On the Constitutionalization of General International Law

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This clearly indicates that, in the court's opinion, at least at the time of its decision, a transformation of the perceptions of international civil society into State made consensus law already had taken place.113 It is therefore allowed to conclude that at present, law made by the civil society is applied by actors and adjudicators only once they perceive it as having been adopted, as consensus law, by the international community of States. While this perception, on occasion, may be disputable, there is no evidence showing courts applying so-called law made by the civil society as such. Such law therefore is not, at present, a direct source of posited law.
4. The Third Step: Description of the Relevant Legal Facts24. The Third Step: Description of the Relevant Legal Facts24. The Third Step: Description of the Relevant Legal Facts
This article is about the ways in which international law constitutionalization may contribute to protecting municipal constitutional standards, in first line human rights standards, by elevating them to the international level. A description of the relevant legal facts found on the ground therefore must, first, look at the human rights protection provided for at the international level, second, discuss in how far this protection is generalized i.e. applied throughout the international legal system, and, third, consider in how far the protection achieved is entrenched against later encroachments.
a) First Mode Constitutionalization — Internationalization3a) First Mode Constitutionalization — Internationalization3a) First Mode Constitutionalization — Internationalization
International human rights provisions are found in a wide array of treaties. Among the earliest was, famously, the prohibition of the slave trade.114 A more general approach to human rights on the international level is first found in the UN Charter. In its very general human rights provisions, i.e. para. 1 of the preamble and Article 1 (3) concerning the respect for human rights and fundamental freedoms, the purposes of the international community have found expression. Also, Articles 1 (1), 2 (3) and (4) and 39 et seq. concerning the maintenance of peace should be considered as the external side of the respect of human rights; indeed, the HRC has held that „every effort [States] make to avert the danger of war ... and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life“.115
These general provisions have been fleshed out by the Universal Declaration of Human Rights adopted in 1948 by the General Assembly.116 This declaration became, in its turn, the source of inspiration for a plethora of human rights treaties. Of those treaties, the International Covenants on Civil and Political Rights117 (ICCPR) and on Economic Social and Cultural Rights118 (ICESCR) are in force on the universal level whereas the ECHR, the American Convention on Human Rights119 and the African Convention on Human and Peoples' Rights120 are in force on regional levels. In addition to these instruments which cover quite exhaustively the general human rights there are specific international human rights instruments, inter alia the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,121 the Convention on the Elimination of All Forms of Discrimination against Women122 and the Convention on the Prevention and Punishment of the Crime of Genocide.123 Without there being any need to go into details, the substantive provisions of all these instruments clearly are relevant to the normative purpose of the present enquiry. They are the result of a first mode constitutionalization. As treaty law, they are also subject to the polynormativity typical for that law.
The same applies to human rights provisions which can be found scattered in some other treaties. For instance, in the field of the judicial protection of foreigners, rights of action in private litigation and in litigation against the forum State may be implied in jurisdiction conventions, e.g. the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.124 According to Article 2 (1) of this convention, „persons domiciled in a Contracting State shall ... be sued in the courts of that State“ which implicitly guarantees the right of the foreign plaintiff to sue in that State.125 Those rights, of course, are again subject to polynormativity.
Human rights aspects may also be found within the WTO framework.126 The freedom of commerce127 has found expression in the broad principles of GATT, GATS and TRIPS i.e. most-favoured-nation status (e.g. Article I GATT) and national treatment (e.g. Article III GATT).128 Indeed, provisions of that kind are well known to municipal (composite) constitutions.129 In addition, seen through the optics of the individual, these principles can be regarded as specific aspects of a human right i.e. the Freedom to Conduct a Business.130 Subject to polynormativity, they are international constitutional law.
b) Second Mode Constitutionalization — Generalization3b) Second Mode Constitutionalization — Generalization3b) Second Mode Constitutionalization — Generalization
Second mode constitutionalization means to overcome the polynormativity characteristic for international human rights protection via treaties. Such generalization may be achieved by the emergence of customary law or the issuance of consensus law (or, of course, by the accession to the treaty of all States not yet States parties). A study of the legal facts on the ground leads to the conclusion that this polynormativity has not yet been overcome to an important degree. Most human rights are at present part of neither customary nor consensus law (nor of truly universal treaty law). Indeed, only a droit de regard on the human rights performance of (other) States,131 and, in the field of the judicial protection of foreigners — closely related to the procedural human rights provided for in municipal constitutions generally without regard to the nationality of the parties, but also in most human rights treaties —132 guarantees of rights of action according to the national treatment standard or the international minimum standard,133 and the prohibition of denial of justice,134 can be considered as customary law. Of the substantive human rights, the prohibition of torture, and probably the prohibition of genocide and of particularly grave war crimes, have become generalized as consensus law. In addition, there is an argument for a certain generalization of human rights treaty rules as it were by proxy.
aa) Customary Law4aa) Customary Law4aa) Customary Law
There are structural reasons preventing most aspects of human rights from becoming customary law in the narrow sense of the term used in this article. Human rights provisions are, in first line, rules restricting the powers of a State;135 they proscribe acts violating those rights. Respect of human rights therefore means in first line not to violate them. But refraining from doing something can be understood as actual practice only if this practice is universally respected in a certain set of circumstances.136 The prohibition to violate human rights, however, is frequently disregarded; the jurisprudence of the treaty bodies, and the annual reports of human rights organizations like Amnesty International,137 prove that beyond doubt. There is therefore no observable practice and no factual basis for the determination of such customary human rights law.
While the above reasoning does not apply to positive human rights obligations, there is another structural reason why human rights rules generally cannot become customary law. As discussed above, the fundamental reason to consider custom as law is that the development of a custom out of State practice over time proves that the comportement establishing the custom corresponds to Kant's categorical imperative.138 Consequently, only those rules can emerge as customary international law that are founded on an international practice.139 In international law, three categories of rules can be distinguished according to their addressees: rules concerning the relationship between the international community and the States, rules concerning the relationship among the States, and rules concerning the relationship between the international community or the States and individual persons. An international practice can only emerge out of comportement concerning either the relationship among the States or the relationship between the international community and one of the other classes, that is out of comportement that is immediately relevant under international law.140 This imports that rules concerning the relationship between the State and individual persons are not a possible subject of customary international law,141 at least insofar as they cannot be seen as concerning also the relationship to other States. In relation to rules that cannot be so seen, in particular human rights guarantees concerning the citizens of the respective State, it cannot meaningfully be stated that there is an international practice. On the one hand, it is, for any State, primarily an internal affair to respect, or not to respect, the human rights of its own citizens; neither is a way to act which could found a practice relevant under international law.142 On the other hand, on the international level, there are no possible criteria to gauge the practicability of the one or the other.
It is therefore not by chance that in the field of international human rights law exactly the droit de regard has been singled out as a customary rule:143 this rule controls the relationship among the States and their relationship to the international community. Neither is it by chance that customary law guarantees the judicial protection of foreigners.144 It is the implied reciprocity of the standards providing for that protection which allows them to be seen as being based on an international practice. Only human rights rules of this type i.e. rules concerning relations that are inter-State at least on the basis of reciprocity therefore may be generalized as customary law within second mode constitutionalization.
bb) Consensus Law4bb) Consensus Law4bb) Consensus Law

