj ority of the relevant humanitarian treaties (i. e. the Law of Geneva and the Additional Protocols of 1977 7) has been adopted and developed by diplomatic conferences. 8 Tbe competence to develop law of the sea conventions is shared

S Bruno Simma, How Distinetive are Treaties Representing Colleetive Interest? The Case ofHuman Rights Treaties, in: Gowlland-Debbas (ed.), Multilateral Treaty-Making (2000),83,83. 6 International Covenant on Civil and Politieal Rights (General Assembly Resolution 2200 A (XXI) ofDeeember 16, 1966); International Covenant on Eeonomie, Social and Cultural Rights (General Assembly Resolution 2200A (XXI) of Deeember 16, 1966); International Convention on the Elimination of All Forms ofRacial Diserimination (General Assembly Resolution 2106 (XX) ofDeeember 21, 1965); Convention on the Elimination of All Forms ofDiserimination against Women (General Assembly Resolution 34/180 of 18 Deeember 1979); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly Resolution 39/46 ofDeeember 10, 1984). 7 The four Geneva Conventions of 1949 have been adopted by the Diplomatie Conferenee for the Establishment of International Conventions for the Proteetion of Vietims of War held in Geneva fromApril21 to August 12,1949. The Additional Protoeols have been adopted by the Diplomatie Conference on the Reaffirmation and Development of International Humanitarian Law applieable in Armed Confliets. 8 There are also humanitarian eonventions whieh have been elaborated in relation to or under the auspiees ofthe United Nations (e.g., the Convention on Prohibitions or Restrietions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively lnjurious or to Have lndiscriminate Effects 1980 (UNTS 1342, 137) which has been adopted by the General Assembly ofthe United Nations and the Conference on Disarmament).

220

Monika Heymann

mainly by diplomatie eonferenees eonvened by the General Assembly and the International Maritime Organization (IMO).IO Environmental agreements are developed under the auspiees of or in relation to the United Nations, by diplomatie conferenees or by the State parties to an existing environmental framework treaty.11 Finally, major parts of international eeonomie law have been developed under the auspices of, or at least in relation to the UN system However, some multilateral eeonomie agreements have been developed by diplomatie eonferenees initiated by States, and espeeially in the areas of world trade and investment proteetion, States still maintain a dominant position. 2. Possibility o[ a Unilateral Differentiation: The Problem o[ Reservations Reservations to treaties are a highly complex issue in international treaty law reservations to human rights treaties l2 are espeeially a "hot topiC."13 Thus, the following remarks can only toueh on this issue very briefly. They will foeus on the admissibility requirements of reservations and the legal regime of inadmissible reservations. a) Admissibility ofReservations Aeeording to Article 19 VCLT, reservations eannot be made where they are expressly prohibited by the treaty, or where the treaty provides that only specified 9 The four Geneva Conventions on the Law of the Sea (Geneva Convention on the Territorial Sea and the Contiguous Zone, Geneva Convention on the High Seas, Geneva Convention on the Continental Shelf and Geneva Convention on Fishing and the Conservation ofthe Living Resources ofthe High Seas) have been adopted by the 111 UN Conference on the Law ofthe Sea held at Geneva in 1958. The United Nations Convention on the Law ofthe Sea (note 3) was adopted by the 3n1 UN Conference on the Law ofthe sea, which lasted 11 years (1973-1982). 10 Conventions conceming the maritime safety, the prevention ofmarine pollution and Iiability and compensation especially in relation to damage caused by pollution are conc1uded under the auspices ofthe IMO. II See generally Philippe Sands, Principles ofintemational Environmental Law, 2 nd ed. (2003), 129. 12 See detailed Second Report on Reservations by Mr. Alain Pellet, Special Rapporteur, UN Doc. AlCN.4/477 (1996). 13 See also Bruno Simma, Reservations to Human Rights Treaties - Some Recent Developments, in: HafnerlRestiSucharipa-BehrmanniZemanek (eds.), Liber Amicorum Ignaz Seidl-Hohenveldem (1998), 659.

Unity and Diversity with Regard to International Treaty Law

221

reservations may be made and these do not include the reservation in question or, where in the case ofno mention being made in the text ofthe treaty the reservation is incompatible with the object and purpose ofthe treaty. None of the subject matters treated in this paper has yet developed a standard format with regard to the admissibility ofreservations. Instead, aIl kind ofprohibitions stipulated in Artiele 19 VCLT can be found in human rights treaties,14 environmental agreements,IS law of the sea conventions,16 economic,17 as weIl as 14 Human rights treaties prohibiting reservations: Art. 30 Optional Protocol to the Convention Against Torture and Other Crue\, Inhuman or Degrading Treatment or Punishment 2002 (lLM 42 (2003), 26), Art. 17 Optional Protocol to the Convention on the Elimination ofDiscrimination Against Women 2000 (GA Res. 54/4, annex, 54 UNGAOR Supp. (no. 49), at 5. Human rights treaties permitting certain reservations: European Convention on Human Rights (note 3): Art. 57 general reservations are not admissible; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (UNTS 1465,85): Art. 28 enumerated reservations are allowed; Convention on the Rights ofa Child 1989 (UNTS 1557,3): Art. 51 (1) reservations incompatible with the object and purpose of the Convention are forbidden; Convention on the Elimination of Discrimination Against Women 1979 (UNTS 1249,3): Art. 28 reservations incompatible with the object and purpose ofthe Convention are forbidden; Convention on the Elimination of All Forms ofRacial Discrimination 1965 (UNTS 660, 195): Art. 20 (2): "A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect ofwhich would inhibit the operation ofany ofthe bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it." Human rights treaties remaining silent on reservations: International Covenant on Social, Cultural and Economic Rights 1966 (UNTS 993, 3); International Covenant on Political and Civil Rights 1966 (note 3). IS Environmental treaties prohibiting reservations: Art. 18 Vienna Convention on the Protection ofthe Ozone Layer 1985 (ILM 26 (1987),1529); Art. 26 (1) Basel Convention on the Control ofTransboundary Movements ofHazardous Waste and Their Disposal 1989 OLM 28 (1989), 657); Art. 34 Protocol on Environmental Protection to the Antarctic Treaty 1991 (ILM 30 (1991),1461); Art. 37 Convention on Biological Diversity 1992 (note 14); Art. 38 Cartagena Protocol on Biological Diversity 2000 (lLM 39 (2000),1027); Art. 24 Framework Convention on Climate Change (note 14); Art. 25 Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997 (ILM 37 (1998), 22); Art. 47 International Tropical Timber Agreement 1994 OLM 33 (1994),1014); Art. 27 Stockholm Convention on Persistent Organic Pollutants 2001 (ILM 40 (2001),532). Environmental treaties permitting special reservations: Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993 (ILM 32 (1993), 1228): Art. 35 enumerated reservations are allowed; Convention on the Conservations of Migratory Species of Wild Animals 1979 (lLM 19 (1980), 15): Art. XIV (1) general reservations are prohibited. Environmental treaties remaining silent on reservations: Rarnsar Convention on Wetlands oflnternational Importance 1972 (UNTS 996, 245); Convention on Long-Range

222

Monika Heymann

humanitarian law 18 treaties. However, special features concerning the admissibility Transboundary Air Pollution 1979 (ILM 18 (1979), 1442); Convention on the Transboundary Effects ofIndustrial Accidents 1992 (ILM 31 (1992), 1332). 16 Law ofthe sea conventions prohibiting reservations: Art. 12 (9) Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America 1987 (lLM 26 (1987), 1048). Law ofthe sea conventions permitting special reservations: Convention on the Law ofthe Sea (note 3): Art. 309 Reservations are forbidden unless expressly permitted by other artic\es of this convention; Agreement Re1ating to the Implementation ofPart XI ofthe United Nations Convention on the Law of the Sea 1994 (ILM 33 (1994), 1309): Art. 2 (2) Reservations are forbidden unless expressly permitted by other artic\es ofthis convention; Geneva Convention on the Continental Shelf 1958 (UNTS 499, 312): Art. 21 (1) enumerated reservations are allowed; Geneva Convention on Fishing and Conservation ofthe Living Resources ofthe High Seas 1958 (UNTS 559, 285): Art. 19 (1) enumerated reservations are allowed. Law of the sea conventions remaining silent on reservations: Geneva Convention on the High Seas 1958 (UNTS 516, 205); International Convention for the Prevention ofPollution by Ships (MARPOL) 1973 (UNTS 1313, 3). 17 Economic law treaties prohibiting reservations: Art. XVI (I) WTO Agreement (note 3); Agreement on Rules ofOrigin 1993 (ILM 33 (1994), 1143). Economic law treaties permitting special reservations: Agreement on Implementation of Art. VII of the General Agreement on Tariffs and Trade 1994 (ILM 33 (1994), 1143): Art. 21 and para. 2 of Annex III reservations are permitted ifthe other parties agree to them; Agreement on Jmplementati on of Art. VI of the General Agreement on Tariffs and Trade 1994 (ILM 33 (1994), 1143): Art.18 (2) reservations are permitted if the other parties agree to them; Agreement on Subsidies and Countervailing Measures (ILM 33 (1994), 1143): Art. 32 (2) reservations are permitted ifthe other parties agree to them. Economic law treaties remaining silent on reservations are the Agreement of the International Monetary Fund 1944 (UNTS 2, 40, 726,260) and theAgreement ofthe International Bank for Reconstruction and Development 1944 (UNTS 2, 134, 294, 606). 11 Humanitarian law conventions prohibiting reservations: Art. 19 Convention on the Prohibition ofthe Use, Stockpiling, Production and Transfer of Anti-Personne1 Mines and on their Destruction 1997 (ILM 36 (1997),1507). Humanitarian law conventions permitting certain reservations: Convention on the Prohibition ofthe Development, Production, Stockpiling and Use ofChemical Weapons and on their Destruction 1993 (lLM 32 (1993), 800): Art. 22: "Tbe Artic\es of this Convention shall not be subject to reservations. Tbe Annexes ofthis Convention shall not be subject to reservations incompatible with its object and purpose." Humanitarian law conventions remaining silent on reservations: Geneva Convention for the Amelioration ofthe Condition ofWounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949 (UNTS 75, 85); Geneva Convention Relative to the Treatment of Prisoners ofWar 1949 (note 4); Additional Protocol to the Geneva Conventions of August 12, 1949 Relating to the Protection ofVictims of International Armed Conflicts (Protocol I) 1977 (UN GAOR, doc. A/32/144, August 12, 1977); Additional Protocol to the Geneva

Unity and Diversity with Regard to International Treaty Law

223

of reservations exist in environrnental and economic law. The special characteristic of environrnental agreements is that most treaties do not a110w reservations. There are two principal reasons for this: Firstly, many environmental treaties replace the individual differentiation via reservations with a form of multilateralized differentiation. This differentiation is agreed with by a11 contracting parties but applicable only to those meeting the established criteria of differentiation. 19 A good example is the Kyoto Protocol: While its Artic1e 24 genera11y prohibits reservations, it differentiates in respect ofburden-sharing in order to achieve the common purpose of the Convention. Article 3 (1) accordingly provides that the "developed country Parties should take the lead in combating c1imate change and the adverse effects thereof. ,,20 Secondly, many environrnental treaties are framework conventions providing general structures and guidelines rather than specific commitments with implications for a particular activity or practice.21 They permit further concrete obligations to be established at some stage in the future. 22 The peculiarity of international economic law is that, especially in the system of the WTO, reservations are only permitted if the other State parties give their consent to them, and that (until today) no reservations have been made. In other words, the assent of a11 parties is needed. Accordingly, it is possible to conclude that the WTO system regards the integrity of the treaty as being of paramount importance. 23 Conventions of August 12, 1949 Re\ating to the Proteetion ofVictirns ofNon-International Armed Conflicts (Protocol II) 1977 (UN GAOR, doc Al321144, August 15, 1977). 19 Catherine Redgwell, Multilateral Environmental Treaty-Making, in: GowllandDebbas (ed.), Multilateral Treaty-Making (2000),89, 101. 20 For details see Peter G. G. Davies, Global Warming and the Kyoto Protocol, ICLQ 47 (1998),446,459 et seq. 21 Sands (note 11), 134 et seq. 22 The usual technique for the elaboration of more detailed obligations is the adoption of further protocols. See, e.g., the protocols adopted to the International Convention on Long Range Transboundary Air Pollution (note 15): Protocol on the Reduction ofSulphur Emissions or Their Transboundary Fluxes by at least 30 percent 1988 (lLM 27 (1988), 707); Protoco1 Conceming the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes 1989 (lLM 28 (1989), 212); Protocol Concerning the Emissions of Volatile Organic Compounds or Their F1uxes 1992 (ILM 31(1992),568) and Protocol on Further Reduction ofSulphur Emissions 1994 (lLM 33 (1994),1540). 23 See generally Art. 20 (2) VCLT: "When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application ofthe ~eaty in its entirety between all the parties is an essential condition of consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties."

224

Monika Heymann

b) The Legal Regime of Reservations The VCLT fails to specify clearly the legal consequences of an inadrnissible reservation. Thus, in intemationallegal doctrine and practice three questions are particularly controversial: Firstly, can an inadrnissible reservation be accepted by the other State parties ("opposability2~ v. adrnissibility2s doctrine")? Secondly, do treaty bodies - in absence of a specific treaty provision - have the competence to decide upon the adrnissibility ofreservations? This question is raised in particular with regard to human rights treaties, because those conventions embody integral rights, but the VCLT is primarily posited upon bilateral structures oftreaty performance. 26 Therefore, it is sometimes argued that human rights treaty bodies had ( or ought to have) an implied competence to determine ifa reservation is compatible with the object and purposetest. 27 Finally, the third particularly controversial question relates to the legal effect of an inadmissible reservation. Is such a reservation invalid and is its author bound by the whole treaty or does an impermissible reservation nullify the State's acceptance of the treaty as a whole? Until now, only human rights treaty bodies have tried to fill this major gap in the VCLT and have developed special mIes regarding the legal regime of reservations. Firstly, this is due to the fact, that reservations are frequently made to human rights treaties 28 and that the most important human rights treaties have established treaty organs competent to receive complaints from individuals claiming a violation of human rights. 2~ 25

E.g., Jose Maria Ruda, Reservations to Treaties, RdC 146 (1975 IIl), 101, 190. E.g., Derek W. Bowett, Reservations to Non-Restricted Multilateral Treaties, BYIL

48 (1976-1977), 67, 83. 26 See only Rudolf L. Bindschedler, Reservations, in: Rudolf Bernhardt (ed.), EPIL 4 (2000),965,969. 27 See the debate in the International Law Commission concerning the relationship between the VCLT and human rights treaties: YILC 1997 I, 2499th meeting, 2500 th meeting, 250 I SI meeting, 2502nd meeting and 2503'" meeting. The PreIiminary Conc1usions of the International Law Commission on Reservations to Normative Multilateral Treaties Inc1uding Human Rights Treaties in 1997 reaffirmed the applicability of the VCLT to human rights treaties. They emphasized that human rights treaty bodies do not have greater eompetenees than that specifieally granted by the respective State parties (Report of the ILC on the work of its forty-ninth session, GAOR, Fifty-seeond Session, Suppl. No. 10, UN DOC. A/52/10, 95 et seq.). 21 See only the reservations made to the International Covenant ofCivil and Political Rights (www.ohehr.orglenglish/eountrieslratifieationlindex.htm. last visited 16 Oetober 2004).

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Furthennore, the other fields of law treated in this paper, either bave treaty organs and no reservations (economic and environmentallaw), or virtually bave no competent treaty organs (humanitarian law), or the relevant treaty organ (International Tribunal of the Sea) bas just recently started its wode,29 so that until now it has not bad the opportunity to deliver a judgment with regard to the legal regime of reservations.

aa) Tbe Approach ofHuman Rights Treaty Bodies Two human rights treaty bodies, namely the European Court ofHuman Rights and the UN Committee on Human Rights, mIed on two controversial issues: Are treaty bodies competent to apply the "object and purpose test?" And wbat are the effects of an impermissible reservation to a human rights treaty? Both, the Strasbourg Courf° and the UN Committee on Human Rights,3\ basically reached the same conclusions. Firstly, that they are competent to determine the legality of a reservation and thus can apply the object and purpose test. 32 Secondly, they de-

29 Tbe ITLOS took up its work on Oetober I, 1996 (www.itlos.org, last visited Oetober 16,2004). 30 Tbe European Court of Human Rights has developed a praetiee whereby it would first eonsider the admissibility of a partieular reservation, and then proeeed to sever the reservation on the presumption that the relevant State still wants to be bound by the Convention. In the famous judgment Belilos v. Switzerland the Strasbourg Court stated: "In short, the dec1aration in question does not satisfy two ofthe requirements of Art. 64 (Art. 64) ofthe Convention, with the result that it must be held to be invalid. At the same time, it is beyond doubt that Switzerland is, and regards itself as, bound by the Convention irrespeetive ofthe validity ofthe dec1aration. Moreover, the Swiss Government recognized the Court's eompetence to determine the latter issue, which they argued before it. Tbe Government' s preliminary objection must therefore be rejected" (ECHR, Belilos v. Switzerland, Sero A 132, para. 60). 3\ Human Rights Committee, General Comment 24 (52), General Comment on Issues Relating to Reservations made upon Ratification or Accession to the Covenant or the Optional Protocol thereto, or in Relation to Dec1arations under Art. 41 ofthe Covenant, UN Doc. CCPRlC/21/Rev.lIAdd.6 (1994), para. 18. 32 But it should be also noted that not aB human rights treaty bodies affirmed to have such a competence. Tbus, the Committees established under the 1966 Convention on the Elimination of Racial Discrimination and the 1989 Convention on the Elimination of Discrimination against Women have both denied the competence to assess the validity of reservations. See only Catherine Redgwell, Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties, BYIL 64 (1993), 245, 280.

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cided that an impermissible reservation is generally to be severed and that the declarant State is bound by the whole treaty.33 Nevertheless, the reactions ofthe State parties differed considerably. Whereas the jurisprudence ofthe European Court ofHuman Rights was generally accepted amongst the member States ofthe ECHR, the General Comrnent 24/52, however, triggered off great concern with certain governrnents. In 1995, the United Kingdom, the United States of Arnerica, and France subrnitted written observations to the Human Rights Cornrnittee criticizing the conclusions reached in its General Comrnent. 34 They objected in particular to the severability solution. bb) Transferability to Other Subject Matters?

It is one of the most controversial questions in international treaty law, if the severability doctrine can at all be applied to human rights treaties and, moreover, if it could be transferred to other subject matters. A potential transferability is discussed with regard to the law ofthe sea. The United Nations Convention on the Law of the Sea allows only enurnerated reservations and thus corresponds to Article 19 (b) VCLT. For this reason, the question ifan irnpermissible reservation could be accepted by the other State parties is less controversial. It is generally recognized that such an irnpermissible reservation is invalid, whether or not it is accepted by another contracting party.35 In international doctrine it is sometirnes argued that the severability doctrine adopted by the human rights treaty bodies can be transferred to the Law of the Sea Convention. 36 The State practice in the framework ofthe Convention ofthe Law JJ But it should be noted that the First Optional Protocol to the International Covenant on Civil and Political Rights confers to the UN Cornrnittee on Human Rights only the competence to issue non-binding recornrnendations, whereas the European Coun of Human Rights has the power to give binding judgrnents. J4 J. P. Gardner (ed.), Human Rights as General Norms and a State's Right to Opt out: Reservations and Objection to Human Rights Convention (1997), 193 el seq. JS See only the c1ear and equivocal statement of Sir Humphry Waldock. He stated "that a contracting State could not purpon, under An. 17 (now An. 20), to accept a reservation prohibited under An. 16 (now An. 19), para. (a) or para. (b), because, by prohibiting the reservation, the contracting States would expressly have excluded such acceptance" (Official Records United Nations Conference on the Law ofTreaties, First Session (1968), Meetings ofthe Cornrnittee ofthe Whole, Twenty-Fifth Meeting, 133). J6 In this direction Dolliver Nelson (Vice-President ofthe International Tribunal for the Law ofthe Sea), Declarations, Statements and Disguised Reservations with Respect to the Convention on the Law ofthe Sea, ICLQ 50 (2001), 767, 781-783. See also Richard W.

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of the Sea also seems to support the "severability doctrine. "37 But it should be noted that this State practice does not refer explicitly to the relevant jurisprudence of the human rights treaty bodies. 11. Application of Treaties

1. Territorial Application According to Article 29 VCLT a treaty is binding upon each party in respect of its entire territory, unless a different intention appears from the treaty or is otherwise established. All fields of law - with the exception of economic law - deviate from this preswnption. 38 FirstIy, law ofthe sea conventions, due to their very nature are hardly susceptible of territorial application. Their scope of application is primarily the sea, and not the territory. Secondly, the application ofhumanitarian law conventions is not limited to the territory of the contracting party. Their applicability ratione loei is defmed as follows: They apply to the territory of the belligerents, to any place where a combat takes place (inside or outside the territory ofthe belligerents, for example at sea) and to zones covered by the belligerent State even ifno combat takes place (for example in case ofthe occupation ofa foreign territory).39 Edwards, Reservations to Treaties, Michigan Journal of International Law 10 (1989), 362, 376 et seq. who does not regard the severability doctrine as an exc1usive doctrine for human rights treaties. 37 See only the dec1aration made by the Russian Federation upon ratification of the Convention on the Law ofthe Sea (note 3): "The Russian Federation, bearing in mind Arts. 309 and 310 of the Convention, dec1ares that it objects to any dec1arations and statements made in the past or which may be made in future when signing, ratifying or acceding to the Convention, or made for any other reason in connection with the Convention, that are not keeping with the provisions of Art. 310 ofthe Convention. The Russian Federation believes that such dec1arations and statements, however phrased or named, cannot exc1ude or modify the legal effect ofthe provisions ofthe Convention in their application to the party to the Convention that made sueh dec1arations or statements, and for this reason they shall not be taken into aceount by the Russian Federation in its relation with that party to the Convention" repr. in: Dolliver Nelson (note 36), 767, 782 et seq. 38 See more detailed Anthony Aust, Modem Treaty Law and Practice ( 2002), 162 et seq. 39 This has been confirmed by the jurisprudence of the ICTY (Prosecutor v. Tadic. ICTY Case no. IT-94-1-AR72, Oetober 2, 1996, paras. 68-69) and ICTR (Prosecutor v.

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Furthennore, the territorial scope of environmental treaties depends on the subject matter covered by the relevant agreement. Thus, environmental agreements aimed at the universal protection of the marine environment apply to the sea; and regional environmental agreements only cover a certain geographical region. 40 Even human rights treaties are not limited to a territory. Generally, human rights treaties declare that the beneficiaries of the relevant rights are "all persons subject to the jurisdiction ofthe contracting parties."41 This means, in general, that human rights treaties apply to a territory, where aState party exercises effective contro1. 42 But the exact extent ofthis notion is still controversia1. 43 2. Affects on Third States

As a general principle of international treaty law it is recognized that a treaty only binds the contracting parties and does not create either obligations or rights for a third State without its consent. 44 In the field of human rights, humanitarian

Jean-Paul Akayesu, Merits, ICTR Case No ICTR-96-4-T, Trial Chamber, September 2, 1998, para. 635). 40 See, e.g., Art. 2 (1) of the 1983 Convention for the Proteetion and Development of the Marine Environment ofthe Wider Caribbean Region (www.eep.unep.org\pubs\legis1ation\cartxt.html, last visited 23 Oetober 2004) whieh reads as folIows: "The 'Convention area' means the marine environment of the Gulf of Mexieo, the Caribbean Sea and the areas ofthe Atlantie Oeean adjaeent thereto, south of30 degrees north latitude and within 200 nautieal miles ofthe Atlantie eoasts ofthe States referred to in Art. 25 ofthe Convention." 4\ Art. 1 ofthe European Convention on Human Rights (note 3) reads as folIows: "The High Contraeting Parties shall see ure to everyone within their jurisdietion the rights and freedoms defined in Seetion I of[the] Convention." See also: Art. 2 (1) ofthe Intemational Covenant on Civil and Politieal Rights (note 3), Art. 1 ofits Optional Protoeol (999 UNTS 302) and Art. 1 ofthe Ameriean Convention on Human Rights 1978 (1144 UNTS 123). 42 See the establishedjurisprudenee ofthe European Court ofHuman Rights: Loizidou v. Turkey (Pre1iminary Objections), Sero A 310, para. 62 with further references. See also Inter-American Commission ofHuman Rights Report No. 109/99, Case No. 10.951, Coard et al. V. the United States, September 29, 1999, paras. 37, 39, 41 and 43. 43 See only the recent deeision of the ECHR, Bankovic et al. V. Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, /celand, ltaly, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom, ILM 41 (2001),517, para. 75. 44 See Art. 34 VCLT.

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law and economic law this principle has not been questioned. 4S However, some environmental and law ofthe sea conventions have softened the pacta tertiis rule. In a smaH number of cases, environmental agreements contain import prohibitions in view ofnon-members. WeH known examples in this sense are Article 4 of the Montreal Protocol on Substances, that deplete the Ozone Layer46 or Article 4 (5) of the Basle Convention on the Control of Transboundary Movements on Hazardous Waste and Their Disposal!' The latter one states that "a party shaH not pennit hazardous waste or other wastes to be exported to a non-party or to be imported from a non-party."

Some law of the sea conventions go even further and impose direct obligations on third States. The most famous example is the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Such obligations are contained in its Articles 8 (4),17 and 23 (3).48 The deviation from the pacta tertiis rule in environmental and law of the sea conventions is due to the fact that both fields of law protect a common concern and interest of the international community. The third State impact of the subject matters mentioned above is aimed to limit the "free-rider effect."49 Thus, the particular goal (e.g., protecting the ozone layer) can be achieved only by widespread ifnot universal acceptance ofthe specific restraints. so

45 In the above rnentioned fields oflaw the role ofthird parties is only discussed with regard to the question iftreaty provisions could create effects for third States because they incorporate customary internationallaw. 46 UNEP, Montreal Protocol on Substances that Deplete the Ozone Layer, Final Act (1987), 12. 47 See supra, note 15. 48 Another example is Part XI ofthe Convention on the Law ofthe Sea (note 3) creating a regime for the use ofthe deep-sea resources. See detailed Jonna Ziemer, Das gemeinsame Interesse an einer Regelung der Hochseefischerei (2000), 234. 49 See also Joost Pauwelyn, Conflict ofNorms in Public International Law (2002), 101. so See also Bernard Oxman, The International Commons, the International Public Interest and New Modes ofinternational Lawmaking, in: Jost Delbrück (ed.), New Trends in International Lawrnaking - International "Legislation" in the Public Interest (1996), 21, 25 et seq.

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111. Interpretation of Treaties Tbe general rules of interpretation embodied in Articles 31-33 VCLT apply to any treaty, in any field of law treated in this paper.51 This is due to the fact the principles contained in Articles 31-33 VCLT are phrased broadly enough to cover the peculiarities of each subject matter. IV. Termination ofTreaties Through Withdrawal or Denunciation Withdrawal or denunciation52 denotes a unilateral act by which a party seeks to terminate its participation in the treaty. According to the residual clauses of the VCLT, the withdrawal of a party may take place in conformity with the provisions of a treaty, or at any time by consent of all parties after consultation with the other contracting parties (Article 54). Article 56 VCLT contains the presumption that a treaty which contains no provisions regarding its termination and does not provide for denunciation is not subject to denunciation unless it is established that the parties intended to adrnit the possibility of denunciation, or a right of denunciation may be implied by the nature ofthe treaty. No subject matter treated in this paper has uniform treaty provisions with regard to the withdrawal of a party. Generally, human rights treaties, hurnanitarian law conventions, environmental agreements, economic law treaties as weil as law of the sea conventions can be divided into three categories. Either they do not provide for denunciation, or they contain a simple or qualified denunciation clause. 53 51 For human rights treaties see only ECHR, Bankovic et al. v. Belgium. Czech Republic. Denmark. France, Germany, Greece, Hungary, /celand, Italy. Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom, ILM 41 (2002), 517, paras. 55-58; concerning economic law see the constantjurisprudence since United States - Standards for Reformulated and Conventional Gasoline, Appellate Body Report adopted May 20, 1996, WTIDS2/ ABIR, para. III.B, 17; concerning environmentallaw see only Sands, Principles ofInternational Environmental Law, 2nd ed. (2003), 131 et seq. 52 The words "denunciation" and "withdrawal" express the same legal concept (Aust, Modem Treaty Law and Practice (2002), 224; United Nations, Final Clauses ofMultilateral Treaties, Handbook (2003), 109). 53 Treaties not providing for denunciation: International Covenant on Political and Civil Rights (note 3); Convention on the Prohibition ofMilitary or any Hostile Use of Environmental Modification Techniques 1976 (lLM 16 (1977), 88); Convention on the Conservation ofMigratory Species ofWild Animals (note 15); Geneva Convention on the High Seas (note 16). Treaties providing a simple denunciation cIause: ArticIe 21 Convention on the Elimination of All Forms of Racial Discrimination (note 14); ArticIe 8 Convention (IV)

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A simple denunciation clause means that the withdrawal on notice may take place at any time, whereas a qualified denunciation clause sets up furtber requirements, such as, for example, a crucial reason or that a specified period of time elapses. However - with exception of the law of the sea - special features exist in every field of law. As far as human rights law is concemed two trends can be observed. On the one hand, the overall majority of human rights treaties pennit denunciation without further requirements,54 and on the other hand, the UN Conunittee on Human Rights argues that human rights treaties which do not contain a withdrawal provision55 are not subject to denunciation. It based its decision inter alia on the argument that the Covenant on Civil and Political Rights, as an instrument codifying human rights, was not the type oftreaty that implies a right fOT denunciation by its Respecting the Laws and Customs ofWar on Land 1907 (Martens, NRG (3n! Serie), vol. 3, 461»; Art. 43 (1-2) Tropical Timber Agreement (note 15); Art. XV WTO Agreement (note 14); Art. 22 United Nations Convention on Conditions for Registration of Ships 1986. Treaties containing a qualified denunciation cJause: European Convention on Human Rights (note 3): Art. 58 (1) denunciation is possible after 5 years membership; Convention on the Prohibition ofthe Use, Stockpiling and Transfer of Anti-Personal Mines and on their Destruction (note 18): Art. 20 (2): Full explanation of the reasons motivating the withdrawal is required; Basel Convention on Transboundary Movements ofHazardous Waste (note 15): Art. 27: denunciation is possible after three years mernbership; Art. 51 Convention Establishing the Multilateral Investment Guarantee Agency 1985 (UNTS 1508, 99): denunciation is possible after the expiration ofthree years following the date upon which this convention has entered into force with respect to the relevant member; International Convention for the Prevention ofPollution from Ships (note 16): Art. 18 (1): denunciation is possible after 5 years membership. . 54 Human rights treaties containing a simple denunciation cJause: Art. 44 Convention Relating to Refugees 1951 (UNTS 189, 150); Art. 52 Convention on the Rights ofa Child 1989 (note 14); Art. 15 Option al Protocol to the Convention on the Rights ofthe Child on the Sa1e of Chi1dren, Child Prostitution and Child Pornography 2000 (GA Res. 54/263, Annex 11, 54 UN GAOR Supp. (No. 49), at 6); Art. 9 Protocol Re1ating to the Status of Refugees 1966 (UNTS 606, 267); Art. 31 (1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (note 14); Art. 33 (1) Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (note 14); Art. 19 (1) Optional Protocol to the Convention on the Elimination ofDiscrimination against Women (note 14). 55 Human rights treaties not providing the possibility to withdraw are: The International Covenant on Social, Cultural and Economic Rights (note 14); the International Covenant on Political and Civil Rights (note 3); the Second Additional Protocol on the International Covenanton Civil and Political Rights 1989 (GA Res. 44/128, annex 44, UN GAOR Supp. (No. 49), 207 UN Doc. A/44/49) and the Convention on the Elimination on Discrimination against Women (note 14).

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nature. 56 Furthermore, most humanitarian law treaties contain provisions goveming the right of State parties to terminate the conventions through denunciation. But under these provisions, a denunciation would produce no effect if the State parties were engaged in an armed conflict at the time or within the notice period with regard to that armed conflict. 57 The special feature of economic law - especially WTO law - is the predominance of a simple denunciation clause. 58 Every State party - apart from the duty to observe the relevant notice period - is completely free to denunciate the respective treaties. The vast majority of environmental agreements contain a qualified denunciation clause requiring that a specified period of time elapses before a contracting party may withdraw from the treaty.59 The purpose ofthis requirement is to secure - at least for a certain period oftime - the membership in an environmental treaty. 56 General Comment No. 26: Continuity ofObligations: 08/12/97.CCPRlC/21/Rev.1I Add.8/Rev. J.General Comment 26, para. 3: "[T]he Covenant does not have a temporary character typical of treaties where a right of denunciation is deemed to be admitted, notwithstanding the absence of a specific provision to that effect." 57 Common Art. 63/62/142/158, para 3 ofthe four Geneva Conventions, provides: " ... a denunciation ofwhich notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been conc\uded, and until after operations connected with the release and repatriation (Art. 158 ofthe Fourth Convention uses 'release, repatriation and re-establishment') of the persons protected by the present Convention have been terminated." See also similar provisions in: Art. 99 First Additional Protocol to the Geneva Conventions (note 18), Art. 24 Second Additional Protocol to the Geneva Conventions (note 18); Art. 20 (3) Convention on the Prohibition of the Use, Stockpiling and Transfer of Anti-Personal Mines and on their Destruction (note 18). 51 See, e.g.• Art. XXXVI (1) of the Agreement on the Establishment of the International Monetary Fund (note 17): "Any member may withdraw from the Fund at any time by transmitting a notice in writing to the Fund at its principle office. Withdrawal shall become effective on the date such notice is received." 59 Art. 17 Convention on Long-Range Transboundary Air Pollution (note 15); Art. 19 Vienna Convention on the Protection of the Ozone Layer (note 15); Art. 19 Montreal Protocol on Substances that Deplete the Ozone Layer 1987 (note 46); Art. 27 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (note 15); Art. 38 United Nations Convention on Biological Diversity (note 3); Art. 39 Cartagena Protocol on Biological Diversity (note 15); Art. 25 (I) Framework Convention on Climate Change (note 14); Art. 31 (I) Convention on the Transboundary Effects oflndustrial Accidents 1992 (note 15); Art. 15 Protocol to the Convention on LongRange Transboundary Air Pollution on Further Reduction on Sulphur Emissions 1994 (note 22); Art. 26 (1-2) Kyoto Protocol to the United Nations Framework Convention on C1imate Change (note 15); Art. 28 Stockholm Convention on Persistent Organic Pollutants (note 15).

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D. Tbe Relationship Between Treaties Due to the absence of a centralized law-making authority in internationallaw, aseries of treaties does not, in mathematical terms, constitute an ordered "set" but an "accurnulation."6O Thus, the relationship between various treaties covering the same or different subject matters can be quite complicated. 61 Generally, two main problems arise: Firstly, what is the relationship between two successive treaties binding upon the same parties. To be more specific, what is the relationship between agreements which are not expressly intended to replace (in whole62 or partlt3), supplement64 or to clarify another existing treaty (-ies)? Secondly, what is the relationship between two treaties binding upon different groups of parties? I. Relationsbip Between Successive Treaties Relating to tbe Same Subject Matter The VCLT contains in its Article 30 a residual clause for the relationship between successive treaties relating to the same subject matter. It is based on the lex posterior principle, the equality of a11 treaties with the exception of the United Nations Charter and the pacta tertiis principle. Thus, Article 30 (2) VCLT states that when a treaty specifies that it is subject to, or that is not to be considered as inconsistent with an earlier or later treaty, the provisions of that other treaty prevail. Article 30 (3) affrrms the lex posterior principle and para. 4 combines the lex posterior with the pacta tertiis principle for the case when the parties to the later treaty do not include a11 the parties to the earlier one. Paul Reuter, Introduction to the Law of Treaties, 200 rev. ed. (1995), 130. 61 lan Sinclair, The Vienna Convention on the Law ofTreaties, Manchester (1984), 93 describes the relationship between successive treaties covering the same subject matters as a "particular obscure aspect of the law of treaties." 62 See, e.g., Art. 311 (1) ofthe Convention on the Law ofthe Sea (note 3). 63 An example is the Art. 2 ofthe Agreement Relating to the Implementation ofPart XI ofthe United Nations Convention on the Law ofthe Sea ofDecember 10,1982 (note 16): "I.The provisions ofthis Agreement and Part XI shall be interpreted and applied together as a single instrument. In the event of any inconsistency between this Agreement and Part XI, the provisions ofthis Agreement shall prevail." 64 See, e.g.. Art. 6 (1) ofthe Second Optional Protocol to the International Covenant on Civil and Political Rights (note 55): "I.The provisions ofthe present Protocol shall apply as additional provisions to the Covenant." 60

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The relationship between successive treaties relating to the same subject matters differs according to the relevant subject matter. Whereas the relationship between the various environmental treaties is particularly controversial and remains unsolved because many agreements overlap as far as their objectives and measures are concemed,6S the relationship between law ofthe sea conventions is not problematic. This is due to the fact that most of the conventions and agreements developed in recent times implement the provisions ofthe United Nations Convention on the Law of the Sea. Furthermore human rights, hurnanitarian and econornic treaties have developed special rules conceming the relationship between successive treaties which partly deviate from the residual clause ofthe VCLT. Thus, the relationship between successive human rights treaties is virtually determined by the irrelevance of the lex posterior and the pacta tertiis principles. Instead, it is marked by the principle "accumulation of human rights only,"66 which derives from a repeated and explicit conflict clause in many human rights treaties. 67 Therefore, a succession of human rights treaties can never result in a loss ofhuman rights. The irrelevance ofthe pacta tertiis principle results from the fact that human rights treaties create integral obligations, instead of reciprocal rights between State parties. 68 This irnplies that a contracting party is always 65 Moreover, the international environmental issues and actions may be c10sely interrelated. A famous example in this regard is the promotion of the establishment of carbon sinks by the Kyoto Protocol (note 15), which may result in a loss of biodiversity and thus put into question the very airns ofthe Convention on Biodiversity (note 3). Such effect is due to incentives that the Kyoto protocol envisages for the cultivation of plants, which absorb carbondixide. It is feared, that some States could engage in such farrning on the cost of pre-existing and more environmentally sound land uses. 66 Joost Pauwelyn, The Role ofPublic International Law in the WTO: How far can we go?, AJIL 51 (2001),535,551. 67 See, e.g., Art. 32 European Social Charter (ETS No. 35); Art. 8 European Agreement on Transfer ofResponsibilities for Refugees 1980 (ETS. No. 107), Arts. 53 and 60 European Convention on Human Rights (note 3); Art. 23 Convention on the Elimination of Discrimination Against Women (note 14); Art. 11 Optional Protocol to the Convention on the Rights ofthe Child on the Sale ofChildren, Child Prostitution and Child Pomography (note 54); Art. 5 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in an Armed Conflict 2000 (GA Res. 54/263, Annex I, 54 UN GAOR Supp. (No. 49), 7). Also in this sense Art. 5 (2) ofthe International Covenant on Civil and Political Rights (note 3) and Art. 5 (2) of the International Covenant on Economic, Social and Cultural Rights (note 14). 68 See, e.g., the Decision o[ the European Commission on Human Rights as to the Admissibility o[Application No. 788/60 lodged by the Government o[the Federal Republic o[Austria against the Government o[the Republic o[Italy, YBECHR 4 (1960), 116, 138-

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obliged to apply a human rights eonvention even in relation to non-contracting parties. As a result, the problem of how to apply different human rights agreements whieh bind different eountries is virtually non-existent. Tbe relationship between the various humanitarian law eonventions is not as homogenous as that between various human rights treaties. However, many humanitarian eonventions contain a eonfliet clause stating that the relevant convention shall not be interpreted as detraeting from other obligations imposed upon the eontraeting parties by international humanitarian law eonventions. 69 Moreover, the Geneva Conventions prohibit further agreements resulting in a lower proteetion to the respective proteeted persons. 70 Furthermore, the problem of how to apply humanitarian agreements binding upon different parties is resolved in favor of a striet application of the pacta tertiis principle. Tbus, many humanitarian eonventions contain a clause expressly stating that the respective treaty does not apply for third States71 and moreover they expressly allow the contracting parties not to apply the relevant convention in relation to third parties for the case that the other party does not apply and accept the provisions ofthe relevant eonvention. 72 Tbe result is that a humanitarian law convention is always applied on a mutual basis. 7J 142. The European Commission on Human Rights stated (at 140) that: "the obligations ... in the Convention are essentially ofan objective character, being designed rather to protect the fundamental rights of individual human beings from infringement of any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves." It further conc1uded that Austria had the right to a file a complaint against Italy with regard to matters arising before Austria had become a Party to the Convention. 69 Art. 2 Convention on Prohibitions or Restrictions on the Use ofCertain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (note 8); Art. XIII Convention on the Prohibition ofthe Development, Production, Stockpiling and Use of Chemical Weapons an on their Destruction (note 18). 70 See only Art. 6 (3) of the Third Geneva Convention Relating to the Treatment of Prisoners ofWar (note 3). 7. See, e.g., Art. 135 of the Third Geneva Convention Relating to the Treatment of Prisoners ofWar (note 3). 72 See, e.g., Art. 96 of the First Additional Protocol of 1977 (note 18). 7) See Yves SandoziChristophe SwinarskilBruno Zimmermann (eds.), Commentary on the Additional Protocols of June 1977 to the Geneva Conventions of August 12, 1949, Geneva 1987, para. 50: "Thus reciprocity invoked as an argument not to fulfil the obligations ofhumanitarian law is prohibited, but this does not apply to the type ofreciprocity which could be termed 'positive', by which the parties mutually encourage each other to go beyond what is laid down by humanitarian law. Further the concept ofreciprocity on which the conc1usion of any treaty is based also applies to the Convention and the Protocol: they

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Finally, the relationship between the various economic treaties is primarily governed by the presumption of a conflict-free relationship. Thus, the WTO law refers to other economic agreements. 74 This presumption is also epitomized in the report Argentina Footwear ofthe Appellate Body.7S

11. Relationship Between Treaties Covering Different Subject Matters Unlike the relationship between treaties covering the same subject matter, the relationship between treaties relating to different fields of law is not expressly regulated in the VCLT. But it contains three provisions which also govern - at least implicitly - the relationship between agreements covering different subject matters. These provisions are Article 53 stating the invalidity of treaties inconsistent with peremptory nonns, Article 30 (1) stating the priority of the UNC and Article 31 (3) (c) VCLT. However, the relationship between some subject matters, for example between economic and environmental treaties, is particularly controversia1. 76 Nevertheless, humanitarian, economic, environmental, human rights as weH as law of the sea conventions share two general common features. Firstly, various sometimes very subtle - links exist between the different fields of law. There are cross-references between treaties covering different subject matters. Thus, the Preamble of the International Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 77 recognizes "in particular that everyone has the right to life, liberty and security of person, as set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights." Moreover, treaty bodies refer to conventions relating to other subject matters while interpreting a treaty.78 A good example is the Report of apply between the Parties which have consented to be bound by them - and only in exceptional cases to a Party's own nationals, or to the nationals ofa Party which is not bound." 74 The most important reference in this regard is contained in Art. 1:3 TRIPS (note 17) referring to WIPO Treaties. 1S Argentina - Measures Affecting Imports of Footwear, Textiles, Apparel and Other Iterns, Report of the Appellate Body of March 27, 1998, WTIDS56/ABIR, para. 72. See also pointing in this direction para. 10 of the Agreement Between the IMF and the WTO, which contains a direction to the staff ofthe IMF and the WTO Secretariat to consult on "issues of possible inconsistency between measures under discussion." 76 See only Sands (note 11), 940 et seq. 77 ILM 27 (1988), 685. 78 In this sense also ECHR, Bankovic et al. v. Belgium, ezech Republic, Denmark, France, Germany, Greece, Hungary, lceland, ltaly, Luxembourg, the Netherlands, Norway,

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the Appellate Body Shrimp/Turtle. The Appellate Body referred, amongst others, to the Convention on the Law ofthe Sea and the Convention on Biological Diversity in its interpretation of Article XX lit. g) GATT 1994. 79 Finally, the strongest tie exists between human rights and hurnanitarian law treaties. It is undisputed that international hurnanitarian law is lex specialis to human rights treaties in the case of an anned conflict. 80 The second common point is that many treaties ernbody the presumption of a conflict-free relationship between the various subject matters. 81 Therefore, the Poland, Portugal, Spain, Turkey, and the United Kingdom, ILM 41 (2001),517, para. 57: "[l1he court recaIIs that the principles underlying the Convention cannot be interpreted and applied in a vacuum. Tbe Court must also take into account any relevant rules of internationallaw ... ". 79 United States - Import Prohibitions ofCertain Shrimp and Shrimp Products, Report ofthe Appellate Body ofOctober 12, 1998, WTIDS58/ABIR, para. 130. 10 See for the international jurisprudence: ICJ; Legality olthe Threat or Use olNuclear Weapons, ICJ-Reports 1996, 66, para. 25: "In principle, the right not arbitrarily to be deprived of one's Iife applies also in hostilities. Tbe rest ofwhat is an arbitrary deprivation oflife, however, then falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct ofhostilities. Tbus whether a particular lass of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation oflife contrary of Art. 6 ofthe Covenant, can only be decided by reference to the law applicable in armed conflicts and not deduced from the terms of the Covenant itself." Legal Consequences 01 the Construction 01 a Wall in the Occupied Palestinian Territory (www.icj-cij.org), paras. 103-106. European Court of Human Rights Lawless Case (Merits), Judgment of July I, 1961, YBECHR 5 (1961),438 paras. 20 et seq. 11 See, e.g., Art. 2 (3) Cartagena Protocol on Biodiversity (note 15): "Nothing in this protocol shall affect in any way the sovereignty of States over their territorial sea estabIished in accordance with international law, and the sovereign rights and the jurisdiction which States have in their excIusive economic zones and their continental shelves in accordance with international law, and the exercise by ships and aircraft of all States of navigational rights and freedoms as provided for in international law and as reflected in relevant international instruments." Tbe Preamble ofthe same Protocol: "Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under existing international agreements, Understanding that the above recital is not intended to subordinate this Protocol to other international agreements." Tbe Preamble of the Stockholm Convention on Persistent Organic Pollutants (note 15): "Recognizing that this convention and other international agreements in the fjeld oftrade and the environment are mutually supportive ... ". Tbe Preamble ofthe Agreement on the Application of Sanitary and Phytosanitary Measures 1994 (ILM 33 (1994), 1554): "Desiring to further the use of harmonized sanitary and phytosanitary measures between Members, on the basis of international standards, guidelines and recomrnendations developed by the relevant interna-

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relationship between treaties covering the various subject-matters seerns to reflect the customary lawprinciple embodied inArticle 31 (3) (c) VCLT, namelythat any relevant rules of international law applicable in the relationship between the parties shall be taken into ac count while interpreting a treaty and its underlying presumption, that all fields of law shape an uniform system of internationallaw.

E. Conclusion This brief analysis leads me to the following conclusions: Each field of Iaw treated here shows no inner homogeneity conceming international treaty Iaw. This is due to the fact that every subject matter is composed of a variety of international treaties, concluded at different times and with different objects. Nevertheless, every subject matter has special features. There are three principal reasons for these existing differences: Firstly, some differences are due to the nature of the subject matter (e.g., the differences conceming the territorial application), or more specifically to the different structure of performance. The differences concerning the application of treaties to third parties and the relationship between successive treaties covering the same subject matter can be mentioned in this context. Secondly, some differences are due to the structure ofthe relevant field oflaw, more precisely to the existence oftreaty organs and the powers conferred to them. Thus, the differences in relation to the law of reservations can be primarily explained by the fact that human rights treaties have established supervisory treaty bodies which are competent to receive individual complaints. Finally, some differences derive from the general structure ofinternationallaw. Particularly, the differences relating to the development oftreaties depend on the existence of Specialized International Organizations and on the role taken by the United Nations. As far as the system of general international treaty law is concerned, I conclude that no subject matter exarnined in this paper has formed its own self-contained (treaty law) regime, but rather, every field oflaw falls back upon the general rules

tional organizations, ... , and the international and regional organizations operating within the frarnework ofthe International Plant Protection Convention, without requiring Mernbers to change their appropriate level of protection of human, animal or plant Iife or health."

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of international treaty law embodied in the VCLT. 82 Accordingly, the VCLT applies to all kind of treaties. 83 In other words, the evolution of environmental, humanitarian, economic, human rights, and law ofthe sea conventions takes place against the background ofthe general residual mIes embodied in the VCLT. Furthermore, the special mIes, respective features developed by the different subject matters might have two effects on general international treaty law: On the one hand, they contribute to the dynamic evolvement ofgeneral treaty law. 84 This could be particularly true, with regards to the doctrine of severability. On the other hand, they can lead to the crystallization of some individual mIes for a particular subject matter. As a potential - or perhaps already existing - special mle, the principle of "accumulation only" with regards to the succession of human rights treaties can be cited. The evolvement of individual mIes does not question the existence of general treaty law because the VCLT already contains special mIes for some types of treaties. Artic1e 60 (5) VCLT is the best example, as it states: "Paras. 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 forms of reprisals against persons protected by such treaties." Another reason is that differences in international treaty law are immanent in the current system of general treaty law, because the VCLT mainly contains residual mIes, for the case that the relevant treaty does not "provide otherwise." Thus, adeviation from the residual mIes in single treaties or treaties covering a particular subject is already foreseen in the VCLT.

82 Human Rights Committee, General Comment 24 (52), General Comment on Issues Relating to Reservations Made Upon Ratifieation or Aeeession to the Covenant or the Optional Protoeols Thereto, or in Relation to Deelarations under Art. 41 of the Covenant, UN Doe. CCPR/C/21/Rev.I/Add.6 (1994), para. 5: "The absence of a prohibition on reservations does not mean that any reservation is permitted. The matter of reservations under the Covenant and the First Protoeol is governed by internationallaw. Art. 19 (3) of the Vienna Convention on the Law ofTreaties provides relevant guidanee." See also the Preliminary Conelusions adopted by the ILC on Reservations to Normative Treaties, Inc\uding Human Rights Treaties (Report ofthe ILC on the work of its forty-ninth session, GAOR, Fifty-seeond Session, Suppl. No. 10, UN DOC. A/52/10, 95 et seq.). 83 See also Marcelo Kohen, La eodifieation du droit des traites: Quelques elements pour un bilan global, RGDIP 1041I1 (2000), 577, 609. 84 As far as environmentallaw is coneerned see also Redgwell(note 19),89, 107.

Comment by Marcelo Kohen Treaty Law: there is no need for special regimes.

First of all, I would like to thank the colleagues and friends from the Walther Schücking Institute for having invited me to participate in this symposium commemorating the 90th anniversary of the commencement of this important institution devoted to international law and peace. I will be focusing on the main substantial issues ofMonika Heyrnann's paper, and not on some ancillary - albeit important - points. I concur with one of her conclusions, one that I consider the most important, i.e., that general international law applies to all fields of internationallaw with regard to treaties and that there are no self-contained treaty law regimes. However, I would reach this conclusion taking a different approach. I am not able to follow Ms. Heyrnann when she ascertains the existence of different treaty law mies fromthe different "branches" of internationallaw she analyzes (human rights law, humanitarian law, economic law, environmental law and the law of the sea). In my mind, these so-called differences are either due to the adoption of particular solutions by the treaties themse1ves, or simply, do not exist. One must not lose sight ofthe fact that most of the provisions of the Vienna Convention on the Law of the Treaties (VCLT) have a "dispositive" character; namely one from which, unlike peremptory norms, it is possible to derogate, or which can be applied only if States have not decided otherwise. The proposed examples of these differences in treaty law were questions relating to the territorial scope oftreaties, the severability oftreaties, the so-called "principle of accumulation ofhuman rights only" with regard to successive human rights treaties and the "softening" of the mies conceming Third States in some fields. The author denies the application of Article 29 ofthe VCLT to all other fields of internationallaw, with the exception of economic law. With all due respect, I think that there is a misunderstanding here. It is one thing that a given treaty is generally binding upon a party in respect of its entire territory. as provided by Article 29. The spatial sphere ofapplication oftreaties is another one, depending, in general, upon their material scope. As a matter of course, the territory of the State party is not important with regard to treaties conceming the outer space, the moon and other celestial bodies. The same applies with regard to some aspects ofthe law ofthe sea. Even ifyou take Article 2 (4) of the UN Charter as an example, what is relevant for its application is not one's territory but rather, the territory of other States (the prohibition ofthe threat or the use offorce against the territorial integrity of other

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States). As such, there is no specificity in the UNCLOS or in environmental treaties regarding the spatial sphere of application of treaties. Article 29 of the Vienna Convention on the Law of Treaties envisages a completely different problem: the question ofthe so-called "federal clauses" and "colonial clauses," or the "territorial clauses" in general. Thus, there is nothing special with regard to the spatial application oftreaties in the different fields ofinternationallaw analyzed in the paper under consideration. Treaties concerning an extreme variety of topics do contain these kinds of clauses or allow reservations ofthis nature. The question of"severability" refers to the existence ofparticular regimes with regard to reservations. Even if a reservation is invalid, the State author of the reservation will continue to be party to the treaty. This regime would then be, according to this theory, only applicable to human rights treaties. The question whether the invalidity of a reservation amounts to the invalidity of the ratification or accession as a whole is a very controversial one and does not regard human rights treaties only.. The problem also arises with regard to reservations contained in declarations made under Article 36 (2) ofthe Statute ofthe International Court of Justice or to treaties in other fields. There would be no logic in applying the rule 0/ "severability .. to human rights and ignoring other jields. Indeed, this problem relates to the extent of the consent of the State. Whether an invalid reservation amounts to the invalidity of the ratification or accession to a treaty does not depend on the "branch" of intemationallaw concemed. For example, a solution like the one adopted in the Belilos Case by the European Court of Human Rights can be reached by any other tribunal, irrespective ofthe subject matter ofthe treaty concemed. Indeed, one could consider that the Norwegian Loans Case decided by the ICJ as an antecedent, even ifthe Court did not explicitly address the question ofthe validity ofthe French reservation at issue. The so-called "principle of accumulation only" would be applicable to successive human right treaties, however, I think that there is no specificity in this point either. In fact, Article 30 (4) ofthe Vienna Convention provides the solution. "When all the parties to the earlier treaty are parties also to the later treaty, but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty." I think that this is the only real situation that can be seriously envisaged. Assuming that States would like to diminish the human rights standards already recognized by them, they would, in general, be prevented to do this, not because of the existence of a purported "principle of accumulation only," but due to the peremptory character of most of these standards. If they do not relate to ius cogens, then nothing prevents States from modifying previous human rights provisions. This solution is, of course, without any prejudice either to the

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question of acquired rights, a problem that falls outside the law of treaties, or to the particular provisions embodied in the treaties themselves. Agam, nothing in the VCLT precludes the possibility of the incorporation of a clause such as the "accumulation only" in a treaty. Should this be the case, then the rule of accumulation applies only because it was agreed by the parties themselves to the treaty and not because of the existence of such a rule in a particular "branch" of internationallaw. Finally, I wonder whether the examples of obligations imposed on third parties in the field of environmentallaw or the law of the sea can be seen as real cases departing from the rules embodied in the Vienna regime. At the most, we would be faced with a situation similar to that of the Antarctic Treaty of 1959. At the end ofthe day, the main point is to fmd out whether practice or logical necessity leads us to the conclusion that there are particular rules concerning conclusion, reservations, interpretation, termination and succession with regard to treaties depending on their subject matter. What are the examples mentioned as evidence of the existence of particular regimes? Wehave aiready disrnissed some of them, e.g., the "severability" and "accumulation only" theories. Other examples are the different application ofthe permissibility/opposability approaches with regard to reservations, the exclusion of denunciation or withdrawal, the "evolutionary" interpretation and the automatic succession rule which would only be applicable to human rights treaties but not to the others. However, none of these examples are relevant. As Ms. Heymann's study shows, the possibility to make or, in fact, not to make reservations to treaties does not depend on the subject matter. The idea then, according to which, the permissibility approach would be applicable only to human rights treaties, and the opposability approach for the other treaties has no justification. The possibility of scrutinizing reservations is not a privilege of the European Court of Human Rights. Nothing precludes the International Court of Justice, for instance, to analyze the validity or not of a given reservation to a multilateral treaty that would be applicable to a dispute submitted before it. And it is the same for all the other jurisdictional bodies. With regard to the denunciation (bilateral treaties) or withdrawal (multilateral treaties), Article 56 ofthe Vienna Conventions of 1969 and of 1986 is quite clear: if treaties do not provide for it, the possibility only exists if it is established that the parties intended to admit such a possibility or that a right of denunciation or withdrawal may be implied from the nature of the treaty. There is no need to resort to any new invention to come to the conclusion that a given treaty in a particular field is not open to withdrawal or denunciation.

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The so-ca11ed "evolutionary" interpretation must be handled with care. Otherwise, it could lead to the deformation ofthe real agreement ofthe parties. At any rate, this kind of interpretation was not only applied by the ECHR, but also earlier, in 1971 by the International Court of Justice, with regard to Article 22 of the Covenant ofthe League ofNations. The treatment of the possible particularities on State succession with regard to treaties has been given insufficient attention, in Monika Heymann's paper. The claim made by some organs and authors that the automatic succession is applicable to human rights treaties irrespective of the type of State succession (separation, dissolution, unification, newly independent States) corresponds neither to the provisions ofthe 1978 Vienna Convention nor to State practice. The former envisages the automatic succession role to a11 categories of State succession, with the exception ofthe newly independent States. Rather the recent practice shows that the "clean slate" role (and consequently the need of declarations of succession) was fo11owed for all kinds of multilateral treaties, no matter their content. Hence, abrief examination of these examples leads us to the conclusion that they do not provide an argument for the existence of particular roles conceming reservations, interpretation, withdrawal, denunciation and succession depending on the field of international law that the treaties operate in. It must be said that authors alleging the existence of particular roles depending upon the subject matter of treaties fail to differentiate between the negotium and the instrumentum. By evoking the existence of special regimes, they are focusing on the negotium. whereas the problem of the conclusion - including reservations -, interpretation, validity, suspension, termination and succession of treaties is governed by the mIes conceming the instrumentum. Nevertheless, a perusal ofthe Vienna Conventions shows that it does, indeed, envisage particular solutions to certain treaties by virtue of their content. Authors advocating particularities do not refer to them, or at least to a11 ofthem. That is the case of treaties constituting international organizations, treaties containing peremptory mIes, treaties establishing boundaries (Articles 62 (2) (a) ofthe 1969 and 1986 Vienna Conventions, or "böundaries established by treaties," as mentioned by Article 11 of the 1978 Vienna Convention), and treaties of hurnanitarian character (Article 60 (5) of the Vienna Conventions of 1969 and 1986). Treaties constituting international organizations deserve this particular treatment because of their dual character. They are not only treaties, but also the instruments of constitution of a different personality within internationallaw. It is this last aspect that deserves special treatment. For the remaining, these treaties are

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subject to the same general rules as the other treaties, as the ICI case law clearly demonstrates. As far as ius eogens is concerned, it is probably the most important (unique?) case in which the content of treaties does, indeed, determine special treatment. In fact, the hierarchy established by ius eogens in international law concerns the content and not to the source of the rule. There is no other way to determine ius eogens, but to examine the content of a particular rule. With regard to treaties establishing boundaries and treaties of hurnanitarian character, their explicit inclusion in the Vierma Conventionswas made ex abundante eautela. For example, para. 5 of Article 60 was proposed by Switzerland at the Vienna Conference, in order to provide an absolute safeguard to the rules of the 1949 Geneva Conventions prohibiting reprisals. Indeed, even ifthis paragraph would not exist (it must be recalled that it was not proposed by the ILC in its draft articles), the situation envisaged by Switzerland would have been covered by para. 4 of the same article. Equally, not only are the treaties establishing boundaries not subject to the application of the c1ausula rebus sie stantibus but even peace treaties, for instance, are not candidates to the invocation ofthis clause either, even ifthey are not expressly mentioned in Article 62. A sole reference to the object and purpose of the treaty would seem preferable in these two cases. To sum up, 1 would say that the Law of Vienna - the three Vienna Conventions - constitutes a coherent set of rules applicable to a11 kinds of treaties, no matter the ''branch'' of international law involved. Treaties are a particular tool available to States and other subjects of internationallaw, in order to be able to materialize their common will to establish rights and obligations, institutions and situations. It is the set of rules gove~g the treaties that determines how they are concluded, who becomes party and how to interpret them, which kind of reservation is possible, their invalidity, suspension and termination. As a matter of course, a11 treaties are not applicable in the same manner. This does not lead, however, to the affmnation of the existence of particular rules or special regimes. Indeed, the constant reference to the "nature and purpose" of treaties in the Vienna Conventions provides the clue to solve the problems, without any need to invent particular regimes. To this extent, the idea of analyzing particular fields of international law, such as human rights, hurnanitarian law, environment, etc. could appear interesting in order to show what the nature and purpose oftreaties in these fields allow. It is a question ofmethod: one has to put the "nature and purpose" rule first, and not the different ''branches'' on which the research is made.

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To conclude my brief remarks, I would like to pay tribute to the general regime of the Vienna Conventions by quoting an organ that was supposed to apply the mIes ofwhat would constitute a "self-contained" regime. The report ofthe WTO Appellate Body in United States-Antidumping measures on certain hot-rolled steel productsfrom Japan (AB-200J-2002) made the following statement: "We observe that the rules of treaty interpretation in ArticIes 31 and 32 ofthe Vienna Conventions apply to any treaty, in any field ofpublic intemationallaw, and notjust to the WTO agreements. These rules of treaty interpretation impose certain common disciplines upon treaty interpreters, irrespective of the content of the treaty provision being exarnined and irrespective ofthe field of intemationallaw concemed."

Comment by Alain Pellet Being a conunentator is a rather comfortable position. You may pick and choose among the points made by the main speakers and it will come at no surprise that, as the Special Rapporteur of the ILC on the topic "Reservations to treaties," I will focus on this aspect which happens to be quite important in Ms. Heymann's presentation. Dr. Heymann is certainly right in stating that reservations open a possibility for unilateral differentiation in the application, even in the bindingness, ofmultilateral treaties as has recently been written in an article in the British Yearbook of International Law since objecting States may make contradictory declarations as to the effect oftheir objections ' and since there are no generally accepted views as to the result of objections. Reservations and objections reflect differences of appreciation as to the content of treaty rules and, sometimes as to the acceptability of certain reservations themselves. This element of''variance'' is certainly both an extremely difficult and a "hot" topic, as Ms. Heymann rightly said. However, I won't try to enter into the nice legal discussion surnmarized by Dr. Heymann regarding the admissibility - or, more accurately, the validity of reservations, nor even on the legal regime of reservations in general, which is not a "problem" as she said, but can be a source of richness through variety: it is an element which permits States to introduce variety into treaty law, by modulating the very substance of treaties without distorting their object and purpose. Our main question in this respect, as I understand it, is whether or not the Vienna Convention mIes on reservations apply to all multilateral treaties,2 whatever their nature or object may be. One preliminary remark is necessary here. The Vienna Convention itself provides for two exceptions concerning the legal regime applicable to reservations to treaties: - reservations to treaties of lirnited participation on the one band, and - constituent instruments of international organizations, on the other hand.

I Yogesh Tyagi, The Conflict of Law and Policy on Reservations to Human Rights Treaties , BYBIL (2000), 244. 2 Strictly speaking, "reservations" to bilateral treaties do not qualify as reservations; see ILC, Guide to Practice, Guideline 1.5.1 on "'Reservations' to Bilateral Treaties" and the corresponding commentary (ILC Report on its 541h Session (1999), A/54/1 0, 290-302).

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By themselves, these specific mentions oftwo kinds oftreaties in Artic1e 20 of the Vienna Convention show, a contrario, that, for the rest, a common, single, unified regime applies to all other treaties, whatever their nature. This is all the more so that, in other Artic1es, the 1969 Convention singularizes the rules applicable to certain particular categories of treaties. This is particularly the case of Artic1e 60 (5), which has been mentioned both by Monika Heymann and Marcelo Kohen. This provision deals with human rights treaties, that is, precisely, the field in which challenges to a single, standardized, Vienna Convention regime of reservations is the strongest. Moreover, it must be kept in mind that this Vienna regime has its origin in the 1951 Advisory Opinion on Reservations to the Genocide Convention,l that is precisely a human rights treaty. In other words, the V ienna regime originates in the answers the International Court has given to issues concerning a treaty of this particular kind. I agree that this is probably not enough to prove that today the so-called "flexible" Vienna Regime is still adapted to the actual needs of human rights treaties. However, in this respect I have to say, at the risk of probably disappointing some of you, that I have not changed my mind and that I still maintain my position as exposed at length in my 1996 Second Report on reservations to treaties: 4 even though it is an undisputable fact that human rights treaties present some special traits, their specificity does not justify an abandonment of the substantial and procedural rules inc1uded in the 1969 Vienna Convention on reservations. At worse - if I may put it this way - this specificity would "neutralize" certain aspects ofthe Vienna regime. In particular there can be no doubt that human rights treaties are, if not entirely "non-reciprocal," at least certainly "less reciprocal" than other treaties and, in particular than those of the "synallagmatic" type, which, by the way, are probably no more the majority of the multilateral conventions conc1uded in the present time. But the consequence of this limitation in reciprocity is simply that some rules - in particular, the rules in Artic1e 21 of the Convention - will not apply to those treaties, not that the regime itself, taken as a whole, is not applicable. As the undertakings under human rights treaties are not mainly reciprocal but are partly at least "integral," then the game of reciprocity in Artic1e 21 will not apply; but the rest ofthe reservations regime in the Vienna Convention will apply.s IC} Reports 1951, 15. A1CN.4/477/Add.1 (1996), Chapter 11, "Unity or Diversity ofthe Legal Regime for Reservations to Treaties (Reservations to Human Rights Treaties)", paras. 55-260 (to be published in ILC Yearbook, 1996, vol. 11, Part I). s Ibid., paras. 156-157. 3

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Moreover, this reasoning is not specific to human rights treaties. There can be no doubt that it is not because the United States has made invalid reservations to the 1966 Covenant on Civil and Political Rights that France or Slovakia, whether they bave objected or not, are free not to respect their own obligations under the Covenant. But whatever the "Human Rightists'>6 may think, it is not because human rights are at stake, but because the very nature of the obligations in question does not, logically and concretely, leave room for the application of the rule embodied in Article 21 (1), ofthe Vienna Convention. 7 But the same holds true for other types of treaties (in particular in the field of the protection of the environment), or for certain categories ofreservations (in particular reservations concerning the territorial scope of the treaty). lt is bardly conceivable, for example, that Denmark could respond to a reservation by which France excludes the application of a treaty to its overseas departments, by refusing to apply that same treaty to Greenland. This bas no thing to do with human rights. It is just a problem of good judgment. What is true on the Other band - and in this respect I wholly agree with Monika Heymann - is that contrary to most other treaties, human rights conventions quite often create monitoring bodies, and, as she bas aptly shown, this fact explains not that the substantial Vienna rules are not applicable, but that the control of the validity of the reservation to those treaties becomes twofold. The newly institutionalized monitoring system does not replace the old traditional interstate system, but it superposes itself to the latter and is certainly more efficient since States traditionally rarely object to reservations and, even nowadays, only a bandful of "virtuous" States (mainly European and especially from the North of Europe) systematically object to manifestly invalid reservations. In this respect, I have no doubt - and I never bad any doubt - that for implementing their monitory functions the monitoring bodies instituted by human rights treaties (hut this could be true for any other treaties creating monitoring bodies) must be recognized a right to appreciate the validity of reservations. This, by the way, was accepted by the International Law Commission in its 1997 Preliminary Conclusions on Reservations to Normative Multilateral Treaties, including Human Rights Treaties. 8 However, in those Preliminary Conclusions the ILC noted that 6 On this notion, see Alain Pellet, 'Human Rightism' and International Law, Italian Yb. of!. L. (2000), 3-16. 7 "Reservation established with regard to another party in accordance with Artic\es 19, 20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions ofthe treaty to which the reservation re1ates to the extent ofthe reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State." . 8 See ILC Yearbook (1997), vol. 11, Part 2,57, para. 5.

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"in the event of inadmissibility of a reservation, it is the reserving State that has the responsibility for taking action" either by withdrawing the reservation, modifying it or by foregoing becoming a party to the treaty.9 However, in this respect, I must say that I have partly changed my mind. I still maintain that treaty law - whether in the field ofhuman rights or any other fields - is based on consent, and that the "human rightist" theory of severability (at least of automatic severability) is based on unacceptable premises. I certainly maintain that only the reserving State can know whether it intends to be bound with or without its reservation or with a modified reservation and I also maintain that an expert body cannot substitute its own will or "feeling" to the State's will. However - and this is where I have partly changed my mind 10 - I recognize that this is not concretely satisfactory, at least when the monitoring body is vested with apower to rnake binding decisions, as it is the case for the regional Courts of Human Rights, or even when the monitoring body is entitled to make pronouncements on individual comp1aints. In such cases, from a practical point of view, it is not workable to suspend the proceedings and to wait for an hypothetical decision by the reserving State. This is not to say that the Court or the monitoring body can in all cases decide that the State is bound without its will by the whole Convention, as the doctrine of the automatic severability postulates. But I suggest that it be10ngs to the monitoring or judicia1 body to determine what was the intent of the State with the hope that it will do it more "honestly" or, at least, more prudently than was the case of the European Cönunission and Court respectively in the Temeltasch ll or Belilosl 2 Cases and that they will not stick to the categorica1 dogmatic position taken in this respect by the Human Rights Conunittee in its General Comment No. 24. 13 But, once again, the reasons for these special means of appreciating the validity of reservations is not that human rights are at stake, but that the Contracting Parties have decided to institute monitoring bodies, which, for performing their duty, must ascertain the va1idity of reservations made by States Parties, and this wou1d hold true in any other fields as weil - if monitoring bodies were instituted in those other fields . 9

Ibid., para. 10.

See Second Report on Reservations to Treaties (note 3), paras. 218-230. Temeltasch v. Switzerland (European Commission ofHuman Rights, May 5, 1982, Yearbook 0/ the European Convention on Human Rights, vol. 31, 120). 12 Belilos v. Switzerland (European Court of Human Rights, April 29, 1988, Series A, vol. 132, 1). Il "General Comment No. 24 on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to decJarations under ArticJe 41 ofthe Covenant" CCPRlC/21/Rev.IIAdd.6, November 11,1994). 10

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One last word on the ILC Preliminary ConcIusions of 1997. Paragraph 11 of said Conclusions provides that " ... the above concIusions are without prejudice to the practices and mies developed by monitoring bodies within regional contexts." This also introduces - very artificially for my point of view - diversity in the reservations regime, at the universal level on the one band, and at the regional level on the other band. This has been very strongly criticized by the UN monitoring bodies and I must say that, on this precise point, I fully share their concern, but this was introduced by one of the most "human rights oriented" Members in the Corrunission, Professor Bruno Simma as he then was. 14 By way of concIusion, let me try to recapitulate and to enlarge the perspective: - First, by themselves, reservations to treaties are a fortunate factor of diversity in treaty law, at least from a realistic point ofview; - Second, the rules in Articles 19-23 ofthe Vienna Convention are of general application, - even though some particular mies cannot in certain circumstances concretely or logically apply to certain provisions or certain categories of reservations. - In any case, the Contracting Parties are free to opt for other mies in respect with a particular treaty and it can certainly be regretted that they do not do so more systematically. But - there is no reason to repudiate the Vienna regime ofreservations in any specific field as such, incIuding human rights treaties which remain treaties that is an expression of the wills of the Contracting Parties, not internationallegislation which can be imposed upon Parties against their will. Even though I am among those who see some merits in the "fragmentation" or diversification of international law, I strongly favor the unity of treaty law provided that it is flexible enough to adapt to all kinds of treaties. And it is my humble opinion that, grosso modo, the mies on reservations in Articles 19-23 ofthe Vienna Convention do meet these requirements. This is also true, more generally, outside the field of reservations: by their flexibility the Vienna mIes on the law of treaties are of such a nature that they preserve the unity of the law of treaties as a whole.

14 See, e.g., his interventions during the general debate ofthe ILC on the Second Report on Reservations to Treaties (supra note 3) in ILC Yearbook 1997, vol. I, 2502 nd meeting, July 1, 1997,20 I, para. 32; see also, 25091h meeting, July 10, 1997,251-252, para. 62 (Mr. Rao).

Comment by Jürgen Bröhmer First I would like to thank Professors Hofmann and Zimmermann for inviting me to comment on this topic on this irnportant occasion. I would also like to thank Frau Heymann for her excellent report. I will concentrate my comments on the European Convention on Human Rights. The fIrst point I would like to make deals with reservations. Reservations limit the scope of obligations in order to allow States to conclude or to accede to a treaty. Thus reservations are an instrument to gain more unity by accepting some degree of diversity. Article 57 ECHR limits the use ofthis instrument. The European Court ofHuman Rights, starting with the famous Belilos judgment, began to emphasize what one might refer to as the transparency rule of Article 57 (2) ECHR by stipulating that States Parties must spell out exactly what the reservation in question pertains to and what legal provision( s) in their domestic legal order are subject to that reservation. The Court specifIcally stated: "That Article 57 § I of the Convention requires 'precision and clarity' and that the requirement that a reservation shall contain a brief statement ofthe law concemed is not a 'pureIy formal requirement but a condition of substance which constitutes an evidential factor and contributes to legal certainty' (EisensteckenJAustria, Appl. -No. 29477/95, 3.10.2000, § 24 referring to BelilosiSwitzerland, judgment of 29 April 1988, Series A no. 132)."

The second point concerns the problem of different standards under the ECHRregime. In this context we have two distinguishable developments. The Rekveny judgment ofthe ECHR 1 stands for the fIrst development. In this case the Court had to deal with limitations of participation in the political process. In question were Hungarian provisions prohibiting members of the armed forces, the police and security services fromjoining any political party and from engaging in any political activity. The Court upheld these domestic law provisions by referring to the special historical circumstances prevalent in Hungary after the fall of the communist regime. With the police and the military having been the pillars of the old regime and in the light of the fact that many police and service people were members of the communist party the Court accepted these limitations as being within Hungary's margin of appreciation. 2 If one were to take this judgment at face value it could mean that what might be considered a justifIed limitation in Hungary may not necessarily be considered a justifIed limitation in another member State. Ifthat were the case there would indeed be different standards ofhuman rights protection conceming the same clause - in this case Article 10 ofthe Convention - in various member States. That would indeed be a surprising degree of diversity.

I

2

Rekveny/Hungary, Appl.-No. 25390/94. Id., at paras. 41. 46. 48.

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The second development was created by the accession of new member States whose legal systems did not have the chance to grow with the Convention. One could arguably claim that at least some ofthese new member States are unable to really uphold the standards of the Convention. I am particularly referring to the case ofRussia where perhaps one could describe the situation as one of"systemic default." Even assuming the best of will of the Russian authorities it is clear that for years to come they will not be able to uphold even the core standards of rnany provisions of the European Convention on Human Rights. The prohibition of torture and inhuman treatment in Article 3 ECHR is but one example. Thus we are facing a situation where not the individual, singular violation is the issue but where the mistake lies in the existing reality. It is simply impossible to bring the whole system up to par within a reasonable time span, even assuming that the politieal will exists. "Systemie default" does not bring about different standards in a legal sense beeause Russia will always be held responsible for the violation of the Convention. However, a standard that is inherently violated beeause it eannot be held is, in effeet, a different standard. The problems eneountered here are, by the way, unavoidable when the observation of fundamental rights demands more than just the omission of eertain behavior ("refrain from torture"), namely. the allocation of scaree resourees. Another potential diversity with regard to the provisions of the European Convention has to do with the different status that the Convention has in the respective national legal orders. In adeeision of Oetober 2004, the German Federal Constitutional Court held that under certain cireurnstanees the eourts in Germany eannot and must not adhere to the provisions ofthe ECHR. The Constitutional Court stated that UThis applies in a particularly high degree to the duties under public internationallaw arising from the Convention, which contributes to promoting ajoint European development offundamental rights (gemeineuropäische GrundrechtsentwickJung). In Artic1e I (2) ofthe Basic Law, the Basic Law accords particular protection to the central stock of international human rights. This protection, in conjunction with Article 59 (2) of the Basic Law, is the basis for the constitutional duty to use the European Convention on Human Rights in its specific manifestation when applying German fundamental rights too (see BVerfGE 74, 358 (370». As long as applicable methodological standards leave scope for interpretation and weighing of interests, German courts must give precedence to interpretation in accordance with the Convention. The situation is different only if observing the decision ofthe ECHR, for example because the facts on which it is based have changed, c1early violates statute law to the contrary or German constitutional provisions, in particular also the fundamental rights ofthird parties. 'Take into account' means taking notice of the Convention provision as interpreted by the ECHR and applying it to the case, provided the application does not violate prior-ranking law, in particular constitutionallaw. In any event, the Convention provision as interpreted by the ECHR must be taken into account in making adecision; the court must at least duly consider it. Where the facts have changed in the meantime or in the case of a different fact situation, the courts will need to determine what, in the view ofthe ECHR, consti-

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tuted the specific violation ofthe Convention and why a changed fact situation does not pennit it to be applied to the case. Here, it will always be important how taking account ofthe decision takes in the system ofthe field oflaw in question. On the level offederal law too, the Convention does not autornatically have priority over other federallaw, in particular if in this connection it has not already been the object of adecision of the ECHR."3

The case concemed the rights of a father to see his illegitimate child who had been given to adoption previously. The Strasbourg court had held that the father's rights under Artic1e 8 ECHR had not been recognized properly. The German court, however, did not follow that judgment. The Federal Constitutional Court actually gave a weIl balanced judgment in which it emphasized that the German courts must give due regard to the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. However, the Court also explained that the German Constitution, the Basic Law, treats the European Convention on Human Rights as any other international treaty awarding it the status of a federallaw. That being so, the courts must take the European Convention of Human Rights into account when interpreting domestic law. However, when the interpretation of a provision of German domestic law leaves no room at all for an interpretation in conformity with the Convention, domestic law must prevail over the Convention. In such a case there are only two perceivable remedies. If the conflict between the domestic norm and the convention coincides with unconstitutionality of the provision, the national court may ask the Constitutional Court to quash that provision on the basis of its unconstitutionality (not its ''unconventionality!"). If, however, the conflict is in essence one between German constitutional provisions and the Convention the courts are powerless, must give precedence to nationallawand the conflict can only be solved by amending the Basic Law. Such potential conflicts are in part due to the fact that the European Convention does not obligate the member States to elevate the Convention to the level of constitutionallaw. But only in part, because even ifthe Convention provisions did enjoy constitutional status, interpretation conflicts could ensue as they always can if two courts not connected in a hierarchie al system deal with the same set of norms. Differences in the status of the Convention could therefore result in diversity. However, the difference is that this is a case of intended diversity, which is inherent in the Convention which leaves it to the member States to decide what the status of the ECHR within the national legal order should be. The ECHR only prescribes an obligation of result - to observe its provisions - but does not dernand that it should be given a special status within the domestic legal order to perhaps facilitate reaching its objectives. 3 BVerfD, 2 BvR 1481/04 ofOctober 14,2004, paragraphs No. 62, official translation by the Court, http://www.bverfg.delentscheidungen/rs20041014_2bvrI48104e.html.

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My last observation deals with a more general question. In the field of eustomary internationallaw, whieh will be the topie ofthe next panel, one eould provokingly say that any attempt to develop eustomary international law requires the violation of an existing norm. During that period when the old rule is breaehed and the new one not yet frrmly established what you have is diversity. Treaty law has not really been looked at in this manner. However, reeent developments, espeeially in the eontext ofthe Iraq erises and Article 2 (4) and Article 51 ofthe United Nations Charter, seem to imply a potential shift in the interpretation ofthe Charter, the outeome ofwhieh is not clear yet. Seeondary law, e.g., the eease-frre resolutions ofthe Seeurity Couneil in the Iraq-Kuwait erises, is affeeted as well. In these eases a large nurnber of States obviously differ in the interpretation of the relevant provisions. AIe these examples of developing treaty DOrms? Is it perhaps to simple to merely claim that all of these nations are evidently breaehing the Charter? One famous example of interpretative evolution is Article 27 of the United Nations Charter whieh deals with the so-ealled veto power of the permanent member States of the Seeurity Couneil of the UN. Despite language to the eontrary in Artic1e 27 it is now aeeepted that an abstention does not eonstitute a veto. The permanent members have to aetively vote "no." Sueh developments even contra legum are possible in treaty law. Ifthey are possible in treaty law we may have the same situation as in eustomary law: one must breaeh it in order to develop it or, to formulate it differently, a new interpretation of a treaty provision may at frrst be regarded as a breaeh but it may eventually beeome aeeepted law. Perhaps this will be diseussed a little bit later. That concludes my eomments. Thank you very mueh for your attention!

Unity and Diversity in the Formation and Relevance of Customary International Law:

- Modern Concepts of Customary International Law as a Manifestation of a Value-Based International OrderBy Anja Seibert-Fohr

A. Introduction How to defme customary international law has been subject to continuous scholarly debate. 1 An examination of its formation in different fields of internationallaw reveals that there is a trend to apply a concept different from the traditional understanding. This concerns primarily human rights law and international humanitarian law. In contrast, the traditional concept seerns to prevail in other areas, such as the internationallaw ofthe sea. There is also a varying relevance of customary internationallaw in the different fields of internationallaw. The purpose of this article is to outline this phenomenon and to ask whether it leads to a fragrnentation of international law in general. Will the definition of customary internationallaw vary in the different fields of law in future? In order to illustrate this development and to describe what is perceived to constitute customary internationallaw different examples taken from human rights law, international humanitarian law, international criminal law and international environrnentallaw will be given in the first part of this article. 2 The purpose is to I For the different schools see Anthea Elizabeth Roberts, Traditional .and Modem Approaches to Customary International Law: A Reconciliation, AJIL 95 (2001),757. See also, e.g., Brullo SimmaiPhilip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, Aust. YBIL 12 (1988-1989), 82 at 89-90; 25 Georgia J. Int'1 and Comp. L. No. 2 (1995/96); Anthony D 'Amato, The Concept ofCustom in International Law(1971). 2 For an ernpirical analysis ofhow customary internationallaw evolves and what role the exercise of power plays in this process, see Michael Beyers, Custom, Power, and the Power ofRules Customary International Law from an interdisciplinary Perspective, Mich. J. Int' L. 17 (1995), 109. See also Maurice H. Mendelson, The Formation of Customary

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analyze the requirements for the formation of custornary internationallaw and to compare them to the traditional concept. While the examples bring up an old controversy, namely whether customary internationallaw may be determined on the basis of opinio juris without evidence of actual general practice, they also give evidence of a modem interpretation of custornary internationallaw which has entered the judicial arena in different fields ofinternationallaw. 3 Following this survey, the issue ofunity and diversity is to be addressed.1t will be asked whether there is a common denominator for the varying conceptualization of custornary international law. Despite the differences there is obviously a parallel development in several areas of internationallaw, namely those involving the protection ofhurnanitarian values. I will argue that what is often described as modem customary international law is symptomatic for international law in its entirety. Rather than a matter of fragmentation it is evidence for the consolidation of international law which is increasingly concerned with values of the international community as such. The last part of this article will closer scrutinize and evaluate the modem concept of customary internationallaw. It will conclude with recommendations for the future conceptualization of this body of law.

B. The Formation and Relevance of Customary International Law in Different Fields of International Law I. Human Rights Law Despite the wealth oftreaties custornary internationallaw will play an increasingly important role in the area ofhuman rights law in the years to come. International treaty making is at a degree of saturation with respect to human rights. The prospect of achieving further consensus by means of treaty-making is somewhat limited. Left for future development are the interpretation of treaties and the International Law, RdC 272 (1998); International Law Association, Report ofthe International Committee on the Fonnation of Customary Law (General) International law, at http://www.ila-hq.orgl. J For the concept of modem customary international law, see Isabelle R. Gunning, Modernizing Customary International Law: The Challenge of Human Rights, VJ1L 31 (1991), 212 ; Jack L. GoldsmithlEric A. Posner, Understanding the resemblance between modem and traditional customary internationallaw, VJIL 40 (2000), 639; David P. Fidler, Challenging the c1assical concept of custom: Perspectives on the future of customary internationallaw, GYIL 39 (1996),198,220-224; Robert Kolb, Selected Problems in the Theory ofCustomary International Law, NILR 50 (2003), 119, 123; Roberts (note 1).

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creation of customary international law. 4 There is already indication for this development. An exarnple is the Domingues Case which was decided by the Inter-American Comrnission on Human Rights in 2002. 5 The case was about the question whether juvenile offenders - that is offenders under the age of 18 years - may be sentenced to death. It was brought to the Comrnission on behalf ofMr. Domingues sitting on death row in the United States. He had been convicted and sentenced to death in respect of two hornicides he had comrnitted at the age of 16. The case was dealt with under the American Declaration. Since the Declaration protects the right to life without any reference to the death penalty, the Comrnission looked to customary international law as a means of interpretation. In other words, customary internationallaw was referred to in order to interpret a declaration which is deemed to derive its normative force from the OAS Charter.6 Taking into account that customary international law is often considered to be too abstract to provide specific answers,7 this role ofnorm-concretization is at least noteworthy. In order to establish customary intemationallaw the Comrnission set out four requirements: A concordant practice by a number ofStates; a time element, namely the continuation or repetition ofthe practice over a considerable period oftime; and as subjective elements: the conception that the practice is required by internationallaw and general acquiescence in the practice by other States. The authorities cited for this definition are the Yearbook of the International Law Comrnission and lan Brownlie. The International Court of Iustice appears only in a footnote with its definition in the Asylum Case which, in effect, is more rigid. 8 It should be noted that instead ofreferring to general practice accepted as law - as in Article 38 of the ICI Statute - the Comrnission only asked for concor4 For the role of customary intemationallaw in the area of human rights, see Eckart Klein (ed.), Menschenrechtsschutz durch Gewohnheitsrecht; Hurst Hannum, The Status of the Universal Dec1aration ofHuman Rights in National and International Law, GeorgiaJ. Int'1 and Comp. L. 25 (1995/96), 287. According to Li/lich the incomplete acceptance of human rights treaties, the derogation and reservation c1auses necessitate customary human rights law. Richard B. Lillich, The Growing Importance ofCustornary International Human Rights Law, Georgia J. Int'l and Comp. L. 25 (1995/96), 28. 5 Inter-American Commission on Human Rights, Michael Domingues v. United States, Case 12.285, Report No. 62/02, Decision of22 October 2002. 6 Inter-Arnerican Court on Human Rights, Advisory Opinion OC-I 0/89, Inter-Arnerican Court on Human Rights, Series, para. 45 (1989). 7 Daniel Bodansky, Customary (And not so Customary) International Environmental Law, lnd. J. Global Legal Stud. 3 (1995), 105, 118. • ICJ Reports 1950, 266.

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danf practice by a number of States and general acquiescence. 10 This certainly lowers the requirements for the assumption of customary internationallaw. There is only lipservice to what is deemed to be a "consensus in respect of the component elements required to establish a norm of customary internationallaw."11 Practice is defmed very broadly as "official government conduct" including "State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international and regional governmental organizations such as the UN and the Organization of Arnerican States and their organs, domestic policy statements, press releases and official manuals on legal questions."12 Conduct, thus, does not only comprise deeds but also statements. With this defmition a statement satisfies both requirements at once, the practical and subjective element of customary internationallaw, i.e., State practice and opinio juris. 13 It is interesting to note that in order to fmd evidence of State practice the Comrnissionfirst analyzed international treaties and non-binding UN resolutions and standards. 14 While the ICI indicated that international treaties may be a source of 9 The joint opinion by five judges in the Fisheries Jurisdiction Case elaborated that State practice must be "common, consistent and concordant." To reduce general practice merely to concordant practice deprives it of the requirement that it must be common. See ICJ Reports 1974, 3. 10 The evidence cited by the ICJ is usually limited to some State practice. See Christian Tomuschat, International Law as the Constitution ofMankind, in : UN (ed.), International Lawon the Eve of the Twenty-first Century, Views from the International Law Commission, 37, at (1997). 11 Inter-American Commission on Human Rights (note 5), at para. 46. 12 Id., at para. 47. I) According to the Commission State practice comprises "any acts or statements by a State." Id., at para. 47. Rut see ICJ, Advisory Opinion on the Legality ofthe Threat or Use ofNuclear Weapons. The ICJ held on to both requirements, opinio juris and State practice. Since there was a "continuing tension between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other" the Court concluded that there was no customary rule specifically prohibiting the use ofnuclear weapons as such de lege lata. ICJ Reports 1996, 226, para. 73. 10 See also ICJ in the Nicaragua Case concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14, at para. 207. A similar approach was already adopted by the reporters of the U.S. Restatement. Restatement (Third) of the Foreign Relations Law ofthe United States, para. 701 (note 2). See also Oscar Schachter, International Law in Theory and Practice, RdC 9 (1982-V), 178, at 334-335; Theodor Meron, Human Rights and Humanitarian Norrns as Customary Law (1989),92-94; Anthony D 'Amato, Human Rights as Part of Customary International Law: A Plea for Change of Paradigms, 25 Georgia J. Int'1 and Comp. L. 47 (1995/96).

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customary internationallaw in the North Sea Continental ShelfCases in the case of"very widespread and representative ratification,"15 the Commission did not go into the question whether the abstention by the United States may put the representative nature into question. In effect, it was not interested in treaties as a matter of State practice but as establishing a "consensus on the part of the international community. "16 What is at issue here is not the practice by individual States but "global State practice. "17 This is also the approach adopted regarding General Assembly resolutions. The Commission did not engage in an inquiry into the voting by States with respect to the resolutions. 18 While the ICJ focused on the attitudes of States towards GA resolutions and the consent given to these resolutions,19 the rnere existence of these resolutions adopted by majority vote was enough for the Commission to ascertain support for the existence of such norm. The relevant actor is therefore not the State alone but the international community as a whole as represented by international organizations and by the resolutions adopted by majority vote in their respective realm. 20 The various resolutions together with the substantial number of treaty ratifications was regarded as evidence for an international consensus despite the fact that the United States either did not ratify or submitted reservations to those treaties.~1 With respect to domestic State practice the Commission only found a "trend

15 ICJ Reports 1969, 3, at 41. See also Nicaragua Case, ICJ Reports 1986, 14, at 99101. See also ICJ, Conlinenlal ShelfCase (Libyan Arab Jamahiriya v. Malta), ICJ Reports 1985, 29 el seq. 16 Inter-Arnerican Commission on Human Rights (note 5), at para. 57. 17 ld., para. 84. 18 In this respect the Commission differs from the ICJ when it explained in its Nuclear Weapons Advisory Opinion that it was necessary to look to the conditions of adoption of aresolution and to find an opinio juris to its normative character. ICJ Reports 1996, 226, at para. 70. 19 The ICJ in the Nicaragua case maintained that GA resolutions can be one element of opinio juris, but it ca11ed for a11 due caution in this respect. ICJ Reports 1986, 14, 99 el seq., No. 188. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons the Court explained that it was necessary to look at the content and the conditions of adoption of aresolution and to find an opinio juris to its normative character. ICJ Reports 1996, 226, para. 70. 20 According to the Commission the resolutions show that "the United Nations bodies responsible for human rights and criminal justice have consistently supported the norm expressed in international human rights agreements." Inter-Arnerican Commission on Human Rights (note 5), at para. 71. 21 The United States entered a reservation to Art. 6 (5) ICCPR (UNTS 999, 171) and did not ratify the UN Convention on the Rights ofthe Child (UNTS 1577,3).

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towards prohibiting the execution of minor offenders," not a general practice. 22 But together with the "concordant and widespread development and ratification of treaties" this was deemed to be enough to ascertain a customary international rule. Despite the contrary practice of some States still retaining the death penalty, the Commission assumed a norm repudiating the application of the death penalty to minors. 23 In the Case of Mr. Domingues the Inter-American Commission had to overcome a second hurdle, namely that the United States, against which the case had been brought, bad persistently objected to the prohibition ofthe death penalty for juvenile offenders. 24 Tbus, the question arose whether the customary international norm could at all bind the United States. In a first step the Commission confrrmed the validity of the persistent objector rule by referring to the Anglo-Norwegian Fisheries Case. 2S But the customary obligation not to execute minor offenders was extended nonetheless to the persistent objector by referring to the concept ofjus cogens. 26 After analyzing international and State practice the Commission concluded that "the world connnunity considers the execution of offenders aged below 18 years at the time of their offence to be inconsistent with prevailing standards of decency. ,,27 Tbe norm was, therefore, considered to be of an indelible nature. 28 It should be observed that in determining the indelible nature of the norm the Commission once again referred to the recognition by the international community. According to the Commission it was enough to have "acceptance and recognition by a large majority of States, even if over dissent by a small number of

Inter-American Commission on Human Rights (note 5), at para. 76. Id., para. 64. 24 Cassese is critical ofthe persistent objector theory finding no firm support in State practice and international case law of such a rule. Antonio Cassese, International Law, 2nd ed. (2005), 162-163. For this issue see also Pierre-Marie Dupuy, Apropos de I'opposabilite de la coutume generale: enquete breve sur "l'objecteur persistant," in: FS Virally (1991), 257); Elias Olufemi, Some remarks on the persistent objector rule in customary intern law, Denning Law Journal (1991), 37; Ted Stein, The Approach of a Different Drummer: The Principle ofthe Persistent Objector in International Law, Harv. Int'1 L. J. 26 (1985),457. 2S See also Asylum Case (Colornbia v. Peru), ICJ Reports 1950, 266, at 277 et seq. 26 For this idea see Rudolf Bernhardt, Customary International Law, Addendum, EPIL 1/2 (1992), 898, at 904. 27 Inter-American Commission on Human Rights (note 5), at para. 84. 21 ld., para. 85. According to the Commissionjus cogens requires "evidence ofrecogniti on ofthe indelibility ofthe norm by the international community as a whole." Id., para. 22

23

SO.