α) In General5α) In General5α) In General

While there are structural reasons preventing the bulk of international human rights law from becoming customary law, there are no such reasons concerning consensus law. Still, there are only a few rules of human rights consensus law. Certainly, there are some indications for a consensus of the international community on the question whether certain human rights are universal international law.145 There are the Universal Declaration and the Vienna Declaration146; the latter, however, does not enumerate any human rights with the exception of the prohibition of torture. There are the different human rights treaties transforming, to a large extent, the Universal Declaration, for their respective States parties, into treaty law. There are Security Council resolutions, e.g. Res. 1386 (2001),147Stressing that all Afghan forces must adhere strictly to their obligations under human rights law, including respect for the rights of women, and under international humanitarian law“.148 And there are verbal acts of some States indicating their persuasion that all, or at least many (without however specifying which), of the clauses of the Universal Declaration are universal international law.149 One possible source of such verbal acts, i.e. protests, however, appears to be rather dry: „States do not usually make claims on other States or protest violations that do not affect their nationals“.150
Not all of these indications have the same quality. Both the Universal and the Vienna Declarations were adopted by the States, without any doubt, without the intention of making law.151 As the voting, or the consensus achieved, did not express, in either case, an intention to be bound by the declarations, they cannot found international consensus law. The same applies for the universal human rights treaties; the — important — number of their States parties152 is not sufficient to consider them as truly universal treaties — even leaving out of account the important number of reservations made by States parties — given, in particular, that they do not represent all important groups of the international community.153