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States. "29 This shows that the Commission is willing to focus on majorities where fundamental principles are at issue. It is interesting to note that only five years earlier the Commission had come to the conclusion that there had not yet been a consensus with respect to the age of 18 as a minimum age for the imposition of the death penalty. 30 Given that it took only five years for the Commission to determine that an emerging norm had become not only part of custornary internationallaw but also ofjus cogens, this is evidence of a very dynamic interpretation of custornary internationallaw. 31 The Commission itself speaks of the "inherently changeable nature" of custornary international law. 32 Comparing the Commission' s concept of customary internationallaw with the traditional concept which requires a general State practice accepted as law, the following can be said: What the Commission indeed asks for, is repeated affirmation by the international community (broad consensus33 ) by means of treaties and resolutions plus some empiric data on domestic legislation (instead of general State practice and op in io juris). The Commission looks first at international statements (purportedly opinio juris) and then to the coexistence of some State practice (instead ofgeneral practice). This turns around the traditional order. Furthermore, the requirement that the practice must be accepted as law· is somewhat lost out of sight. Though the Commission gave several figures and statistical data about the trend towards the abolition of the death penalty it did not explain that this trend was due to a corresponding opinio juris. 35 This leads to a disjunction ofthe objective and subjective element. 36 Id., para. 50. Roach and Pinkerton v. United States, Case 9647, Report ofthe IACHR 1986-1987, at paras. 56-57. 31 The ICJ though accepting that the passage ofa short period oftime is not necessarily a bar to the formation of customary intemationallaw, explained in the North Sea Continental ShelfCase that in this case State practice must be "both extensive and virtually uniform." ICJ Reports 1969,3, at 43. 32 Inter-American Commission on Human Rights (note 5), at para. 46. 33 Id., para. 57. 34 Art. 38 ICJ Statute. 35 In the North Sea Continental ShelfCases the ICJ explained that "[t]he States concemed must ... feeI that they are conforming to what amounts to a legal obligation." ICJ Reports 1969, 3 at 44, No. 77. 36 This is so, unless the objective element is defined to incIude statements. In this case the two notions are mixed. See also Paust who argues that practice and opinio juris are often interconnected. Jordan Paust, The Complex Nature, Sources and Evidence ofCustomary Human Rights, Georgia Journal of International and Comparative Law 25 29

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The difference between the Conunission's approach and the traditional requirements for customary international law shows that the understanding of what constitutes customary international law is graduaBy changing. The Domingues decision stands for an idea of customary human rights law which has been expressed weB before in numerous pieces oflegal writing. 37 And indeed, this line of argument has been subject to discussion for more than three decades. What I fmd noteworthy, is that it has now entered the interpretation of a quasi-judicial international human rights bodf8 and my prediction is that there is more to come in future years. I will come back to the discussion in the last part of this article. But before evaluating this development I will show that this line of thinking can also be found in other fields of international law, such as international humanitarian law.

11. International Humanitarian Law and International Criminal Law While the main focus ofhuman rights law has been on international treaties, the relationship between treaty and customary law in the field of international humanitarian law is rather one ofmutual influence. 39 Some treaty provisions have codified previously existing general international law,40 some treaty provisions translate previously existing practice into a rule, and others combine, interpret or specify

(1995/96),147, at 149. But see JCJ in Continental Shelf(Libyan Arab JamahiriyalMalta), Judgment, lCJ Reports 1985, 29, para. 27) where the Court held that the substance of customary internationallaw must be "Iooked for primarily in the actual practice and opinio juris of States. " )7 See, e.g ., the articles on customaryhuman rights law in 25 GeorgiaJ. Int'1 and Comp. L. Nos. 1/2 (1995/96); Schachter (note 14), at 336; SimmaiAlston (note I). 38 Originally, the discussion centered mainly on the domestic enforcement of international human rights in the United States on the basis ofthe Alien Tort Claims Act. Customary internationallaw did not play an important role in the international enforcement where the main focus used to be on human rights treaties. An exception are the Charter based human rights mechanisms on the basis of ECOSOC Resolution 1235 and 1503. 39 The ICJ in the Nicaragua Case held that the Geneva Conventions are "in some respects a development, and in other respects no more than the expression of [general] principles ofhumanitarian law." ICJ Reports 1986,14. See also Karl Doehring, Gewohnheitsrecht aus Verträgen, ZaöRV 36 (1976); Mark E. Villiger, Customary International Law and Treaties, 2nd ed. (1997). For international environmental law see Ulrich Beyerlin. Umweltvölkerrecht, Rdnr.l 05 et seq. (2000). 40 An example is Art. 48 ofthe First Additional Protocol. See Marco SassolilAntoine A. Bouvier, How Does Law Protect in War (1999), 108.

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existing rules. 41 At times a treaty provision concludes the formation of a customary international rule. 42 An example how customary internationallaw has the potential of fmding its way into treaties by facilitating consensus-building in the drafting process is the Rome Statute for the ICC. The Statute incorporated to a large extent the customary internationallaw jurisprudence ofthe ICTY and ICTR with respect to individual criminal responsibility. Other hurnanitarian treaty norms have initiated the creation of a customary international nonn, as a catalyst so to say43 or, as the IC] put it, a "norm-creating provision.'>44 Whether this is the case with the entire First Additional Protocol with its 162 States parties45 with the outstanding ratification by the United States is still an open issue. 46 At least several provisions to be found in the Second Additional Protocol are today paralleied by corresponding rules of customary international law. 47 The Rome Statute for the International Criminal Court has pIayed a role in this development. It COnflITDS several provisions of the First and Second Additional Protocol and thus contributed to the creation of customary internationallaw. Though the Geneva Conventions and the Additional Protocols are important codifications of international humanitarian law, customary internationallaw plays an important role in this body oflaw. 48 This is true in particular with respect to the 41

108.

See, e.g., Art. 57 (2) (a) (iii) of the First Additional Protocol. Sassoli (note 40), at

42 E.g., the confinnation in the First Additional Protocol of rules contained in the Geneva Conventions and of the Hague Conventions of 1907 speaks for their customary nature. See Report ofthe Swedish International Hurnanitarian Law Comrnittee Stockholm, Sweden, 1984, reprinted in Sassoli (note 40), at 600. 43 Sassoli (note 40), at 108. 44 The IC] in the North Sea Continenta/ ShelfCase explained: "As a nonn-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and no not, become parties to the Convention ( ... ) (E)ven without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that ofStates whose interests were specially affected." ICJ Reports 1969,3, at 43. 45 As of 4 February 2005. http://www.icrc.org. 46 For this issue, see Fausto Pocar, Protocol I Additional to the 1949 Geneva Conventions and Customary International Law, Israel Yearbook on Human Rights 31 (2002), 145. 47 Sassoli (note 40), at 108. 48 Miche/ Be/anger, Droit international humanitaire (2002), 65. The Geneva Conventions today are considered to be part of customary intemationallaw. The IC] in the Nicaragua Case recognized that the Geneva Conventions are "reflective of customary

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developing rules applicable in non-international armed conflictS. 49 After all, the Second Additional Protocol lacks universal ratification and does not cover all aspects ofhumanitarian law applicable in armed conflicts. This is another example of the important relevance of custornary internationallaw where the prospects of codification and continued ratification of existing treaties are limited. so It is therefore that the International Cornrnittee of the Red Cross engaged in a comprehensive study on international hurnanitarian custornary law which gives a comprehensive account of State practice. 5 I The ICRC Study on custornary rules of International Humanitarian Law shows that a great number ofhumanitarian rules are not only applicable in international but also in non-international armed conflicts .52 Indeed according to the International Cornrnittee there are more rules of custornary international law regulating non-international armed conflicts than originally expected. 53 Some specifically apply to this kind of conflict. The supplementary role of customary international law becomes apparent where it goes beyond the Geneva framework. Examples are customary rules applicable to armed

law." IC] Reports 1986, 14, at 114. The Court made a similar statement with respect to Geneva Conventions and the large rnajority ofprovisions in the Hague Conventions in its Advisory Opinion of 1996 on the Legality ofthe Threat or Use ofNuclear Weapons. IC] Reports 1996,226, at para. 73. 49 Though there is an increasing body oftreaty law applicable to international and noninternational arrned conflicts, these are not universally ratified. Custornary International Humanitarian Law, Report prepared by the International Cornrnittee ofthe Red Cross, 28 1h International Conference ofthe Red Cross and Red Crescent, ICRC, Geneva 2003,6. With respect to non-international armed conflicts custornary international law elaborates and supplements common Art. 3 where the Second Additional Protocol is not applicable. See Sonja Boelaert-Suominen, Grave breaches, universal jurisdiction and internal anned conflict: Is custornary law rnoving towards a uniform enforcernent rnechanisrn for all anned conflicts? Journal ofConflict and Security Law 5 (2000), at 63 . 50 See Bilanger (note 48), at 65. 5\ Jean-Marie HenckaertsiLouise Doswald-Beck (eds.), Custornary International Humanitarian Law 1-3 (2005). The ICRC's airn was to havea surveyover as rnuch practice as possible inc1uding actual conduct, military manuals, national legislation, case law, voting records of the UN etc. The survey is indeed rnuch more cornprehensive than the practice cited in ICTY judgments. 52 HenckaertsIDoswald-Beck (note 51), voLl, xxix. 53 Jean-Marie Henckaerts, Study on custornary rules of international hurnanitarian lawPurpose, coverage and rnethodology, Rev. Internationale de la Croix-Rouge 81 (1999), 660,668.

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forces operating under the aegis of international organizations, as, for example, the UN. 54 It is no secret that there has been a progressive understanding of custornary international law in the area of hurnanitarian law over the past decades. Opinio juris plays an ever increasing role in what is perceived to be custornary hurnanitarian law. But why is it that there is a trend in international hurnanitarian law to apply the standards for custornary internationallaw more flexible?

The standard answer is the one given by the Appeals Chamber ofthe ICTY in the Tadic Interlocutory Appeal Decision. 55 The argument is that to apply the traditional exigencies would create difficulties in this area of law. 56 Given the secrecy and war propaganda around military operations, it would be difficult to ascertain the actual behavior oftroops. Therefore, the Court held that "on account of the inherent nature of this subject-rnatter" it had to rely primarily on official pronouncements of States, military manuals and judicial decisions. 57 There is no reference to actual State conduct in the course of hostilities. Apart from verbal commitrnents by State representatives and military manuals, the Court also referred to common Article 3 of the Geneva Conventions,58 Add. Protocol 11 of 1977,59 resolutions by the Assembly ofthe League ofNations60 and by the UN

54 Customary International Humanitarian Law, Report prepared by the International Committee of the Red Cross, 28'" International Conference of the Red Cross and Red Crescent, ICRC, Geneva 2003, 6. ss Deeision on the De[ense Motion [or Interlocutory Appeal on Jurisdiction, Oetober 2, 1995; ILM 35 (1996), 35. A different explanation is offered by Cassese who refers to the Martens Clause adopted in 1899 at the Hague Peaee Conference. It pro vi des that in the absence of a treaty provision the inhabitants and belligerents remain under the protection and rule ofthe principles ofthe law ofnations, as they result from the usage's established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. The referenee in the Martens Clause to the law ofhumanity and dictates ofpublic conscience is interpreted to lower the requirements for State practiee in the fjeld ofhumanitarian law. Cassese (note 24), at 161. See also beJow at IV. 56 See also Sassoli (note 40), at 108. 57 Deeision on the De[ense Motion [or Interlocutory Appeal on Jurisdiction, October 2, 1995 (note 55), at para. 99. 51 Id., para. 102. 59 Id., para. 108. 60 ld., para. I 0 I.

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General Assembly,61 action ofthe ICRC,62 declarations made bymember States of the European Union,63 the OSCE and the UN Subcommission. 64 The view that it would be short-handed and inconclusive to limit the analysis of State practice to the actual conduct of belligerents is also to be found in legal writing. 6S It is explained with the fact that it is usually easier to conclude an agreement in peacetime than to identify a norm-building process in times ofwar. Given the great number of violations in times of armed conflict it would be difficult to find general practice. 66 It is therefore advocated not only to look to those actually involved in armed conflict but to consider also statements by belligerents and by third States, as for example military manuals. Are such statements elements of State practice or rather pronouncements of opinio juris? If they are defmed as opinio juris one may conclude that State practice becomes less relevant in the determination of customary humanitarian law. 67 Arguably there is no need for a general practice. At least it can be substituted by statements expressing opinio juris. Kolb even refers to a specific concept of customary international law in the field of humanitarian and human rights law where it is defmed primarily through opinio juris of States and by reference to principles rather than by practice. 68 Another option is to consider State practice to comprise not only actual practice by affected States, that is the conduct ofbelligerents in armed conflict, but to consider statements by all relevant actors as a form of practice. 69 However, State practice and op in io juris are defmed, there is a growing willingness to re interpret the traditional defmition of customary intemationallaw in the Id., para. 108. Id., para. 108. 63 Id., para .. l08. M Id., para. 119. 65 Sassoli (note 40), at 108. 66 Kolb (note 3), 3 et seq. Similar arguments have been put forward with respect to human rights. See e.g. Restatement (Third) of the Foreign Relations Law of the United States, para. 701 (note 2); Schachter (note 14), at 334-335; Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (1989), 92-94. 67 According to Cassese, in the area of humanitarian law the requirements prescribed for usus are loosened while at the same time opinio juris is elevated to a rank higher than the normally admitted. Cassese (note 24), at 161. 68 Kolb (note 3), at 53 et seq. 69 This is the approach advocated by D 'Amato (note 14). For the critique see Simma/ Alston (note I), at 89-90. They hold that with the growing reference to GA resolutions 61

62

customary law loses the element of retrospection with the consequence of progressive custom. Id., 90.

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field ofhumanitarian law. 70 This has led to a dynamic development ofhumanitarian law especially with respect to non-international armed conflicts. The jurisprudence ofthe ICTY and ICTR has played an irnportant role in this development. 71 This does not only concern substantive rules of international humanitarian law but also the question ofindividual criminal responsibility.72 The most prominent example how individual criminal responsibility is found on the basis of customary internationallaw is again the Tadic Interlocutory Appeal Decision by the ICTY Appeals Chamber. 73 The evidence cited for a general practice accepted as law for criminal responsibility in non-international armed conflicts is in effect feeble.1t is even less than the data proving the existence ofthe substantive norm of humanitarian law. While the Court cites the Nuremberg Tribunal which asked for a "clear and unequivocal recognition ofthe rule," "State practice indicating an intention to criminalize the prohibition" and "punishment of violations by national COurtS,"74 it only refers to some such instances. 7S Nonethe70 For a similar approach with respect to human rights law, see Lillich (note 4), at 18. He advocated the consideration of new sources of State practice and new expressions of opinio juris to determine customary human rights law. This development has been criticized as amisinterpretation of the actual scope of customary international law. The mere verbal consensus could not be interpreted as customary international law. Martin Hess, Die Anwendbarkeit des humanitären Völkerrechts, insbesondere in gemischten Konflikten (1985),110. 71 The ICTY elaborated: "[C]ustomary rules have developed to govern intemal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as weil as prohibition ofmeans ofwarfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities." Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995 (note 55), at para. 127. See also Theodor Meron, War crimes in Yugoslavia and the development ofinternationallaw, AJIL 70 (1994); Antonio Cassese, The International Tribunal for the Former Yugoslavia and the implementation ofinternational humanitarian law, in: L. Condorelli/A. La Rosa/S. Scherrer (eds.), Les Nations Unies et le droit international humanitaire (1996), 229. 72 See Joseph Rikhof, Crimes against humanity, customary international law and the international tribunals for Bosnia and Rwanda, National Journal ofConstitutional Law 6 (I 996), 233. 73 Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995 (note 55). 74 The Trial ofMajor War Criminals: Proceedings ofthe International Military Tribunal Sitting at Nuremberg Germany, Part 22 (1950),467 at 445-447. 75 Tadic Interlocutory Appeal (note 55), para. 132: "Attention should also be drawn to nationallegislation designed to implement the Geneva Conventions, some ofwhich go so

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less, the ICTY eoncludes that eustomary international law imposes erirninal liability for serious violations of eonunon Article 3. 76 Given these very modest demands to prove the existenee of eustomary internationallaw, it is not surprising that eustomary international law has aeeeierated the expansion of international eriminallaw applieable to erimes eommitted in non-international armed eonfliets in reeent years. 77

m. International Environmental Law There are similar efforts to assume eustomary internationallaw despite shorteomings in the aetual praetiee by States in the field of international environmental law. 71 Exarnples for the assumption of eustomary international environmentallaw rules are the preeautionary prineiple,79 the prohibition of trans-boundary damage and the mies on the use of shared natural resourees.IO In this respeet, eustomary international law derives its relevanee from setting out general principles whieh are then specified in international treaties. But there are also instanees where multilateral environmental treaties give rise to eustomary internationallaw. 1I

far as to make it possible for national courts to try persons responsible for violations of rules concerning internal armed conflicts." [emphasis added]. 76 Id., para. 114. 77 Edoardo Greppi, The evolution of individual criminal responsibility under internationallaw. International Rev. of the Red Cross, No. 835, 531-553. 78 For the question wh ether the so-called customary international environmentallaw is indeed customary internationallaw, see Bodansky (note 7) See also below at IV. 79 See Owen MacIntyre/Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law, Journal ofEnvironmental Law 9 (1997), 221. Whether the precautionary principle is part of customary international law was left open by the WTO Panel and Appellate Body in the EC-Hormones Case. EC Measures Concerning Meat and Meat Products (Hormones), Report of the Panel of August 18, 1997, WT/DS26/RIUSA, para. 8.157. 80 Patricia W. BirnieiAlan E. Boyle, International Law and the Environment (1992), 393; Rüdiger Wolfrum, Purposes and Principles oflnternational Environmental Law, GYIL 33 (1990), 308, 309. Beyerlin (note 39) at Rdnr. 116 et seq.; Alexandre C. Kiss/Dinah Shelton, International Environmental Law, 3n1 ed. (2004), 84 et seq.; Bodansky (note 7), at 115. 81 For a detailed analysis of 41 multilateral environmental treaties and their influence on instant customary internationallaw see Craig L. CarriGary L. Scott, Multilateral Treaties and the Environment: A Case Study in the Formation of Customary International Law, Denv. J. In1'l L. & Pol'y 27 (1999), 313.

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Non-binding pronouncements by the international community, like Principle 21 of the Stockholm Dec1aration and the Rio Dec1aration are usually referred to as supporting evidence for the existence of customary international law.82 Wellknown judicial pronouncements on customary environmentallaw are to be found in the Trail Sm elter Arbitration and the Lac Lanoux Case. 83 Apart from this, there is little case law specifying customary international rules with respect to the environment. In its Advisory Opinion on the Legality of the Threat or Use of Nuc1ear Weapons the International Court of Justice affrrmed the "existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control. ,,84 Whether this obligation is part of customary internationallaw or a general principle, however, was not specified. 85 The Court only referred to the rule as being "part of the corpus of internationallaw relating to the environment. ,,86 In the GabCikovolNagymaros Case the Court repeated the assertion of the rule and stressed the great significance it attaches to the respect for the environment not only for States but also for the whole of mankind. 87

C. Fragmentation or Consolidation? I. The Varyiog Relevance of Customary International Law

The survey shows that customary international law is of varying relevance in the different fields ofinternationallaw. This is not necessarily a sign offragmentatioo. It is due to different factors, like the concentration of treaties in a particular 12 Stockholm Declaration, Declaration ofthe United Nations Conference on the Human Environment,ILM 11 (1972), 1416. Rio Declaration on Environment and Development, ILM 31 (1992), 874. See Maria Pia M. A/tea, Principle 21 ofthe Stockholm Declaration: A Customary Norm of International Environmental Law, Ateneo Law J. 41 (1997),429. 13 Trail Sme/ter Arbitration (United States v. Canada), R. Int'l Arb. Awards 3 (1938), 1911, reprinted in AJIL 33 (1939), 182; R. Int'l Arb. Awards 3 (1941), 1938, repr. in: AJIL 35 (1941), 684 ; Lac Lanoux (Spain v. France), RIAA 12 (1957), 281. 84 ICJ Reports 1996, 226, at 241-242, para. 29. 15 See also ICJ, GabCikovo-Nagymaros Case (Hungary v. Siovakia), ICJ Reports 1997, 7, at para. 53; ILM 37 (1998), 162. 86 Legality ofthe Threat or Use ofNuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, at 241-242, para. 29. See also ICJ, GabCikovo-Nagymaros Case (Hungary v. Siovakia), ICJ Reports 1997,7, at para. 53; ILM 37 (1998), 162. 87 GabCikovo-Nagymaros Case (Hungary v Siovakia), ICJ Reports 1997,7, at para. 53; ILM 37 (1998), 162.

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field, the number of ratifications and reservations, the subject matter and whether the respective supervisory bodies are empowered to resort to this body of law. 88 The assessment would not be complete without acknowledging that customary internationallaw plays an important role in shaping the norms which are relevant not only in a particular field but in all fields of international law. The rules on State responsibility are just one example. In this regard customary international law serves a unifying function which counters the phenomenon of fragmentation of internationallaw. 89 The function of customary internationallaw has commonly been described as one filling in where treaties are not applicable,90 that is to fill gaps treaties leave, to provide for mIes where the drafting of a treaty is difficult, to extend the application of treaty-based mIes to non-parties and to make provision in case of reservations to treaties. 91 With the rise ofinternational treaty law in the past century it did not come as a surprise that the role of customary internationallaw became supplementary. Nowadays, with the back-log in treaty-rnaking, however, customary internationallaw is increasingly seen as a means to accelerate the development of a legal regime. 92 What is new is that customary internationallaw is even referred 88 It should be noted that pursuant to Art. 293 (1) UNCLOS the International Tribunal for the Law of the Sea shall apply the Convention and other rules of international law not incompatible with the Convention. This is an authorization to refer to customary international law as long as it is consistent with the Convention. The Convention thereby establishes a hierarchical order among the sources applicable for the Tribunal. Reference to customary internationallaw was made, for example, in the Saiga Case. MIV Saiga (No.2), [LM 37 (1998), 1202, at 1347-1352, paras. 110-138. For an interpretation of Art. 293 see also Ben Chigara, The International Tribunal for the Law of the Sea and Customary International Law, Loy. L.A. Infl & Comp. L. Rev. 22 (2000), 433. A similar approach was adopted by the WTO-Panel in Korea-Procurement where it dealt with the relationship between the WTO Agreements and customary internationallaw. In reference to Art. 3.2 of the DSU the Panel held that customary internationallaw applies to the extent that the WTO treaty agreements do not "contract out" from it. Korea-Measures Affecting Government Procurement, Panel Report adopted 19 June 2000, WTIDSI63/R, para.. 7.96. 89 Kolb (note 3), at 53. 90 For the relevance of treaties for the formation of customary international law, see Gary L. ScottlCraig L. Carr, Multilateral Treaties and the Formation ofCustomary International Law, Denv. 1. Infl L. & Pol'y 25 (1996), 71. 91 With respect to reservations customary international law has a harmonizing and integrative function. 92 Cassese explained with respect to international humanitarian law that "[t]o wait for the development of practice would mean, in etfect, legally to step in on1y after thousands of civilians have been killed." Cassese (note 24), at 161 . In the Domingues Case the only potential legal basis for the Inter-American Commission to resort to for a prohibition was

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to as a means of concretization of international treaties and declarations, as evidenced, for example, in the Domingues Case. 93 The relevance of customary internationallaw ultimately depends on how strict the standards for the assumption of customary internationallaw are applied. If it is defmed predominantly by reference to opinio juris it is likely to be of adynamie nature. The case is different if customary internationallaw is defmed narrowly by asking for a long-time and coherent - if not uniform - State practice. 94 In this case it is largely left with a self-perpetuating function. This is why the examples from human rights and international humanitarian law show a much more dynamic approach towards customary international law than, for example, the traditional cases from the law of the sea.

11. Differences in the Formation of Customary International Law as a Matter of Consolidation The above given examples where customary internationallaw has been defmed different from the traditional concept may at fIrst sight be taken as a sign of fragmentation. When the ICTY talks about the inherent nature of wars to explain its reliance on opinio juris rather than actual combatant practice, one is tempted to conclude that customary internationallaw is to be determined differently depending on the area oflaw we are dealing with. Ifthe human rights case of Domingues is compared withthe decisions by the International Court of Justice conceming international law of the sea, namely in the North Sea Continental Shelf and the Anglo-Norwegian Fisheries Case, one might also come to the conclusion that there is ademise of generally applicable norms for the formation of customary internationallaw. 9s Nonetheless it is interesting to see that the starting point is usually still the defmition of customary internationallaw in Article 38 ofthe ICJ Statute. customary international law since the Uni ted States has entered reservations with respect to the death senten ce for juvenile offenders. 93 See also Riedel , 128 (in this volume), with respect to the right to water. 94 For the relevance ofState practice, see Marcelo G. Kohen, La Pratique et la Theorie des Sources Du Droit International, in: Societe Fran~aise pour le Droit International 81 (2004). 95 It is not without reason that I do not give similar examples of a dynamic interpretation of customary internationallaw in the fjelds of International Law of the Sea or International Economic Law. As evidenced by the respective reports in this volume there are no such. This is probably due to the fact that the governing rules in these areas of law are not (yet) deemed to be fundamental principles ofthe international community. For this issue see text accompanying notes 107-117.

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A closer look reveals that despite the differences there is a pattern behind the cases. Why don't we take issue with the conclusion that the United States are bound not to sentence juvenile offenders to death? The Cornrnission certainly does not stand alone with its opinion. The European Cornrnission in an amicus curiae brieffor the United States Supreme Court recently argued along these lines. 96 The reason is to be found in the content ofthe norm. At issue are fundamental values ofthe international community. Since the execution ofjuvenile offenders is considered to be manifestly at odds with fundamental aspects ofhumanity there is an increased readiness to assume a norm of internationallaw than if it comes to the delineation ofmarine boundaries and fishing rights. 97 The Inter-American Commission on Human Rights in the Domingues Case explicitly refers to "fundamental values held by the international community,,98 and "the most basic and nonderogable protections for human life and dignity.,,99 Quite sirnilarly, the reason for the modem interpretation of customary internationallaw in the field ofhumanitarian law is not so much because of the particularities of armed conflict as the ICTY wants us to think. To my mind, it is due to a growing international consensus that there is a need to protect - as the ICI in the Corfu Channel Case phrased it "elementary considerations ofhumanity."IOO Another example is the ICI Judgment in the Nicaragua Case. The ICJ certainly did not waste time elaborating on State practice. 1ol Instead reference was made to

% Roper v. Simmons, Brief of Amici Curiae: The European Union and Members ofthe International Community in support of Respondent. http://www.eurunion.org/legislatJ DeathPenaIty/RopervSimmonsDutchPR.htm. The amici repeatedly made reference to the concept of customary internationallaw and opinio juris in their brief. In their conc1usions they speak of an "international consensus." 97 Schachter advocated not to focus on formal criteria of customary law but to look at universal condemnations as "violative ofthe basic concept ofhuman dignity." Schachter (note 14), at 336. 9B Inter-Arnerican Commission ( note 5), at para. 49. 99 Id., para. 69. 100 ICJ Reports 1949,4, at 22. This term was also used by the ICTY. Tadic Inter/ocutory Appeal (note 55), paras. 119, para. 129. 101 For the critique, see Anthony D 'Amato, Trashing Customary International Law, AJIL 81 (1987), 101, 102. See also Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Here the Court merely asserted that there is a customary international rule providing for the i11 egal ity ofterritorial acquisition resulting frorn the threat or use offorce. lt was derived from the customary prohibition of the use of force without showing any kind of State practice. ILM 43 (2004), 1009, at para. 87. The Court further assumed a customary law rule on the duty to make reparations based solelyon a judgment by the PC/J. Id., para. 152.

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"elementary considerations ofhumanity"102 and dictates ofthe public conscience in order to apply the rules contained in common Article 3 ofthe Geneva Convention regardless of its applicability as a matter of treaty law. I03 In its Advisory Opinion on the Legality of the Threat or Use ofNuclear Weapons the Court held that "a great many mIes of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and 'elementary considerations of humanity' ... ," that they are ''10 be observed by a11 States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles ofinternational customary law."I04 The Court concluded that they were part of international customary law. 105 Here again there is no reference to actual State practice but only to the jurispmdence ofthe Nuremberg Tribunal, the Secretary General's report which introduced the ICTY Statute and the extensive ratification ofthe Geneva Conventions. I06 While the idea of fundamental values was originally to be found in the notion ofjus cogens it is now extended to customary human rights and humanitarian law in general. I07 Where basic aspects ofhumanity are at stake there is willingness to accept the assertion of international norms more readily, even in the absence of general State practice stricto sensu. loa This does not only apply to the canon ofjus cogens norms but also to the broader spectrurn ofhuman rights, humanitarian law and international criminallaw.

Nicaragua Case, ICJ Reports 1986,14, at para. 218. The Court left open whether it applied these rules as a matter of customary international law. 104 ICJ Reports 1996, 226, at 257. 105 Id., at para. 82. 106 Id., at para. 79. Arguably, this is another term for jus cogens. See Christian Tomusellat, International Law: Ensuring the Survival of Mankind in the Eve of a New Century, RdC 281 (1999), 77, at 82. See also ICJ, Advisory Opinion on the Legality ofthe Threat or Use ofNuclear Weapons, ICJ Reports 1996,226, para. 86: The Court invalidates the argument that humanitarian law does not apply to nuclear weapons because these weapons were later developed or not specifically dealt with in the applicable treaties by saying: "Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms ofwarfare and to all kinds ofweapons, those ofthe past, those of the present and those of the future." 107 See id., para. 69. 108 The object of a rule, if it is considered to be of fundamental importance for the international community, is regarded as more important than actual practice. For this deve1opment, see also Roberts (note 1); Frederic Kirgis, Custom on a Sliding Scale, AJIL 81 (1987), 146; Kolb (note 3), at 126. 102

103

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The nonn arguably derives its binding force less from universal State practice than from its underlying rationale - that is from its relevance for a fundamental global interest - and the verbal international consensus. In the case of human rights, humanitarian law and international criminal law the fundamental value is the protection ofhumanity. The case is different where norms are at issue which protect economic, political and other interests. 109 This is why there are no cases in international economic law or international law of the sea demonstrating a sui generis or modem understanding of custornary internationallaw. 110 Where genuine State interests are at stake, the focus is on general actual State practice as a necessary element of customary internationallaw. The varying significance of general State practice for the assumption of customary international law in the different areas of law is not a sign of fragmentation. After all, we see parallel developments in human rights, international criminal and humanitarian law. It rather provides evidence that internationallaw is in a phase of consolidation if not constitutionalization. 111 Not the specialization of international law is the reason for this development but the fact that internationallaw is increasingly concerned with global interests, that is with interests going beyond the mere assembly of State interests. 112 That we are moving to a value-based international order which goes beyond the protection of State interests, is not only evidenced by the repeatedly described fact that there is an increasing notion of international fundamental values 113 but also by the way how these values are read into the sources of internationallaw. 114 While it is adequate to focus on State practice in case of genuine State interests, other actors and different kinds of evidence become also relevant if it comes to the protection ofhumanitarian interests. What is sometimes referred to as modem customary internationallaw is yet another exampIe of the genesis of a value-based international order in which the values are not Cassese (note 24), at 161 et seq. For this question see Stephen Zamora, Is there Customary International Economic Law?, GYIL 32 (1989), 9. 111 For the phenomenon of constitutionalization in general, see, e.g., Tomuschat (note 10), at 37. 112 For this development, see, e.g., Hermann Mosler, The International Society as a Legal Community (1980); Günther Jaenicke, International Public Order, EPIL 2 (1995), 1348-1351; Bruno Simma, From Bilateralism to Community Interest in International Law, RdC 250 (I 994-VI), 229; Tomuschat (note 106), at 85. 113 See, e.g., Tomuschat (note 10), at 37. 114 To be clear, there have always been values in international law, such as State sovereignty. Modem is the trend to incorporate values which do not derive from genuine State interests. Thus, what is new is the subject-matter of the values and how they are determined (that is not exclusively on the basis ofState practice). 109

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lirnited to the preservation of State interests, but comprise the protection of humanity. The above analysis shows that ifthere is in the words ofthe ICTY an "interest ofthe international community"IIS which is evidenced by a "general consensus in the international community" I16 it seems easier to prove the existence of customary internationallaw. In order to determine what fundamental international values are, scholars and courts do not only look to a consensus among the States but increasingly to the international community as such. 117 Given the proliferation of actors in the international arena it is not surprising that State practice is no longer considered to be exclusively decisive. Fundamental or common values of the international community are not defmed by States alone but by reference to such principIes which concern humanity as a whole and which are perceived as such by the international community. Efforts have been made to extend this approach to international environmental law. 118 The more courts can be persuaded that the protection of the environment is a fundamental interest of the international community, the more we may witness the rise of customary international environmentallaw in future. I19 In sum, the above cited examples are evidence for a development from a consensual international law which is determined exclusively on the basis of State consent and practice to a value-oriented international law in which the international community as such and its values based on the concept of humanity are Tadic Interlocutory Appeal (note 55), para. 129. Id., para. 124. 117 See, e.g., Inter-American Commission on Human Rights (note 5), at para. 50. See also Jonathan Charney, Universal Intern~tional Law, AJIL 87 (1993), 529, 543-548, who observes that instead of State practice and opinio juris, multilateral forums playa central role in the creation and shaping ofinternationallaw. Instead ofcalling it customary internationallaw he favors the term "general internationallaw." 1\8 For this development, see Bodansky (note 7), at 117-118. According to hirn, such norms do not carry the same normative force as customary international law which is judicially enforceable. Nonetheless, he stresses the importance of these norms for setting the terms of international discussion and serving as a framework for negotiations in the field of international environrnentallaw. 119 There is already indication for this in the ICJ's Advisory Opinion on Nuclear Weapons. Here the Court acknowledged that !here is an international environmental rule which obliges States to ensure that activities within their jurisdiction and control respect the environment abroad. ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, lCI Reports 1996, 226, para. 29. In a later case it spoke of the great significance of respect for the environment not only for States but also for the whole of mankind. GabCikovo-Nagymaros Case (Hungary v. Slovakia), ICI Reports 1997,7, at para. 53; lLM 37 (1998),162. 115

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increasingly taken into account. 120 That there are differences in the formation of customary intemationallaw does not necessarily jeopardize the unity of internationallaw. After all, unity is not to be understood as uniforrnity. The basis for the defInition of customary intemationallaw is still the same. 121 Using the terms ofthe conference, the fact that there are variations in the exigencies for general practice provides evidence for a diversifIed unity. To stop with the assertion of differences conceming the formation and relevance of customary internationallaw in different fIelds of intemationallaw would be short-handed. Discrepancies are not necessarily a sign of fragmentation. In the case of customary intemationallaw they have a common ground in the value-based international order.

D. Modern Customary International Law or General Principles? Taking into account that global values play an increasing role, one may ask whether the above given examples should rather be characterized as general principles of law. l22 After all, there has been a lot of reference to principles of humanity and basic principles ofhumanitarian law. 123 The more a norm is deemed to be in the interest of humanity the lower are the requirements for general State

120 See Louis Henkin, Human Rights and State "Sovereignty", Georgia J. Int'1 and Comp. L. 25 (1995/96),31, at 34-35. Forthe trend from international cooperation towards achieving comrnon objectives in the area of international environmental law, see Gunther Handl, The Legal Mandate of Multilateral Development Banks as Agent for Change Toward Sustainable Development, AJIL 92 (1998), 642, at 662. As the Domingues Decision shows, the object of a rule if it is considered to be of fundamental importance for the international comrnunity is deemed to be more important than the consent to the rule by every State. Accordingly, the objections by some States are regarded as less relevant in a value-based system. With the demise of a consent-based system the persistent objector model does not seem to fit any more. Inter-American Commission on Human Rights (note 5). 121 Roberts developed one coherent theory of customary international law which seeks to reconcile the traditional and modem approach es, Roberts (note I). 122 Chodosh calls it "declarative" law in the absence of general State practice. Hiram E. Chodosh, Neither Treaty Nor Custom: The Emergence of Declarative International Law, 26 Tex. Int'1 L.J. 87 (1991). Charney refers to "general international law." Jonathan Charney, Universal International Law, AJIL 87 (1993), 529, at 543-548. 123 The ICTY refers to customary international law or general principles. Tadic Interlocutory Appeal (note 55), para. 99. But in the end it is customary internationallaw which is estabJished. ld., para. 127. The Court calls it "general principles of customary internationallaw." ld., para. 125.

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practice.124 It cannot be doubted that in some instances the requirements for State practice have become marginal. Jennings complained that what was often asserted to be customary did not even faintly resemble customary law. 12s The notion of "coutume sage et coutume sauvage" is we11_knoWD. 126 Those who favor the notion of customary intemationallaw have suggested not to view this body of law only in the light of State practice but to take into account the actions and expectations of a11 participants. 127 On the other hand, Judge Simma and Professor Alston have argued that there is onlya limited nurnber of customary human rights, and that the rest is better to be qualified as general principles. 128

They favor a more traditional understanding of customary internationallaw where the objective element of actual State practice is duly taking into account. It is interesting to note that while Simma and Alston's critique was primarily directed against United States scholars who were accused of assuming customary internationallaw too hastly in order to hold essentially United States Civil Rights against the rest of the world,129 the picture has tumed around. Customary internationallaw is now used to persuade the United States to abstain from sentencing juvenile offenders as evidenced in the Domingues Case. Both approaches have their pros and cons. For one thing, to adopt the conservative model of customary intemationallaw preserves the persuasiveness and perhaps even unity of customary internationallaw in general. To look at human rights as general principles, however, carries the risk that they are considered to be of lesser value. General principles up to now do not seem to have the same persuasive force as customary intemationallaw has. lJo Furtherrnore, in a large number of jurisdictions customary intemationallaw is considered to be part of domestic law124 See also Kirgis (note 108).

Robert r. Jennings, The Identification of International Law, in: Bin Cheng (ed.), International Law, Teaching and Practice (1982), 3 at 5. See also Jennings, What is International Law and How Do We Know It When We See It?, Annuaire Suisse de Droit International 37 (1981), 59, 67. 126 Rene-Jean Dupuy, Coutume sage et couturne sauvage, in: La communaute internationale, Me1anges offerts aCharIes Rousseau (1974),75. 127 See, e.g., Paust (note 36), at 162. For a different understanding ofState practice, see also D 'Amato (note 14). Kolb advocates a re-conceptualization of customary international law reflecting different categories of custornary internationallaw. Kolb (note 3), at 123. 121 For a critical response see Lillich (note 4), at 10-15. For a different cIassification of human rights law, see Henkin (note 120), at 37. 129 SimmaiAlston (note I), at 95. 130 But see Bodansky who argues that one should look less at the status of a norm rather than to its legitimacy and its actual influence on the creation of new law (note 7), at 118119. 125

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general principles not. BI There is a risk that by assuming general principles oflaw this body of law is deprived of its force and practical relevance. As the above mentioned cases show, this is no more a purely acadernic question. The concept to reframe customary internationallaw has entered the broader judicial arena. 132 Where fundamental principles ofhumanity are concernedjudicial institutions are increasingly prepared to accept them as binding even if there is no general State practice. This is undoubtedly a move from customary international law to general principles of internationallaw but there is still a need for some form of practice and for a consensus in the factual or verbal practice of States. Though the requirements for the assumption of custom are less stringent with respect to actual practice, the assumption of customary international law is based on an analysis of practice and statements, not merely on principles ofhumanity. International courts in effect call itcustomary internationallaw even if reference is made to principles in the legal reasoning. 133 This perhaps does not make it anymore plausible but instead of rejecting the concept altogether it rnight be better to elaborate requirements to secure its legitimacy. There is a need to build in sufficient safeguards so that the validity and normative force of customary international law is not jeopardized. Therefore, instead of discussing the classification of this body of law we should rather focus on the questions who defmes the underlying values, how consensus can be deterrnined and whose consent is relevant.

E. The Way Forward While customary international law cannot be reduced to a self-perpetuating function but includes a dynarnic element, we should be wary oftoo much activism in this field of law. It is certainly not enough that some legal experts consider a conduct to be contrary to fundamental principles of humanity.134 After all, the 131 See Lillich (note 4) at 17. Simma and Alston acknowledge the fact but do not give a response to this dilemma. SimmaiAlston (note I). 132 Simma and Alston prirnarily referred to United States legal writing. While they cited the Nicaragua Judgment for the trend of deemphasizing practice in favor of opinio juris (note I, at 96), they finally concluded that the jurisprudence ofthe ICJ did not lend support to the customary-Iaw-of-human rights school. Id., at 106. 133 See, e.g., TadiC Interlocutory Appeal (note 55), paras. 125 and 127; ICJ, Advisory Opinion on the Legality ofthe Threat or Use ofNuclear Weapons, ICJ Reports 1996,226, 257. But see Simma/Alston (note I). 134 While the ICJ is open to a modem conception of customary international law, the consensus requirement is indispensable as evidenced in the Court's Advisory Opinion on the Legality ofthe Threat or Use ofNuclear Weapons. Instead ofreferring to an abstract

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implementation of international law depends predominantly on States. Defming customary international law too broadly jeopardizes the persuasive force of this body of law. The key element should therefore be the careful establishment of a truly international consensus. This is one of the shortcomings of the Inter-American Conunission's analysis in the Domingues Case. As indicated above, the evidence cited for op in io juris is cursory and relies predominantly on majority decisions. Given the disagreement at the time of the decision it is questionable whether the Conunission was right in assuming a customary internationallaw norm prohibiting the execution ofjuvenile offenders. 135 However, the decision has contributed to a development which just recently cumulated in the invalidation of the death sentence for minors by the United States Supreme Court. 136 Even ifthe Domingues decision is not considered to reflect customary internationallaw at the time ofthe decision, it can be regarded as a significant factor in the creation of an international consensus. The main importance ofthe decision lies less in the expression of de facto customary internationallaw than in its persuasive force contributing to the creation of a customary rule. 137

A more cautious approach than that of the Inter-American Conunission has been applied by the International Conunittee of the Red Cross. In its Study on Customary Rules of International Humanitarian Law the Conunittee seeks to establish a truly international consensus. 138 Though it claims to adopt a classic approach in the determination of customary internationallaw, 139 the studyexhibits principle the Court explained that it was unable to find opinio juris given that the international cornrnunity was profoundly divided on this matter. lC] Reports 1996,226, paras. 67, 73. See also Schachter who asks for general acceptance and recognition, Schachter (note 14). 135 This is not to argue that customary international law cannot originate in case of United States objection. There is no need for unanimity. But it is nonetheless doubtful whether there was an opinio juris, that is a conviction that the death penalty for juvenile offenders is prohibited und er internationallaw, at the time ofthe decision. Furthennore, the reference to majority decisions is not enough to establish consensus. 136 United States Supreme Court, Roper v. Simmons, Case No. 03-0633, decided I March 2005, at http://supct.law.comell.eduisupctlhtmI/03-633.ZS.html. The Court conc1uded that the death sentence for juvenile offenders violates the Eighth Amendment ofthe United States Constitution. Though the Court did not refer to the Domingues decision, it found confirmation in international practice. See part IV. lJ7 See Chodosh (note 122) who refers to "declarative law." See also Bodansky (note 7). IJB HenckaertslDoswald-Beck (note 51), vol. I, at xxxi-xlv. 139 Reference is made in particular to the North Sea Continental ShelfCases ofthe ICl Id., at xxxii. But though the ICRC claims to adopt a traditional approach it also refers to the

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elements of a modem understanding. It is based on a broad concept ofwhat constitutes State practice and thus includes verbal statements by State representatives and resolutions by international organizations. 140 The Committee acknowledges that practice and opinio juris often overlap in the evidence cited for customary internationallaw. 141 Nonetheless, the ICRC in the interest ofbeing as persuasive as possible has been cautious and exercised restraint in establishing norms of customary international hurnanitarian law. Despite the desirability of a norm in the interest of peace and security, the Committee denies the existence of customary internationallaw where there is only majority practice. Instead it has asked for virtually unifonn, extensive and representative State practice. 142 Where uncertainty exists whether a rule has already crystallized into customary internationallaw, the ICRC only indicates a trend. Careful scrutiny is applied in the determination of an international consensus. Such analysis though exhibiting a modem conceptualization of customary international law differs from short~handed conclusions assuming customary internationallaw too hastily without a careful exarnination of general acceptance. The requirement of general acceptance is indispensable for the following reasons: First, international agreement is necessary to show the existence of an international value. In other words, consensus serves as evidence for the truly universal nature ofthe concept. At the same time, the consensual element distinguishes law-making from existing law. Consensus is constitutive for the rule's normativity. And finally, evidence of consensus makes its assertion more persuasive. After all, law is about persuasion ..The more easily States can be persuaded that a rule needs to be abided by, the more effective it will be. In surn, to require consensus is not only to make customary internationallaw more legitimate but also a matter of persuasion and effectivity. Evidence of an international consensus thus is an indispensable element of custornary internationallaw. Where evidence of general State practice is not ofthe density originally required the consensus requirement functions as a safeguard. 143 To consider not only actual State practice but also pronouncements ofthe international community reflects a fundamental change the international order has underNicaragua Case which stands for a modem conceptualization of customary international law. Id., at xxxiii. 140 Id., at xxxii-xxxix. 141 Id., at xxxix. 142 Id., at xxxvi-xxxviii. 143 The consensus requirement is also advocated by Simma and Alston. According to them, in order to assume a general principle there needs to be evidence of general acceptance (note 1), at I 05.

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gone: the proliferation ofactors and the reference to cornrnon values ofthe international cornrnunity which go beyond genuine State interests. 144 Even if there is an increased focus on opinio juris, the practice requirement has not become obsolete. There is still the need for some fofII!. of practice and the showing of a general international consensus as the ICTY explained in the Tadic Decision. 145 So instead of criticizing the modem concept of customary internationallaw altogether, it might be more fruitful for future purposes to actually take the Courts at their words. 146 To acknowledge and to give room for the development in the understanding of customary international law which has already entered different fields of intemationallaw while requiring certain standards, such as the consensus requirement, may ultimately strengilien the unity of international law.

14-4 As long as these interests are not internalized by States it is probably insufficient to look only at State practice. 145 The ICTY speaks of "general consensus in the international comrnunity." Tadic Interlocutory Appeal (note 55), para. 124. 146 As evidenced by the ICRC Study, it would not have been necessary for the rCTY to water down the requirernents for the assurnption of custornary international law in order to corne to the same conclusions. See HenckaertslDoswald-Beck (note 51).

Comment by Vera Gowlland-Debbas The general question put by the organizers of this Symposium on "Unity and Diversity in International Law" is, namely, whether one can still refer to a comprehensive and unifonn system of general intemationallaw in the face ofthe development ofvarious subsets ofnorms. In bis feasibility study for the International Law Commission, Gerhard Hafner had referred rather ominously to the "Risks Ensuing from Fragmentation of International Law," wbich represented a threat to the stability and coherence ofInternational Law. 1 Although the ILC Study Group on the topic dropped the word risk, the tenn "fragmentation," wbich also has a negative connotation, was retained, 2 although it was pointed out that fragmentation can also be seen as a sign ofthe vitality ofintemationallaw. At the same time, Martti Koskenniemi has tenned this concern with "fragmentation" as "post-modem anxieties. "3 Undoubtedly, the international legal systemhas mirrored the contradictorypulls of centrifugal and globalizing forces in international society by paradoxicallegal processes: fragmentation and compartmentalization ofparticular fields ofinternational law, on the one hand, and the construction of unifying, universalizing elements on the other. By entitling the Symposium "Unity and Diversity ... ," the organizers have approached the question in a far more positive vein. This is in keeping with the expansion and increasing complexification of international law and its subjects, leading to an even greater need for overarching principles. So in my view, what is going on is a process of reconciliation - the maintenance of diversity within unity. Paradoxically, also, the greater the degree of specialization, the more self-contained the regimes, the greater is the trend towards penneability between different fields oflaw - human rights penetrating into humanitarian law, environment into trade, and so on. Below are some (alas, fragmented) comments arising from the stimulating paper by Anja Seibert-Fohr wbich focusses on the specific question ofunity and diversity in the formation and relevance of customary internationallaw. Her paper shows that the topic can be approached from different perspectives. For the unity I Gerhard Hafner, Risks Ensuing from Fragrnentation of International Law, GAOR, 55 th sess., Supp\.No.1 0 (A/55/1 0), annex. 2 At its fifty-fourth session (2002), the ILC decided to change the title ofthe topic to "Fragmentation of international law: difficulties arising from the diversification and expansion ofinternationallaw." J Marlti KoskenniemilPäivi Leino, Fragmentation of International Law? Postmodern Anxieties, Leiden Journal of International Law 15 (2002), 553-579.

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which may be at stake here may be that relating to secondary roles, i.e., the lawmaking process itself; to substantive unity, the unity ofthe content ofthe customary law roles themselves; to procedural or institutional unity, i.e., the way these customary law roles are interpreted and applied, and by whom; or again, to the homogeneity or diversity ofthose who participate in the lawmaking process itself. 1. The frrst aspect which is raised - customary international law as a formal method of making law - raises a more fundamental theoretical question: ls there unity of the international legal system or is it just a bric-a-brac of norms, to borrow from Combacau"r This depends in part on the existence of secondary roles, which provide a method of validation of primary roles and serve to delineate the system from its external environment - in this case, Hart's famous role of recognition (even though he denies this to internationallaw). The asswnption here is that there is a tbreshold ofnormativity by which non-Iaw enters into law. Customary international law even more tban treaty law has been said to guarantee the unity of internationallaw insofar as it provides norms which are applicable to a11 States. Now the question raised in the paper is whether there is fragmentation of the customary law process itself, resulting in a loss of unity of this lawmaking process. The paper points to a trend to soften the customary law process in two ways: The frrst is to widen the notion of practice: We have gone from a general practice accepted as law - traditionally, the practice of a few powerful States - to the notion ofa "consensus on the part ofthe international conununity." The second trend which is identified is the conflation of opinio juris and State practice: either because State practice can be said today to include not only what States do but what they say, as expressed in treaties, declarations of lOs etc., or because opinio juris is what primarily or exclusively defmes customary international law - and opinio juris is to be looked for in the same material sources, including in judicial decisions. The question put therefore is whether customary international law is going tbrough a general metamorphosis - whether we are faced with a changed understanding ofwhat constitutes customary law, reflected in recent interpretations by 4 Jean Combacau, Le droit international: bric-a-brac ou systeme?, Archives de philosophie du droit 31 (1986), 85-105, at 86. But see Hans Kelsen, "It is impossible to grasp the nature of law if we limit our attention to the single isolated rule. The relations which link together the particular rules of a legal order are also essential to the nature of law" (General Theory ofLaw and State (1945), 3); see also Fran(:ois Ewald: U[t]he idea of a single legal norm has no meaning" (The Law of Law, in Gunther Teubner (ed.), Autopoietic Law: A New Approach to Law and Society (1988), 36-50, at 36).

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judicial or quasi-judicial bodies - or whether we can acconunodate within the unity of the international legal system, diversity in the customary law process itself, traditional custom based on an inductive process which relies on instances ofState practice, cohabiting with a novel form oflawmaking which works through a deductive process ernphasizing opinio juris and deriving norms primarily from abstract statements of mIes. 5 But does that really represent a changed understanding of what constitutes customary internationallaw? Was there ever agreement on customary law formation? Anja Seibert-Fohr's contribution touches this question in passing. Despite paying lip service to the two elements, the International Court of Iustice has itself not been over-assiduous in assessing State practice. It has upheld op in io juris over practice or conflated opinio juris and practice. In Nicaragua, for exarnple, the Court fIrst asserts that it is not enough to look at the op in io juris but that it must be confmned by practice. But the Court then appraises the relevant practice in the light of the subjective element, i.e., what States say in defense of their conduct which is prima/acie incornpatible with a recognized mle. 6 The ICI has upheld the role of General Assembly resolutions in the customary Iaw process as evidence of both opinio juris and practice. It has considered opinio juris sometimes as an element necessary to customary law formation, sometimes as mere recognition of its existence. It has referred to general intemationallaw, sometimes as identifIed with, sometimes as distinguished from customary law, in which case is it sirnply the law that applies to all rather than a formal method ofmle-creation? The Court has drawn on the moral, ethical or constitutional foundations of the international conununity in considering the validity of certain fundamental norms, such as human rights norms, independently from State practice, seeming to recognize -like Roberto Ago - a spontaneous social process generating general principles of internationallaw, whether forrning part of customary law, general principles in the sense of Article 38 (lc), or a sui generis source. 7 Again, in the Gulf0/Maine Case the Court appeared to be distinguishing those customary law mIes "whose presence in the opinio juris of States can be tested by induction based on the analysis of a sufficiently extensive and convincing prac5 See Anthea Elizabeth Roberts, Traditional and Modem Approaches to Customary International Law: A Reconciliation, AJJL 95 (2001), 757-791. 6 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States 0/ America) (Jurisdiction and Admissibility), JC] Reports 1986, paras. 184- 186. 7 See Vera Gowlland-Debbas, Judiciallnsights into Fundamental Values and Interests of the International Community, in A. S. Muller/D. Raic/J. M. Thuranszky (eds.), The International Court of Justice. Its Future Role after Fifty Years, 327-366.

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tice," from that limited set of norms for ensuring the co-existence and vital cooperation of the members of the international community which could be deduced "from preconceived ideas."8 2. This bringsme to the second challenge to the unity of customary law: For as Seibert-Fohr's paper clearly points out, the trend towards diversity in the methods of customary lawmaking has been due to another development - that of the substantive diversity of norms, or rather hierarchy of norms. In other words, the fonnal aspects of customary lawrnaking have been modified as a result of custom's substantive development. This softening of the respective elements in customary international law fonnation can therefore be attributed to a growing value-oriented internationallaw. The examples given in the paper of specific fields of international law in which this softening has taken place are human rights, international humanitarian law and international criminallaw, to which one could add international environmentallaw; these are fields which have secreted principIes and mIes of a fundamental character which derive their binding force less from a general practice of States than from their underlying rationale and relevance for the protection of fundamental global interests. The emergence of a hierarchy of norms has in fact not only contributed to the substantive fabric of international law but has brought in its wake different assumptions and philosophical underpinnings. Its impact on the sources of law is one consequence, for it has affected such basic questions of international law as the basis of obligation, notions of sovereignty and consent, the meaning of "specially affected States," the concept ofpersistent objector, and treaty rules, including those on reservations and interpretation. Thus the paper cites the use made of the concept ofjus cogens by the Inter-American Commission ofHuman Rights in the Domingues Case, in order to factually invalidate the persistent objector rule, since such a concept requires "recognition of the indelibility of a norm by the international community as a whole. This can occur where there is acceptance and recognition by a large majority of States, even if over dissent by a small number of States.,,9 Paradoxically this hierarchization and diversification of the legal character of customary law norms has at the same time reinforced the trend towards universalization. Even Prosper Weil, for whom this was a pathological process, 10 points out • Delimitation ofthe Maritime Boundary in the GulfofMaine Area, ICI Reports 1984, 299, para. 111. 9 Michael Domingues v. United States, Case 12.285, Annual Report of the IACHR 2002, para. 50. 10 Prosper Weil, Towards Relative Normativity in International Law?, AJIL 77 (1983), 413-442.

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in bis Hague course that this process bas led to an empbasis on wbat unites rather than on what divides: "Quelle que soit la connotation que I'on entend lui conferer, la reference a la communaute internationale tend a substituer a la societe international atomisee et fractionnee ... la vision d'une communaute unie et solidaire. La societe des Etats, teIle que la connaissait le droit international classique, privilegiait l'Etat et sa souverainete; la communaute internationale, telle que l'affectionne le droit international modeme, met l'accent sur ce qui rassemble plutöt que sur ce qui separe. La reference ala communaute internationale depasse l'effet de style et de mode: derriere le glissement sernantique se profile une evolution dans la conception meme du systeme international."11 What is identified in the paper, however, is a softening ofthe process offormation ofjus cogens. Article 53 ofthe Vienna Convention irnposes a more stringent, not a less stringent requirement, as compared to the formation of customary international law, requiring a double formation process for the emergence of norms of jus cogens; such a norm must first be identified as a norm of general internationallaw and then must be accepted and recognized as such by the international community of States (as opposed to the IACHR's test of "a large majority ofStates"). Are we therefore seeing a softening ofthe process wbich takes place not only at the first stage offormation ofjus cogens norms, that is at the level of customary law formation, but also at the second? A question that can be raised in this context is whether there can be regionaljus cogens, and if so, whether that would constitute a further frittering away of the unity of customary internationallaw. It will be recalled that in 1987, in the Case of Roach and Pinkerton, the Inter-American Commission on Human Rights found it sufficient to fmd that the role probibiting execution of juvenile offenders bad acquired the authority ofjus cogens on the American continent, 12 while considering that the age of 18 as the minimum age for the death penalty was only an emerging norm. It was not until the Domingues Case, fifteen years later, that the Commission identified the prohibition ofthe death penalty for cbildren under 18 as a norm ofjus cogens.

11 Prosper Weil, Le droit international en quete de son identite. Cours general de droit international public, Recueil des Cours 237 (1992), 9 at 309. 12 What the Commission stated was Uthat in the member States of the OAS there is recognized a norm ofjus cogens which prohibits the State execution of children. This norm is accepted by aB the States of the inter-American system, including the United States." James Terry Roach and Jay Pinkerton v United States, Case 9647, Annual Report ofthe IACHR 1986-1987, para. 56.

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But not all judicial bodies have been willing to acknowledge the consequences of the hierarchization of norrns for the sources of internationallaw. The Nuclear Weapons Advisory Opinion \3 is an illustration of a case in which the ICJ has not taken into account the kinds of developments evidenced in the Domingues Case. The Court starts from a wide survey of the applicable law which is replete with references which will surely dispel any lingering doubts about the existence of relative normativity in internationallaw - from non-derogable rights (the right to life) and rules ofjus cogens (genocide, prohibition ofthe use offorce), to the basic principles and rules ofhumanitarian law ("overriding consideration ofhumanity," "the principles of humanity," "the dictates of public conscience" (the Martens Clause), and "the cardinal principles ... constituting the fabric of hurnanitarian law"). The Court has to deal with principles of environmental protection which, as Judge Weeramantry reminds us in his dissenting opinion, citing the International Law Commission, have become "so deeply rooted in the conscience of mankind that they have become particularly essential rules of general international law." The Court also innovates by adding one more elusive category to Prosper Weil's arsenal, that of "intransgressible principles of international customary law." The issues the Court has to deal with affect a whole range ofbeneficiaries to which the Opinion alludes: the community of States, the international community, mankind, human beings and generations unborn! The Advisory Opinion goes therefore to the heart ofthe question offundamental norrns directed at protecting community values and interests, including that of the very survival-ofmankind. Yet the Court avoids their logical consequence: the Court's painstaking research into opinio juris and State practice in this Advisory Opinion, the strict standards it imposes for the taking into account of General Assembly resolutions, its "futile quest for specific legal prohibition (which) can only be attributable to an extreme form of positivism" (to quote Judge Koroma in his Dissenting Opinion), is thus at variance with its previous jurisprudence, in particular that relating to human rights law, in which it had not hesitated to depart from its strict Lotus principles. Which raises the question as to whether one can treat issues of vital concern to the international community within an ill-suited traditional conceptual legal framework, for as Samoa stated in its oral hearings: "A moribund and controversial decision ab out two colliding vessels on the high seas is a very weak base on which to defend the new power to destroy our spaceship Earth."14 \3

Cf Legality ofthe Threat or Use ofNuclear Weapons. Advisory Opinion of8 July

1996. I< For an elaboration. see Vera Gowlland-Debbas. The Right to Life and Genocide: the Court and an international public policy, in: Laurence Boisson de ChazourneslPhilippe

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3. A third challenge to the unity of customary internationallaw is a procedural, or institutional one - it relates to the interpretation of customary internationallaw by specialized international tribunals bound by their own self-contained mandates. This question is linked to the contemporary debate on the potential problems arising from the proliferation of tribunals, which is treated in another context in this Symposium. Nevertheless, it does arise in the context ofthe paper presented by Seibert-Fohr in so far as it focusses on a modem interpretation of customary internationallaw by judicial and quasi-judicial bodies. This debate on one of the purported manifestations of the fragmentation of international law raises yet another paradox. On the one hand, judicial or quasijudicial bodies have been encouraged to carry out their treaty mandates and to interpret their constituent instruments in the light of customary internationallaw. We fmd this reflected in recent trends in the WTO case-Iaw, bolstered by a reading of Article 3 (2) ofthe Dispute Settlement Understanding (DSU), which states that WTO provisions have to be interpreted in accordance with "customary mIes of interpretation of public internationallaw," which are codified in Articles 31 and 32 ofthe 1969 Vienna Convention on the Law ofTreaties. Tbe WTO case-Iaw conflIßlS that "to the extent there is no conflict or inconsistency .. , the customary mIes of internationallaw apply to the WTO treaties ...... 15 This trend is also reflected in the work of human rights judicial and quasijudicial treaty bodies which bave not hesitated to assert their competence in individual cases arising in armed conflict situations. Tbe Inter-Arnerican Commission, for example, has stated that in accordance with the mIes of interpretation of Article 31 (3) ofthe VCLT, it is bound to take into ac count "any relevant mIes of internationallaw applicable in the relations between the parties," including international humanitarian law, and has relied on the IC]'s pronouncement in the Namibia Opinion that "[Aln international instrument must be interpreted and applied within the overall framework ofthe juridical system in force at the time of the interpretation. "16 Tbe argument is not that human rights bodies are asserting their right to directly apply the customary law mIes concerning humanitarian law, but rather to use these as a method of interpreting and applying the provisions of their own treaty. Tbus, as was stated in the Las Palmeras Case in connection with the right to life under Artice 4 of the American Convention, the case bad to be Sands (eds.), International Law, the International Court of lustice and Nuclear Weapons (1999),315-337. 15 WTO, Report of the Panel, Korea - Measures Affecting Government Procurement, WTIDSI63/R, 1 May 2000, para.7.96. 16 Coard et al v. the United States, Inter-American Comrnission on Human Rights, Report No. 109/99, Case 10.951, 29 September 1999, para. 40.

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decided in the light of"the nonns embodied in both the American Convention and in customary international hurnanitarian law applicable to internal armed conflicts and enshrined in Article 3, comrnon to all the 1949 Geneva Conventions."17 This trend has shown that although operating within so-called self-contained regimes, judicial bodies have taken into account the growing permeability of different areas ofintemationalIaw, and have been willing to consider, for exampIe, the relationship between trade and environment, or human rights and hurnanitarian Iaw. On the other hand, as Martti Koskenniemi has shown, there is a risk inherent in the interpretation of universal customary nonns for partisan purposes, for such international tribunals are set up to guard their own legality. For Koskenniemi, "fully self-contained regimes may seem to pose less of a threat than semi-autonomollS ones that apply concepts of generallaw but do this from a special perspective," that is for the purposes ofpromoting a special and suspect agenda. He thus attributes sinister motivations to specialized tribunals who through the interpretation of international law "are engaged in a hegemonie struggle in which each hopes to have its special interests identified with the general interest."IB In this, Martti Koskenniemi fmds an unlikely ally in Judge Guillaume who in his address to the 2001 General Assembly, warned that the proliferation ofinternational courts may jeopardize the unity of intemationallaw by giving conflicting interpretations ofthe same rule oflaw. (Although Koskenniemi also attributes hegemonie intent to this statement). Yet some self-restraint bas been seen in this domain. In the Concurring Opinion of Judge Pellonpää in the AI-Adsani Case, which concerned State imrnunity from civil proceedings in respect ofacts oftorture committed outside the forum State, the ECHR was wamed that when touching upon central questions of general intemationallaw, it should be very cautiollS before taking upon itselfthe role of a .7 Las Palmeras Case, Judgment on Prelirninary Objections of6 Decernber 2001, InterArnerican Court of Human Rights, (Ser. C) No. 90 (2001), para. 29, citing the InterArnerican Commission. In para. 34, the Court was clearly referring to application, not interpretation, ofinternational humanitarian law by the Inter-Arnerican Commission, when it admitted the second prelirninary exception of Colornbia which alleged the lack of cornpetence ofboth the Inter-Arnerican Commission and the Court to apply international hurnanitarian law and other international treaties, since the Arnerican Convention Iirnited their cornpetence ratione materiae to the rights ernbodied in the Convention. The European Court of Justice has also examined rules of custornary internationallaw which have been considered to be binding on the Community legal order (see A. Racke GmbH and Co. v. Hauptzollamt Mainz, Case C-162/96, Judgment of 16 June 1998). 18 Koskenniemi/Leino (note 3), 61-62.

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forerunner. 19 The Opinion also cites the concerns of Sir Robert Jennings in regard to "the tendency of particular tribunals to regard themselves as different, as separate little empires which must as far as possible be augmented.,,20 4. Fina11y, another cha11enge to the unity of internationallaw may appear to eome from the jostling by the diversity of actors on the international stage - not a11 a110wed entry into the legal system as subjeets of the law - to rnake their voiees heard in international lawrnaking. On the other hand, one ean eonsider that the new trends - if indeed new trends they are - whieh take into aeeount the praetiee and voiee of the international eommunity (including the "dietates of the publie eonseienee?") as expressed in the halls of multilateral treaty-making, General Assembly resolutions,21 or through the mouthpieee of judieial and quasi-judicial organs are a refleetion of the development of an international community that is no longer solely an international eommunity ofStates. Far from endangering the unity of internationallaw, these developments push, even more than in the 1960s, for the ehannelling ofwhat was an anarchie proeess into one whieh Georges Abi-Saab referred to as the real "coutume sage,,22 - the proeessing of practice and opinio juris through multilateral frameworks better able to refleet the diversity of voices, including those of civil soeiety, in a heterogenous eommunity. In this way the unity of international law in a disunified world does not seem paradoxical. Nor does it negate the evidenee that the international space is being invaded by a form 19 ECHR, AI-Adsani v. the United Kingdom, Application No. 357763/97, Judgment of 21 November 2001, Concurring Opinion of Judge Pellonpää joined by Judge Sir Nicolas Bratza. In this case, the ECHR, after looking at the Universal Declaration of Human Rights, the UN Convention against torture, and judicial statements establishing the prohibition oftorture as a norm ofjus cogens, conc1uded that international practice does not support the conclusion that this had the consequence of obliging States to make their civil courts available for the victims ofsuch violations (paras. 60-61). 20 Sir Roben Jennings, The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers, in ASIL Bulletin 9 (1995), 6, quoted in ibid. 21 Thus Judge Shahabuddeen writes that the Court "must confine its attention to sources which speak with authority. Among these there is the General Assembly. Reference has already been made to its very first resolution of 24 January 1946. That resolution, unanimously adopted, may fairly be construed by the Court as expressive ofthe conscience ofthe international community as to the unacceptability ofthe use ofnuc1ear weapons ... the Court would be correct in giving weight to the Assembly's finding on the point offact as to the state of 'human conscience and reason' ... ". Dissenting Opinion, Legality ofthe Threat or Use ofNuc1ear weapons, Advisory Opinion, lCJ Reports 1996. 22 In opposition to Renee-Jean Dupuy's characterization. See Georges Abi-Saab, La coutume dans tous ses etats ou le dilemme du developpement du droit international general dans un monde ec1ate, in Melanges Roberto Ago, vol. I (1987),53-65; Renee-Jean Dupuy, Coutume sage et coutume sauvage, in Melanges Charles Rousseau (1974), 75-89.

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of legal pluralism - transnational, suprastate, informal and formal rules applying side by side to the same legal fields. On the contrary, the danger of fragmentation today comes precisely from the reliance in recent debates, particularly those on the use of force, on traditional methods of customary-Iaw formation based on instances of the practice of only a few powerful States, thus negating contemporary developments in international society. Those who profess to create new universal norms nevertheless operable only between "democratic," "peace-Ioving" or "civilized" States, are thus creating a form of cultural relativism in reverse. 23

23 As was stated in regard to NATO's intervention in Kosovo: "The international community can hardly be said to have endorsed their actions when already representatives of half of hurnanity have said that they do not agree with what they have done." See statement by representative ofIndia in the Security Council, in S/PV 3989, 16.

Comment by Fred L. Morrison First of all, I want to thank the directors and the staff of the Institute for their fme work in organizing and presenting this symposium, and my compliments particularly go to Anja Seibert-Fohr for her excellent paper. I want to start by disputing something Rainer Hofmann said in the beginning. He claims that the Westfalian State system is coming to its natural end. I would take a different view. The Westfalian State system is unwanted and uncomfortable in Europe, but it is alive and well and now lives happily in Washington and in Beijing. It even spends pleasant holidays in Paris. I want to emphasize the importance ofremaining centered on State consent to the emergence of roles in international law. The establishment of new roles of customary internationallaw will be a particularly important issue for the next four years or and probably for the next decade, especially because of the elections earlier this week in the United States. It is unlikely that the United States will ratify many law-making treaties in the near future. This is only in part due to the policies of the newly reelected administration which will be in office for the next four years. It is also because of the constitutional requirement that treaties obtain the approval of two thirds of the Senate for ratification. We also have a more conservative Senate than in the past; it will be rnany years before there is readily a two-thirds majority for new internationallimitations. This ratification requirement will make it very difficult for the United States to accept new international obligations in treaty form unless there is a clear and immediate direct benefit to the United States contained in the instrument. I concur with the excellent presentation which Dr. Seibert-Fohr made. She raises important and interesting issues. I want to use this time, however, to talk about another issue raised by the topic and indirectly addressed in her paper, namely the regionalization or "layering" of customary internationallaw. Are we moving toward a time in which the basic general customary internationallaw is supplemented with another "layer" of internationallaw or particular rights norms that are binding as between like-minded States? This would be a customary internationallaw that is binding on them vis-a-vis one another, but not binding elsewhere in the world? This rnight well include a regional international law that is not treaty-based, but is customary in its origin. It also rnight apply in other groupings, for example among developed countries. Sometimes I am concerned when I attend conferences in Europe that they consist of some Europeans talking to other Europeans about European precedents and practices establishing European notions and then simply assurning that these parochial views create universally applicable internationallaw. Where is the practice and participation of

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other actors in the world, not only ofthe United States but also ofChina? Where is the practice and participation ofthe Third World countries in this process? American intemationallaw practitioners are going to demand much more in the way ofState consent to a formation ofnew intemationallaw. That consent needs to be real, not a mere figment of the legal imagination. Looking first at treaty obligations the issue of the validity of reservations arises. Claims like that made in General Comment 24 of the Human Rights Cornmittee are simply absurd. The approach amounts to "legislation by trick." If we bought a washing machine subject to a condition written in the contract, we would not allow the other party to scratch out the condition and enforce the rest ofthe contract. There is no reason that we should be more generous in buying new law. State consent must be real and voluntary ifthe law is to be effective. In the customary intemationallaw field cases like Domingues appear to raise sirnilar concems. I make two comments here: 1. One is, traditional customary internationallaw recognizes the possibility of regional intemationallaw. The Asylum Case simply made proof of the establishment of particular regional mIes difficult. Perhaps we should think about building regional intemationallaw. To a large extent it already exists, based on treaty. The European Union and Council of Europe treaties (and the multitudinous subsidiary treaties and instruments) already create a broad body of speciallaw within European legal space. There are exceptionally close relations among this group of States - even in the broader Council of Europe context. Relations between States in the broader Council of Europe group are so weighted with additional bilateral and multilateral treaty obligations that they no longer reflect typical relations between unrelated nation States. 15 it not reasonable to expect that there are also additional standards that are emerging, that are applicable between States in this group, because they are considered inter se to be binding mIes ofthe European area? Although applicable between member States, such custornary mIes rnight not be applicable in interactions with other States outside of the European context. At the same time, the intense cooperation between these States makes precedents arrived at among them of decreasing relevance in establishing mIes of universal applicability. The fact that Germany deals with Denmark in a particular way about a particular issue is nearly irrelevant in answering the question ofhow the United States should deal with North Korea on that same issue.

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2. The second connnent is on the issue that Andreas Zinnnermann has raised at the beginning. Do all internationallawyers speak the same language? The answer is most clearly "no." The division is not only regional. We are increasingly being divided into separate tribes by subject matter. By and large the international trade lawyers have a different vocabulary, a completely different starting point and a completely different set of expectations from the rest of uso So questions that are key to us maY be irrelevant to them and vice versa. The "human rightists" (I like that term) differ from the environmentalists, etc. The International Court has been concemed about the proliferation of international tribunals. That proliferation would be of little concern if all of the tribunals could be expected to apply the same law in the same way. But they don't apply the same law or don't apply it in the same way. A WTO panel maY well not reach the same conclusion as an ICJ bench on the same dispute, because they approach questions of law and fact from different perspectives. The judges, arbitrators, and panel members have different educations, different mind sets, and different backgrounds, why shouldn't they reach different results? Do we need to think about ways to bring ourselves back to uniform interpretation? This connnent can be surnmarized as a note of caution. In order to be effective, customary internationallaw mIes require a universal and general State acceptance. Only thereby do they acquire the kind of recognition by States that is necessary for their application. When that authority is absent, States will feel free to flout the alleged mIes. The consequence will not only be the non-application ofthe rule in question, but also the undermining of the authority of other customary internationallaw. Novel ways of making internationallaware fruitful only if they are accepted by States. It doesn't matter whether academics think they are novel and fruitful. So we must keep coming back to the issue of State consent. And we must ask whether that consent is truly global in nature or whether it is merely regional. We must be cautious about weakening that standard if we want to induce State participation and acquiescence in the mIes that we all desire. Unless we do that, we risk being regarded as a group of European academics talking with other European academics about European issues, rather than as part of the global connnunity of international lawyers talking about truly international legal standards.

Comment by Torsten Stein First of all I would like to join all those who have congratulated Dr. SeibertFohr for a truly inspiring presentation and I do agree very much with her concluding statements, which said: "Wehave to make sure that the validity and normative force of customary internationallaw is not jeopardized." I can, therefore, keep my comment rather short. But I have to admit that, when I was half through reading her paper, I thought: 0 God, that is the end of customary internationallaw; in that respect I share the concerns expressed by Fred Morrison a couple ofminutes ago, but until then Dr. Seibert-Fohr was only reporting what others had said. Why could, what has been reported here, jeopardize the validity and normative force of customary international law? Because it would make it too easy to pretend new rules which afterwards would not be accepted and abided by quite a number of States. Ifwe deal with customary internationallaw, we are talking about a very important - if not the most important - source of internationallaw, the only "universal source" apart from a handfull of universal international treaties, the UN Charter and some others of a more technical and not politically controverse nature. We are talking about legally binding norms, the disrespect or violation of which carries legal consequences under the rules on State responsibility. We are talking about norms which should bind all States, with the exception of a few persistent objectors. If we allow a sort of "fast-track" or "instant" creation of custornary internationallaw norms, and in addition brush aside persistent objectors by saying "what we have identified as new customary international law is at the same time ius cogens," we would not do a fat lot of good for both. Two weekends ago we had a very interesting symposium in Berlin, organized by the Gerrnan and French Societies of International Law, on ius cogens and erga omnes norrns. Ius cogens should be handled with care, and be dealt with in bigger denominations. If we break it down to too small coins, it will lose its value. If customary law is pretended to exist only in order to obtain a certain - very desired and perhaps desirable - result in a given case, like in the Domingues Case, customary law will become a very arbitrary source of internationallaw and might in the long run lose its relevance. In my opinion, Dr. Seibert-Fohr describes in this part of her paper a rather disturbing development. But we have to deal with the arguments she has reported from the Domingues Case and also the Tadic Case, and we have to take these arguments seriously. Could it be, that in specific areas of international law, we do not need State practice in order to identify binding rules ofinternational customary law, areas in which opinions, official statements, expressed or assumed consent, or even only the pretended "interest of the international comrnunity" would be enough to say:

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"here we have a modem concept of customary internationallaw as an expression of value-based internationallaw?" Diversity in the identification and application of customary internationallaw would then not only be the regional, but substantial. Ifwe lower the threshold for creating customary internationallaw, we would run the risk of blurring the boundaries between the different ways of creating binding rules of internationallaw. Tbe creation of rules of internationallaw is still based on consent. Consent to be bound can be expressed in a specific fonn, i.e., under the rules ofthe Vienna Convention on the Law ofTreaties. Consent to be bound can be expressed unilaterally through binding declarations, but here it must be made very clear that the declaration is meant to be binding; there are very few examples for that in the history of internationallaw. Consent to be bound by customary international law is primarily expressed through State practice and a corresponding (at least assumed) opinio juris. Tbe assumption of opinio juris might be supported by official statements or declarations. But a11 other declarations, statements and indications of what rnight be accepted as law, that go without corresponding State practice, do not create custornary international law. States will be more easily prepared to make certain statements or announcements conceming the desired law, when they know that these statements will not be binding as such, but would still have to stand the test of State practice. Otherwise States will prefer to avoid any statements as to the desirability of new custornary international law and rernain silent. And if mere statements, without corresponding State practice, could create customary international law, thatwould provoke a great number of persistent objectors at a very early state of the law creating process. It might, on the other hand, have some attractiveness to say that in certain areas there is desirable law but, that any kind of State practice would be undesirable. Most of it is codified, but if we think of possible customary humanitarian law applicable in armed conflicts, nobody could wish to see a whole series of armed conflicts in order to be able to identify rules from the relevant State practice. In that case one might be tempted to say that statements or declarations by a considerable number of States, to the effect that they will renounce to apply certain weapons or techniques, rnight be hold against them if it comes to an armed conflict and ifthey don't live up to those declarations. But do they create customary internationallaw also for others? Tbey rnight be classified as unilaterally binding declarations, but hardly as custornary law creating.

What could, then, serve to replace State practice as a necessary element in creating customary law? I see little value in phrases like "it is in the interest of the international community," or "do not look for consensus among the States but to the international community as such." Who else forms the international Community if not the States? Tbe same is probably true for statements like: "it is in the

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interest ofhumanity, and in that case we can lower the threshold for the creation of customary internationallaw." Who decides what is in the interest of humanity? Does it have to be an opinion shared worldwide, or only among civilized nations? One indication for a comrnon consent might stern from the fact that the mIe in question (e.g., "no death penalty for minors") is part of the nationallaw of a great majority of States, and is also found in international human rights instruments. In such case the few States which have not ratified those international instruments might be confronted with the argument, that the rule in question has become customary international law. In so far I agree with the opinion of the very slirn majority in the recent (March 1,2005) decision ofthe United States Supreme Court in Roper v. Simmons. But in order to be able to bind aState that expressly maintains the death penalty for minors in its domestic law, the rule prohibiting that death penalty must be regarded as ius cogens, because otherwise that State would be a simple persistent objector. Is it ius cogens? Is it impossible for aState to say that if a juvenile is able to kill, he could also face death penalty? Or take the child soldiers in Africa; would you wait to be shot by one of them or shoot first? All I want to say with these examples is that it might be quite easy from a remote place to formulate rules in the name ofhumanity, but that the perception in other parts of the world might be quite different. In conclusion I would like to come back to what I said in the beginning: customary internationallaw mIes are not created by words, but through State practice. If we allow mere statements or declarations to create customary law (with the consequence that its violation carries responsibility), we might loose that source of internationallaw altogether.

Non-State Actors: Their Role and Impact on the Fragmentation of International Law By Robin Geiß

A. Introduction The proliferation of non-State actors is a well-known fact. Undoubtedly the influence of these actors has grown ever since space and time have shrunk as a resuIt of globalization and technological advancement. I The process continues and today, even the last bulwarks of State-centric decision making have been concussed upon. In June this year, the Security Council for the first time in its entire history invited two NGOs to join its public sessions on the role of civil society in post-conflict peace-building. 2 The consequences of such a rapid expansion of international actors are manifold. Some think they are good, some think they are bad - most probably there is potential for both. This contribution will focus on one specific aspect of this process, namely the question: How is the unity ofinternationallaw affected by the evolution and proliferation of different non-State actors? More precisely, how have the different sections of internationallaw accommodated NGOs, TNCs and individuals? Have these actors received legal status throughout? Have they been accorded equal opportunities to influence the norm creation and norm implementation process in all areas under consideration? The answers to these questions should help us to allude to the more general question, i.e., whether today we see unity or diversity in the normative framework I James N. Roseneau, Turbulence in World Politics: A Theory ofChange and Continuity (1990), 36. 2 The invitation was extended to the Secretary General ofCARE International as weIl as to the Vice President of the International Center for Transitional Justice; S/PV.4993. Rule 39 ofthe Provisional Rules ofProcedure reads as folIows: The Security Council may invite members of the Secretariat or other persons, whom it considers competent for the purpose, to supp!y it with information or to give other assistance in examining matters within its competence.

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of internationallaw. It has long been shown that who the decision makers are is crucial for the substantive content of the law. 3 Quite obviously then, there is at least a chance that new actors introduce a new - non-State - dimension into at least some sec tors of international law, thereby deviating from the overall legal framework. The presentation proceeds in three parts: Tbe fIrst part analyzes the role ofNGOs in the norm creation and norm-implementation process. Tbe second part addresses the status ofTNCs in the different legal areas and part three pursues the same question in relation to individuals. A fInal introductory remark regarding the scope of my inquiry bears mentioning. Tbe success and impact of non-State actors is hard to gauge with any degree of precision. Tbeir ways of possible influence are manifold, diverse and often enough opaque. Apart from the terminological insecurity surrounding NGOs and TNCs alike, the boundaries between the different legal areas are not always elear. 4 Tbus, aiming at a comparative analysis of the different areas 1 will confme myself to those instances in which non-State actor influence is relatively elear, i.e., to formal avenues on an institutionallevel- without approximating precision 1 will draw out some red-lines towards unity or towards diversifIcation.

B. Unity and Diversity Regarding the Status and Role of NGOs I. The Role of NGOs in the Norm-Creating Process 1 commence my inquiry by analyzing the role ofNGOs in relation to the creation and shaping of nonIlS. It is in the context of norm creation, that NGO influence could have the most crucial impact on the normative framework. After all, it is the rules of chess that make the game of chess. 5 Have NGOs been able to alter these rules; are we even playing a different game today.

.1 4

5

Vera Gowlland-Debbas (ed.), Multilateral Treaty-Making (2000),5. Ken Conca, Environmental Organizations and the UN System (1995), 105. See Friedrich Kratochwil, Rules, Norms and Decisions (1989).

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As of now, the Vienna Convention on the Law of Treaties answers in the negative. Its Artic1e 6 is inc1usive as much as it is exc1usive in stating that: "Every State possesses the capacity to conclude treaties." Regarding customary law, the role laid out in Artic1e 38 ofthe ICJ-Statute is interpreted equally State-centric. Indeed, at fIrst sight there is no eminent deviation from the general rule that States create and shape international law. Neither Artic1e 71 of the UN Charter nor Article V:2 ofthe WTO Agreements or Article 169 ofthe Convention on the Law ofthe Sea nor any other international fora have granted NGOs any direct involvement least ofall the right to vote. 6 At the same time, all areas under consideration provide for the formal consultation of and cooperation with NGOs. Accordingly, unity of the normative framework prevails at both ends of the spectrum. Nowhere have NGOs been granted direct decision making power while at the same time they have been given consultative status in all sectoral regimes. Nevertheless, the spectrum leaves considerable room, short of direct decision making power for other ways of influencing the norm-creation process. Tbe closest NGOs have occasionally come to directly influencing international decisions was by way of joining aState delegation to a conference. However, there are numerous other inroads for non-govemmental influence throughout the different stages of norm creation. Tbe following section aims to illustrate which areas of internationallaw have been particularly prone to such influence, where, e.g., govemments have been most open to invite NGO representatives to join their delegations and where non-govemmental influence had the most decisive impact. I. NGO lnvolvement in the Development 0/ Treaty Law I will fIrst address the question of NGO involvement in the development of treaty law within the different legal regimes. For the sake of clarity, the two main stages of multilateral treaty making, the pre-diplomatie conference stage and the diplomatic conference stage will be dealt with separately. 6 The UN Convention on the law of the Sea itself, in Art. 169 provides for fotmal consultation and cooperation ofthe General Secretary ofthe International Seabed authority with NGOs recognized by ECOSOC. Art. V:2 ofthe WTO Agreements accords the General Council discretion to arrange for consultations and co-operation with NGOs. In the case ofthe WTO the respective Guidelines for Arrangements on Relations with NGOs even stipulate that according to a broadly held view among WTO members, it would currently "not be possible for NGOs to be directly involved in the work of the WTO or its meetings ..... (see Tietje, Questionnaire International Economic Law, in this volume.

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a) Tbe Pre-Diplomatic Conference Stage: Awareness Raising and Driving Force Tbe pre-diplomatic conference stage, in the absence of formalized procedures, is particularly permissible for NGO influence. NGOs have specialized in discovering existing malpractices, in raising awareness and in using public opinion to pressure hesitant governments into activism. 7 Generally, the creation of a driving force through NGO activity which then has led to the adoption of legal rules has been most obvious in the fields of Human Rights, Hurnanitarian and Environmental Law. Already the human rights references entailed in the UN Charter are largely due to NGO pressure. More recently, the adoption of the Convention against Torture has widely been accorded to the work of one particular NGO, i.e., Amnesty International. Sirnilarly, within the area of IHL not only the ICRC has forethought and initiated a great part of the legal framework, the Ottawa Convention, e.g., is the result of a worldwide campaign launched by various other hwnanitarian NGOs.' I will not cite the numerous examples in environmentallaw. 9 I merely wish to emphasize that in this particular area the process of constantly adding new ideas to the general debate has been somewhat institutionalized by the set up of non-governmental legal think tanks such as, e.g., the Center for International Environmental Law (CIEL):o NGO involvement at the pre-diplomatic conference stage has been far less significant in theareas ofWTO law and the Law ofSea. Tbe reason being, that the subject matters ofthese particular areas have attracted far lesser degrees ofpublic attention. Issues related to hwnan rights or the environment are perceived as 7 Patricia Waak, Shaping a Sustainable Planet: The Role ofNon-governmental Organizations, Colo. J. Int'L Envtl. L & Pol'y 6 (1995), 345, 346: "it is from the NGOs that new ideas, approaches, and solutions are springing forth ." I Kenneth Anderson, The Ottawa Convention Banning Landmines, the Role oflnternational Non-Governmental Organizations and the Idea of International Civil Society, ElIL 1I (2000), 91 . Today 124 countries have ratified this convention and NGOs continue to push for global ratification; Nathalie Herlemont, Le röle de la societe civile dans la mise en oeuvre des droits de I'homme et du droit humanitaire, Intervention Forum Mondial de la Societe Civile. 9 The Convention on International Trade in Endangered Species as weil as the Convention on Biological Diversity reflect NGO influence of cornparable scope in the area of environmentallaw. IUCN a weil established NGO has initiated the Convention on International Trade in Endangered Species (CITES). 10 See also the Environmental Law Center ofthe World Conservation Union and IUCN (A unique Union, among its members are 77 States, 114 government agencies and 800-plus NGOs).

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direetly relevant to everyone. It is diffieult to see how the highly speeifie provisions of the law of the sea or the WTO would ever be of sirnilar interest to a greater publie, unless they were direetly related to environmental or human rights eoneerns. 11 While the differenees eoneerning NGO aetivity in the different areas reveallittle about a legal fragrnentation of these areas, they may weIl be seen as the first indieators of a eontinuing fragrnentation proeess. This is so beeause inereased NGO aetivity at the earIy stages ofthe treaty-making proeess over time is likely to result in more sophistieated NGO involvement on the formal level. b) Tbe Diplomatie Conferenee Stage Quite cIearly, NGOs see diplomatie eonferenees as a prime venue to exert influenee and they are eager to get aeeess. Tbeir general means of exerting influenee are the submission of drafts, the distribution of written statements and they have given adviee to and sometimes even joined governrnental delegations. Historieally, sueh influenee had been most prominent in the field of international humanitarian law where the ICRC traditionaIly enjoyed a privileged position. 12 Most irnportantly, it has submitted the original drafts for the 1949 Geneva Conventions and the Additional Protoeols l3 and thus influeneed the treaties ultimately adopted.

11 Even within specific areas, e.g., the field ofhuman rights, such a development can be witnessed. Only rather recentiy has there been a shift from a civil and political rights focus to greater awareness of social and economic human rights and NGOs have evolved or designed their agenda according\y. 12 The ICRC was not represented as such at the Hague Conferences of 1899 and 1907. It has been granted officiaI access to plenary sessions and working groups, it was given the right to speak and to issue official statements and proposals; Louise Doswald-Beck, NonGovemmental Entities in Treaty-Making, in: Vera Gowlland-Debbas (ed.), Multilateral Treaty-Making (2000), 43. 13 It has also drafted the 1929 Convention on the Treatment ofPrisoners ofWar, CCW Convention. More recently, the ICRC has influenced the drafting of a manual on naval warfare, it has analyzed the applicability of IHL vis-a-vis peace keeping operations under UN auspices and after the Gulf war of 1991 had revealed significant shortcomings regarding the protection of the environment in times of war ICRC experts were instrumental in drafting relevant standards; Hans-Peter Gasser, The United Nations and International Humanitarian Law: The International Committee of the Red Cross and the United Nations( 1995), available at http://www.icrc.orgiweb/lengisiteengO.nsf/iwplist453/ C8062FA085EA5192C I 25686600599CDD.

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Since the 1980s NGOs have managed to exert influence of comparable scope in the areas ofhuman rights and environmentallaw. In the field ofhuman rights law the Torture Convention and the Convention on the Rights ofthe Child are exemplary. In the ambit ofthe Torture Convention Anmesty International undertook a large part of the preparatory work; its input is reflected in the Convention as it now standS. 14 In relation to the Child Convention, an informal NGO group, set up in 1983, had a constructive influence on the text fmally adopted. At present, however, the area of environmental law stands out as the legal sector which is most permissible for NGO influence. It is in this particular area of law that NGO representatives have come closest to directly influencing the decision-making process. For example, at the 1992 UN Conference on Environment and Development NGOs were represented within at least 14 national delegations. IS Moreover, five major NGOs - were able to place a representative among the working parties of the Prepcom sessions. 16 Agenda 21, the Malmö Declaration or UNEPs strategy paper, all are evidence of an ongoing tendency towards still increasing NGO participation in the area of environmentallaw. 17 These documents have proclairned broad public participation to be the fundamental prerequisite for the achievement of a sustainable development. Consequently, it seems legitimate to say that if direct decision making power was to be given to non-governmental actors, out of all areas under consideration, this is most likely to happen in the field of environmentallaw. Already, as of now, the structural premises on which NGO involvement takes place in environrnentallaw are notably different from other fields. For example, in the area of human rights law NGO participation throughout the drafting stages seems to be strongly connected to pre-diplomatic conference activism On the 14 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entry into force June 26, 1987. 15 Matthias Finger, Environmental NGOs in World Politics (1994), 208. 16 Conca (note 4), 111. (IUCN, Greenpeace, Environment and Development Action in the Third World, the Conservation Foundation and the Environmental Defense Fund). 17 UN Resolution 47/191, at 23.2. The tendency towards increased NGO participation is also reflected in Chapter 28 of Agenda 21 as weil as in UNEP's Strategy Paper on Enhancing Civil Society Engagement in the work ofthe UN Environment Program both of which call for enhanced collaboration with non-govemmental entities; UNEP/GC. 22/ INF/13 of21 Nov. 2002. According to para. 16 ofUNEP's Strategy Paper "the role of civil society at all levels should be strengthened through freedom of access to environmental information to all, broad participation in environmental decision-making, as weil as access to justice on environmental issues. Govemments should promote conditions to facilitate the ability of all parts of society to have a voice and to play an active role in creating a sustainable future."

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contrary, NGO participation in environmental law negotiations has become far more institutionalized - to a degree that many environmentallaw treaties could no longer be concluded without the expertise ofNGOs. Only to a significantly lesser degree have NGOs been able to participate and influence legal instruments relating to matters ofthe law ofthe sea and WTO law. By and large, there has been no NGO involvement in the major law of the sea conferences. 18 Today there are a few examples, NGOs are commonly granted consultative status to the conferences of the International Whaling Commission (IWC) and ofthe London Dumping Convention. 19 However, rather than revealing an increase ofNGO activity in relation to the law ofthe sea these instances confmn the initial presumption, that NGOs concern themselves with the law of the sea, solely when it reflects an environmental or human rights dimension. Whaling and Dumping, more than anything else, relate to the protection ofthe environment. In light ofthis, NGO participation in genuine matters ofthe law ofthe sea remains marginal indeed. Similarly, in the area ofWTO law the possibilities for NGO involvement have generally been rather lirnited. Recently this situation has been improved, e.g., the Ministerial Conferences have now been opened for NGO attendance and the WTO Secretariat has instituted a variety of measures so as to increase NGO cooperation. 20 Nonetheless, it is quite telling that all of these improvements were initiated first of all with a view to increase transparency ofthe complexities ofthe WT0,21 rather than with the intention to actually allow for more NGO participation and input as such. To surn up, the regularity and coherence with which NGOs have become involved in legislative projects regar~ing environmentallaw stand out. Neverthe18 This can be attributed to the fact that these conferences were conducted under the auspices ofthe General Assembly which unlike the Economic and Social Council was not open to NGO participation; Michael Hempel, Die Völkerrechtssubjektivität internationaler nichtstaatlicher Organisationen (1999), 163. 19 Rules of Procedure and Financial Regulation, International Whaling Commission, July 1983, Par. B. (2) (b). Notably, at the London Dumping Convention, Greenpeace is regular1y represented upon the invitation and as a member ofthe New Zealand delegation. 20 Since the 1996 Ministerial Conference in Singapore NGOs are allowed to attend Ministerial Conferences upon accreditation, incIuding the relevant Plenary Sessions. The number ofNGOs making use ofthis opportunity is constantly on the rise; Tietje, Questionnaire International Economic Law, in this volume. 21 These two advisory bodies are expected to meet twice a year and, in the words ofthe WTO Director General, were estabIished with the aim to "add to further transparency and understanding of the complexities of the WTO." (Tietje, Questionnaire International Economic Law, in this volume, note 10).

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less, under IHL and hwnan rights law NGOs have likewise been enabled to influence the treaty making process considerably. In these areas NGOs had provable impact whereas their role with respect to the law of the sea and WTO law remains negligible. Before tuming to the reasons for these differences allow me to complete the picture ofthe norm-creation process and to briefly illustrate the situation as to the formation of customary law.

11. Unity and Diversity in Relation to the Formation of Customary Law On the whole, the fmdings arrived at in relation to the creation oftreaty law are reaffrrmed in the formation of customary mIes. As stated above, NGOs are not coequals to States in the formation of customary law. 22 Yet, through their activities, they can give meaning to laws and norms. Mostly, NGOs have assumed a supervisory function vis-a-vis State practice. In the area ofhwnan rights law where "naming and sharning" is one ofthe core NGO activities, State behavior is under constant observation. Likewise, NGOs active in the orbit of environmental law have closely monitored State conduct. Their function as supervisors of the adherence to environmental standards has been explicitly acknowledged by the GA as early as 1985. 23 Also, in the field of IHL, where customary law remains of immense significance,24 the ICRC albeit on a basis of discreet diplomacy rather than denunciation, has traditionally supervised State behavior regarding the mIes ofarmed conflict. 2S Tbe ICRC's current study on customary law is exemplary and unprecedented in scope. In consequence, for the time being IHL displays by far the highest level of non-governmental activity 22 Julie Mertus, Considering nonstate actors in the new millennium: toward expanded participation in norm generation and norm application, New York University Journal of International Law and Politics 32 (2000), 537 (562). 23 See resolution on the Protection against Products harmful to health and the Environment, GNRES/39/229; Hempel (note 18), 161. 24 See, e.g., Art. 1 (2) AP I: In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. 25 The ICRC achieved legal recognition ofits role almost immediately. In 1864 the first Geneva Convention was signed, which included a rule that those assisting the siek and wounded on the battlefield were to be treated as neutrals, and the recognition of the red cross symbol as signifying such humanitarian workers; see Geoffrey Best, Humanity in Warfare (1980), 150.

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in relation to the fonnation of customary law. However, lest it not be overlooked, the ICRC has been explicitly mandated to embark on this study by the 26th International Conference ofthe Red Cross and Red Crescent, i.e., inter alia by all States party to the 1949 Geneva Conventions. 26 In comparison, given that WTO law is almost exclusively made up of treaty law the interpretation of treaty rules by competent organs is far more important than actual State practice. Thus, from the outset there is no similar role to play for NGOs. Equally, under the law ofthe sea NGOs have not sought a significant role in the supervision of State practice.

1. Conclusion: Unity and Diversity in Relation to the Norm-Creation Process In summary, the law creation process as a whole reflects coherent diversity. All in all the areas ofWTO law and the law ofthe sea show significantly lesser NGO involvement than the remaining sectors. What are the reasons for this disunity? Let me layout two general and a few more specific explanations for the uneven distribution ofNGO activity throughout the norm-creation process in the different areas. By and large, the time-factor seems to be decisive. Increased NGO involvement in some areas can largely be explained by the simple fact that these sectors have seen increased legislative activity in the more recent past. Unsurprisingly, the Conventions most commonly-cited as evidence of the growing importance of NGO activity are also among the most recent ones. The Desertification Convention, the Ottawa Convention and the. Convention on the Rights of the Child are exemplary. Even with regard to the law of the sea which otherwise has revealed the least NGO involvement, the 1995 Fish Stock Agreement expressly provides for NGO participation. 27 Today, States have become far less reluctant to allow NGO participation. NGOs have matured, their activities are no longer perceived merely as revolutionary humanitarianism besieging every aspect of State sovereignty. To the contrary, in their cost-benefit analysis States have discovered NGOs as welcome impetus givers and now value them for their expertise - admittedly more so in relation to the environment than to human rights. In part the prevalence 26 The ICRC has now published its major study ofthe present status of customary law in IHL; Jean-Marie Henckaerts, Study on customary rules oflHL: Purpose, coverage and methodology, ICRC No. 835 (1999), 660-668. The inquiry is intended to serve as a reference guide for practitioners; it will be disseminated to governments, the military as weil as to international tribunals and national courts. 27 Art. 12 Fish Stock Agreement (1995).

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of NGO activity in environmental law can be explained along those lines. The regulatory density ofthis particular area has been considerably increased throughout the more recent past whereas at the same time no major norm creating projects have been underway in relation to, e.g., the law ofthe sea. Secondly, all in all the different levels ofNGO involvement reflect the differences in purpose and subject matter between the individual legal sections. The very essence of WTO law - the regulation of trade relationships - as well as the gist of the law of the sea - the exploitation of ocean resources - have not been the traditional domains of non-governmental and by defInition non-profIt-making organizations. Only sporadically have NGOs taken up trade or law of the sea related matters usually when these regimes were interlinked with their specifIc agendas. The way in which Greenpeace and the World Wide Fund for Nature are now influencing the debate on trade and environment in the respective WTO Committee on Trade and Environment is exemplary. Apart from these general explanations, on the rnicro-Ievel some areas reveal specifIc reasons for enhanced or lessened NGO activity. The predominance ofNGO activity in the fIeld ofIHL can largely be explained by the sui generis status of the ICRC, which despite being non-governmental in nature, has been mandated by the international community of States to promote and develop IHL. 28 Lest this privileged position ofthe ICRC not distort the overall picture it is worth mentioning that had it not been for the ICRC, non-governmental influence and impact in the area of IHL would be far less signifIcant. With respect to WTO law, on a rnicro-Ievel the hesitation to grant NGOs greater influence can largely be explained by a strong reluctance of developing nations ofthe South. These nations have no intention whatsoever to open the doors oftrade related decision rnaking to NGOs which they perceive as biased promoters of northern values and interests of the 1st world. Finally, conferences that have been conducted under the auspices of the General Assembly, as for example the law of the sea conferences, have not displayed signifIcant NGO activity for the simple reason that Article 71 ofthe UNC merely provides for NGO participation in the proceedings ofthe ECOSOC. I will not yet turn to the question which implications these fIndings have for the normative framework of internationallaw as such. This question is best addressed

28 Most recently, the privileged role of the ICRC became evident during the Rome Conference, where no other NGO was granted the requisite right to speak at all stages; Doswald-Beck (note 12), 44.

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in conjunction with the findings relating to the role of NGOs in the process of norm enforcement and implementation, to which 1 now turn.

III. Unity and Diversity Regarding the Implementation and Norm Enforcement Process Once a treaty text has been negotiated and adopted the baton passes from the negotiators to the implementers. The mechanisms of implementation vary considerably with the idiosyncrasies of each legal field. The subsequent findings thus need to be taken with a grain of salt in that differences may be due to systemic preferences for ways of implementation. As ever, a11 areas under consideration have revealed rampant opportunities for informal influence. NGOs have indirectly initiated numerous cases and informa11y they often provided the information on which a case was decided. 1 will not embark on trying to trace such informal influences. Rather, 1 will confine myself to highlight the more formal ways in which NGOs have influenced the implementation of applicable mIes. Firstly, judicial and quasi-judicial proceedings constitute a highly appealing venue for NGOs. It is in judicial fora where NGOs are potentially able to achieve the best results in innovative Iaw shaping. Like many court mlings, the WTO Appellate Body's progressive decision on amicus briefs would most probably not have emerged from the legislative branch that is to say. e.g., from a WTO Ministerial Conference. What role then have NGOs been given to participate injudicial proceedings? The Rome Statute may serve as an illustrative point of departure. Adopted quite recently, it entails one of the most progressive regimes for NGO involvement in judicial proceedings. Under Article 15, the prosecutor is bound to analyze information received from NGOs. Symbolically, in February 2003, it was the International Federation ofHuman Rights (FIDH), a human rights NGO, which brought the Situation in the Central African Republic to the attention of the COurt. 29 Moreover, the relevant mIes of procedure recognize NGOs as potential victims, thus

29 See "FIDH formally brings its first case before the International Criminal Court", International Federation of Human Rights (2003), available at: www.fidh.orgiarticIe_ printphp3?id_articIe=\ 092 (last visited August 2004). After FIDH had inquired into the executions, rapes, injuries and pillages committed on the civilian population during and after the October 24 coup d'Etat attempt the international investigation team concluded that war crimes according to Art. 8 ICC State had been perpetrated.

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granting thern standing, albeit only under rather lirnited circurnstances. 30 Sirnilarly, on the regional level Article 34 of the European Convention on Human Rights affords direct standing to non-State actors where they have been violated in their own rightS.31 Besides, rnerely the arguably open wording of Article 20 of the Statute of the International Tribunal for the Law of the Sea has left roorn to argue in favor ofNGO standing. In practice, however, only States have been involved in the respective proceedings.32 Otherwise, the normative frarnework ofthe sectoral regimes under consideration has rernained within the arnbit of the ICI Statute, which restricts the ICJ's jurisdiction to disputes between States. Thus, apart frorn the regional human rights level and international crirninallaw the ability ofNGOs to initiate international proceedings or to intervene as a party rernains limited.

1. Participation as Amicus Curiae The submission of amicus curiae briefs has thus becorne a welcorne opportunity for N GOs to indirectly participate in judicial proceedings. Apart frorn being less costly and less tirne-consurning than rnounting a fu11 case amici can intervene in irnportant cases where there is no precedent and where there is a good chance to influence the developrnent ofthe law. 33 The ad hoc tribunals as weIl as the lec aIlow for the submission of amicus curiae briefs by NGOs as do the regional Human Rights COurtS. 34 Similar, to the initial practice ofthe European Court of lO Rule 85 ofthe ICC Rules ofProeedure and Evidenee: For the purposes ofthe Statute and the Rules of Proeedure and Evidenee b) Vietims may include organizations or institutions that have sustained direet harm to any oftheir propeny whieh is dedieated to religion, edueation, art or seienee or eharitable purposes, and to their historie monuments, hospitals [... ]. II Dinah Shelton, The Partieipation of NGOs in International Judicial Proeeedings, AJIL 88 (1994), 612, note 2 (but notably also NAFTA and its side agreements). l2 Notably, in the field of environmentallaw, the otherwise progressive outlook entailed in Agenda 21 rnakes no provision whatsoever for NGO panieipation regarding dispute settlement proceedings; See Chapter 39 of Agenda 21. II She/ton (note 31), 611, 638. However amici, unlike parties, cannot control the direetion of the action, they are generally not served documents in the ease, cannot offer evidenee, examine witnesses or eross-examine, cannot be heard without speeialleave from the eoun, not entitled to any cornpensation. l4 An. 74 ICTR Rules ofProcedure and Evidence: AChamber may, ifit eonsiders it desirable for the proper determination of the case, invite or grant leave to any State, organization or person to appear before it and make submissions on any issue speeified by the Chamber. See also An. 103 ICC Rules of Procedure and Evidence as weil as An. 74 ICTY. See Art. 37 (2) Rules ofProcedure ECHR, Rule 34 (I) Rules ofProeedure IACHR.

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Human Rights, the WTO Appellate Body has acknowledged its competence (and that of the Panels) to consider amicus curiae briefs, despite the absence of any regulation explicitly allowing it. 35 In sum, with the exception ofthe law ofthe sea, NGOs have been given the right to submit amicus curiae briefs in all areas. In practice, various organizations have successfully taken advantage of this procedural option. Numerous amicus briefs have been submitted to the criminal tribunals and the regional human rights COurts. 36 In the practice of the WTO dispute settlement procedures, however, amicus curiae briefs have only been considered in a limited number of cases. It is a difference worth mentioning given that at least in the practice of the European Court of Human Rights it has been shown that the Court found violations significantly more often in cases in which amicus briefs had been submitted. 37 As of now there is no conclusive evidence whether amicus brief submissions exacerbate the risk of conflicting judgments. At least in relation to the judgments most often cited as deviant from general ICI practice, namely the Tadic and Louizidou decisions, there is no conc1usive indication that they have been influenced by amici. Notably however, Amnesty International, in the Soering v. United Kingdom Case, did have influence in convincing the Court that the death row phenomenon constituted inhuman treatment in violation of Artic1e 3 ECHR. 38 The ECHR had admitted Amici Curiae briefs already during the late '70s see, e.g., Winterwerp v. Netherlands, 33 Eur. Ct. H.R. (Ser. A), 1979. 35 The WTO AB interpreted seek to include receiving unsolicited information without granting these entities a legal right to have their submissions considered, Art. 13 of the Dispute Resolution Understanding - undeniably a wide interpretation. 36 Among them, e.g., the International Lawyer Committee for Human Rights; Juristes sans frontieres as weil as the Max Planck Institute for Comparative Public Law and International law 37 Shelton (note 31), 637. In Brannigan and McBride v. United Kingdom. e.g., Judge Pettiti's dissenting opinion uses the brief filed by AI as does the concurring opinion of Judge Martens, who stated: "for my part, I found Ars arguments against so deciding persuasive, especially where Al emphasized developments in int. standards and practice;" Brannigan & McBride v. U.K., 258B Eur. Ct. H.R. (Ser. A) (1993), Concurring Opinion of Judge Martens, 3. It is noteworthy, that, e.g., the original indictment against Akayesu did not allege sexual violence. However, after inter alia an Amicus Curiae brief filed by the Coalition for Women's Human Rights in Conflict Situations, had requested the Rwanda Tribunal to amend the indictment to include sexual violence, in October 1997 Akayesu was facing an amended indictment. 38 Nevertheless, NGO involvement may enhance a one-sided focal point regarding the information which provides the basis for adecision. While this may certainly not play out in all instances, judicial institutions, affected by resource constraints which are overwhelmed by the case load (e.g. ICTR) may be affected.

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In addition, to such opportunities to participate injudicial proceedings there are numerous other options to engage in the implementation and enforcement of the respective norms. As before, the areas of environmental law, human rights and IHL have revealed the most significant NGO activity. Precise comparisons between these areas, however, are obstructed by the fact that in general each field displays preferences for different means of implementation. Environmental agreements, often designed as so-called framework agendas, are commonly implemented on the basis oflong-term projects which airn at capacity and institution building. The Desertification Convention, for example, foresees such programs and provides for effective cooperation with NGOs in the planning; implementation and supervision of their execution. 39 Occasionally, NGOs have even been entrusted to administer environmental agreements as a whole. The Ramsar Convention is the often-cited example. In relation to lliL, I confme myself to mention that as before, the ICRC on the basis of the Geneva Conventions, is rnandated to pursue a variety oftasks with a view to the implementation ofIHL. Quite differently, with regard to human rights quasi-judicial proceedings have gained the greatest importance as a means of implementation. 4o Absent explicit regulations, avenues for the participation of NGOs have been developed in the practices of the respective monitoring cornmittees. Transgressing its Rules of Procedure the Cornmittee against Torture considers all information received from NGOs. 41 Furthermore, under the Torture Convention NGOs may act as the mandatory of complaints regarding individual communications. This of course is plausi39 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought andlor Desertification; ILM 33 (1994), 1328, see Kyle W. Danish, International Environmental Law and the Bottom-Up Approach, A Review ofthe Desertification Convention, Indiana Journal ofGlobal Legal Studies 3 (1995),4 et seq. 40 In the area ofhuman rights only the Convention on the Rights ofthe Child, explicitly foresees seeking advice from NGOs as a means for implementation. See Art. 45 CRC, which reads: "In order to foster the effective implementation of the Convention and to encourage international operation in the field covered by the Convention: a) ... The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as j( may consider appropriate to provide expert advice on the implementation ofthe Convention in areas falling within the scope oftheir respective mandates." (emphasis added). The CRC has also arranged for attendance by NGOs at pre-sessional working group meetings, where the Committee plans its work for the next session; Gerison Landsdown, The Reporting Process under the Convention on the Rights ofthe Child, in Philip Aiston/James Crawford (eds.), The Future ofUN Human Rights Treaty Monitoring (2000), 119. 41 lnstead of confining itself to merely consider information received trom NGOs in consultative status with ECOSOC.

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ble given that most victims oftorture are held in detention. 42 In addition, the 1503proceedings of the Commission of Hwnan Rights as well as the UNESCO complaint procedure are open to NGOs and frequently used. 43 Approxirnately 40 percent of complaints at the UNESCO are received from NGOS. 44 Moreover, NGOs are involved during the drafting stages and discussion of General Comments (CESCR)4S and they provide so-called "shadow" reports that either supplement or contradict reports submitted by States Parties. In summary, human rights, environmentallaw and IHL display far greater NGO involvement on the level of norm implementation and norm enforcement than the law ofthe sea or WTO law. All in all the law ofthe sea stands out as the sector in which NGO involvement in norm implementation is de facto absent - even though in theory, Art. 20 of the Statute of the International Tribunal for the Law of the Sea entails a quite progressive frame for NGO participation in international judicial proceedings. 2. Conclusion: Unity and Diversity Regarding the Imp/ementation and Norm Enforcement Process NGO involvement constitutes a se1f-enforcing process. That is to say ifNGOs are already involved during the early stages of the adoption and codification of legal instruments they are in a much better position to strengthen their role throughout the subsequent implementation stages. Consequently, the reasons given for the uneven involvement ofNGOs throughout the norm-creation process apply as weIl on the level of norm implementation. Before turning to the consequences these fmdings entail for the international legal order as such I should mention that an in an apart from the afore-mentioned

42 Rule 90b ofthe HRCs Rules ofProcedure may allow NGOs to represent the alleged victims and provide legal counsel in the submission of a petition. CERD may accept a communication submitted by others on behalf of an alleged victim when the victim is unable to submit the communication hirnself - Rule 91 B CERDs rules of procedure. 43 ECOSOC/Res. 1503 (XLVIII), May 27,1970. See also Res. I (XXIV) ofthe SubCommission on Prevention of Discrimination and Protection of Minorities, August 13, 1971, UN Doc E/CN.4/1070, E/CN.4/Sub.21323. 44 The figure dates from 1999, see Hempel (note 18), 130. 4S At times NGO proposals are even incorporated in the final text as they stand.

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differences also some tendencies towards assimilation rather than diversification became obviouS. 46 Firstly it is noteworthy, that the general mIes for NGO participation within the different legal fields were either drafted in light of or even copied the wording of Article 71 UNC. 47 Secondly, there is a visible tendency towards a110wing amicus curiae briefs in judicial fora of a11 sectors. Thirdly, at tirnes NGOs themselves are fostering assimilation. Numerous NGOs, eager to rernain competitive on the ever increasing market ofpublic interest lawyering have embarked on new terrain. Most obviously, NGOs with an original focus on human rights such as Arnnesty International and Human Rights Watch have incorporated hurnanitarian law issues in their agendas, thereby introducing human rights methods, e.g., the policy of denunciation to the field ofIHL. Human Rights Watch's Report "Tbe Road to Abu Grahib" is a vivid example indeed. While the process of diversification and its presumably adverse consequences have received the greater part of attention, it is worth keeping in mind that the process ofunification implicates problems ofits own.

IV. General Conclusion: Unity and Diversity in Relation to tbe Role of NGOs Which consequences do these fmdings imply for the normative framework of international law as such? First of a11, if it is accepted that NGO involvement constitutes a self-enforcing process, the seemingly insignificant differences of today might turn into visible gaps tomorrow. What then should we make of the fact that the development and implementation ofHuman Rights and Environmental Law is increasingly influenced by NGOs while in other areas law creation and enforcement rernain limited to States?

46 Working Group on Review of Arrangements for Consultation with NGOs May 29, 1996 in its final report suggested: The Whole UN System, inc\uding UN bodies and eonferenees, dealing not only with eeonomie, soeial and sustained eeonomie growth and sustainable development issues but also with disarmarnent, finanee, trade law, humanitarian issues and human rights questions, should be open to partieipation by NGOs; UN Ooe EI1996/58/Ziff. 1.1. 47 In other eases, the possibility for NGO involvement is often linked to their aeereditalion by the ECOSOC in aeeordanee with Art. 71 UNe.

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Do these differences constitute cause for alarm? As ofnow I do not think so but there is potential to argue that they indicate an alarming tendency for the following reasons: First of all, in pushing for a specific cause, NGOs act as catalysts of further specialization of each individual regime in which they are active. In fact their comparative advantage rests with their specialized agenda and their specific expertise. The process is enhanced by the fact that NGOs, as law entrepreneurs constantly push to increase the legal density of each regime, thereby contributing to an ever increasing complexity and the production of leges speciales. As such, this may not be deplorable. However, quite commonly NGOs employ narrowly specialized experts without any background in internationallaw. In consequence, it seerns highly doubtful whether NGOs are conscious of both the need for a common framework and the requirements of such a framework; in other words, the need for a common understanding ofthe overarching principles. It may not be purely coincidental that in particular the principles ofhuman rights law and environmental law - areas which overall display the most significant NGO impact are not always in harmony with principles oftraditional, sovereignty-based public international law. 48 Needless to say that this of course is not to be accorded to NGO influence alone. Secondly, especially in environmental law NGOs are elose to entering lawmaking fora on an equal footing with States. In comparison, they seem t6 have a significantly lesser impact on the formation of customary mIes. Over time the irnportance of conventional law could rise in this area while the importance of customary law could be reduced. 49 Furthermore, ifNGO influence is increased in the way foreseen by the United Nations Environment Program, i.e., to "broad participation in environmental decision-making" - how much longer then can we speak of treaties in the traditional sense, i. e., treaties between States? How much longer can such treaties then be reconciled with the State-to-State focused principles laid out in the Vienna Convention ofTreaties? States negotiate mIes on the basis and the expectation of reciprocity; they have traditionally entered into treaty relations of a synallagmatic nature. NGOs on the other hand operate on no such basis. Instead, they are advo48 Martti Koskenniemi, Fragmentation oflnternational Law, Leiden Journal oflnternational Law 15 (2992), 553 (561). 49 Or the way of creating customary international law might change in order to accommodate these changes Jonathan Charney, Universal International Law, AJIL 87 (1993), 529; Stephan Hobe, Individuals and Groups as Global Actors: The Denationalization of International Transactions, in: Rainer Hofmann (ed.), Non-State Actors as New Subjects of International Law (1999), 134.

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cates of a specified public interest and for the most part they will not be equally bound by the terms ofthe agreement they are influencing. In areas in which NGO influence is increasing international norm creation is likely to eventually depart from the traditional concept of inter-State treaty negotiations and approximate something closer to domestic law making. In the same vein, in areas in which NGO activity is predominant, this may lead to a change in the way international relations are put into practice. The ability of States to manage problems in the old ways, i.e., through foreign ministry diplomacy might become more limited in contrast to those areas which remain to be the exclusive domain ofthe State. Troly, most ofthese consequences would only play out in a more distant future. Potential for conflict will, however, be enhanced by the fact that as advocates of the public interest, NGOs, are forum shoppers par excellence. Indeed, as advocates they should be. If given legal standing they will push to exhaust every possibility to enforce a role. Surely they will resort to every available enforcement mechanism thus increasing the potential for conflicting judgments.

C. Unity and Diversity Regarding the Status of TNCs I now turn to the second part of my presentation, the question of unity and diversity in relation to the status oftransnational corporations. Here, given that the analysis focuses on more formal ways of participation, I can be fairly brief. Even thoughthe number of TNCs exceeds the number of NGOs by far and despite the fact that their turnover and wealth grows faster than the world social product, TNCs have not acquired a status similar to that of NGOs. Much to the contrary, in all areas under consideration, the role of transnational companies in the norm creation and norm-enforcement-process appears to be a singular feature and more or less only an evolving topic in academic discussion. Let me shortly summarize the few most-commonly cited instances for TNC participation in law creating or law enforcing fora. Unlike before, these examples do not allude to a wider tendency, rather they are evidence of sporadic instances. Multinational companies have had an advisory function during the United Nations Law of the Sea treaty negotiations and they have likewise sporadically been involved in some ofthe GATIIWTO negotiations. 50 Notably, however, the conspicuous absence of effective corporate lobbying to advance market-opening so Jonathan Charney, Transnational Corporations and Developing Public International Law, Duke Law Journal ofInt. Law (1983), 748.

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arrangements during the Uruguay Round has also been emphasized. 51 Further, in the realm of lliL some chemical companies participated in the conc1usion of the Chemical Weapons Convention in 1993. With regard to environmentallaw, the 1992 report of the UN Conference on Environment and Development (UNCED), emphasizes that "[ ... ] transnational corporations, [' ..J should be juli participants in the implementation and evaluation 01 activities related to Agenda 21. "52 As of now this has largely remained a hollow promise. Similarly, on the norm enforcement level1NC activity is scarce. Notably, both WTO lawas well as the Law of the sea accord 1NCs direct standing in judicial proceedings under narrowly defmed circumstances. Under WTO law it is the Agreement on Pre-shipment inspection whereas the law of the sea grants standing to 1NCs in relation to seabed exploitation disputes. 53 Thus far, neither provision has gained any practical relevance. However, for the sake of comprehensiveness, it bears mentioning, that 1NCs do enjoy direct standing in many international comrnercial arbitration proceedings where they do have quite a role to play. It seems fairly safe to conc1ude, that if it was not for their sheer power - on the forrnallevel of internationallaw 1NCs barely existed. 54 They have not yet reached any significant legal status in international public law. Solely in the area ofWTO law the situation is a little more complex in that 1NCs have sought informal ways to exert some influence. Indirectly, they initiate the majority of cases as they are the ones who bring the trade restricting practices of another State to the attention of their host State. Nonetheless, overall merely the area of human rights law stands out in that it displays increasing activity with a view to regulate 1NCs methods of operation. The comrnon modus operandi is the development of codes of conduct; soft law

51 Peler Malanczuk, Multinational Enterprises and Treaty-Making, in: Vera GowllandDebbas (ed.), Multilateral Treaty-Making (2000), 63. 52 See UN Doc. AlCONF.151/26 (vol. I1I), "Strengthening the Role of Business and Industry," August 14, 1992, Chapter 30. 53 Cf Art. 4 of the Agreement on Pre-shipment Inspection. While debate continues whether or not Art. 20 (2) ofthe Statute ofthe International Tribunal for the Law ofthe sea provides access to transnational corporations, Art. 187 c1early accords standing to TNCs. S4 Thus, the conc1usion reached in the Third Restatement ofU.S. Foreign Relations Law according to which "The multinational enterprise or corporation is an established feature of international economic life, but it has not yet achieved special status in international law [.. .]" remains valid today; Malanczuk (note 51), 46.

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regulations of a reconunendatory nature. 55 Such codes have been drafted by the ILO, the International Chamber of Conunerce and the OECD. For the most part, NGOs make up the driving force behind the development of such codes of condUCt. 56 However, the United Nations Secretary General's Global Compact, is also calling upon businesses to "support and respect the protection 0/ internationally proclaimed human rights within their sphere 0/ influence [. ..J. "51 In sununary, the furthest TNCs have come on the level ofpublic international law is that they have - presumably at least initially rather involuntarily - become the addressees of non-binding codes of conduct. Leaving aside their significant power to informally influence international decision making, by and large, it would seem prernature to try and evaluate potential implications for the unity or diversity ofintemationallaw. Still, let me layout two presumptions. Firstly, the absence of TNC participation within norm-creating venues is most of all due to the fact that TNCs for a long time have not sought such a role. As if never rninding globalization, TNCs continued to lobby first of all on the national level. However, TNCs show a growing interest in international fora, as the process of globalizationcontinues and as NGOs persist to strife for more rigorous regulations ofTNC conduct they have already given up their role as passive bystanders and it is most likely only a question of time until their informal activities will translate into more formalized ways of influencing international decision-rnaking processes. In light oftheir enormous power and influence on the national level, the process could go rapid, supposedly even faster than the proliferation of NGOs. Tbe concerns I voiced earlier with regard to the unorganized proliferation of NGOs and the centrifugal forces this rnay introduce to the legal order likewise apply. Secondly, for the time being TNCs are almost exclusively addressed within the area ofhuman rights. Here as opposed to all other areas we see a proliferation of codes of conduct. 58 What is the problem ifTNC behavior is regulated only in one 55 Within the United Nations there have been protracted negotiations ofa Draft Code of Conduct for Transnational Corporations since 1977. Unsurprisingly, many nations which initiated the process in the 1970s have repealed their efforts ever since they started to benefit from private foreign investment; Malanczuk (note 51), 53. 56 NGOs have pointed out severe malpractice, e.g., in Nike's Asian factories or in the so-called Maquiladoras, export-processing factories along the U.S.-Mexican border. 57 Moreover, in August 2003, the UN Commission on Human Rights adopted norms on the responsibilities ofTNCs and other Business Enterprises with regard to human rights; UN Doc. ElCN.4/Sub.2/2003/I21Rev.2 (2003). 5B The proliferation of such codes at least partially reflects the failure of govemments to implement effective labor legislation and the failure ofintergovemmental institutions, such

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area and not in others? Inevitably this area oflaw will become more specific in as much as it incorporates the TNC dimension. Specification on the implementation level, e.g., the creation of new monitoring bodies would follow suit. Furthermore, in general non-binding legal instruments have proved to be the forerunners of binding rules - over time these codes of conduct might evolve into binding law thereby obligating TNCs and thus elevating their legal status predominantly in the area ofhuman rights law. On the whole, however, I conclude by stating that the status of TNCs on the plain ofinternationallaw is still too weak to allow any conclusive indications as to the unity or diversity of internationallaw as such.

D. Unity and Diversity Regarding the Status of Individuals Let me now turn to the fmal part of my presentation. Here I will address the question whether the different areas under consideration have accorded a similar legal status to individuals. The notion that individuals may hold rights by the direct effect of international law has been recognized for some time, starting with the 1928 advisory opinion of the Permanent Court of International lustice on the lurisdiction of the Courts of Danzig. 59 Today, almost 80 years later there is evident consensus that in principal, individuals have gained some limited legal personality in internationallaw. But is this equally true for all areas? In trying to answer this question, I commence from the premise that rights,. obligations and the capacity to bring claims are the decisive criteria for legal personality.6O By and large, in the areas of environmentallaw, the law of the sea and WTO law, individuals have neither been granted rights nor have they become obliged in any noticeable manner and generally they have no legal standing. As ever there are exceptions to such a general rule. However, here they are truly marginal and I merely summarize them for the sake of comprehensiveness. In theory, individuals as the ILO, to enforce intemationally agreed basic minimum labor standards around the world; Neil Kearney, Corporate Codes of Conduct: The Privatised Application of Labour Standards, in: Sol PicciottolRuth Mayne (eds.), Regulating International Business: Beyond Liberalization (2000), at 208. 59 PCIl Reports 1928, Sero B, No. 15, at 17-18. 60 A subject of international law is any actor in the international system upon which specific rights and obligations under international law are conferred; Reparations for Injuries suffered in the Service ofthe United Nations, ICJ Reports 1949, 174 (179).

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have a limited right to explore and exploit the seabed and they have been given legal standing before the Seabed Dispute Chamber. 61 Regarding environmental law the Aarhus Convention provides an individual right to environmental information and access to justice at the national level. 62 WTO law has a dearer individualoriented dimension,63 most obviously reflected in the provisions of the Agreement on Trade Related Aspects ofIntellectual Property Rights (TRIPS).64 Still, thus far no direct rights have been accorded to the individual,6s and there is nothing more than a good chance that private economic actors could become recognized as legal subjects ofWTO law in the future. 66 Human Rights Law and IHL differ markedly from the foregoing areas in that the protection of the individual constitutes their basic tenet. Even if the subject resists large-scale generalization there is litde doubt that in the area of human Art. 187 Convention on the Law ofthe Sea. Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters; Alexandre C. KisslDinah Shelton, International Environmental Law, 678. On the regional level the North American Agreement on Environmental Cooperation goes even further. Art. 6 envisages private access to remedies and incIudes an international cornplaint procedure. Art. 6 (2) reads: "Each Party shall ensure that persons with a legally recognized interest under its law in a particular matter have appropriate access to administrative, quasi-judicial or judicial proceedings for the enforcement ofthe Party's environmentallaws and regulations." Even though the trust aspect ofthe common heritage concept in international maritime law refers to mankind as its trustee the law ofthe sea report has revealed no practice from which the legal personality of individuals could be deduced. Similarly, environmental agreements scarcely address individuals apart from calling for human health and weil being within their preambles and the concept of intergenerational trustee; see Hobe (note 49), 123. See also Rüdiger Wolfrum, The Principle of the Common Heritage of Mankind, ZaöRV 43 (1983), 312. 63 The situation und er WTO law is different in that WTO Panels have explicitly noted that the legal sphere of protection of WTO law incIudes individuals and other non-State entities; see Tietje (Questionnaire International Economic Law, in this vol., note 73), highlighting that: it would be entirely wrong to consider that the position of individuals is ofno relevance to the GATT/WTO legal matrix The purpose ofmany ofthese disciplines, indeed one of the primary objects of the GATTIWTO as a whole, is to produce certain market conditions which would allow this individual activity to flourish. 64 The Agreement's main purpose is to require member States to accord substantive intellectual property rights to private actors. 65 Tietje, Questionnaire International Economic Law, in this vol., note 77. The Panel confined itselfto note that "wh ether there are circumstances where obligations in any ofthe WTO agreements addressed to Members could create rights for individuals which national courts must protect, rernains an open question. 66 Tietje, Questionnaire International Economic Law, in this vol., note 76. 61

62

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rights law individuals enjoy rights and that States are bound by human rights nonns by direct effect of law. 67 In how far private actors are indeed bound by human rights law, however, remains subject ofan ongoing debate. Without going into further detail, it is quite obvious that international humanitarian law likewise confers rights as weIl as obligations upon individuals. In these two areas ofinternationallaw the individual dimension has clearly translated into individual rights and obligations and it is here that individuals have gained a limited legal personality. The situation is rnirrored on the irnplementation and norm-enforcement level. In the area of human rights law the possibility of individually setting in motion procedures designed to protect individual rights is clearly provided for. Since the entry into force ofProtocolll, individuals can submit cases directly to the European Court ofHuman Rights. In the case of criminal courts thus far mere1y Article 75 of the Statue of the ICC entails a clear indication for an eventual right of victims to claim redress for violations ofIHL. Furthermore, the individual obligations imposed by virtue ofIHL are enforced by the ad hoc Tribunals and the ICC.

E. Conclusion: Unity and Diversity Regarding the Status of Individuals To sum up, in IHL and human rights law individuals have been given a limited legal status. The remaining areas, even though they do at tirnes leave room for theoretical debate, have not accorded a comparable status to the individual. Individuals remain completely exduded from the ICI and the WTO dispute settlement system and regarding the law of the sea Tribunal their access is restricted merely to disputes in relation to a defined area, i.e., the seabed and ocean floor. Obviously, the predominant reason for this diversity sirnply lies in the idiosyncrasies of each respective legal field. As before, the problem I see with regard to the unity of international law is that if individual areas accord legal personality to certain subjects while others, or the general legal framework, do not - this will lead to increased specialization of these areas. The potential for conflicts is obvious as long as international fora have to reconcile the individual-dimension with traditional inter-State law. A case in point is the Tadic-Nicaragua debate. Quite clearly, the Tadic decision departed from the Nicaragua judgment, because the ICTY was addressing individual responsibility as opposed to the question of State-responsibility which the ICI had addressed at the time. On a more practicallevel, granting 61

seq.

See Rene Provost, International Human Rights and Humanitarian Law 2002), 16 et

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individuals direct access to international jurisdictions over time will render diplomatic protection increasingly unnecessary. Consequently, inter-State litigation will gradually become rarer, thus depriving internationaljurisdictions, e.g., the ICI, of a significant share of their caseload.

F. General Conclusion All in all the areas of environmental and human rights law as well as IHL display far greater non-State actor involvement throughout the norm-creation and norm-implementation process. Precise comparisons are difficult - nobody has yet counted the words that can actually be attributed to NGO influence in the respective treaties - but on the whole it is possible to draw some broader outlines. Environmentallaw has displayed the highest degree ofNGO involvement. The area ofhuman rights law on the other band stands out as being the most progressive regime towards the recognition of different non-State actors, namely TNCs and individuals. In WTO law there is now a visible tendency towards greater NGO participation as well as in the direction of according legal status to individuals. As ofnow, however, WTO law stands back in comparison to human rights, IHL and environmentallaw. Finally, the law ofthe sea has not revealed any such tendency - it is this area of law in which non-State actor activity is by and large insignificant. If law is a product of social reality and if our reality is diverse, then clearly so must be the legal order. The proliferation ofnon-State actors and their increasing legal recognition will naturally lead to greater density and growing complexity of public intemationallaw. Increasingly these actors bring new subject-matters, new needs and new claims to the compass of different areas of international law. Unlike States however they are not "general actors," they are not active in each and every sector of internationallawand thus they are specialized actors. Quite naturally then. their continuing evolution will play out differently in different subareas ofinternationallaw. The diversification we see today, i.e., the predominance of non-State actor activity in human rights, environmental law and IHL reflects this assumption. One of the main concerns that have been voiced in reference to the dangers of diversification of the legal order is not resistance to the phenomenon as such but rather to the fact that diversification is taking place without any overall plan?68 Cleary diversification is a natural consequence of the proliferation of new actors. 68

Sir Rohert Jennings, The Role of the ICJ, BYIL 68 (1997), 59 et seq.

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The status NGOs have acquired up until today is in large part due to their own eiforts rather than to any overall systematic approach from within the system Even though States have become increasingly interested in and to some degree dependant upon the contribution and participation of non-State actors, the initial movement which has led to this situation emanated from outside the State system Thus, it still seems timely to remind us that if the unorganized proliferation of nonState actors is tolerated, least of all will it be possible to plan and channel its sideeifects. Diversification seems inevitable, whether there is an overall plan, however, remains a matter of choice. Rainer Hofmann: Thank you very much indeed for the excellent presentation. I think it became quite dear that, in contrast to the topics we dealt with this morning, in particular in contrast to the issue of unity and diversity in the formation and relevance of customary internationallaw, here - as concerns the role of subjects in the normcreating and norm-irnplementing process - we seem to be in the presence of a process where we do have some diversity. I should just like to repeat what you have said several times, namely that we have a quite strong diiference between International Humanitarian Law, Human Rights Law, and Environmental Law on the one band, where, as reflected in a nwnber of international documents, NGOs playa much stronger role than in the field ofthe Law ofthe Sea which seems to be rather immune against these developments, and WTO Law. Then you dealt with the situation as concerns individuals. Here we have a situation where legal personality has been attributed to individuals in some areas, again in particular in International Hwnanitarian Law and Human Rights Law. So, there seems to be a contrast to the situation we identified this morning. There is a strong tendency of diversity in internationallaw when it comes to the question of non-State actors in internationallaw. And, very irnportantly, you have also shown some of the dangers which are linked to that development, and I am sure that these dangers will be a focus of the discussion. But before we have this discussion, I would like to give the floor to our panelists - in the alphabetical order which means that Gerhard Hafuer from Vienna will start.

Comment by Gerhard Hafner I concur with most of which was said by Mr. Geiß, in particular regarding international criminallaw. His report is a very comprehensive and, nevertheless, also extensive report on the increased role ofnew actors in the international legal order. In only one point, I would like to depart from his view in so far as I do not think that TNCs really bave a similar role like NGOs in the internationallaw-making process. But as to the other actors they indeed perform an increasingly important role. I only wanted to add some further comments in order to show this new role and as well the consequences with respect to the unity of the global order. Certainly the best example is the ICC as far as the role of individuals in this legal order is concerned. In the context ofthe elaboration ofthe Rome Statute, NGOs performed an active role in the norm-creating process. Of course, during the conference, and here I speak from my own experience, the NGOs - there were more than 200 accredited to the Rome Conference - could not act on their own, they could only act through the States. But nevertheless they exercised a certain power on the negotiations between States. They bad elose contacts with various delegations, in particular those belonging to the group of like-minded countries, and received through them all information they needed. Towards the end of the negotiation process at Rome, they made attempts to directly influence the group of likeminded countries conceming the position regarding the further negotiation process. At this moment, they exercised a direct impact on the negotiation process since they made a head counting conceming the views expressed with regard to the alternatives presented by the Cbairman of the Committee of the Whole. The publication ofthis head counting revealed that the vast majority was favoring one alternative in contrast to the major powers. The sheer number of the first group as publiely shown compelled the Chairman to propose a fmal text that favored to certain extent the position held by this group. Here I do not share completely the view ofMr. Geiß that NGOs cannot constitute an autonomous body in internationallaw. Besides the ICRC, other NGOs also presented excellent papers during the negotiation process. These papers offered various arguments that due to their seriousness bad a convincing effect on the delegations and could be used by them Very often delegations do not possess the necessary qualifications in order to follow discussions on some extremely complicated matters. In such situations NGO papers were very helpful in reaching a decision. A similar effect bad the participation in national delegations of persons, who formerly acted in NGOs and had the necessary knowledge of the matter discussed.

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This was very helpful to the delegations in making up their mind on very complex issues and to reach adecision. So they had in this case - I would say - a positive influence on the nonn-creating process. But the ICC is also an example for the participation of NGOs in the law-enforcement process, because it was in my view their victory that the prosecutor was given a propria motu power. In this regard, the prosecutor is not dependant on any State or the Security Council. He or she can act on bis or her own - and based only on information from NGOs. That means that NGOs can supply the relevant information, on the basis ofwbich the prosecutor can then act. Although this activity of the prosecutor is under scrutiny by the pre-trial chamber, the reliance on information from NGOs grant them a certain influence on the law-enforcing process, an influence that cannot be ignored. So, as a conclusion on this point, this increase in the power ofNGOs can lead - as also Mr. Geiß observed - to a new orientation of internationallaw. Whereas the fonnulation ofa treaty results from the positions ofStates, wbich are based on perceptions such as sovereignty, in search of the regulation of power, NGOs do not necessarily apply the same concept. But in my view one can hardly say which positions and interests the latter present. Usually they understand thernselves as representing mankind, separated from the community of States, and representatives ofthe civil society. General internationallaw already did react in this regard in so far as the community of States is not considered as the only actor to which international obligations are owed. In this sense, the articles on State Responsibility are very clear; Article 33 declares that the obligations of a responsible State may be owed not only to another State or to several States, but also to the international community as a whole that is to be separated from the community ofStates. The question only remains as to who may represent the international community as a whole. Nevertheless, this reference to the international community wbich indicates the growing influence ofNGOs in the nonn-creating as weIl as in the nonn-enforcing process is closely linked - in my view - to the growing number of norms with an erga omnes effect in international relations. And I think this goes more or less hand in hand with what Mr.Geiß stated conceming the difference between, on the one hand, the Law of the Sea and, on the other hand, Human Rights Law and International Humanitarian Law. This is one of the reasons why we have certain parallelism with regard to these fields ofinternationallaw. In my view, the activities of NGOs in this respect compensate the lack of interests of States in invoking responsibility if no injured State exists. In such a situation, NGOs take the role of invoking the responsibility in the interest - obvi-

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ously - of mankind. A major problem relating to NGOs is their eomposition that it is hardly eontrollable. Therefore, the course that internationallaw would steer in the next future is hardly foreseeable and I also share the concluding remarlcs Mr. Geiß has made in this respect. Mr. Geiß also drew the attention to the role of individuals in internationallaw, and this is, of course, well known. What we face today is - as I eall it - an "emaneipation of the individual from the States" in international law. It seems that individuals eould deserve an independent status in internationallaw. They are entitled to institute proeeedings against aState to proteet their own interests. But from this fact eertain problems arise, and I would identify three eases. The fIrst is the ease of diplomatie proteetion, the seeond is the issue of eountermeasures, and the third is the relation between individual and State responsibility.

As to diplomatie proteetion, it is generally aeknowledged that the right to exereise diplomatie proteetion is the right ofa State and not ofthe injured individual, so that this right is subject to the will of the State. That means that the question, therefore, arises whether aState can exereise diplomatie proteetion even if the individual has at the same time already instituted proeeedings before international hwnan rights bodies, for instance the European Court ofHuman Rights. The present text of Draft Article 17 on Diplomatie Proteetion as elaborated by the International Law Commission so far seems to give an affIrmative answer so that it is possible that the injuring State will beeome target oftwo processes: the fIrst is the exereise of diplomatie proteetion and the others are proeeedings before an international human rights institution. As to the latter, the International Law Commission already diseussed whether the rule of the exhaustion of the loeal remedies should also include the resort to an international human rights body. As yet, this idea was rejected. But in any ease there are two levels oflaw enforeement - on the one hand, the level of the individual's aetivities, and on the other hand, the level of State aetivity - and we do not know whether both eoincide or how they will influence one another. Similarly, as to eountermeasures, the question is whether aState ean take countermeasures in the exercise of diplomatie proteetion, if an individual has already instituted proeeedings, for instanee, before the European Court ofHuman Rights. The text of the articles on State responsibility is relatively clear and the eommentary is even clearer, stating that the resort to an international human rights body by an individual does not affeet the right to take eountermeasures. So, again, there is a twofold aeeess to measures against the State whieh has injured an individual.

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Finally, there is the question of the relation between individual responsibility and State responsibility. In line with the judgments ofthe Nuremberg and Tokyo Military Tribunals and in particular with the creation ofthe ICTY, ICTR and the ICC, we face a revival ofinternational criminallaw and ofindividual responsibility. Therefore, the question was raised as to the relation between this kind of responsibility and State responsibility. It could, for instance, be asked whether States can also comrnit genocide like individuals, or become responsible for the comrnission ofwar crimes or crimes against humanity. An affirmative answer is in particular plausible if the relevant persons act in their capacity of State organs. However, it is not only the question ofthe identity ofthe nonn, but also ofthe interrelationship between these two kinds ofresponsibility. As yet, general internationallaw separates both categories and denies any mutual influence. This legal concept is corroborated by the articles on State responsibility (Article 58) and the ICC Statute (Article 25 (4)). However, it could easily be argued that individual responsibility could lead to a restriction of State responsibility and it would be quite interesting to scrutinize whether recent events would warrant such a solution. The practice of the UN Security Council - and this is a subjective impression - seems to go into this direction, namely to decrease the importance of State responsibility, since it increasingly replaces collective sanctions by targeted sanctions that address individual persons. Of course, a similar normative competition could arise between the civilliability and State responsibility in the field of international environmentallaw, but some further analysis would certainly be necessary in order to shed some light on this topic. So, Mr. Geiß is right when he states that the emergence of different actors in the international system increases the risk of greater diversification ofthe international system. Certainly, any legal system provides its own means to setde conflict between norms, such as lex specialis or lex posterior. However, before deciding whether the existing principles are adequate means for this purpose, the reasons of conflicts ofnorms must be assessed. It seems that international doctrine is still in this phase of assessment. Mr. Geiß further asks who invited these new actors. In my view, the answer is not difficult to fmd: it were the States themselves that invited them. But they had no other choice since they were pressed by these actors and their activities to accept them as guests at their table.

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This development could contrihute to a certain diversity of international law, hut it is not necessary to regret it. Yet, what needs to he done in any case is to find ways and means to overcome the risks inherent in this process.

Comment by Jordan J. Paust Dr. Robin Geiß's informative and useful paper on "Subjects of International Law" offers a partial exploration ofvarious roles ofindividual and group actors in the international legal process and provides important recognitions. However, the focus on internationallawand institutions is at times too formalistic and inhibiting of recognition of numerous forms of participation and a far richer role by nonState actors in normative formation and sanction processes. From a realistic jurisprudential perspective, normative formation, application and sanction processes should be viewed more comprehensively, more realistically, and less formalistically. In some respects, the various blind persons who in a well-known metaphor touch an elephant at certain places on the elephant's body can offer partly relevant recognitions ofthe nature or reality of an elephant. The independent recognitions can be true or objective in a limited sense, but when considered separately they are most incomplete. Similarly, identification of partial roles and forms ofparticipation can be useful; but ifthey are only partial they are, by defInition, incomplete, and incomplete recognitions can be misleading.

An example of a formalistic but unnecessary assumption appears when the author asserts that Article 38 ofthe Statute ofthe ICJ lays down a "rule" regarding the nature of customary international law, which he assumes must be "Statecentric." However, Article 38 ofthe Statute merely addresses a competence ofthe ICJ and does not even formalistically limit customary internationallaw that the Court can utilize to that which is evidenced merely in a "general practice accepted as law" by States. Even from a formalistic perspective, it is quite informative that the word "State" does not appear in Article 38 (I) (b), although it appears elsewhere in the Statute ofthe ICJ' and the UN Charter. 2 Additionally, the focus ofthe Statute and the Charter more generally is not merely on the "State," but also expressly includes other actors such as "organizations,"l "nations,"· "peoples,"s

, See, e.g., Statute ofthe ICJ, Artic1es 34 (I), 35 (2)-(3), 36 (2)-(3), 38 (I) (a). See UN Charter, Articles 2 (4), (7), 93. 1 See UN Charter, Articles 52-54 ("regional arrangements or agencies," "regional arrangements," "regional agencies"); Statute ofthe ICJ, Artic1e 34 ("public international organizations"). 4 See, e.g., UN Charter, Artic1es I (2), (4), 55; Statute ofthe ICJ, Artic1e 38 (I) (c). The "nation" as actor can be different from a "State." See, e.g., James L. Brierly, The Law of Nations 118-119,511> ed. (1955); Henry Wheaton, Elements ofInternational Law 27, 2nd ed. (1880). S See, e.g., UN Charter, preamble, Artic1es I (2),55. 2

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and individuals. 6 Thus, the drafters knew how to use the limiting word "State," but they chose not to attach such an unrealistic limitation to Article 38 (1) (b) of the Statute with respect to customary internationallaw. This is not unusual, since it had long been recognized that the two primary elements of customary international law, general patterns of behavior and general patterns of opinio juris (or legal expectations, not "consent"), are patterns in which various actors can and do participate. 7 Dr. Geiß abandons such "State-centric" assumptions, however, when he aptly recognizes that NGOs participate in what he tenns the provision of "meaning to ["customary"] legallaws and nonns." More generally, he provides realistic recognition ofvarious roles and fonns ofparticipation by NGOs in normative creation, application and sanctioning that invite further attention to actual patterns of participation and influence. Bacldng away from a more comprehensive focus on NGO participation in normative formation, however, he generalizes later that NGOs seem to "have a significantly lesser impact on the formation of customary mIes" than on international agreements, presumably because he can demonstrate formalistic arrangements for NGO participation in the formation of international agreements but seerns to miss a point made earlier in his paper that non-State actor "ways of possible influence are manifold, diverse and often enough opaque." Indeed, non-State actors can and do participate in the shaping of attitudes (including expectation and values) and behavior that are relevant to the content of both customary internationallaw and international agreements in numerous obvious and less obvious direct and indireet ways. Such fonns of participation even relate to potential "diversity" that allows a dynamic process of "unity" to occur. One should seek a more comprehensive awareness of actual patterns of participation and actual strategies used by private individuals and groups to influence patterns of legal expectation and behavior as weIl as to achieve various sanction objectives. 8 When one views sanctions realisticaIly, one can more readily identify 6 See, e.g., UN Charter, preamble ("dignity and worth of the human person," "equal rights ofmen and women"), ArticIes 1 (3) ("human rights"), 8 ("men and women''), 55 (c) ("human rights ... for all"); Statute of the ICJ, Article 38 (I) (d) ("teachings of ... publicists"). 7 See, e.g., Jordan J. Paust, International Lawas Law ofthe United States 3-6, 2 nd ed. (2003); Jordan J. Paust, The Complex Nature, Sources and Evidences of Customary Human Rights, Ga. 1. Int'1 & Comp. L. 25 (1995/96), at 147. 8 See generally Lung-ehu ehen, An Introduction to Contemporary International Law 76-81, 2nd ed. (2000); Paust, (note 7), at 3-7;' Harold Hongju Koh, International Law as Part ofOur Law, Am. J. Infl L. 98 (2004), at 43,55-56; Jordan J. Paust, The Reality ofPrivate Rights, Duties, and Participation in the International Legal Process, Mich. 1. Int'1 L. 25 (2004), at 1229.

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various roles that individuals and groups play in political, diplomatic, economic, juridic, and power-oriented sanction processes. 9 Such an awareness can also aHow recognition of potential roles and sanction strategies that might be employed by non-State actors. It is also important to recognize that State elite and institutional decisions are subject to a "process of review" in which private individuals and groups can participate. 10 Such participation can involve varied levels of acceptance or rejection of decisions and affirmation, modification, or termination ofnorrnative content over time. As Myres McDougal, Harold Lasswell, and Michael Reisman remarked: "Most of us are perfonning ... these ... roles without being fully aware of the scope and consequences of OUT acts. Because ofthis, our participation is often considerably less effective than it might be. Every individual cannot, of course, realisticaIly expect or dernand to be a decisive factor in every major decision. Yet the converse feeling of pawnlike political impotence, of being locked out of effective decisions, is an equally unwarranted orientation. The limits of the individual's role ... are as much a function ofhis passive acquiescence and ignorance ofthe potentialities ofhis participation as ofthe structures ofthe complex human organizations ofthe contemporary world. "11

Dr. Geiß rightly notes that it is comrnonplace today to recognize that human rights law involves rights of individual human beings. However, bis paper is silent about the many duties of individuals recognizable under human rights law. As documented in a study of human rights duties of private corporations, several human rights instruments create private duties expressly or by implication. 12 Many instruments recognize or create private duties in preambular provisions as weH as in particular articles. 13 A number of instruments also expressly deny the right of any group or person to engage in any act aimed at the destruction of rights of others or at their limitation, thereby necessarily recognizing duties of all groups and persons. 14 Moreover, there is increasing recognition ofprivate actor responsibility for human rights violations injudicial decisions. 15 Attention to the role of transnational corporations (tncs) is also somewhat forrnaIistic. He notes that corporations "lobby first ofall on the national level." It is important to add that behind ''the State" are potentially numerous individual and See, e.g., Paust (note 8); Paust ( note 7), at 158-161. See, e.g., Paust (note 7), at 157, 160-161. 11 Myres S. McDougal/Harold D. Lasswell/Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, Va. J. In1'l L. 8 (1968), at 188, 193; see also Paust (note 7), at 6, 20 note 9, at 36-37 note 30. 12 See Jordan J Paust, Human Rights Responsibilities ofPrivate Corporations, Vand. J. Transnat'1 L. 35 (2002), at 801, 8\0-815. 13 Seeid.,at811-815. 14 See id., at 812-815. 15 See, e.g., id., at 803-810, 816-817. 9

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group efforts to shape nonnative content through lobbying and many other strategies. To pretend that the role of tncs in nonnative fonnation is "weak" and that tncs have "not sought" a role "within norm-creating venues," is less than realistic and appears to focus merely on direct access to fonnalized institutional "venues" instead of actual processes of norm-creation in which tncs often wield significant wealth and power directly and indirectly and through State actors. In fact, a comprehensive awareness of who wields influence in "the State" and even in the "corporation" would reveal significant roles of elite private actors. Finally, one must take issue with the statement that "occasional references" to rights in the 1949 Geneva Conventions leave one wondering, like too many members of the Bush Administration,16 whether individuals have rights under the conventions. In another study, I demonstrated that the conventions expressly recognize rights in several articles, that others can be imPlied, that private causes of action for their breach is possible and conforms to a practice that predates the conventions and exists more generally with respect to violations of the laws of war, that the conventions openly conternplate "li ability" and reparations, and that under tests for self-execution most of the provisions of the conventions can be self-operative. 17 What one can lift may at times seem smalI, but together we can lift humanity.

16 See, e.g., Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, Columbia J. Transnat'1 L. 43 (2005). 17 See, e.g., Jordan J. Paust, Judicial Power To Deterrnine the Status and Rights of Persons Detained Without Trial, Harv. Int'1 L. 1. 44 (2003), at 503, 515-517; Hamdan v. Rums/eid, 344 F. Supp. 2d 152, 164-165 (D.D.C. 8 Nov. 2004). E.g., the Geneva Convention Relative to the Protection ofCivilian Persons in Time ofWar, 75 UNTS 287, expressly recognizes private rights and entit1ements in ArticJes 5, 7-8, 27, 38,43,48, 72, 73,75, 76, 78, 80, 147. Common ArticJe 3 also contains phrases clearly reflective ofbasic human rights evidenced in various human rights instruments. Many other articles imply the existence of individual rights.

Comment by Daniel Thürer Dear Colleagues, thank you for your invitation to the symposium. Robin Geiß, thank you on behalf ofthe participants for your paper entitled "Subjects ofInternational Law." I would like to begin my remarks I by referring to a paradoxical dynamic between unity and diversity in the international legal order that my mentor at Haryard, Karl Deutsch, identified many years ago. In an essay entitled "The Probability ofInternational Law," Deutsch observed that "both need and potential support for international law increase, whenever an increase in international interdependence coincides with an increase in international diversity." Deutsch made this observation in 1968, at the height ofthe Cold War. In contrast, we are focussing here on the role ofnon-State actors (NGOs, individuals and TNCs) in international legal ordering (norm-creation, -implementation and -enforcement processes). What I would like to consider is whether the dynamic that Deutsch identified also applies in the present context: do the contemporary increase in international interdependence and the greater diversity of non-State actors encourage the unity ofinternationallaw? In other words, will the increasing involvement ofNGOs (in particular) in international relations increase the relevance and the potential support for internationallaw, or does internationallaw risk substantive and/or institutional fragmentation with their involvement? This question is as broad as it is important. Fortunately, Robin Geiß has presented us with ample material on which to base our reflections. He has done so in a thorough, systematic way, which should facilitate discussion. I would now like to offer a more historical and theoretical perspective on the topic, a perspective, I am pleased to say, informed by our wide-ranging discussions during the 1998 symposium on non-State actors as new subjects of international law. Unfortunately, I do not have much time, so my remarks will have to be more impressionistic than systematic. Specifically, I would like to consider internationallaw as a legal system. The international legal system, as Robin Geiß described it, is based on the classical, State-centered model ofpublic internationallaw. I wonder whether this frame of reference for understanding the subjects of international law is really adequate. Indeed, I would argue that this conception of internationallawas a legal system is neither historically accurate, descriptively useful nor prescriptively wise. I believe I I thank Maleolm Maclaren, M.A., LL.M., and Colleague at the Institute for Public International and Comparative Constitutional Law of the University of Zurich, for his excellent assistance in the preparation ofthese remarks.

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that we should move away from anation State-centered model towards aglobaI community-centered model and develop processes ofnorm-creation, -implementation and -enforcement that give expression to contemporary interdependence and diversity of non-State actors. The result of such a reconception would paradoxically be an international legal system that is more relevant and fmds more support in the community. My reasoning goes as folIows. I conceive of internationallaw, like other legal systems, as constituting a set of rules that attempts to regulate interactions of a particular community. It works in different ways, on different geographic levels and as regards different subject matters. International law's proven, essential characteristic is that it is an ever-changing set ofrules. The fundamental question that the emergence of non-State actors raises is what effect they will have - and should have - on the future unity and diversity ofthe international legal system. The answer to this question depends ultimately on how one understands the dynamic oflaw- i.e., how it does and should develop. Myunderstanding is based inter alia on the following observations. Firstly, internationallaw has undoubtedly changed through the course of time in response to changing circumstances. Indeed, change seems inherent in internationallaw, as in other legal systems. Sir Henry Summer Maine aptly described the dynamism of law so: "The fact is," noted Maine, "that the law has been wholly change; the fiction is that it remains what it always was." The role ofWestphalian sovereignty as the defming feature ofthe State community is a foremost example of the truth of this observation. Westphalian sovereignty's period of ascendency has been an interlude in internationallaw. Over the longer tenn, the system has been characterized by networks of cross-border - even transnational- cooperation and agitation more complex and by forms of restraint more diversified than this understanding of international legal ordering suggests. Secondly, I note that the agents of change in international law have inc1uded not only States but also non-State actors. The so-called "phenomenon of non-State actors" has many antecedents. (The great trading companies ofthe early modem era, the principalities of the Holy Roman Empire and the Catholic Church have each been an important part of the international legal order.) More particularly, NGOs have long played an influential role in international relations; their contribution to the elaboration of the Antipersonnel Mines Convention of 1997 and the Rome Statute of 1998 is from this perspective nothing new (Foreign anti-slavery societies and world peace conferences competed, like modern-day NGOs, with national govemments in c1airning legitimacy and seeking to mobilize support for their cause). Like other legal systems, internationallaw comprises many different subject matters - and not coincidentally - many different actors.

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Lastly, it must be acknowledged that while their role in international relations was - and is still - largely informal, non-State actors are increasingly being given official status and explicit recognition in various international fora (Robin Geiß concluded that NGO involvement is particu1arly strong in environmental protection and human rights law). I see this as further support for the ICJ's key fmding in the Reparation for Injuries decision, namely that the catalogue of subjects of internationallaw is not closed. Tbe international community can - and will- add such subjects and determine their legal personality according to its needs. Defming, prioritizing and satisfying these needs is a matter for debate among the relevant actors going forward; the international legal system will not develop according to some pre-existing concept or master plan (Some NGO-like bodies have already achieved formal recognition as subjects of international law. From this perspective, the ICRC does not represent an anoma1y - a Fremdkörper - in the international legal system, to be explained away as an exception proving an otherwise general rule). From these three observations conceming the actual dynamic of international law, I draw the moral that we acadernics must not allow oUTselves to become bound by OUT categories out of any preference for constancy, yearning for simplicity or sheer self-interest. We must reassess, for example, the categorization ofthe subjects ofinternationallaw as circumstances change and challenge its contemporary relevance and applicability. We must be prepared to fmd understandings beyond such categories. I ask myself, for example, whether the ICRC's status in internationallaw may be, in various respects, a precUTsor of the place that NGOs rnight also enjoy in future .... Tbe 1998 symposium was an exemplary instance of such reassessment and selfcriticism Tbere, stimulating debates ,took place about theories of globalization, public interest, constitutionalism in internationallaw, debates that I recall being highlighted by the contributions of Jost DelbTÜck and other colleagues. I would like to further this spirit of scientific inquiry today. I propose that we reconsider, from the perspective ofthe subjects ofinternationallaw as Robin Geiß described them, an issue from 1998, namely, the change in internationallaw from being a traditional State order towards the law ofthe global community. I would like to set off such a discussion by raising a few matters concerning the involvement of NGOs in international relations. Robin Geiß analyzed the involvement ofNGOs on the "horizontal," internationallevel (specifically in the areas ofinternational human rights and humanitarian law, international environmentallaw, WTO and law ofthe sea). NGO involvement - and possible unity - is also to be found "vertically," between the international, supranational and the national. My suggestion, maybe worthy of a future

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symposium, would be to analyze the influence of civil society in these dimensions: from the inter-State level, to the level of the EUIEC, down to the level of State law. Questions for further study include whether the nature, type and degree of NGO involvement vary from level to level, and whether general principles of federative integration are observable within a11 three legal systems. Next, Robin Geiß dealt with international treaties and international customary law as sources of public internationallaw. Should not, given the trends towards globalization of values and norms, the general principles of international law be given a prominent place in the analysis? I mean here general principles of the legal order as such and general principles holding areas oflaw together such as international environmental or international crirninallaw. These principles arise from a variety of sources. Scientific emphasis on the role of formal law-makers may obscure the contribution of informal forces such as NGOs. Their contribution to the development of internationallaw may be incremental, organic and even at the margins. Nonetheless, their contributions are, I suggest, real and worthy of consideration. NGOs can raise awareness of international legal issues, serve as a medium for the expression of law and set the tone of public opinion. NGOs thereby help shape expectations and demands ofwhat is right and wrong and which wrongs call for legal remedy. NGOs are, in other words, a driving force in internationallaw, particularly as regards the progressive articulation of its general principles. It might be objected at this point that the involvement ofNGOs has the opposite effect on the coherence of the international legal system. NGOs favor overly detailed, particular rules, so the argument, and contribute to the diversity not to the unity of the system. Is it really true that NGO involvement in nonn-creation, -implementation and -enforcement leads to more complicated rules? (Within the ECIEU at least, State negotiators and administrations are the main sources of regulative overload as agents of compromise, comitology and interest groups politics.) On closer inspection, NGOs reveal themselves to be promoters of substantive and procedural transparency in a system that has been notoriously characterized by obscurantism (in the fonn of dealings "under the table," "behind the curtains," "in darkened corridors" etc.). Insofar as they serve as mediators of a vox populi, NGOs can effectively mitigate deleterious effects of high politics and further democratic ideals internationally. I should now provide you with a concrete example of what I mean, namely exactly how NGOs are involved in legal process on different levels; how they articulate general principles of international law; and how they contribute to the system's transparency. An example may be found in the phenomenon of interlevel constitutionalism, or the interplay between international law and the drafting of

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national constitutions. State making and capacity building has emerged in the last few years as a major concern of contemporary international legal practice. National and international NGOs have often appeared in these contexts (in the programs for the independence or administration of Afghanistan, East Timor, Kosovo etc.) as advocates for internationally recognized values of democracy, women's rights etc. In short, I do not see the emergence of non-State actors as new subjects of internationallawas a threat to the coherence of the system Their emergence may represent achallenge to State sovereignty. Their emergence certainly threatens theories conceptualizing internationallawas a modern State system: the unity that such theorists perceive in the international legal system can no longer hold (if it ever did, given the long-standing participation ofNGOs in that ordering). Instead, I believe that the growing influence ofindividuals, TNCs and NGOs in contemporary international relations represents an opportunity for international law. (A more appropriate metaphor than that of the uninvited guests at a party would, to my mind, be of participants at a town meeting, a global agora - i. e., democracy from the bottom up in the best oftraditions.) Like Deutsch, I do not see diversity and unity as antinomies but as complementarities. Non-State actors' growing influence ofIers international law the chance to prove its relevance by dealing with increasing independence and thereby to fmd more support in the community whose interactions it seeks to regulate. How we understand the international legal system is of more than just passing academic interest. A State-centered conception represents an unsure basis for the future development of internationallaw: it threatens to undermine the system's effectiveness and legitimacy by exclu~g the participation of its ultimate constituents. Internationallaw must continue to have real world meaning and keep pace with contemporary economic, social, cultural, etc. developments. (It must, for example, recognize the growing global power of private capital not only by according investors rights to protect their foreign investments but also by holding TNCs internationally accountable for their actions. Or to choose another example, international humanitarian law, which is currently conceived as a set of directives for military and political personnei, should be partially reconceiveci in terms ofthe rights ofthe victim.) As explained earlier, the design of the international legal system and the place ofNGOs in it are open questions, contingent on States' political will. I would urge officials at all levels to collaborate more closely with these non-State actors in order to incorporate their concerns, their informal influence and their values into international legal processes. Policymakers would be advised to fmd legal forms or arrangements that will realize the potential in this coincidence of conditions of diversity and unity that Deutsch identified in the development of internationallaw.

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I would like to conclude on a note ofthanks and congratulations to the organizers. With this symposium the Walther Schücking Institute has once again performed a real service to international legal science, bringing together leading scholars from near and far to consider - in very amenable conditions - a topic of pressing and profound importance. I expect that this symposium will provide much food for thought and further research in the best tradition ofKiel. Thank you all for your attention!

Domestic Implementation and the Unity of International Law By Stephan Wittich

A. Introduction The question as to whether international law is still a coherent body of legal roles or whether it is in a process of "fragmentation" has been on the agenda of internationallaw theory for quite some time now. The approaches to the topic of unity versus diversity of international law have varied. Sometimes the topic has been viewed from the perspective of fragmentation by the evolution of ever more distinct branches of international law that produce subsystems or sectoral regimes.) In other cases the discussion focuses on the effect of the "proliferation" of international courts and tribunals on the systemic coherence of international law. 2 Still other authors concentrate on specific features, such as the problem of conflict of norms and the relationship between the various subsystems. 3 A last group of authors take a very broad and comprehensive approach that cannot be ) See, e.g., fan Brownlie, Problems concerning the Unity ofInternational Law, in: Le droit international aI'heure de sa codification. Etudes en I'honneur de Roberto Ago (1987), 153; L. A. N. M. BarnhoorniK. C. Wellens, Diversity in Secondary Rules and the Unity of International Law (1995). 2 See, e.g., Symposium Issue - The Proliferation of International Tribunals: Piecing together the Puzzle, New York University Journal of International Law and Politics 31 (1999), 679-933; Martti KoskenniemilPäivi Leino, Fragmentation ofInternational Law? Postmodern Anxieties, Leiden Journal ofInternational Law 15 (2002),553. ) See., e.g., Gabrielle Marceau, A Call for Coherence in International Law: Praises for the Prohibition against "Clinical Isolation" in WTO Dispute Settlement, Journal ofWorld Trade Law 33 (1999), 87; id., Conflicts of Norms and Conflicts of Jurisdictions: The Re1ationship between the WTO Agreement and MEAs and Other Treaties, Journal of World Trade Law 35 (2001),1081; Hans RudolfTTÜeb, Umweltrecht in der WTO. Staatliche Regulierungen im Kontext des internationalen Handelsrechts (2001 ); Joost Pauwelyn, Conflict ofNorms in Public International Law. How WTO Law Relates to Other Rules of International Law (2003).

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pinned down to individual aspects of the problem of the unity of international law. 4 In contrast, the question to what extent domestic influences the unity of international law differs significantly from the questions and problems raised in the context ofthe approaches referred to above. One reason for this difference is the lack of a dear reference point against which the influence of domestic implementation on the unity of internationallaw could be tested. There is no international treaty or other instrument on the topic (such as the Vienna Convention on the Law ofTreaties or the Articles on State Responsibility), nor is there a defined concept which could serve as a starting point or a guiding principle (such as the concept of legal personality, the elements of customary law or the principle of peaceful settlement of disputes). As for the question of domestic implementation and its repercussions on the unity or diversity of internationallaw, there are countless international norms in numerous different fields and a great many of domestic legal systems all having their own peculiarities.

But there is a second, more important reason for this difference and it direct1y concerns the notions· ''unity'' and "diversity" of international law. Usually, the question is as to whether the emergence of subsystems or sectoral regimes preserves the unity of, or leads to diversity in, internationallaw. In other words, it is asked as to what the effects are of special secondary rules in various areas of internationallaw on internationallaw in general, or on the general rules of international law with regard to a specific problem (treaty, custom, subjects, dispute settlement, or State responsibility). On the other hand, domestic implementation is concerned with a completely different concept of diversity. There is no such lex generalis - lex specialis relationship in the context of domestic implementation; rather, the diversity we are concerned with here is that between an international legal obligation and its equivalent in the domestic sphere, that is, diversity between two different levels of legal orders. In other words, with regard to domestic implementation there are no general, residual rules of international law against which the unity or diversity involved in the process of domestic implementation may be tested. Furthermore, in the relationship between internationallaw and its domestic implementation, the 4 See, e.g., Gerhard Hafner, The Risk ofFragmentation ofInternational Law, Report of May 4,2000, ILC(LII)/LT/INFORMAU2; Report ofthe Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, July 28,2004, UN Doc. NCN.4/L.663/Rev. I; Pie"e-Marie Dupuy, L'unite de I'ordre juridique international. Cours general de droit international public (2000), Recueil des Cours 297 (2002), 9; Matthew Craven, Unity, Diversity and the Fragmentation of International Law, Finnish Yearbook oflnternational Law 14 (2003), 3.

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term "unity" of internationallaw will probably mean ''uniformity,'' whereas "diversity" may imply terms such as "breach of' or ''non-compliance with" international law. I state this essential difference at the very beginning of my analysis because it is important to realize that diversity means different things in different contexts. Diversity in the present context means that the different methods, techniques and processes of transferring and applying internationallaw in the various municipallegal orders lead to different perceptions of one and the same international obligation. This in turn will lead to variations of this obligation and result in inconsistency and contradiction. At the end of the day, one and the same obligation may assume a different content in different countries depending on the particulars ofimplementation in each municipallegal order. Before outlining the general setting ofthe topic it must be stated that given the immense scope of the present problematique the following inquiry will be somewhat loose or even superficial. The question as to the influence of domestic implementation on the unity or diversity of internationallaw cannot be approached by simply analyzing how internationallaw in general - or even different substantive branches of internationallaw in their entirety - are implemented in domestic law. Therefore, a truly satisfying answer to this question would require extensive research on the implementation of a few specific obligations in various branches of international law in different countries. This, to be sure, by far exceeds the scope ofthe present paper.

B. So me Remarks on Domestic Implementation and the Relationship Between International and Municipal Law I. On the Necessity ofDomestic Implementation oflnternational Law The starting point of my inquiry is the relationship between international and municipal law. It is a commonplace to say that international law, in order to operate effectively,must be implemented within the various municipal legal orders. In the absence of centralized enforcement mechanisms with compulsory powers or jurisdiction on the international level, the mies of internationallaw are to a great extent enforced by State organs on the municipal level. 5 This in turn requires the reception of these mIes into the municipallegal order.

S Cf Benedetto Conforti, International Law and the Role of Domestic Legal Systems (1993),3; Maleolm Shaw. International Law, 5th ed. (2003), 161.

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There are, to be sure, international implementation and compliance mechanisms in specific branches ofinternationallaw, e.g., with regard to human rights or the environment. Some of these mechanisms operate very weIl; suffice it to refer to the system of judicial protection under the European Convention on Human Rights. 6 Nevertheless, even the European Court of Human Rights possesses powers of supervision only after the domestic remedies have been exhausted, which means that the effective implementation of the European Convention on Human Rights too heavily re lies on the control of cornpliance by the authorities within the individual member States. 7 Thus even where effective and largely successful international implementation or cornpliance procedures exist, they only apply if and to the extent the State authorities have failed to implement and comply with the relevant international obligation. Another exarnple ofthis subsidiarity of international vis-a-vis domestic implementation may be found in Article 17 (1) (a) and (b) of the Statute of the International Criminal Court providing for the principle of complementarity with regard to the jurisdiction of the International Criminal Court. 8 As a rule, international law does not tell us how it is to be transferred into municipal law; it only stipulates that in principle it has to be transferred to the extent that this is necessary for its effective implementation and application. In other words, international law leaves it to the States how they cornply with their international obligations in the domestic sphere, and they are at liberty to decide how best to translate their international obligations into internallaw and to determine which legal status these have domesticaIly. Again, the European Convention on Human Rights may serve as an example. The European Court ofHuman Rights as weIl as the (former) European Commission on Human Rights have consistently 6 Convention for the Protection ofHuman Rights and Fundamental Freedoms, November 4,1950, UNTS, vol. 213,221. 7 See, e.g., the Handyside Case: "[T]he machinery of proteetion estabIished by the Convention is subsidiary to the national systems safeguarding human rights [ ... ]. Tbe Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines." ECtHR, SeroA, No. 24, at 23. 8 Rome Statute for the International Criminal Court, July 17, 1998, available at: http:// www.un.org.law/icclstatute/romefra.htm. Tbe relevant part of Art. 17 reads as folIows: "I. Having regard to paragraph 10 ofthe Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) Tbe case is being investigated or prosecuted by aState which has jurisdiction over it, unless the State is unwilling or unable genuineIy to carry out the investigation or prosecution; (b) Tbe case has been investigated by aState which has jurisdiction over it and the State has decided not to prosecute the person concemed, unless the decision resulted from the unwillingness or inability ofthe State genuinely to prosecute."

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held that the European Convention on Human Rights does not lay down any specific manner for ensuring effective irnplementation of each and everyone ofthe Convention's provisions within the domestic laws ofthe member States. 9 And in fact, in the United Kingdom, one ofthe driving forces ofthe Convention, the latter has not been irnplemented for decades at all. On the face of it, human rights law also provides examples where it would seem that internationallaw itself contains specific orders how it shall be irnplemented in the domestic sphere. Artic1e 2 ofthe International Covenant on Civil and Political Rights,IO for instance, requires the enactment of irnplementing legislation by the member States. Similarly, with regard to hwnanitarian law, Artic1e 146 of the Geneva Convention Relative to the Protection ofCivilian Persons in Time ofWar stipulates specific instructions to the States parties requiring them to enact legislation conceming particular obligations. 11 But even there it would appear that what in reality counts is whether the international norm operates effectively within the domestic sphere irrespective of the manner of irnplementation. 12 Thus while Artic1e 2 (2) ofthe ICCPR seemingly contains an obligation of conduct it is hardly any different from a mere obligation of result. 13 These observations reveal that almost every aspect in the process of domestic irnplementation rests upon the general conditions and the overall framework ofthe internaliegal, in particular the constitutional order. And since, apart from wellknown differences in theory, the practice of States in transferring their international obligations into municipallaw is so disparate, the whole topic resists generalization. 14

9 ECHR, Swedish Engine Drivers' Union v. Sweden, Judgment of February 6, 1976, Series A, No. 20, para. 50. 10 UNGA Res. 2200A (XXI), December 16, 1966, UNTS, vol. 999, 171. 11 August 12, 1949, UNTS, vol. 75,287. These instructions concern legislation necessary to provide for effective penal sanctions for persons having committed certain grave breaches ofthe Convention. 12 See in more detail Chrislian Tomuschal, Human Rights. Between Idealism and Realism (2003), 96-101. 13 Man/red Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary, 2nd ed. (2005), 57-62. 14 Cf Maurice Mendelson, The Effect of Customary International Law on Domestic Law: An Overview, Non-State Actors and International Law, vol. 4 (2004), 75.

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Stephan Wittich 11. Wh at is "Domestic Implementation?"

I will now address the question of what is to be understood when we speak of domestic implementation ofinternationallaw. As to terminology I will employ the terms "transfer" or "reception" as neutral terms in order to avoid any confusion. I will not dweil on theories and technicalities of the relationship between internationallaw and municipallaw and the reception of internationallaw in the domestic sphere. I sincerely think that with regard to the dispute between monism and dualism, everything has been said and written. 15 Likewise, I will not deal with questions of formalities conceming the different methods in use in various States for the transfer or reception of international law into municipal law (such as incorporation, transformation, adoption etc.). Instead, I will briefly clarify what the term "domestic implementation" means or may mean in the present context. Domestic implementation is a technical term often used but it is equally often overlooked that it may mean different acts and processes in different contexts. And for the present topic all these different meanings are relevant.

Firstly, "domestic implementation" of international law means in general the reception ofinternationallaw into municipallaw. In other words, implementation concerns the question as to how States make international law part of municipal law so that the former becomes applicable in the latter. Secondly, this often entails the enactrnent of specific legislation. Thirdly, domestic implementation means the application of international law within the domestic sphere in general. TIlis includes,fourthly, the interpretation and enforcement of internationallaw by domestic authorities, in particular by the judiciary. Finally, in a broad sense, domestic implementation is also relevant for assessing compliance with or breach of international obligations by States. Of course, as we will see later, the particular features of domestic implementation depend on a variety of factors concerning the relevant international norm as weil as legal and other conditions prevailing in the municipal sphere. In short, one can say that any aspect ofthe operation ofinternationallaw on the domestic level is part of its overall domestic implementation. In some fields ofinternationallaw, domestic and international or inter-governmental implementation are interwoven or complementary, for instance where States are bound to report to international institutions the measures they have \5 For arecent comparative study on the reception of international law covering the practice ofthe United States Supreme Court, the Court of Iustice ofthe European Communities and the Swiss Federal Court of Iustice, see Helen Keller, Rezeption des Völkerrechts

(2003).

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taken in implementing the relevant international obligation. Examples may in particular be found in human rights law l6 and environmental law. 17 In such instances, the two levels of implementation are not easy - if at all - to distinguish and their impact on the efTectivity of internationallaw operates by way of interaction and mutual influence. In. The Diversifying Effect Inherent in Domestic Implementation That domestic implementation of international nonns may - and in many cases will - have a diversifying efTect can readily be seen in the law of the European Communities. There, as it is well-known, regulations are in principle not to be implemented into the domestic legal orders of the Member States, hut have to be applied as they stand. The Court of Justice ofthe European Communities held that all methods of implementation would jeopardize the simultaneous and uniform application ofregulations in the whole ofthe Community.18 The concerns ofthe Court were obvious. Individual steps to translate a regulation into municipallaw may undermine the uniform application ofCommunity law as the acts of implementation rnight change or otherwise adversely afTect the content ofthe regulation. 19 So it is apparent that, in principle, domestic implementation has the potential to weaken the unity of international law. But even the European Court of Justice conceded that in some cases a regulation may positively require implementing measures to be adopted by the member States even at the risk of endangering its uniforrnity.20 This is due to the fact that any international 16

For details see Tomuschat (note 12), 136-158.

17 With regard to international environmentallaw, Philippe Sands considers this as the

third phase of implementation after adopting national implementing measures (phase 1) and after ensuring that national measures are complied with by those subject to the jurisdiction and control ofthe States (phase 2). Philippe Sands, Principles ofIntemational Environmental Law, 2nd ed. (2003), 174. 11 Case 34173, Commission v. Italy, Case 39/72, [1973] ECR 101, para. 17. See also Variola SpA v. Amministrazione italiana delle Finanze [1973] ECR; Amsterdam Bulb BV v. Produktschap voor Siergewassen, Case 50176, [1977] ECR 137. 19 See Paul Craig/Grainne de Burca, EU Law. Text, Cases and Materials, 3rd ed. (2003),191-192. 20 As the Court stated in Azienda Agricola Monte Arcosu v. Regione Autonoma della Sardegna, Case C-403/98, [200 I] ECR 1-103, para. 26: "[A]lthough, by virtue ofthe very nature ofregulations and oftheir function in the system ofsources ofCommunity law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of

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obligation - even within the highly developed and supranational legal order ofthe European Communities - calls for harmonizing measures on the domestic level so that the international norm may be adapted and smoothly inserted into the municipallegal order. Again, this is a question of efIectiveness: The better an international norm is being implemented domestically, the better it is applicable and enforceable which induces municipal authorities to apply it. Ultimately this greatly strengthens its efficacy on the international level. IV. The Myth of Municipal Law as Mere Facts Given this overall necessity of implementing international law into domestic law, the significance of municipallaw for the proper and efIective functioning of internationallaw may, from a practice-oriented point of view, not be underestimated. In my view, it is therefore an oversimplification to generalize the wellknown statement by the Permanent Court of International Justice that from the viewpoint ofinternationallaw, municipallaw is only a fact. 21 The context ofthat dictum as weIl as the broader background of that case call for a certain degree of cautiousness. 22 The Permanent Court was concerned with the question whether a State may incur international responsibility by way of a legislative measure, the answer being clearly in the afiirmative. However, this dictum does not lend itself to generalization.

application, some oftheir provisions may none the less necessitate, for their implementation, the adoption ofmeasures ofapplication by the Member States." 21 Certain German lnterests in Polish Upper Silesia, PCIJ, SeT. A, No. 7, at 19, where the Court held: uIt might be asked whether a difficulty does not arise from the fact that the Court would have to deal with the Polish law of July 14'\ 1920. This, however, does not appear to be the case. From the standpoint ofIntemational Lawand ofthe Court which is its organ, municipallaws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court's giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention." 22 For reasoned criticism see C. Wil[redJenks, Prospects ofInternational Adjudication (1964),548-552, who states that U[t]he proposition that international courts and tribunals take cognizance ofmunicipallaws only as facts [ ... ] falls weil short ofbeing established law" (ibid., at 552).

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That municipal law is more than mere facts to international law is, 1 believe, also supported by the following considerations. 23 Quite a number ofintemational norms themselves give broad leeway to the domestic authorities and thereby contain a strong diversifying element. This can take different forms and 1 will confme myselfto a few examples relevant to the present topic.

Firstly, intemationallaw may render its particular effect or make its consequences dependent on the regulation of a specific matter by domestic law, and this is not necessarily an issue of choice of law. A prominent example is that international law refers to municipal law with regard to the power of State organs to represent their State on the international level. 24 A more specific example is the law goveming the grant of nationality to individuals. Internationallaw leaves the decision on the conferment and withdrawal of nationality to each State. One can even say that still today, questions of nationality fall, in principle, into the domestic jurisdiction ofthe States. 2S Accordingly, internationallaw attaches important consequences to nationality as determined by municipallaw - of course on condition that municipallaw fulfills certain requirements, such as the genuine link. 26 Another example would be the determination ofthe personal status ofemployees of international organizations. Since international organizations do not have their own body oflaw goveming the personal, in particular family, status oftheir staff, the StaffRules or Service Regulations regularly refer to the municipallaw of the State ofnationality ofthe employee concerned. It is for instance a well-established principle within the United Nations that if a marriage is recognized under the law ofthe staffmember's country ofnationality, the UN conunon system will recognize it as valid, qualifying the staff member to receive the entitlements provided for eligible family members. 27 23 For sirnilar considerations see fan Brownlie, Principles ofPublic International Law, 6th ed. (2003), 39-40, and Lu;g; Ferrar;-Bravo, International and Municipal Law: The Complementarity of Legal Systems, in Ronald St. John MacdonaldIDouglas M. Johnston (eds.), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine, and Theory (1983), 715, 716-725. 24 See, e.g., Art. 7 (I) ofthe Vienna Convention on the Law ofTreaties, May 23, 1969, UNTS, vol. 1155,331, or Art. 4 (2) of the ILC's Artic\es on Responsibility of States for Intemationally Wrongful Acts, August 9, 2001, UN Doc. AlRES/58/83, Decernber 12, 2001. 2S Shaw (note 5), 585. 26 ICJ, Nottebohm Case (Liechtenstein v. Guatemala), Judgment of April 6, 1955, ICJ Reports 1955,4,23-24. 27 See, e.g., the Bulletin of the United Nations Secretary-General ST/SGB/2004/13, September 24,2004, reaffinning that the practice ofthe Organization when detennining the personal status of staff mernbers for the purpose of entitlernents under the United Nations

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Secondly, internationallaw refers to the domestic practice of States with regard to the assessment of a specific fact or situation which is a constituent element of the international nonn. For instance, Artiele 2 (2) ofthe United Nations Convention on Jurisdictional Immunities ofStates and Tbeir Property provides as follows: "In determining whether a contract or transaction is a 'commercial transaction ' [ .. .] reference should be made primarily to the nature of the contract or transaction, but its purpose should also be taken into account [ ... ] if, in the praclice ofthe State of the forum, that purpose is relevant to determining the non-commercial character of the contract or transaction ...21

Here the international nonn itself yields to the municipal practice of individual States. Tbus the exact content of the international nonn can only be determined by looking into the practice of States and their municipallaws.

Thirdly, in quite a number of instances issues of internationallaw can only be addressed on the international level after they have in some way or another been dealt with under municipallaw. Tbe prime example would of course be the rule on the exhaustion of local remedies according to which internationallaw defers to municipallaw and municipal procedures.29 Fourthly, many international norms contain provisions allowing for restrietions whose precise content and extent may and do vary from State to State. Examples are to be found in particular in international human rights law and usually concern the limitations which are necessary in a democratic society in the interests of national security, public safety or the economic well-being ofthe country, for the prevention of dis order or crime, for the proteetion of health or morals, or for the proteetion of the rights and freedorns of others. 30 This leeway has been developed by the ECtHR into the doctrine of "margin of appreciation"31 which comes elose StaffRules and Regulations had been done, and would continue to be done, by reference to the law of nationality of the staff member concemed. Chittharanjan Fe/ix Amerasinghe, The Law of the International Civil Service (as Applied by International Administrative Tribunals), vol. I, 2nd rev. ed. (1994),181. 21 December 2, 2004, 6A Res. 59/38, UN Doc. N59/508 (emphasis added). 29 See generally ChiUharanjan Felix Amerasinghe, Local Remedies in International Law, 2nd ed. (2004). 30 See, e.g., Arts. 8(2), 9(2), 10(2), 11 (2) ECHR. 31 There is an abundance of literature on the topic of margin of appreciation in human rights law. For aselection ofrecent literature see Ronald St. J. Macdonald, The Margin of Appreciation, in: R. St. J. MacdonaldlFranz Matscher/Hans Petzold (eds.), The European System for the Protection ofHuman Rights (1993),83; Eva Brems, The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, ZaöRV 56 (1996),240; Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics ofEuropean Human Rights Jurisprudence (1996); Nicholas Lavender, The Problem ofthe Margin of Appreciation, European Human Rights Law Review 2 (1997), 380; Eyal

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to a specific ordre public giving the States a broad freedom of action on the domestic level. While the margin of appreciation only concems restrictions of the international obligation by reference to municipallaw, there are also examples ofthe complete derogation, as it were, of international obligations by unqualified blanket exceptions to be made under municipallaw. For example, Article 6 (1) ofthe Convention on the Physical Protection ofNuclear Material32 obliges States parties to take appropriate measures consistent with their nationallaw to protect the confidentiality of any information which they receive in confidence by virtue of the provisions ofthis Convention from another State Party or through participation in an activity carried out for the implementation of this Convention. However, para. 2 of that article provides that "States Parties shall not be required by this Convention to provide any information which they are not permitted to communicate pursuant to nationallaw. "

Fifthly, .international law sometimes even ''uses'' domestic law for specific enforcement purposes. An example is Artic1e 218 ofthe Convention on the Law of the Sea which provides that aState may institute domestic proceedings over a vessel voluntarily under its jurisdiction in respect of any discharge from that vessel on the High Seas in violation of international law. By this provision, domestic authorities explicitly become enforcement organs of internationallaw. 33 Finally, one could also mention the principle ofuniversaljurisdiction as a tool for enforcing certain severe crimes prohibited by internationallaw before national courts in the absence of an international court or tribunal having jurisdiction over

Benvenisli, Margin of Appreciation, Consensus, and Universal Standards, New York University Journal of International Law and Politics 31 (1999), 843; Michael R. HutchinSOli, The Margin of Appreciation Doctrine in the European Court of Human Rights, The International and Comparative Law Quarterly 48 (1999), 638; Douglas Lee Donoho, Autonomy, Self-governance, and the Margin of Appreciation: Developing a Jurisprudence ofDiversitywithin Universal Human Rights, Emory International Law Review 15 (2001), 391; Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002); Eva Brems, The Margin of Appreciation Doctrine ofthe European Court ofHuman Rights: Accommodating Diversity within Europe, in: David P. ForsythelPatrice C. McMahon (eds.), Human Rights and Diversity (2003). 12 Convention on the Physical Protection ofNuclear Material, March 3, 1980, UNTS, vol. 1456,101. 33 Uni ted Nations Convention on the Law of the Sea, December 10, 1982, UNTS, vol. 1833,397. Cf Georg DahmlJost DelbrücklRüdiger WolJrum, Völkerrecht, vol. 1/1, 2nd ed. (1988),97.

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such a crime. Here again, domestic organs assume the task of enforcing internationallaw by applying municipallaw. All these examples illustrate that municipallaw can certainly not be considered mere facts from the standpoint of internationallaw but has at times a very detenninative character in its relation to international law. And it is obvious that this detenninative character rnay easily change into to a diversifying one.

c. Factors Relevant for the Unity or Diversity of International Law in the Process of Domestic Implementation I. Preliminary Remarks As mentioned earlier, it is impossible within the limits of this paper to thoroughly analyze the influence of domestic implementation on the unity of internationallaw. Such an enterprise would require an extensive empirical comparative study in the course of which the implementation of a few selected obligations in various branches of international law in a number of representative municipal jurisdictions would have to be scrutinized. By comparing the results of these implementation processes with regard to the original international obligations would it then be possible to draw conclusions on whether, and if so, to what extent, domestic implementation has a unifying or a diversifying effect on internationallaw. l4 It is obvious that such an exercise - which would be a suitable topic for a dissertation - cannot be pursued here. Instead 1 will attempt to identify various factors which are relevant in the process of domestic implementation and which have the effect of either upholding the unity of or fostering diversity in international law. 1 distinguish between factors having their origin on the international level, i.e., being inherent in the international norm itself, and factors originating in the domestic sphere. A clear allocation of these factors to either the international or the domestic level is not possible in every case. 1 will also attempt to ascertain - as far as possible - the "implementation necessity" of these factors, i. e., whether certain factors have an impact as to how specific or comprehensive the measures of irnplementation must be. Finally, I will also try to fmd out how these factors probably rnay influence the unity or diversity of internationallaw. This approach rnay certainly be considered

34 A similar approach has been taken by Vera Gowlland-Debbas (ed.), National Imple· mentation ofUnited Nations Sanctions (2004).

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somewhat speculative and on second thought some ofthese factors will have to be sorted out because they do not withstand critical analysis. 11. International Factors An obvious and very decisive factor that influences the process of domestic implementation is the determinacy of the international norm. Either the norm is determinate so as to leave little margin for inconsistent or incoherent reception, interpretation and application in the domestic sphere; or it is broad, vague and indeterminate so as to enable the domestic authorities to change, blur or otherwise adversely interfere with the content of the international norm. The problem of indeterminacy is, of course, common to all legal systems and orders, but while in municipallaw there will usually be a competent authority providing some solution that has an authority extending beyond the specific case, the result of determining the vague content of an international norm abnost always depends on unilateral action. To the extent that a determinate rule is said to exert a ''pull towards compliance,,,35 the same idea may, mutatis mutandis, be transferred to the present problematique. In other words, the more deterrninate an international rule is, the more uniforrnity will it achieve through domestic implementation.

To illustrate the point, we may again refer to the law of State immunity that fumishes a good example. As it is weIl known, European States in general adhere to the principle of restricted immunity and grant immunity only for acts in exercise of sovereign authority as distinguished from commercial acts. With regard to the question as to what constitutes a sovereign or a commercial act, arecent survey of the practice of the member States ofthe Council of EuropeJ6 has revealed completely divergent approaches by the courts of the member States, although the overwhelming rnajority of them accept and apply the so-called "nature of the act test." Some decisions reflect the view that adetermination of the act has to be done in light ofinternationallaw/ 7 some clearly state that the distinction has to be 35 36

Thomas M. Franck, The Power ofLegitimacy among Nations (1990),50-90. Stephan Wittich, The Definition of Commercial Acts, in: Gerhard HafnerlMarcelo

Kohen/Susan Breau (eds.), Pilot Project ofthe Council ofEurope on State Practice Regarding State Irnrnunities (forthcoming 2005). 37 See, e.g., X. Y. (individual), v. X (State), Supreme Court of Austria, 5 Nd 509/87, February 23, 1988, Austrian Journal of Public and International Law 39 (1988/89), 360. The Austrian Supreme Court has repeatedly affirmed this view, see most recently Flughafen Unz (Airport Unz) v. United States ofAmerica, Suprerne Court of Austria, 2 Ob I56/03k, August 28, 2003, Austrian Review of International and European Law, vol. 8, 2003, 430, 435; see Stephan Wittich, Airport Linz v. United States, AJIL 99 (2005), 248.

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made according to the law ofthe forum State,38 others take the view that both the nationallaw ofthe forum State and internationallaw - at least international treaties to which the forum State is a party - are relevant. 39 Still others request the deciding authority of the forum State (i.e., the court or tribunal) to look at the public law of the foreign State invoking inununity - without however applying and a last group of States considers the practice of the foreign that foreign law State,41 or refers to what they call the "regulatory system" of the foreign State. 42

_:0

This complete divergence of domestic practices is largely due to the vague and indeterminate international norm which only provides that foreign States enjoy inununity for their sovereign acts, but which is silent on the question as to how the distinction between sovereign and commercial acts is to be made. Secondly, it is to be asked as to whether the international norm allows for exceptions or limitations under municipal law. Again reference may be made to the limitations inherent in the nature of human rights. The broader the margin of appreciation which States may enjoy in balancing human rights one against the other or against the public interest, the more room will there be for divergent interpretation and application of the relevant norms. Thus, inconsistent applica-

M. K. B. van der Hulst v. United States oJ Ameriea, Supreme Court of the Netherlands, December 22, 1989, RvdW (1990), No. 15, Netherlands Yearbook ofinternational Law 22 (1991), 379. 38 Societe de droit irakien RaJaidain Bank et erts v. Consare Corporation, soeiete de droit amerieain et erts, Cour d'Appel de Bruxelles, March 10, 1993, Journal des Tribunaux, 1994, 787; Argentine Citizen v. Republie oJ Argentina, Federal Labour Court (Bundesarbeitsgerieht), July 3, 1996, Entscheidungen des Bundesarbeitsgerichts, vol. 83, 262; GRl4, X. (individual) v. The Italian Republie, Athens Court of Appeals, No. 5288/ 1993 (1993), Epitheorsisi Emborikou Dikaiou, vol. 53 (1994), 763; X. (individual) v. Japan, Supreme Court (Areios Pagos) Chamber, No. 1498/1986 (1986), Elliniki Dikaiosyni (1987), 1029. 39 X. (individual) v. Japan, Court ofFirst Instance ofThessaloniki, Judgment 519/1981 (1981), Elliniki Dikaiosyni (1983), 704. 40 Italie v. X. et Cour d'appel du eanton de Bale-ville, lere Cour de droit public du Tribunal federal Suisse, February 6, 1985 ATF 111 Ia 52; Soeiete Levant Express Transport (enterprise privee) v. Chemins de Jer du gouvernement iranien (administration gouvernementale), Cour de cassation (lere Chambre civile), February 25, 1969, Revue critique de droit international prive (1970), 102. 41 As Velija Veljed (eompany) v. Republie oJEstonia, District Court ofHelsinki, July 11, 2001, Case No. 00/23032. 42 Yrityspankki Skop Oy (eompany) v. Republie oJ Estonia (State), District Court of He\sinki, Case No., 95/1997, January 21, 1998.

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tions of the same nonn to similar cases due to different margins of appreciation undermine the consistency of the international nonn. 43 A similar result is achieved with obligations containing so-called flexibility c1auses in multilateral conventions, allowing for differences in application in various world regions. Such obligations can, e.g., be found in the field of international labor law. 44 One could also mention here the technique of "opting"/ "contracting"-in and "opting"f'contracting"-out as well as reservations - even though these methods of adapting the international obligation are usually not applied in the course of domestic implementation, but on the occasion of expressing consent to be bound by the treaty. Both possibilities aim at mitigating the full obligatory power of either the treaty or specific obligations of it. However, while opting-in and opting-out are usually aimed at reconciling conflicting interests (i.e., a high number of parties to the treaty versus uniformity of treaty obligations), reservations tend to disrupt the integrity of the treaty by changing the substance of individual provisions. In fact, far-reaching reservations split the treaty up into a bundle of individual legal relationships and thus defeat the unifonnity of treaty obligations. A third factor concerns the question whether the international nonn contains specific instructions for the States and the domestic authorities as to how they shall implement their obligations. In that context mention must be made oftreaty provisions calling explicitly for legislation of a specific manner. Among such provisions one rnay distinguish between general implementation provisions, e.g., Artic1e 2 (2) ofthe International Covenant on Civil and Political Rights (1966t S or Artic1e V of the Convention on the Prevention and Punishment of the Crime of Genocide (1948).46 On the other band, there are provisions containing very detailed instructions as to domestic implementation. Artic1es 2 and 4 ofthe International Convention on the Elimination of All Fonns of Racial Discrimination

43 For a critique oftoo broad an approach to the doctrine ofmargin ofappreciation see Eyal Benvenisti (note 31), 843. 44 Eibe Riedei, Standards and Sources. Farewell to the Exclusivity ofthe Sources Triad in International Law?, EJIL 2 (1991), 58, 81, 1991. 45 International Covenant on Civil and PoliticaI Rights, December 16, 1966, UNTS, vol. 999,171. 46 Convention on the Prevention and Punishment ofthe Crime ofGenocide, Decernber 9,1948, UNTS, vol. 78,277.

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(1965),47 or Articles 2-8 ofthe International Convention for the Suppression ofthe Financing ofTerrorism (1999)48 may serve as examples.

Detailed instructions by the international norm as to its dornestic implementation may, on the one hand, reduce the danger of encroaching upon the uniforrnity ofthe international norm, the reason being that there is some clear guidance for the implementing authority. On the other hand, common sense would suggest that the more there is to be implemented, the bigger the risk is of getting lost in technicalities and forrnalities of domestic implementation. In other words, there are more opportunities to make (intended or unintended) mistakes. Fourthly, a distinction is certainly to be made between, on the one hand, norms which regulate the external conduct or relations of States (i.e., classical inter-State obligations) and, on the other hand, norms which govern the internal conduct of States (i.e., in particular the conduct of States within their territory and jurisdiction). Tbe latter category consists of norms entailing obligations ofwhich individuals are either mere beneficiaries (e.g., the law of aliens) or which render them true holders of rights and obligations (above a11 international human rights law, international humanitarian law and international crirninallaw). The latter category will probably also encompass a variety of other norms which - while not being addressed to individuals - have an otherwise significant effect on the conduct, position or interest of individuals in municipallaw. One could think of sanctions imposed by the United Nations Security Council which have to be implemented into municipallaw. 49 With regard to the "necessity ofimplementation," that is, the question as to what degree of implementation of the international norm is required. My suggestion here would be that the more international norms are intended to produce effects in the domestic realm of States because they govern or at least in some way affect the conduct of individuals, the bigger the need will be for implementation which will lead to a stronger pull towards diversity. Fifthly, the source of the international norm will certainly be of relevance, whether it is an international treaty or international customary law. While this factor is of course inherent in the international norm, I will address it in the context of domestic factors 50 because it is inseparably linked to the municipal ap47 International Convention on the Elimination of All Forms ofRacial Discrimination, November 20, 1963, UNTS, vol. 660, 195. 41 International Convention for the Suppression ofthe Financing ofTerrorism, December 9, 1999, ILM 39 (2000), 270. 49 As to the different practice of States of implementing United Nations sanctions see Vera Gowlland-Debbas (ed.), National Implementation of Uni ted Nations Sanctions (2004). 50 Below C. 1Il.

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proach to the different sources of internationallaw. A further aspect calling for a classification of the international nonn is the function which the nonn is serving. Is it a multilaterallaw-making or standard-setting nonn or is it a nonn containing reciprocal obligations of a civil law character and thus rather a contract-making nonn? Ifthe obligation belongs to the fonner category, its consistent and coherent implementation, in particular interpretation and application, is of utmost importance for the uniformity ofthe international legal obligation. With regard to contractual obligations, on the other hand, the question ofunity or diversity will rarely arise. Furthennore one can distinguish international norms according to the type of obligation itself: Does it lay down a mere duty of abstention by the State (which would probably indicate a lesser need for implementation) or does it require the State to actively prevent a specific event (which, in turn, would then require a more comprehensive and sophisticated implementation)? An example would be the third-party applicability or Drittwirkung ofhuman rights. 51 This factor will in principle also be relevant in international environmental law as well as international economic and trade law. Finally, it is relevant to determine whether the international nonn has a seIfexecuting character or not. Generally it would appear that a self-executing nonn does not require domestic implementation in order to be applicable in municipal law. Hence, self-executing norms seem to be less prone to diversifying the content of the international norm. It is frequently stated that the self-executing character of treaties or at least individual treaty provisions largely depends on the intention of the parties to bestow the self-executing character on the nonn. In this sense it is said that one has to look as to whether the character of the provision is so as to lend itselfto direct applicability in municipal law. This is certainly true in theory, and from a genuinely international law perspective. Yet, what is understood as "self-executing" in the sense above in reality concems the question of "direct applicability" or "enforceability" of intemationallaw. And this question, that is, whether the States parties to a treaty intended its provisions to be directly enforceable as such on the domestic plane, is indeed a question ofinternational law. 52 But with regard to the self-executing character of a nonn, practice shows that at the

51 See Andrew Clapham, The "Drittwirkung" of the Convention, in: Ronald St. J. MacdonaldIFranz MatscherlHerbert Petzold (eds.), The European System for the Protection ofHuman Rights (1993), 163. 52 On that distinction see Thomas Buergenthal, Self-Executing and Non-Self-Executing Treaties in National and International Law, RdC 235 (1992-IV), 303, 315-321.

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end of the day the issue of a treaty or single treaty provisions being self-executing or not, is always decided on the domestic level. s3 I will now turn to the domestic factors relevant in the process of domestic implementation. 111. Domestic Factors A fIrst, very important domestic factor - at least from a formal point of view is of course the overall municipallegal framework, in particular the constitutional provisions on the issue of implementation. The question here is how international law is generally transferred into municipallaw in the various legal orders. 54 In most States, at least in theory and as a matter of principle,ss custornary law is received by way of dynamic incorporation which fosters the consistent and uniform application of custornary mies as there is no need for separate acts of implementation. Treaties, on the other hand, must almost regularly be declared by some official act as forming part ofmunicipallaw. They are thus subject to implementation which opens the dOOf for diversity. A further question in that context is as to what rank in the hierarchy of municipal law international norms have. The assumption would be that the higher the rank of international norms, the more effectively will they be applied which eventually rnay support the unity of international law. This assumption might however not withstand an empirical scmtiny. For instance, the fact that the European Convention for the Protection ofHurnan Rights and Fundamental Freedornss6 enjoys constitutional rank in the Austrian legal order has not had any noticeable effect as compared to other countries.S1 On the contrary, the case law ofthe Aus53 Ibid., at 317, 322; Eyal Benvenisti, Judicia1 Misgivings regarding the Application of International Law: An Analysis of Attitudes ofNational Courts, EJIL 4 (1993), 159, 166167; Andrea Bianchi, International Law and US Courts: The Myth ofLohengrin Revisited, EJIL 15 (2004),751,759. 54 See in general Alberto Cassese, Modem Constitutions and International Law, RdC 192 (1985-III), 331; Robert Jenningsl Arthur Watts (eds.), Oppenheim's International Law, vol. I, 9111 ed. (1992), 54-81; Shaw (note 5),128-162. 55 Brownlie (note 23), 47. For Western European countries see Luzius Wildhaber/ Stephan Breitenmoser, The Relationship between Customary International Law and Municipal Law in Western European Countries, ZaöRV 48 (1988),163. 56 November 4, 1950, UNTS, vol. 213, 222. 57 Man/red Nowak, Al\gemeine Bemerkungen zur Europäischen Menschenrechtskonvention aus völkerrechtlicher und innerstaatlicher Sicht, in: Fe\ix ErrnacoralManfred NowaklHannes Tretter (eds.), Die Europäische Menschenrechtskonvention in der Recht-

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trian Constitutional Court on specific aspects of the Convention has for years even differed from that ofthe European Court ofHuman Rights.58 Likewise it is relevant to determine what the situation is in case of conflict between international and domestic law. Does the (incorporated) international norm prevail over conflicting domestic law? Again, if international law enjoys primacy over domestic law, this strengthens its overall wriformity. Admittedly, a general primacy of internationallaw over mwricipallaw is very rare,59 and even in case of conflict between mwricipallaws and mIes of internationallaw, the former usually enjoy precedence. 60 Secondly, on the domestic level, a distinction must be made between reception and application of an international norm. It may weIl be the case that international law is applied adequately even if it is not properly transferred into nationallaw provided that the result as intended by the international norm is being achieved. For instance, if there are no domestic provisions on the immwrity of foreign diplomats, this needs not amount to a breach ofthe international obligations ofthe receiving State as long as the diplomats ofthe sending State are treated in accordance with internationallaw. This issue is of course embedded in the broader context of the question as to when does the non-conformity of national legislation with international law constitute a breach ofthe latter. 61 While it is undisputable that there is a general duty of States to bring mwricipallaw into conformity with obligations of international law, a failure to do so is not in itself a breach of international law. Here agam, one will have to distinguish according to the obligations at issue. Most international obligations cannot be breached in the abstract, i.e., in the absence of a specific occasion ofbreach. This is so because most international obligations are obligations of result rather than of conduct. Thus, in most cases neither the lack of implementing legislation per se nor the enactment oflegislation incompatible with international law will in and of itself amount to a breach. Whether there is a violation of international law will regularly depend on whether and how this sprechung der österreichischen Höchstgerichte (1983),48-49; Hannes Tretter, Austria, in: Robert BlackbumlJörg Polakiewicz (eds.). Fundamental Rights in Europe. The ECHR and its Member States, 1950-2000 (2001),103,106,163 . S8 See, e.g., Christoph Grabenwarter, Europäische Menschenrechtskonvention (2003), 330-331 . S9 Cassese (note 54), 434. 60 Shaw (note 5), 151. 6 1 As to the following see also ILC Articles on the Responsibility of States for lntemationally Wrongful Acts and Commentaries thereto, Commentary to Art. 12, para. (12), and Brownlie (note 23), 35.

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legislation is given effect. 62 The details of this question, however, are not of interest for the rather narrow and specific problematique of our analysis. A third factor concerns both the interpretation and application of international law on the domestic level. Since for theoretical reasons 63 the application ofthe law has to be distinguished from its interpretation - although the former almost always entails the latter -I will address these two issues separately. With regard to the application of customary law, municipal courts - in particular those in civillaw countries - have a strong preference for written rules and are often faced with the psychological problem of applying an unwritten source of law which they are not familiar with. 64 Furthermore, customary norms are often vague and indeterminate. I have already addressed the problem of indeterminacy earlier in the context of the nature of the international norm itself and argued that it may lead to divergent application. This may be aggravated by frequent reticence of domestic judges to apply such imprecise rules. Many domestic judges feel uneasy when confronted with the task of ascertaining customary law. If one takes the elements of custom seriously, this reserved attitude is understandable since rules of customary law do not appear ready-made, and establishing widespread, extensive and virtually uniform State practice supported by opinio iuris, as required by the case law ofthe International COurt,65 would involve extensive research into an incredible amount of documentary material. This takes a long time - time judges or officials in Foreign Ministries usually do not have. In addition, they often lack obtainable data and records of State practice and opinio iuris. In most instances, establishing custom is therefore done by looking into textbooks of international Iaw or into restatements ofthe law which - to state the least - need not necessarily reflect the 62 Cf ICJ, LaGrand Case (Germany v. United States of America), Merits, Judgment of June 27, 2001, paras. 90-91, available at http://www.icj-cij.orglicjwww/idocket/igusligusjudgment/ igus_ ijudgment_20010625 .htm. 63 See Hans Kelsen, Reine Rechtslehre, 2 nd ed. (1960), 351; id., Introduction to the Problems of Legal Theory (1992),82-83 (stating that interpretation is an act of cognition whereas application is an act ofwill). 64 On the question of the application of customary internationallaw by national courts see in general Non-State Actors and International Law 4 (2004), 1-85; see in particular Jan Wouters, Customary International Law Before National Courts: Some Reflections from a Continental European Perspective, ibid., 25, 31-32. 65 ICI, North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. The Netherlands), Judgment ofFebruary 20,1969, ICJ Reports 1969,3,41-45. See in general, Mark E. Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice ofthe InterreIation ofSources, 2nd ed. (1997); Rein Müllerson, On the Nature and Scope of Customary International Law, Austrian Review of International and European Law 2 {I 997), 341; Maurice Mendelson, The Formation ofCustomary International Law, RdC 272 (1999), 155.

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current state of international law. 66 These imponderable factors c1early speak against the uniform interpretation and application of customary law on the domestic level which eventually entails a diversifying repercussion on the international norm. With regard to interpretation, which is certainly one of the parts of domestic implementation ofinternationallaw that most obviously may lead to diversity and even inconsistency, several factors are important. First, do the domestic authorities, when faced with an international treaty, apply the mIes of interpretation as stipulated in the Vienna Convention on the Law of Treaties67 or do theyapply domestic principles of interpretation? Apart from the fact that any answer to this question will depend on the technique of implementation (i.e., incorporation, adoption or transformation) used, it would seem that the practice of interpretation is inconsistent. But even where the mIes ofthe Vienna Convention are applied, this will not in itself be a guarantee for uniform application. Simple lack of comprehension or ignorance of the mIes of interpretation of the Vienna Convention may result in completely divergent interpretations or even misinterpretations. To cite an exampIe, the Austrian Supreme Court - in applying the Vienna Convention - held that "[i]f the wording [of an unc1ear term] does not provide any reasonable lead, and the textual interpretation therefore leads to a result 'which is manifestly absurd or unreasonable' (Artic1e 32 ofthe Vienna Convention), the international treaty law in question may be developed even contrary to its wording."68 Yet even ifthe domestic organ applies the mIes ofinterpretation ofthe Vienna Convention reasonably, these mIes are sufficiently large and broad so as to lead to different results. Furthermore, interpretation by national courts inevitably leads to inconsistent practice because domestic courts usually tend to interpret treaties in light oftheir own domestic legal systerns.69 On the other hand, the breadth ofthe See also Mendelson (note 14),79-82. Source in note 24 supra. 6& Konrad BühleriOtto DietrichiUrsula KriebaumiStephan Wittich, Austrian Judicial Decisions Involving Questions of Public International Law, Austrian Review of International and European Law 4 (1999), 302, 306 (emphasis added). 69 See Karl Zemanek, The Legal Foundations of the International System, RdC 266 (1997), 9, 199-192, paras. 369-371. See also Christoph Schreuer, The Interpretation of Treaties by Domestic Courts, BYIL 45 (1971),255. In addition to the literature cited in the works above see also Pieter van Dijk, A Common Standard of Achievement. About Universal Validity and Uniform Interpretation of International Human Rights Norms, Netherlands Quarterly of Human Rights 13 (1995), 105-121; Jason A. Hoida, Toward a Uniform Interpretation of Article 14 of the Norway-America Double Taxation Treaty, 66

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mIes of interpretation may give the possibility to interpret different treaties differently wbich is certainly a justified form of diversity.70 In the context of the interpretation of internationallaw by national authorities, it would appear that one must distinguish between bona fide and mala fide - or conscious and unconscious divergent interpretations. The example ofthe Austrian Supreme Court referred to earlier may be cited as a bona fide distorting interpretation, since the Court was, in principle, guided by noble motives when it further stated that the (general) object of such international conventions was the "possibility of uniform interpretation (and application)" and that "internationality as well as the uniformity pursued by the parties to these conventions necessitate results of interpretation wbich are universallyaccepted."71 An important mechanism to adapt the results of domestic interpretation to internationallaw standards is the principle well-known to many jurisdictions that domestic law ought to be interpreted in favor of internationallaw, including the presumption that domestic law does not contradict internationallaw. 72 However, even in countries where this principle is known in theory, courts often ignore it for various reasoDS. For instance, the United States Supreme Court has constantly refused to make an effort to interpret the FSIA consistently with internationallaw standards. As one author has pointed out recently, this omission is a11 the more striking, if one considers that the FSIA was expressly enacted by Congress with a view to implementing internationallaw standards into the U.S. legal system in order to remove from the executive branch the power to influence judicial determination in foreign sovereign immunity matters. 7J

In tbis context I will briefly return to the issue of self-executing norrns. As already indicated above, although in theory it is internationallaw that bestows the self-executing character on a norm, in practice this question is regularly decided Hamline Law Review 20 (1997),691; Konstantinos D. Kerameus, Procedural Tools in the Different European States concerning the Uniform Interpretation of Law by the Supreme Courts: A Comparative Presentation, Revue hellenique de droit international 53 (2000), 613-628; Francesco Berlingieri, Uniform Interpretation ofinternational Conventions: The Kapitan Petko Voiveda, Lloyd's Maritime and Commercial Law Quarterly (2004), 153. 70 See Georg Ress/Christoph Schreuer, Wechse\wirkungen zwischen Völkerrecht und Verfassung bei der Auslegung völkerrechtlicher Verträge (Relationship between International Public Law and Constitutional Law in the Interpretation ofinternational Treaties), Berichte der Deutschen Gesellschaft flir Völkerrecht 23 (1982), 13 (Ress). 71 Austrian Judicial Decisions 1999 (note 68), 306. 72 For references see Eyal Benvenisti, Judges and Foreign Affairs: A Comment on the Institut de Droit International's Resolution on 'The Activities ofNational Courts and the International Relations oftheir State', EJlL 5 (1994),423,428 in note 26. 73 Bianchi (note 53), 773.

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on the domestic level. Again, this may happen for valid legal reasons or in bad faith - that is, to accommodate national interests. Thus, there may be an international treaty in a field oflaw which is already extensively regulated either by other international norms applicable in municipallaw, or - which will be more often the case - by municipal law itself. In such case, even self-executing international norms may for good reasons be declared not directly applicable domestically. Otherwise this might cause difficult questions of conflict, prevalence and derogation. 74 On the other hand, it is a deplorable fact that States frequently declare international norms that are in principle self-executing as non-self-executing in municipallaw. The practice ofthe United States to this effect has lead one author to speak of "fraudulent executive policy. ,,75 This leads us directly to an aspect ofutmost importance in practice. While the aforementioned factors all appear to be "objective" in that they are determined by elements that are external to the law-applying organ, it must not be forgotten that their application in specific cases will ultimately depend on the "subjective" perception of these elements by the law-applying organ. Accordingly, a factor having a very serious impact on the uniform or inconsistent implementation of internationallaw is certainly the general attitude of municipal authorities towards international law. Several authors have already pointed to the fact that in many cases municipal authorities are often driven by a "nationalist" approach to questions of international law, an approach that aims at accommodating national interests rather than at implementing internationallaw in a faithful way.1t has, for instance, been observed that in the context of the application of internationallaw "the record ofthe United States Supreme Court reveals a tendency in fact to favor maintenance ofU.S. interests and legal structure over plain meaning."76 Although the United States are, for obvious reasons, the prime target ofthis critieism, other States join them in this praetiee of interpreting and applying internationallaw mIes so as to fit their munieipal standards and interests. 77 In this sense, domestie (mis-)application of internationallaw is merely the eontinuation of domestie and foreign poliey with other means.

74 Kar! Zemanek, Das Völkervertragsrecht, in: Hanspeter Neuhold/Waldemar Hummer/Christoph Schreuer (eds.), Österreichisches Handbuch des Völkerrechts, 4th ed. (2004), 45, 60, MN 325. 75 Jordan J. Paust, Avoiding 'Fraudulent' Exeeutive Poliey: Analysis of Non-SelfExecution ofthe Covenant on Civil and Political Rights, DePaul Law Review 42 (1993), 1257. 76 Detlev F. Vagts, Treaty Interpretation and the New American Ways ofLaw Reading, EJIL 4 (1994), 472, 508. 77 Benvenisti, Judieial Misgivings (note 53), 165.

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There is yet another way of giving national interests priority over demands by international law. Many national courts, when faced with a question of international law, defer to the executive for inherently domestic reasons. 78 This may either lead the court to abstain from deciding the case79 or the court follows the govemment's assessment ofinternationallegal situations. 80 Such deference to the executive is often justified by the court arguing that the disputed issue "only" concerns questions of facts, not law. However, it is clear that in many cases such issues are in reality predominantly legal questions. 81 Finally, the attitude of domestic authorities, in particular courts, is largely determined by several down-to-earth considerations. 82 The general legal background as eonditioned by the municipal legal system will be crucial in that it essentially shapes judicial attitudes. 83 National judges decide international law issues against the background of their own legal education, being influenced by their own legal eulture and tradition. This also involves the question of"knowing" internationallaw. Only in few countries internationallaw forms part of the compulsory curriculum of law studies. 84 It is therefore not surprising that municipal judges, when faced with an internationallaw question, are unwilling to apply the "foreign law" whieh they do not know and which appears alien or eompletely academic to many domestic lawyers. 8s Likewise domestic poliey considerations play an important role in deciding on how internationallaw operates on the municipal level. In that respect, the picture is very heterogeneous as States are not unitary actors on the domestic level but comprise a variety of interest groups that pursue different objectives. This sort of influence on the process of domestic implementation is varying and cannot be outlined in a general way.

Benvenisti, Judges and Foreign Affairs (note 72), 425-427. Benvenisti, Judicial Misgivings (note 53), 169-173. For various avoidance techniques with regard to disputes before national courts involving international organizations see August Reinisch, International Organisations Before National Courts (2000),35-168. 80 Bianchi (note 53), 763-766. 81 Benvenisti, Judges and Foreign Affairs (note 72), 431. 82 Bianchi (note 53), 781. Sl Wouters (note 64), 31-34. 84 Keller (note 15),717. 8S Ibid., at 35-36. 78 79

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IV. The Relevance of These Factors for Different Branches of International Law: Every Picture Teils a Story Before concluding, I would like to empbasize that the factors dealt with above only may serve as rough indicators for evaluating the effect of domestic irnplementation on international law. And, as I said earlier,'6 these factors - at least some of them - may not withstand critical analysis. On the other hand, the list is not intended to be exhaustive. 87 Furthermore, certainly not all ofthe factors mentioned are equally irnportant and they are not necessarily coherent. For instance, I said that customary law is automatically received in many municipallegal systems which would point to an "easy" direct application of custom without irnplementation. On the other band, customary rules are often indeterminate and difficult to establish88 which would lead to the opposite result, that is, that customary law is not easily applicable in domestic law. Human rights law provides another example for such inconsistent application of these factors. Many human rights norms are considered to be self-executing which would support their direct application in domestic law and which could advance their uniform and consistent application. On the other hand, many ofthem produce horizontal effects between private parties and thus require States to take positive measures, in particular by adapting and amending their domestic laws. This, in turn, would speak against direct applicability of human rights and would leave some leeway for diversifying acts in the process of domestic irnplementation. A reasonable evaluation of the factors established above would require their application to obligations in different branches or subsystems ofinternationallaw. Although such a scrutiny would certainly be of central irnportance for the öbjective pursued in the present study, it would exceed the scope ofthis paper. Instead I will draw some tentative inferences from the previous analysis by taking a general look at the irnplications which domestic irnplementation entails in some branches of intemationallaw. An irnportant aspect is the overall structure of the substantive rules of internationallaw. In particular, as we bave already mentioned earlier, the need for irnplementing measures will certainly depend on whether the international norm is See C.l. An aspect that is certainly of great importance in the context of the reception of intemationallaw in municipallaw is the time factor, see Keller (note 15),715-716. With regard to human rights see also Michael Kirby, Indicators for the Implementation of Human Rights, in: Janusz Symonides (ed.), Human Rights: International Protection, Monitoring, Enforcement (2003), 325. II Wouters (note 64), at 28-29. 86

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aimed at goveming the direct inter-State conduct or whether its object is to regulate the conduct of individuals. Accordingly, the more these norms are intended to control the conduct of individuals, the more complex will their domestic implementation be and the more room will there be for inconsistencies. But here again, the intricacies of internationallaw impede generalization. While the existence of individual branches of internationallaw is generally postulated, it is difficult to see how each of them has a coherent structure or overall "matrix." The crucial point is that these different branches are not homogenous in thernselves as they cover a great variety of diverse obligations. F or instance, the relatively new branch of international criminallaw is to a great extent directed at governing the conduct of individuals. It teIls them what they are not allowed to do and what consequences they will have to face if they ignore these prohibitions. However, a significant part of what is called international criminal law consists of "direct" international obligations, i.e., obligations as between States or as between States and international organizations, such as the International Criminal Court. An exarnple of such obligations would be the essential duty of States to cooperate. 89 While the former norms, that is, the substantive criminal provisions, are already part of domestic law in the majority of States - and hence do not need explicit implementation -, the latter category of obligations calls for specific implementing legislation.9o Likewise, the term "international economic law" is very broad and includes a great number of differently shaped norms. For instance, one would have to distinguish between international trade law (e.g., trade agreements under the WTO system) from, say, international investment law. But even within one area of a subsystem, the interplay of different factors produces an assorted picture. For example, WTO agreements are often subject to protectionist measures on the municipallevel which tend to distort the content of international obligations and thus result in some form of diversity caused by measures of domestic implementation. On the other hand, there is an emerging tendency in the domestic application of trade agreements to facilitate the reception of such norms, for instance by developing specific principles of interpretation or by generaIly applying a weIl established practice of cooperation.91 Similar considerations may weIl apply to 89 With regard to the ICTY and ICTR see Dagmar Patricia Stroh, Die nationale Zusammenarbeit mit den Internationalen Straftribunalen f1ir das ehemalige Jugoslawien und f1ir Ruanda (2002). 90 See also Pieter van Dijk, A Common Standard of Achievement. About Universal Validity and Uniform Interpretation of International Human Rights Norms, Netherlands Quarterly of Human Rights 13 (1995), 105, 116. 91 See Keller (note 15), 703-707.

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other areas of international law, such as international human rights law, international hurnanitarian law, international environmentallaw or the law ofthe sea. In sum, for the purpose oftesting the influence of domestic irnplementation on the unity of international law, it is not sufficient to look at how the individual factors operate in the various branches of international law. Even within these branches the structures are multi-faceted and the obligations constituting such a subsystem cannot be lumped all together. Therefore, with regard to domestic implementation, each international obligation - irrespective of its being part of a specific branch of internationallaw - must be treated by its own standards.

D. Conclusions In conclusion, what can be deduced from the foregoing considerations? Does domestic irnplementation of internationallaw foster the unity of internationallaw or does it lead to its diversification? The answer to this question certainly is Yes and No. In the following I will suggest some tentative conclusions. It is impossible to rnake a general statement as to whether and in how far domestic implementation preserves the unity of international law or fosters its diversity. International law in itself is so diverse that general assumptions are difficult to rnake. Even within a specific branch of internationallaw, we are faced with a great variety of diverse international obligations that cannot be lumped together. This complex situation is aggravated by the varied treatment of internationallaw in the different municipallegal orders.

The question as to whether domestic implernentation has a perceptible effect on either the unity or the diversity of international law does not depend on the increasing "specialization" of internationallaw, that is, the ernergence of ever more specific branches or subsystems of internationallaw leading a life that is separate from the body of international law in general. While certain aspects of international norms no doubt have an influence on the way how and to what extent they have to be irnplemented (e.g., whether they regulate direct inter-State conduct or the conduct between individuals), these international factors are in practice of minor importance for the effect of implementation on the general status of international law. The factors playing a significant role in domestic implementation are for the most part genuinely domestic and not international in nature. What seems to be uncontested is that the efficacy of international law heavily depends on its successful operation in municipallaw. To this end, international law must eventually be applied in the various municipallegal orders. Since inter-

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nationallaw has to be adapted so as to fit appropriately into municipallaw some deviations or variations of the international norms must be admitted. Therefore, the whole process of domestic implementation necessarily involves a certain measure of divergence and thus entails a degree of diversity. International law must accept that the diversities between different legal cultures and traditions prevailing in different countries may lead to different results in applying international law in the domestic sphere. In the context of interpretation, for instance, "ordinary meaning" may in itself mean different things to different people in different parts of the world at different points in time. There is certainly a thin line between tolerable diversity in applying a rule of internationallaw and misapplying or even disregarding it. In that respect I would like to return to the feeling of discomfort with the present topic I mentioned at the beginning. In order to pursue the present investigation further, we should get a clearer pieture ofthe notions of''unity'' and "diversity" in the context of domestic implementation. W ould it perhaps not be better to speak of "uniformity" rather than ''unity?'' How does diversity - if established - differ from non-implementation or misapplication of international law? In other words, does an established diversity in the implementation of individual parts or obligations of international law not necessarily mean that these rules are not fully or uniformly complied with? Or does it perhaps mean that we are witnessing diverging State practice paving the way for a new rule of internationallaw? Moreover, as the margin of appreciation in human rights law on the European level clearly shows, even in a sectoral regime on a regional basis characterized by relatively homogenous values, divergencies in the application of international rules are not avoidable. But I would postulate that there is no need to fear diversity, the more so as it is a factor inherent in any process of implementing intemationallaw into municipallaw. Diversity is not per se a bad thing and, as various examples in this study have illustrated, frequently even envisaged by tbe specific international norm itself. As long as the discrepancies caused by the different results of domestic implementation of international law remain minor ones they are tolerable and just a reflection of the diverse social and cultural realities of international society.

Comment by Ahmed Abou-el-Wafa I congratulate Dr. Wittich on his excellent presentation. Undoubtedly, unity and diversity of internationallaw is not a new phenomenon. It dates back toas early as the existence of groups, nations and States. From time immemorial, the problem has been highlighted both on the international and domestic levels. I think the topic ofunity and diversity in the domestic implementation ofinternationallaw is of great importance, essentially for four reasons: First, aState is at the same time a person of internationallawand a subject of its own domestic legal order. Accordingly, it has two kinds ofrights and obligations, i.e., those arising from the international legal order and those resulting from its domestic legal system Second, as a subject of internationallaw, aState must honor its international obligations both on the international and national levels. Third, the seriousness of the problem lies in the fact that same or sirnilar rules of internationallaw may be applied in a different manner on the domestic level, especially by the judiciary and the executive in various countries and States. Fourth, implementation of international law is primarily left to States concemed. In fact, as a rule, intemationallaw leaves to each State how it complies with its international obligations on the domestic level. That being so, I will concentrate my intervention on two essential points highlighted by Dr. Wittich, namely, the meaning of "domestic implementation" and factors which may influence the question of unity and diversity in the domestic implementation of internationallaw. , As for the meaning of the expression "domestic implementation" I have some doubts with regard to what Dr. Wittich has said in his paper. In fact, he enumerates five meanings and I think, we can make a simple one which is as folIo ws: "domestic implementation" means "ensuring a de facto and a de jure efficacy of intemationallegal norms within intemallegal orders ofStates." Moreover, with regard to relationship between implementation and application, I have as weIl some doubts conceming what Dr. Wittich has said at page 348 of his excellent paper. He says that domestic implementation means "application" of intemationallaw within States in their domestic sphere. Whereas at page 349, in fine, he says, with regard to the regulations of the European Communities, that regulations are in principle not to be implemented, but to be applied. And at page 346 he seems to imply that on the domestic level a distinction between implementation and application of an international norm must be made.

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Thus, the question arises whether there is a certain difference between implementation and application. The later, in my view, prirnarily concerns the de facto carrying out of the nonn, whereas the former essentially relates to measures to be taken by the State concerned in order to ensure the application stricto sensu. As for the factors which are relevant to the unity and diversity ofinternationallaw on the domestic level, be they of an international or domestic nature, some of them are highlighted by Dr. Wittich. There are also some others which, as weH, must be taken into account. The ftrst factor is the existence of exceptional circumstances. This is mainly evident especially with regard to human rights and fundamental freedom. Nevertheless, this depends on the nature of the right in question. In fact, there are some rights which must be respected in "all circumstances," e.g., Article 2 ofthe 1984 ConventionAgainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which reads: "No exceptional circumstances whatsoever, whether a State of war, interna I political instability or any other public emergency, may be invoked as a justiftcation oftorture." Whereas the existence of exceptional circurnstances may affect some other rights on the domestic level. It suffices to mention, here, Article 15 of the European Convention on Human Rights, which permits derogations "in time of war or other public emergency threatening the life of the nation." The second factor is that conceming the existence of obligations erga omnes or jus cogens rules: Evidently, these obligations and rules necessitate unity in their application, not diversity under domestic law. For they are obligations which are incurnbent on the international community in its entirety. Accordingly, only other rules, such as suppletive rules or si omnes rules may be, in certain circumstances, diversifted in their application within the domestic level. The third factor concerns the proliferation of institutions and organs that apply andlor interpret international law in the domestic jurisdiction of States. This, inevitably, may lead to conflict and contradiction with regard to the application andlor the interpretation of the same rules of international law on the domestic level. The fourth factor relates to the incompatibility of an international norm with domestic laws. In this regard, Article 27 ofthe Vienna Convention on the Law of Treaties (1969) says that "a party may not invoke the provisions of its internallaw as justiftcation for its failure to perform a treaty. This rule is without prejudice to Article 46." Whereas under Article 46 of the same Convention, the treaty is invalidated and may not be applied ifthere is a violation of domestic constitutional lirnitations in case the violation was "manifest and concern a rule of internallaw of fundamental importance."

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The fifth factor is the concept of sovereignty. In reality, the fons et origo of attitudes adopted by States, internally or externally, may be attached to the sovereignty of the State concerned. AState may invoke its sovereignty as a justification for the non-implementation of rules of internationallaw in domestic jurisdiction. The sixth factor is the principle ofnon-intervention in matters which are essentiaHy within the domestic jurisdiction of States. In certain circurnstances, aState may refuse to implement the international nonn, in case it encroaches upon its "domestic jurisdiction." The seventh factor is the absence of serious efforts, on the internal plane, to promote better knowledge of mIes of internationallaw, particularly by members ofthe executive and the judiciary. The eighth factor is that implementation and application of internationallaw in the domestic level of States are, whoHy or partly, influenced by their "national interests. " The ninth factor is the absence of independence of the judiciary in the application of mIes of internationallaw within the domestic systems of some States. The necessity for ensuring the independence of the judiciary has been stressed by the Institut de Droit International in its Resolution adopted in MilanlItaly in 1993. The tenth factor is the desire of some States to establish new mIes or, per contra, to depart from existing legal norms. In fact, some States adopt a position whereby they do not feel bound by some mIes of internationallaw. The eleventh factor is that relating to the diversities of legal cultures, customs and traditions in various corners of the world. These diversities inevitably affect the implementation of the internationili norm on the international level. The twelfth factor concerns religions which, as weH, playa role in the diversity ofthe implementation ofmles ofinternationallaw on the domestic level. In fact, an international norm may not be implemented within the domestic order of a State due to religious feelings and considerations. For example, I think, Islarnic States have made some reservations on some human rights treaties, because they are in conflict with the Islarnic Shari'a. The thirteenth factor lies in the vagueness or the inexistence of a clear-cut definition of some international norms, as Dr. Wittich has underlined it. It suffices to refer, here, to the great divergences among national tribunals in different States as to what constitutes ajure imperii act and ajure gestionis one. This,primafacie, may adversely affect the application of the international norm on the national level.

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The fourteenth factor is reservations based on national constitutional norrns. For example, I can mention the Convention on the Elimination of All Forrns ofDiscrimination against Women. On this Convention Belgium had made a reservation concerning Article 7, mainly because the constitution reserves only for men the exercise of royal powers. The fifteenth factor relates to the prevalence of political considerations. Prima facie, there is an increasing clirnate to weaken legality throughout the world in general, and within international organizations in particular, due to the supremacy of political considerations over the principle of the rule of law. This, inevitably, leads to a certain "double standard," "double language" or "deux poids et deux measures" in the implementation ofrules ofinternationallaw, inforo in terno and in foro externo. This, undoubtedly, has a great impact on the question of the domestic implementation of international norrns. In the fmal analysis, unity and/or diversity in the domestic implementation of internationallaw should, in my view, be governed by a rule and an exception: *Thus, unity should be considered as the rule. For the implementation of any legal rule supposes that it satisfies the test of generality: the essential characteristic ofthe rule oflaw is that it is general and abstract. Moreover, this is justified, as regards international norms, by the rule ex consensu advenit vinculum,the principIe solus consens est obligat and the rule pacta sunt servanda.

* Whereas diversity should be considered as the exception, solely if it is so permitted by the norm itself. Consequently, it is a diversity secundum legem or a diversity infra legem. This means that diversity contrary to the text, e.g., diversity extra legem, is to be prohibited. This is true both for the domestic as weIl as the international implementation of international legal norrns.

Comment by Eyal Benvenisti Dr. Wittich rightly distinguishes between international and domestic factors that influence the unity and diversity within a domestic legal system in relation to the international legal system. He correctly draws our attention to the differences among the different norms to explain the different outcomes. He is aware of the role of power, but 1 think, ultimately underestimates its influence, or to put it differently, he overestimates the legal differences. 1 would follow indeed what has been said by Prof. Abou-eI-Wafa, by drawing our attention to the role of power in this exercise. 1 will try to tell a story in which the law did not appear at all. In my story there are also domestic factors and external factors that shape the domestic attitude towards international law. But the domestic factors are political factors. They include, for example, polluters, exporters or the law enforcement agencies. These groups influence the govemment's position vis-a-vis compliance with or implementation of environmental law, trade law, human rights law, or international humanitarian law. And, indeed, there are also public concerns, public values, public opinions, and public perceptions concerning the legitimacy of international Iaw that take part in the ongoing shaping ofthe domestic attitude towards internationallaw. On the international plane there are the external factors that influence the movement between unity and diversity. External pressure to comply yields more unity. Otherwise, diverse interests lead to more diversity. Thus, the promise (or threat of) reciprocity and retaliation, or the existence of enforcement mechanisms that can ensure compliance, will pull towards unity. There will be unity, ifthe external forces thatpull towards compliance are stronger than the domestic forces that militate against it, and vice versa. It is a simple story, a story about power relationships, which offers us a good prediction about the study ofunity versus diversity. My claim is that domestic judges are sensitive to all these power relationships, and the domestic sensitivities. Domestic courts are a sort of transmission belts as they coordinate the pulls of the different powers at both ends of the belt. And in this role as transmission belts, they balance the conflicting tensions between the external forces and the domestic forces. This leads me to the second question. As so-called "transmission belts," domestic courts often prefer open-ended international norms. Such open-ended norms allow them to balance between those two pulls of the belt. They prefer human rights norms that enable them to exercise balancing, and, therefore, it is not a big issue for them to recognize the applicability of international human rights norms in the domestic legal system

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For the same reason, they may prefer customary internationallaw to treaty law, because it would be difficult to argue with them if they found that a certain customary international norm had emerged and what was its content. As one prominentjudge ofthe Israel Supreme Court once told me, for hirn, customary internationallaw was a very convenient tool at hand. Just one more point that I would like to make with regard to the desirability of diversity in this particular context of domestic law vis-a-vis internationallaw. The concept of margin of appreciation, in fact, celebrates diversity among States. It pays well-deserved tribute to States' sovereignty. In fact, there is much to celebrate and there is a lot to be said for recognizing diversity for many reasons. But we have to bear in mind that diversity, and a wide margin of appreciation, are appropriate policies as long as we can trust the domestic democratic process. But if that process is captured by small interest groups, or if that process is directed against minority groups, then the process merits little respect, and then there should be little room for a margin of appreciation, little room for diversity. In such cases, unity should be the general rule. True to my emphasis on the role ofpower in this context, this brief discussion explained the attitude towards unity and diversity in the domestic sphere by resorting only to power, the political power relations within domestic systems, without saying much about the influence ofthe legal factors.

Comment by Zdzislaw K~dzia Before moving to my comments, I would like to thank Dr. W ittich for giving us the opportunity to reflect on this very interesting and important issue in a substantively enriched and more systematic manner. I would like to focus my comments on two issues: a) Domestic implementation and human rights b) Universalism of human rights and unity of internationallaw Dr. Wittich interprets the term "domestic implementation ofinternationallaw" as essential: frrstly - reception of internationallaw into municipallaw; secondlyapplication of internationallaw within States in general; thirdly - interpretation of internationallaw in the domestic sphere, in particular by the judiciary; and fourthly - enforcement of internationallaw within the domestic sphere. He also says that domestic implementation is relevant for assessing compliance with or breach of internationallaw by States. Two questions arise: (i)

Do these elements exhaust the notion of implementation with regard to international human rights law?

(ii)

Can we speak about the impact of diversified domestic implementation ofhuman rights as the exceptional factor or rather as an integral element of human rights law?

The latter question is important since ifwe assume that the unity ofinterpretation and application of internationallaw is something rather positive and diversity in this regard is essentially negative, then we should be interested in mechanisms limiting the "negative impact" of diversified implementation. W ould this observation be applicable to international human rights law? Human rights treaties themselves provide context to these questions. For exampIe, the Covenant on Civil and Political Rights in its Article 2 says that: I. Each State Party [ ... ] undertakes to respect and to ensure to all individuals [ ... ] the rights recognized in the present Covenant [ ... ]. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give etTect to the rights recognized in the present Covenant.

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Indeed, it seems that in the language of international human rights law, domestic implementation is interpreted in a broad sense - as giving effect to the international commitments of States by all required means. These commitments include, according to the current interpretation by the international human rights treaty bodies the obligation to respect, protect and fulfill human rights. The duties to respect and to protect can be seen as classic obligations under law and as such tend to be implemented in a similar way across the borders. The duty "to fulfill" goes, however, beyond this classic approach - it means the creation of structural conditions allowing for the enjoyment ofhuman rights by their holders. For obvious reasons, this obligation leads to enhanced diversity of actions by duty bearers - mainly States. Moreover, the differences in domestic implementation in the case of human rights law are not only products of highly diverging situations in different countries, but also, in a multiplied manner, of individual situations of rights holders. Dr. Wittich points out that: "the more international norms are intended to produce effects in the domestic realm of States because they regulate the conduct of individuals, the bigger will be the need for implementation and hence the tendency towards diversity." Taking into account the text of human rights treaties and their historical context, we can say that: - the human rights treaties have been drafted and are interpreted on the assumption that methods and means of their implementation will to a certain extent vary from country to country; - the implementation of human rights has been envisaged on the same assumption; as, e.g., in the context of prevention of violations or horizontal effect (Drittwirlcung), mentioned by Dr. Wittich; - the implementation ofhuman rights is expected to go beyond the literal application of international human rights law within the domestic legal order and reaches out to affirmative action (not only in the context of economic, social and cultural rights but also civil and political rights - e.g.. the right to life). Why am I attaching so much importance to the very notion of the domestic implementation of human rights? The reason for that is that the tension between the diversified domestic implementation and the unity of internationallaw seems to be somewhat inscribed in international human rights law. Dr. Wittich refers to several vehicles for this tension. One can mention in this context the continuing need for resolving conflicts between rights (Güterabwägung), general clauses, such as human rights dignity, or language used to draw limitations to human

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rights, to realize that this tension is real and may have some negative consequences for the unity of international human rights law. The intrinsic nature of this tension is a factor that needs to be taken into account in our analysis, and because of its speciality may require particular attention. Is this observation generally discouraging? I do not think so but if we want to avoid such an impression we need to look at this tension from a dynamic point of view. Hence, the relationship between international human rights law and its domestic implementation is not static in its basic features across the borders. Existing tensions do not necessarily need to undermine this branch of law. I will come back to this issue in the second part of my comments. The interim conclusion would be, however, that the impact of the domestic implementation on international human rights law should be assessed at a rather high level of generalization. Otherwise, we may be confronted with a casuistic and thus rather inconclusive pieture. In a way, this was predicted by the Committee on Economic, Social and Cultural Rights in its comment No. 3, where the Committee speaks about core obligations of the State under the Covenant.

The Unity 0/International Law and Universalism

0/Human Rights

The second issue, which I would like to address, is the relationship between the unity of international law and universalism of human rights in the context of domestic implementation. Let me start with the question that refers to what has just been said: Is it not so that this is exactly the acceptance of the diversity of domestic implementation, in a way inherent to human rights, that makes the concept of universality of these rights possible at all? The challenges to universality of human rights are, in fact, largely the same factors as those which give rise to diversified implementation ofhuman rights. Is thus the tension between diversified implementation and universality ofrights and unity of law irresolvable? We need to see universality ofhuman rights as both a principle and a process. As a principle, it has its context not only. in the unifying moral imperative of respect for human dignity but also in skepticism against common ideological or philosophical foundations in a world of different cultures and traditions. We remember comments by one ofthe drafters ofthe Universal Declaration, Jacques Maritain, who said that this document did not express any "universal" concept of human rights and should be seen as an ideologically neutral set of practical commitrnents. But, this was a comment on a principle at a given historical moment.

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Universality should also be interpreted through the lens of a proeess, a proeess ofuniversalization. And here, the eomment by Judge Pathak from India seems to be more adequate - he said: "[ ... ] the skepticism expressed by cultural relativists must be contained within the narrow limits of their fears. The doctrine of cultural reIativism [ ... ] should not discourage the effort 10 move towards (emphasis added) a universal system ofhuman rights" based on different ideologies, cultures, traditions, and experiences.

I believe that Judge Pathak's eomments provide an important eontribution to our discussion of today. The impact of the diversified implementation of international human rights law ean be seen in the context of universalization of human rights not only as achallenge to the unity of international law but also as an opportunity for its further development and enriehrnent. Thus, progressing universalization as such should be seen as a factor rather contributing to the unity of law than undermining it. Is it not so that universalism as a process leads to the restoration ofthe unity of international law through incorporation of domestic experiences and inputs? Perhaps international human rights law because of its eultural, eeonomic, social, and legal contextualization must go through the phase of challenges to its unity immediately following the adoption oflaw, and thus allowing through the national experience and reality check for the return ofunity at the subsequent stage? Or, is it a too optimistic view? Is perhaps another option more appealing? Namely, that there are just eontradictory trends in human rights law - on the one hand, there is a trend leading through the claim for their universality up to unification of internationallaw, but, on the other band, that although eommitrnents under human rights law are universal diversified implementation leads us in the opposite direction? Conc/usions

1. For a human rights lawyer, the issue ofthe tension between the diversified domestic implementation ofinternationallaw and the principle ofthe unity ofthis braneh of law may appear a little bit strange, at the first glance, since the concept of international human rights law is based on the assumption that - given varying loeal eonditions and different legal systems - the domestic implementation of human rights standards may and will require different steps taken by various Govemments. Hence, State Parties usually claim to have complied with their treaty obligations having used different methods and approaehes. This feeling, however, does not contradict the observations by Dr. Wittich that the domestic implementation has the potential to weaken the unity of international human rights law. It is also not a rare phenomenon that the referenee to diversified methods of

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implementation should actually cover practices contradicting commitrnents made under international human rights standards. 2. In the case ofhuman rights, we see the relationship between internationallaw and domestic implementation making a circle. At the moment of standard setting, the international community is arriving at an agreed language of international law - a high point of unity (despite all soft spots related to the vagueness of the language, compromise phrases rather covering than resolving problems, and finally despite all the ambiguity related to the so-called "one single voice of a committee"). It is a remarkable point because the achieved unity is almost immediately challenged by highly diversified domestic implementation. The next phase, the phase of practical universalization brings, however, a secondary rapprochement. Good practices are being shared and incorporated, non-compliance with and breaches of international law are highlighted and sometimes corrected. Then the tension between unity of law and diversified implementation may begin to ease and the cirele may begin to elose. 3. In this sense, I would agree with Dr. Wittich's answer to the question: whether domestic implementation of international law does foster the unity of internationallaw or leads to its diversification? His answer is: "Yes and No." In the case ofhurnan rights law, I would add that this is a dynamic relationship and its assessment largely depends on the stage of its development.

Comment by Christian Tomuschat Domestic implementation of internationallaw, understood as application and enforcement of internationallaw mIes by national authorities with regard to their own citizens, was an almost unknown concept one hundred years ago. Triepel's ideas dominated the thinking ofjurists: internationallaw had as its addressees only States, and therefore it was qualitatively different from domestic law. I To be sure, international commitments undertaken had to be complied with, and consequently national authorities had to act as appropriate, but States discharged this obligation vis-a-vis their foreign counterparts. The relationship between aState and its citizens rernained essentially a matter under exclusive national jurisdiction. We all know that this classical configuration has changed drarnatically since the coming into force ofthe UN Charter and the rise ofhurnan rights as a new area of internationallaw. Internationallaw has set aglobai framework for legitimate State action. The two International Covenants of 1966 are so wide in scope that almost no thing escapes their reach. Progressively, in particular in econornic unions, the generality of these obligations has given way to more precise regulations. In many sectors, what was formerly governed by rules from domestic sources is now placed under an international regime. In my general course at the Hague Academy in 1999 I suggested that we have now entered a newage where internationallaw provides "a comprehensive blueprint for sociallife."2 However, it is not easy to maintain the unity of an international regime that is confmed to substantive terms. Normally, mIes elaborated at international level and designed to regulate rights and duties of private persons have to be implemented by national authorities. Even in the European Communities it was found to be too onerous to establish a special "European" executive apparatus. Community law is handled, with few exceptions, by the bureaucracies and courts of the member States. Understandably, however, national bodies have a tendency to interpret international mIes in accordance with their own traditions. As a result, those mIes rnay become re-nationalized, losing their specific thrust by being "overpowered" by national thinking. This is particularly worrisome if the intention is to set a public order framework for the participating nations and shape societal developments. Are there any techniques and methods better suited to reach the airns pursued than others? Because ofthe brevity ofthe available time, we can only deal with international treaties. Heinrich Triepel, Völkerrecht und Landesrecht (1899),20. International Law: Ensuring the Survival ofMankind on the Eve ofa New Century, RdC (1999). 281; (2001). 63. I

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The fIrst question is of course whether, seen from the viewpoint of the international conununity, fonnal inclusion of international mIes in the domestic legal order is preferable or whether the "British method," according to which generally a treaty remains confmed to the international level and will not as such be made part and parcel of the national legal system, deserves priority. In this connection, it may be useful to recall some concrete experiences. Quite deliberately, the socialist States in central and eastern Europe limited their conunitment under the International Covenant on Civil and Political Rights to the ratification of this instrument, refraining from enacting it as applicable nationallaw. This was perfect1y lawful, since the "British method" bad been accepted many decades ago already by the Strasbourg Court for the European Convention on Human Rights. However, the intention of the socialist States was quite clear. They did not want anyone oftheir citizens to be able directly to invoke the Covenant. Unfortunately, this was also the intention of the United States when it ratifIed the Covenant. Its declaration that Articles 1 though 27 "are not self-executing" relegated those rights to an insignifIcant role. Not even in the Guantanamo crisis was ever any reference made to the Covenant. Without the activating power of anational judicial system a human rights treaty will remain marginalized. In fact, the United Kingdom eventually acknowledged that it could not fully live up to its conunitments under the European Convention. Therefore, in 1998 it enacted the Human Rights Act which has made the European Convention direct1y applicable domestically. As far as the European Conununities are concerned, the founding treaties as weIl as all the secondary mIes must be direct1y invokable by every person concerned (not only citizens ofthe Union). No explicit stipulation to that effect exists in the treaties thernselves. But what has been said many times by the Court of Justice of the European Conununities for the acts of secondary law applies to Conununity law in general. The system could not operate as envisaged if States were free to make their own determinations on the best method of implementation. In sum: Incorporation of international treaties in the national legal order ensures in the best manner effective implementation and thereby their unity in the process of actual implementation. However, like administrative authorities courts are tempted to construe international law in accordance with their inbred intellectual habits. Therefore, one cannot be absolutely sure that their inferences do justice to the true meaning of an international treaty. In most cases, national judges are not farniliar with international methods ofinterpretations laid down in the Vienna Convention on the Law ofTreaties. Additionally, more often than not the relevant practice and case law of international bodies are not accessible to them This applies even to the European

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Convention on Human Rights. It is common knowledge that the Strasbourg decisions are delivered in an English and a French version only, and it is also common knowledge that not all Gerrnan judges are able to read and understand correct1y such decisions handed down in a foreign language. Therefore, it is extremely advisable to provide for a procedure ofmonitoring that would allow the requisite corrections. The procedure of preliminary rulings under Article 234 EC Treaty is an ideal tool for securing the unity of interpretation of a system which attaches - and must attach - great importance to its uniformity. I am not going to comment on this procedure which is known to everyone here present. As far as the guarantees of the European Convention are concerned, the opportunity open to everyone to file an application with the Strasbourg Court also provides an avenue for ensuring the uniform application ofthe rights set forth in the Convention. However, this system is less flexible and less effective. It comes into play ex post, after the judicial proceedings at domestic level have already been concluded, possibly with erroneous results. It obviously lacks the elegance ofthe 234 procedure with its preventive effect. Efforts to introduce also a procedure of preliminary rulings with regard to the European Convention had to be abandoned, however, because ofthe insurmountable problem of quantity. There is hardly any dispute any longer where the European Convention could not be relied upon. I do not think that elevating an international treaty to constitutional rank is a decisive factor in maintaining its integrity. I am still under the impression of an Austrian study, carried out rnany years ago, that showed how cautious the Austrian tribunals were in interpreting the European Convention. Never did their case law reach the boldness of the decisions of the Strasbourg Court. It stands to reason, on the other hand, that indeterminacy is a factor which can have a disintegrating effect. Human rights, in particular, are indeterminate by their very nature. Here, a delicate balance has to be achieved. On the one hand, the unity of normative content must be preserved. On the other hand, the limitation clauses explicitly or implicitly attached to almost all of international human rights are intended to permit limitations and restrictions in light of the specific factual circurnstances prevailing in the country concerned. Additionally, the Strasbourg Court has evolved the well-known doctrine of "margin of appreciation," which gives States parties even more room for adjustment - and rnanreuvering.

Let rne close by recalling the thesis advanced by my former GDR colleague Bernhard Graefrath that freedom of expression could not mean the same thing in a free democracy and in a socialist State. In his view, the concept of "public order," explicitly mentioned in the limitation clause of Article 19, the freedom of

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expression provision of the International Covenant on Civil and Political Rights, meant that nobody was allowed to call into question socialism as the key pillar of a socialist State. Thus, what we are debating are not just technicalities, but go right to the heart of what can be achieved by international treaties which provide a blueprint for sociallife.

Unity and Diversity of International Law in tbe Settlement of International Disputes By Beate Rudolf

A. Introduction In 1918, Walther Schücking predicted emphatically: "But the time will come, and it is not far away, when judieial settlement of international disputes will become obligatory."1 Evidently, the international community has not yet entered this golden age of international relations. Nevertheless, bis prophesy was right in its central point: The quest for expanding the peaceful settlement of disputes through international courts and tribunals beeame a eharaeteristie feature of the 20th century. At least for the large majority ofinternationallawyers, the ideal, the Holy Grail, was that all States should beeome obliged to bring a11 their disputes before an international judicial body. The more States submit themselves to judicial control, the more the power-based international soeiety is transformed into a legal community based on the rule of law. 2 Therefore, it is ironie that at the moment when numerous international judieial bodies are being established, the question is raised whether their multiplieation threatens international law as a coherent body of rules. Many authors even speak of the ''proliferation'' of international courts and tribunals, 3 as if they were weapons of mass destruetion threatenI Walther Schücking, Kultur und Internationalismus, in: id., Der Bund der Völker. Studien und Vorträge zum organisatorischen Pazifismus (1918), 52: "Aber die Zeit wird kommen und ist nicht mehr fern, wo das Schiedsgericht einen obligatorischen Charakter annehmen wird." [translation by the author]. 2 Cf Hermann Mosler: The International Society as a Legal Community (1980). See also Antonio Augusto Can{:ado Trindade, The Merits of Coordination of International Courts on Human Rights, J. In1'l Crim. Just. 2 (2004), 309, 3 \0; and Benedict Kingsbury, Foreword: Is the Proliferation ofInternational Courts and Tribunals a Systemic Problem?, NYU J. In1'l L. & Pol. 31 (1999),679,688, who calls this an "articIe offaith" "among most internationallawyers." 3 Cf, e.g., the contributions to the Symposium "The Proliferation of International Courts and Tribunals: Piecing Together the Pieces ofthe Puzzle", in NYU J. In1'l L. & Pol.

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ing the international legal order. Has the Holy Grail turned out to be Pandora's box? The following attempt to answer this question will analyze the case law of dispute settlement bodies in light of the fOUT general questions underling the symposium. What are the common features and significant divergences in international law as applied by international dispute settlement bodies? What are the reasons for their fmding identical or different interpretations of the same mle? What are the consequences of divergences for internationallaw? What remedies are available?

B. Unity and Diversity Analyzed Comparative studies show that international judicial bodies often refer to the case law of other international courts or tribunals. 4 This is true for decisions of long-existing judicial bodies, such as the ICJ, human rights courts and treaty supervisory bodies, as weIl as for more recently established courts, viz. the ITLOS, the ICTY and the ICTR, and for ad hoc arbitral tribunals. Particular noteworthy is that such references become increasingly true for the WTO panels and the Appellate Body. Nevertheless, instances of divergence do exist, and they justify the question of whether they are an indication of times to come. Exarnining some selected issues of unity and diversity in the case law of international judicial bodies will help to identify the major aspects ofthe questions and to propose some answers to them. In the following analysis, the term "unity" will be used to describe decisions that bring about coherence of the mIes of international law. When used as an antonym to ''unity'' in this context, "diversity" covers instances in which decisions contain interpretations or lead to results that differ from those of other international judicial bodies. It will remain to be seen whether such dissirnilarities expose 31 (1999), 679-930, or Gi/hert Guillaume, Advantages and Risks of Proliferation: A Blueprint for Action, J. Int'l Crim. Just. 2 (2004), 300; Gerhard Hafner, Should One Fear the Proliferation of Mechanisms for the Peaceful Settlement of Disputes?, in: Lucius Caflisch (ed.), The Peaceful Settlement of Disputes Between States: Universal and European Perspectives (1998), 25; and Donald L. Morgan, Implications of the Proliferation of International Legal Fora, Harv. Int'l L. J. 42 (2002), 541. 4 The seminal study is by Jonathan Charney, Is International Law Threatened by Multiple International Tribunals?, RdC (Collected Courses of the Hague Academy) 271 (1998), 101. See also Nathan Miller, An International Jurisprudence? The Operation of 'Precedent' Across International Tribunals, Leiden J. Int'1 L. 15 (2002),483.

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the existence of a conflict or whether they reveal themselves as mere variety ("diversity" in a narrow sense). I. Examples of Coherence in the Case Law of Judicial Bodies As any legal system, public internationallaw has long known that conflicts may arise between different rules or between different sets of rules. Consequently, it has set up general rules for resolving such conflicts, and the most important of them are part of customary international law codified in Part III of the Vienna Convention on the Law ofTreaties (VCLT):s They are the lex specialis rule and the lex posterior rule, and their general structure resembles that of their counterparts in municipallaw. Even more importantly, the Vienna Convention provides that treaties are to be interpreted in light of any relevant rule of internationallaw applicable between the parties (Artic1e 31 (3) (c». This provision reflects the understanding that international law is a legal order, and that, consequently, conflicts have to be avoided to the farthest extent possible. Because of this character of internationallaw, this rule on the interpretation of treaties also applies to the interpretation of customary internationallaw. As, consequently, interpretation is the main instrument in ensuring the unity of internationallaw, courts and tribunals become the main actors in the fulfi1lment of this task. 1. Coherence Between Different Treaties

a) Ensuring Coherence Tht'ough Cross-Treaty Interpretation Courts have used the "harmonization rule," i. e., the obligation to interpret a rule in light of other relevant rules of internationallaw in a variety of ways. The most direct mode of applying the harmonization rule is through "cross-treaty interpretation:" A court simply uses the interpretation of a term under one treaty to interpret the same term under the treaty before it. This approach is particularly prominent in international criminallaw. In a large number of cases, the ICTY trial and appeals chambers have invoked binding and non-binding human rights rules to interpret terms under international criminallaw. A case in point is the question ofwhether rape can be regarded as torture. The ICTR answered this question in the affmnative by transposing the definition of torture under the UN Convention against S Cf the contribution by Monika Heymann, Unity and Diversity with Regard to International Treaty Law (in this volurne).

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Torture (CAT) to the same term under its own statute. 6 The ICTY refmed this approach by showing that the meaning oftorture under the CAT reflects a universal consensus. For this purpose, the tribunal cited reports ofthe UN Human Rights Committee, the UN Committee against Torture, the Special Rapporteur on Torture, and the European Committee for the Prevention of Torture. It attached particular weight to a judgment ofthe ECHR and to the report ofthe Inter-American Commission, which in turn had cited the Geneva Conventions. 7 The method ofthe ICTR manifests the understanding that unity in the interpretation of international law bestows authority upon adecision because it is reinforced by the authority of another judicial body. The ICTY goes beyond this consideration by giving a substantive legal reason for cross-treaty interpretation. For the ICTY, an identical interpretation does not generate as much authority as does a reasoned interpretation. The approaches of the two international criminal tribunals showthat the harmonization rule of Article 31(3) (c) VCLT has a formal and a substantive component: The formal element is mere cross-treaty interpretation that avoids a conflict; the substantive component is based on the idea that a harmonizing interpretation is particularly warranted if the rule to be interpreted expresses common values ofthe international community. b) lncorporation of One Treaty into the Other the "Modified" Lex Specialis Rule International judicial bodies have taken this step from formal to substantive unity of internationallaw also with respect to the lex specialis rule. An illustration is the advisory opinion ofthe ICJ on the Threat or Use ofNuclear Weapons. 8 The Court held that both human rights law and international humanitarian law continue

6 Prosecutor v. Jean-Paul Akayesu. Case No. ICTR-96-4-T, Judgment ofSept. 2, 1998, para. 593. Strict1y speaking, this is cross-treaty interpretation in a large sense because the statute ofthe ICTR is no treaty, but is contained in aResolution ofthe UN Security Council (Res. 955 (1994». 7 Prosecutor v. Furundiija, Judgment, Case No. IT-95-17/1-T, Trial Chamber I1, Judgment of Dec. 10, 1998, para.163, reprinted in ILM 38 (1999), 317, citing Aydin v. Turkey, ECHR, Judgment ofSept. 25,1997, 1997-VI Reports of Judgments and Decisions paras. 83-84, and Mejia v. Peru, IAComHR Case No. 10.970, Report No. 5196 of March 1, 1996, OAE/Ser.LlVIII.9I.Doc. 7157 (1996), at V.b)2 (mistakenly referred to as ajudgment ofthe IACtHR). 8 The Legality ofThreat or Use ofNuc1ear Weapons, Advisory Opinion of July 8, 1996, ICJ Reports 1996,246, para. 25.

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to be applicable in times ofwar/ but that hwnanitarian law is lex specialis. It is, therefore, applicable to deterrnine whether adeprivation of life is arbitrary and hence prohibited under Artic1e 6 ICCPR. Tbe same approach can be found in the General Comment of the Human Rights Conmrittee conceming derogations. According to it, derogation from the Covenant must be consistent with the State's obligations under international hwnanitarian law. 10 1bis approach is based on a new, extensive understanding of the lex specialis rule: Instead ofreplacing the more general rule, the lex specialis only modifies it. Of course, for human rights under international treaties, this conc1usion follows from Artic1e 4 ofthe Covenant. For customary human rights, this result can only be brought about by modifying the lex specialis rule. Tbe argument in favor of such harmonizing interpretation is that it preserves the unity between f'undamental values based in treaty and custom alike. c) Harmonization 1brough Balancing Processes Sometimes, it is the treaty text itself that opens a way of preserving the unity of internationallaw. A particularly useful tool is the proportionality requirement, especially in human rights treaties. It calls for a balancing process in which other rules of internationallaw can be taken into account. Tbe outcome may either be that the scales of the balance tilt in favor of one of the two conflicting norms, or that an equilibrium is established between them. In the latter case, both norms are to be optirnized. Good examples are cases before the ECHR that involved State immunity. Tbe Court bad to deal with it in two types of situations: First, cases concerning employment disputes against an international organization (the European Space Agency),11 and second a civil suit for torture against a foreign State (Al-Adsani Case).\2 Tbe Court had to decide whether immunity from suits was compatible with the right of access to court, i.e., whether immunity from suit was a proportionate limitation of Artic1e 6 of the Convention. In the two cases conceming the immunity ofthe European Space Agency (ESA), the Court stressed the f'unctional With the exception of the rules validly derogated from under Artic1e 4 ICCPR. CCPR General Comment 29 (72) (24 July2001), paras. 3 and 9, reprinted in: Compilation of General Comments and General Recommendations Adopted by Human Rights TreatyBodies, UN Doc. HRI/GEN/I/Rev.7, 184, 185, 186-187. 11 Cases of Waite and Kennedy v. Germany and of Beer and Regan v. Germany, Judgments of Feb.18, 1999, ECHR-Reports 1999-1. 12 Case of Al-Adsani v. u.K., Judgment of21 Nov. 2001, ECHR Reports 2001-XI. 9

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necessity of the inununity of an international organization. 13 In the AI-Adsani Case, the ECHR looked to the fact that State inununity was "generally accepted by the conununity ofnations."14 For these reasons, denying the applicant's access to court was not disproportionate in both cases. The Court thus chose the interpretations that would harmonize the European Convention with general internationallaw. But this harmonization need not be a one-way street, i.e., a situation in which one consideration wins - that of general internationallaw - and the other loses - that of the Convention. In the ESA Cases, the Court attached importance to the fact that the applicant had "reasonable alternative means to protect their rights effectively."15 In other words: Article 6 requires States to provide for other effective remedies when granting inununity to an international organization. Thus, the requirements of the Convention and of general international law are both optimized - in German parlance: Praktische Konkordanz l6 is achieved. Such solution was impossible in the AI-Adsani Case. That case was a situation of "either - or" because the addressee ofboth obligations (the U .K.) had no means of avoiding a violation of one ofthe two obligations in like cases in the future. The reason for this double bind was that the State inununity rule is a norm of customary internationallaw, which cannot be modified as easily as the functional inununity of an international organization that is based on a treaty (the headquarters agreement) and that is, therefore, subject to revision by treaty. This consideration demonstrates that praktische Konkordanz can be achieved more often when balancing two treaty rules. The AI-Adsani Case has a second aspect to it. The Court emphasized the high normative status ofthe prohibition oftorture, referring, inter alia, to judgments of the IC1Y. 17 Yet this consideration was not sufficient to overcome the principle of State inununity, which is equally fundamental as it is a manifestation of the sovereign equality of States. This reasoning, however, should not be misunderstood as 13 Waite and Kennedy v. Germany (note 11), paras. 62 and 68; and Beer and Regan v. Germany (note 11), paras. 53 and 58, respectively. 14 Al-Adsani v. u.K. (note 12), para. 55. IS Waite and Kennedy (note 11), paras. 62 and 68; and Beer and Regan v. Germany (note 11), paras. 53 and 58. 16 Literally "practical concordance;" the term was coined by Konrad Hesse, former Justice ofthe German Federal Constitutional Court. 17 A/-Adsani v. u.K. (note 12), paras. 30-31, citing Proseeutor v. Furundzija (note 7) and referring to Prosecutor v. De/aeie and Others, Case No. IT-96-21-T, (Nov. 16, 1998) para. 454) and to Prosecutor v. Kunarae, Case Nos. IT-96-23-Tand IT-96-23/1 (February 22, 2001), para. 466.

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a lack of concern for the unity of internationallaw by the ECHR. On the contrary: The Court could decide as it did only because there was no direct conflict between values of an equal rank since the prohibition of torture was not direcdy at issue in the case. It served rnerely as a reinforcement ofthe applicant's right under Article 6 of the Convention (access to justice). The alleged violation was that the respondent State, the U.K., did not allow a civil suit against a foreign State for having committed an act of torture. Therefore, the human rights obligation in question was of lesser rank and had to yield to a rule of higher status, viz. the fundamental role of State irnmunity. What remains open is how the Court would reconcile two roles offundamental value that are both absolute in character. 2. Coherence Between Decisions ofDifferent International Bodies A second aspect ofunity ofinternationallaw is that internationaljudicial bodies strive for coherence between the results oftheir decisions and that oftheir peers. In contrast to the foregoing situations, this effort takes place when mIes of internationallaw do not conflict with each other. In that case, preserving unity does not serve the purpose ofupholding the mIes that create the legal order, but ofreinforcing the very idea of a legal order. In addition, the motivation mayaiso be the same as for ensuring coherence between treaties - to bolster the authority ofthe bodies protecting the international legal order and/or of partaking in the authority of another body to reinforce one's own. a) Creating Coherence by Following Outside Precedent The most obvious example of preserving coherence between decisions of international judicial bodies is to decide structurally comparable questions of law in an identical way although the applicable mIes stern from different sources. Surprisingly, most examples can be found in decisions on jurisdiction and procedural law, despite the fact that '[i]n international law, every tribunal is a selfcontained regime (unless otherwise provided)."18 Obviously, the documents setting up an international judicial body differ, and their powers and procedures have to be determined on this basis. Nevertheless, in interpreting the legal basis of their powers, judicial bodies face the criticism ofhaving adopted self-serving solutions, 18 Prosecutor v. Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-I-AR72, (ICTY, App. Chamber, Oct. 2, 1995), para. 11, reprinted in ILM 35 (1996),32.

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particularly when they opt for an extensive interpretation of their powers. Therefore, looking to the decisions of their counterparts does not only provide inspiration, but also - and more importantly so - they bestow authority. The source of this authority is twofold: It is the respect that the other judicial body commands and it is the persuasiveness of identical solutions that reflect the existence of general principles underlying the international order. A case in point is the question ofthe extent of a court's advisory jurisdiction in cases where the conditions of contentious jurisdiction are not fulfilled and where, consequently, there exists the danger of circumventing the consent requirement. The IC] has long held that it does have the power to reject arequest in that case but it also held that circumvention must not be presumed. 19 The IACtHR followed this approach without even considering the differences between the two court systems. 20 A further instructive case is the problem of whether decisions on provisional measures have binding force. In the LaGrand Case, the IC] answered this question in the affIrmative, after having interpreted Article 41 of its statute in light of its object and purpose, and ofits drafting history.21 In addition, and more importantly in the present context, the IC] referred to the PCIJ to argue that there is a "principIe universally accepted ( ... ) to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given. "22 Here, the International Court based its argument on a general understanding ofthe nature ofa court, thus transgressing the limits of the mere text of its Statute. The ECHR recently adopted the same reasoning invoking this decision and those of other international judicial bodies when holding that its own interim measures were binding. 23 It is particularly noteworthy that \9 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion ofMarch 30,1950, ICJ Reports 1950,65. 20 IACtHR, Other Treaties Subject to the Consultative Jurisdiction ofthe Court (Artic\e 64 ofthe American Convention on Human Rights), Advisory Opinion ofSept. 24, 1992, 1982 IACtHR (Ser. A), No. 1, para. 28, upheld in Restrictions to the Death Penalty (Artic\es 4 (2) and 4 (4) ofthe American Convention on Human Rights), Advisory Opinion of September 8, 1983, 1983 IACtHR (Ser. A) No. 3, paras. 25 and 40 (citing, in addition, the Western Sahara Case). 2\ LaGrand Case (Germany v. U.S.A.), Judgment of July 27,2001, ICJ Reports 2001, 466, paras. 98-109. 22 Id., para. 103. 23 Mamatkulov and Askarov v. Turkey, Judgment of 5 February 2005, n.y.r., para. 124 (referring to the ICJ, the IACtHR, the Human Rights Committee, and the Committee against Torture). The non-respect of such adecision amounts to a violation of Arts. I, 34 and 46 ofthe European Convention.

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the European Court used the authority of other international judicial bodies to justify its departing from its own case law. 24 b) Creating Coherence by Continuing the Line of Reasoning of Another Court A second way of establishing coherence between the decisions of international courts and tribunals consists in continuing in the line of reasoning of another international judicial body. This approach differs from the foregoing in that one body does not adopt an identical solution, but that it decides a related question and builds on the decision of the other judicial body. A good example is the decision of the Special Court for Sierra Leone on the question of whether former Liberian President Charles Taylor enjoyed immunity from criminal proceedings before it. Tbe Special Court answered this question in the negative, emphasizing that it is an international criminal COurt. 25 This decision is a direct reaction to the holding of the ICJ in the Arrest Warrant Case that the immunity of an incumbent Minister of foreign affairs does not extend to "proceedings before certain international courts. "26 It remained undecided which courts the ICJ referred to, or how to defme them. A problematic case is that of criminal courts set up by third States and the extent ofnecessary UN involvement. Tbus, the decision ofthe Special Court is an attempt to fill the gaps left by the ICJ, and thus to ensure coherence with the case law ofthe latter. By doing so, the Special Court partakes in the authority ofthe ICJ and, simultaneously, it enhances its own status because it participates, on a par with the ICJ, in the interpretation ofrules of general internationallaw. Continuing the line of reasoning of another judicial body in this way has one important characteristic in common with the approach of following the precedent of another international court or tribunal examined before: Both are based on the conception that there are common principles ofinternationallaw and that ensuring 24 Cruz Varas and Others v. Sweden, Iudgment of20 March 991,201 ECHR (Ser. A), (1991) paras. 102-103, (conceming the legal efTects ofan interim measure indicated by the European Commission on Human Rights, and distinguished by the Court on this point from the Mamatkoulov Case) and Conka v. Belgium, Decision of 13 March 2001, n.y.r., French version available at ,para.11 (25) (conceming the legal efTects of an interim measure indicated by the Court itself and therefore identical to the Mamatkoulov Case). 25 Decision of the Appeals Chamber of 31 May 2004, n.y.r., para. 41, available at . 26 Case conceming the Arrest Warrant of 11 April 2000 (Democratic Republic ofthe Congo v. Belgium), Judgment of 14 Feb. 2002, ICI Reports 2002,3, para. 61 (emphasis added).

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their consistency helps strengthen the cohesion of the international legal order. One might call this an inner coherence. c) Ensuring Coherence of Outcome A third approach looks to external coherence ofinternationallaw, i.e., it airns at preventing results of international decisions that reveal conflicting general assessrnents ofthe situation before them It can be observed in cases where several judicial bodies deal with the same factual situation from different legal angles and do not have to apply an identical or comparable rule. A case in point is the Bankovieh decision of the ECHR. Under Article 1 of the Convention, the reach of the hwnan rights protection under the Convention is lirnited to the States parties' "jurisdiction," and the Court interpreted this term as being "essentially territorial."27 As a consequence, it considered the Convention inapplicable to military actions abroad when no foreign territory is occupied. Tberefore, the States parties to the European Convention on Hwnan Rights were not responsible under the Convention for NATO actions against Serbia. Through this narrow interpretation/ 8 the Court avoided a conflict with the ICTY: Adecision on the merits in the Bankovieh Case might have put pressure on the ICTY to reconsider its decision not to investigate NATO actions against Serbia so as to avoid a situation in which the European Court examines alleged human rights violations whereas the ICTY declares that there are no indications for the alleged violations of international criminallaw. One should not lightly discard this consideration as being merely "political." It is concemed with preserving the authority of international judicial bodies, which is undermined by such seeming contradictions even if they can be justified on legal grounds, viz. on grounds ofthe different rules applicable. Tbe - albeit erroneous - perception of inconsistency between international judicial bodies also has a potential for challenging the international legal order as a whole when it leads to the - equally flawed - impression of incongruities between norms that re fleet fundamental values. This was the case in Bankovieh, where a different decision of the ECHR could have been read as revealing a conflict between human rights and 27 Bankovich et al. v. Be/gium, Czech Republic, Denmark, France, Germany, Greece, Hungary, lceland, Ita/y, Luxemburg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, Admissibility Dec. of 12 Dec. 2001, reprinted in ILM 41 (2001),517, para. 57. 28 For a critical appraisal ofthis approach, see Alexandra Rüth/Mirja Trilsch, Case note on Bankovich et al. v. Belgium et al., AJIL 97 (2003), 168.

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international criminallaw. In a legal system without compulsory and comprehensive jurisdiction of judicial bodies, avoiding such conflicting results furthers the States' acceptance of judicial control and their respect for internationallaw. 11. Examples of Diversity in the Case Law of Judicial Bodies When analyzing diversity in the decisions of international courts and tribunals, it seems useful to distinguish between diversity as variety, i.e., conflict-free differences, and diversity as divergence. It is safe to presume that the first type of cases poses a danger to internationallawas a coherent system only in exceptional circumstances, whereas the second type of cases, as a rule, threatens the international system. J. Diversity as Variety

Diversity as variety is a daily occurrence in the activities of international judicial bodies. Tbe underlying reason is that internationallaw is "fragmented," or rather a body of differentiated special legal regimes held together by overarching general rules and principles. Tberefore, each treaty has to be interpreted, first and foremost, in light of its own object and purpose. This principle has repercussions on the methods of interpretation, as weH as on the interpretation of procedural and substantive treaty rules. It aHows for solutions that are best adapted to the special needs of the regime and its participants. Tbus, diversity reflects the richness of internationallaw. a) Variety in the Methods ofInterpretation Tbe methods of interpreting treaty norms are a prominent example of diversity reflecting the different objectives of international agreements because they are determined by the object and purpose ofthe treaty itself. Tbe ECHR, e.g., considers the European Convention to be a "living instrument"29 intended to respond to conternporary social developments. This approach opens the door to a dynamic interpretation of the human rights guaranteed. As an exarnple, the ECHR rejected the narrow reading of Article 16 of the Convention in the Piermont Case despite 29 Tyrer v. U.K., 26 ECHR (Ser. A), 4, 15-16 (1978): "The Convention is a living instrument which has to be interpreted in the light ofpresent-day conditions."

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its being historically correct. 30 Consequently, the COurt read that provision as pennitting political activities of foreign nationals in connection with elections to the European Parliament. No such dynarnic interpretation can be found in the reports ofthe WTO panels and the Appellate Body (AB). The reason for this different approach is the prohibition contained in the DSU not to make reports that would "change the rights or obligations ofthe members.'>3l By this provision, the panels and the AB are warned against being too judicially active. 32 This warning reflects the origins ofWTO law as flexible, negotiation-centered regime that feared the rigorous jurists' intervention. In other words, the object and purpose ofWTO law is the gradual liberalization ofworld trade through negotiations. Therefore, its norms are to be adapted to new situations not by judicial interpretation, but by negotiation between the Member States. This diversity does not threaten international law as a legal order because the different methods ofinterpretation are restricted to their respective treaty and thus do not contradict each other. In respect of interpretation, each treaty is a "semidetached regime" in the sense that the roles of treaty interpretation under general international law are subsidiary to those of the treaty in question. b) Variety in the Interpretation ofProcedural Rules and Jurisdiction Diversity is also, and even more often, found in the interpretation oftreaty roles concerningjurisdiction of, and procedure before an internationaljudicial body. An example of diversity in procedural law is the standard of proofbefore international courts and tribunals: What measure of persuasion is necessary for a court to find a violation ofa role ofinternational law? Referring to the case law ofthe ICJ, the Inter-American Court ofHuman Rights emphasized in the VelG.squez Rodriguez Case that there is no "rigid role regarding the amount of proof necessary to support the judgment. "33 On this basis, it held that the standard of proof before it is lower 30 Piermont v. France, 314 ECHR (Ser. A) , para. 64 (1996). For details, see Juliane KolwttlBeate Rudolf, European Court ofHuman Rights casenote: Piermont v. France, AJIL 90 (1996), 456. 31 Arts. 19.2 and 3.2 DSU. 32 John H. Jackson, Fragmentation or Unification among Internationalinstitutions: The World Trade Organization, NYU J. In1'l L.. & Pol. 31 (1999), 823, 830. 33 Velasquez Rodriguez v.Honduras, OC-4/88, Judgment of July 29, 1988, IACtHR (Ser.C), No.4, para. 127, and Fairen Garbi and Solis Corrales v. Honduras, Judgment of March 15, 1989, IACtHR (Ser. C), No. 5, paras. 130, 132; hoth with reference to eorfu

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than it would be in domestic criminal proceedings, requiring only that the truth be established in a "convincing manner."34 Thus, the Inter-Arnerican Court sets up special rules for human rights cases, pointing to the special seriousness of disappearances. The ECHR, however, uses a higher measure of persuasion: that of conviction beyond a reasonable doubt, even when the most serious human rights violations are at issue.3S This approach stands in stark contrast to that ofthe InterArnerican Court, and ignores the fact that both courts serve the same purpose, i. e., ensuring effective human rights protection for their respective regions. This diversity may be explained by two reasons: First, unlike the ECHR, the Inter-Arnerican Court faced States that were unwilling to cooperate with it either because they disregarded human rights, or because they were called upon to taking responsibility for acts of a former authoritarian regime. Second, both courts act on the basis of different legal traditions, and there are good reasons to assume that the Inter-Arnerican Court was influenced by U.S.-American legal concepts in the Velasquez Rodriguez Case. J6 The first reason helps understand that the object and purpose of the Arnerican Convention on Human Rights are not fuHy identical to that of the European Convention: Effective human rights protection may call for different approaches in different circumstances. The second reason shows that the acceptable means for achieving this purpose may vary according to the legal traditions ofthe States parties to the treaty in question. Thus, diversity reflects the fact that international law is created by the States to respond to their particular needs. Rigid unity would run counter this legitimate concern. The interpretation of mIes determining jurisdiction is another example of diversity in the jurispmdence of international judicial bodies. It is a fundamental principle of internationallaw that States cannot be submitted to the jurisdiction of an international court or tribunal without their consent. Yet judicial bodies vary in Channel Case (U.K. v. Albania) Merits, Judgment of 4 April 1949, ICJ Reports 1949, 4, and to Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. U.S.A.), Merits, Judgment of 27 June 1986, IC] Reports 1986, 29-30 and 59-60. 34 Id., para. 129. 35 Aydin v. Turkey (note 7), para. 70. Before thisjudgment, the position ofthe European Court ofHuman Rights was less c1ear, see, e.g., Lukis G. Loucaides, Standards ofProofin Proceedings under the European Convention of Human Rights, in: Faculte de Droit de I'ULB (ed.), Presence du droit et public et des droits de I'homme. Melanges offerts a Jacques Velu (1992), 1431; and Reate Rudolf, Beweisprobleme in Verfahren wegen Verletzung von Art. 3 EMRK, Europäische Grundrechte-Zeitschrift 23 (1996), 497. 36 For a discussion of the different legal traditions behind the Velasquez Rodriguez judgment, see Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law (1998), 201-202 .

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their treatment of dec1arations of acceptance that are incompatible with the treaty under which they are made. Although the ICI so far avoided any statement on the validity and severability vel non of unilateral declarations of acceptance that are incompatible with the ICI Statute,37 there are good reasons to assume that it will treat them as invalid in toto so as to respect the intention of the dec1aring State. 38 In addition, this solution would be in line with the case law ofthe ICI according to which the effects of an incompatible reservation to a multilateral treaty are to be determined by each objecting State. 39 The ECHR, in contrast, rejects this subjective standard despite the fact that the optional clause ofthe ICI statute had served as a model for that under the European Convention.40 Instead, it pointed to the "fundamental difference in the role and purpose ofthe respective tribunals'>41 and to the objective character ofthe obligations under the European Convention. This objective standard could only be applied by an objective body - the Court itself. As a consequence, the Court considered invalid dec1arations separable, and it upheld them only insofar as they were compatible with the Convention. Both the Inter-American Court and the Human Rights Conunittee embraced this interpretation. 42 The reason for this probable divergence is the different legal frameworks in which dec1arations of acceptance are made. AState may submit itself to the jurisdiction of the ICI for any international treaty or any kind of inter-State dispute. The dec1aration does not necessarily form part of a substantive treaty regime, and therefore the intention of the dec1aring State is the decisive factor for their interpretation. Human rights treaties, in contrast. set up an objective legal order and create bodies whose task is precisely to supervise the realization ofthat order. Thus. the will ofthe States parties when accepting the jurisdiction ofthese bodies 37 The question arose in the Norwegian Loans Case and the Interhandel Case. which were both decided on other grounds. But see the Individual Opinion of Judge Lauterpacht in the Norwegian Loans Case, ICI Reports 1957,9 et seq. 38 Shabtai Rosenne, The Law and Practice ofthe International Court, vol. 11, 770, note 91.2'"' ed. (1985). 39 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of May 28, 1951, ICI Reports 1951, 15, 26 and 29. 40 Belilos v. Switzerland, Decision of Apr. 29, 1988, 132 ECHR (Ser. A), paras. 54-55 (1988), Loizidou v. Turkey (Preliminary Objections), Decision of March 23, 1995, 3 JO ECHR (Ser. A), paras. 85-87 (1995). 41 Loizidou v. Turkey (Preliminary Objections) (note 40), paras. 85-87. 42 The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), IACtHR Advisory Opinion OC2-82 of Sept. 24, 1982, paras. 29. 34 and 37; CCPR General Comment 24(52) (Nov. 4, 1994), para. 18 (note 10), 161,166.

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must be read in light of their (earlier or simultaneous) acceptance of the treaty objective of effective human rights protection, and supervisory bodies are a central element for realizing that objective. This fact justifies applying an objective standard to deelarations of acceptance and treating them as severable. Thus, a teleological interpretation may lead to different meanings of seemingly identical rules and even of rules that share a common origin. Yet it is crucial to note that this does not reflect a divergence. There is no conflict between the rules on deelarations of acceptance as applied by the different bodies because they operate in different legal environments and thus serve different objects and purposes. Diversity is a necessary consequence of that fact. c) Variety in the Interpretation of Substantive Rules Diversity as variety in the interpretation of substantive rules is logically impossible. Either, the interpretations are contradictory - then there is diversity as divergence (see infra) - or the rules are not identical and hence there is no diversity in the interpretation, but in the rules thernselves. Therefore, it is necessary to take a elose look at seemingly conflicting decisions to ascertain which category they belong to. A case in point is the case law of the European Court of Human Rights with respect to the responsibility of States for acts of international organizations. In the Matthews Case, the Court held that the EC member States remain responsible for acts of the Community that are in violation of the Convention. It referred to the States' obligation under Article I to secure everyone within their jurisdiction the Convention rights, and concluded that this obligation also extends to transfers of sovereign powers to an international organization. 43 This holding is at variance with the prevailing view under Community law that the member States have not transferred their jurisdiction to the EC, but that they have renounced on exercising jurisdiction in certain areas to make room for the EC exercising its own originaljurisdiction. 44 Yet there is no conflict in the interpretation ofthe same rule because the ECHR based its judgment on an interpretation of Article 1, whereas the rule of original EC jurisdiction is one under Community law. It is this difference that the ECHR had in mind when it emphasized, in the Matthews decision,

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