Neither is it possible to combine the two indications in this sense that a consensus of the international community on the status of a certain human right as a rule of general international law can be assumed in all those cases in which that right is mentioned in the Universal Declaration and protected by multilateral and regional human rights treaties.154 Rather, two indications neither of which, taken alone, is sufficient for the emergence of consensus law, do not, without more, reënforce one another if combined. The ICCPR, concluded effectively to make parts of the Universal Declaration binding in law for its States parties, cannot at the same time express a consensus on the question whether that declaration is already binding law. That would not be a permissible interpretation of the ratification of the ICCPR by its States parties.

The Security Council resolution quoted above155 may be seen as „declaratory and describ[ing] the status quo of international public law that limits all sovereigns of the world“.156 Seen thus, as the relevant language is in the preamble and not in the binding part of the resolution, it joins the above mentioned verbal acts of some States indicating their persuasion that certain human rights are universal international law which are in any case the most promising indications of a consensus. If those acts had not been disputed by other States, it might be possible to conclude on a corresponding consensus of the international community.157 But there are numerous States, in particular from Asia, which expressly have contradicted that persuasion, at least at the present stage of their economic development.158 In particular, it has been claimed that „[t]he myth of the universality of all human rights is harmful if it masks the real gap that exists between Asian and Western perceptions of human rights. The gap will not be bridged if it is denied“.159 Rather, it is a view widely held by Islamic and Asian States that human rights are relative and dependent on the respective culture.160 It corresponds to this view that some provisions of the Islamic Sharia law are scarcely compatible with certain human rights.161 Also, it has been claimed, with good reason, that „[i]t is evident ... that the exclusion of indigenous peoples from participation in the processes of erecting, and later developing, an international law of human rights resulted in an ... outcome [that] was, from the perspective of indigenous peoples, ... a generally illegitimate framework“.162 Certainly, the Vienna Declaration, accepted also by those States in consensus, states expressly that „[a]ll human rights are universal, indivisible and interdependent and interrelated”.163 However, this is no serious objection as those human rights are nowhere named in the Declaration. Both this Declaration, and occasional indications that the purported differences between the repective human rights conceptions of the West and Asia could not justify serious human rights violations,164 are therefore too indetermined to put aside the principled objections of the Islamic and Asian States. As those States form an important group of the international community — one has to count among them most of the 31 Members of the United Nations (nearly one sixth of the total of 191) having not signed the ICCPR, which include important States such as Indonesia, Malaysia, Myanmar, Pakistan, Qatar, Saudi Arabia, Singapore and the United Arabic Emirates —, without their participation consensus law cannot emerge.165
But the civil society of some of these States has pronounced, by adopting the Asian Human Rights Charter, its perception that human rights are indeed universal international law.166 Of course, within the Kelsenian Grundnorm the expression of a consensus by the States cannot be surrogated by a similar expression by the civil society. Outside that Grundnorm, as discussed above,167 perceptions of the civil society gain a secure status as law only if they are (i.e. once they have been) applied by the courts. This does not appear (yet) to have happened in the case of the Asian Charter. For the majority of those human rights guaranteed by international treaties it is therefore scarcely arguable that they are protected, on the universal level, at the same time also by international consensus law,168 and thereby generalized.
β) The Prohibition of Torture in Particular5β) The Prohibition of Torture in Particular5β) The Prohibition of Torture in Particular
This conclusion, however, does not apply, in particular, to the prohibition of torture.169 This prohibition is laid down not only in the two general human rights declarations — the freedom from torture is the only traditional right expressly mentioned in the Vienna Declaration —170 but also in the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,171 and not only in the general, universal and regional human rights treaties, but also in specific treaties, in particular the UN Anti-Torture Convention.172 And there are at least 28 other international instruments against torture.173 However, this textual abundance does not lead, as such, to the emergence of international consensus law. The Anti-Torture Declaration of the UN General Assembly was expressly adopted „as a guideline for all States and other entities exercising effective power”, and therefore not in the intention to make law. The UN Anti-Torture Convention has been ratified by only 136 States, and signed by twelve more,174 and is therefore not a universal treaty as understood in the present context. The one or the other applies also to the remainder of the relevant instruments.
Rather, it is the verbal acts mentioned above which are decisive, whether they refer generally to the Universal Declaration including the prohibition of torture or concern that prohibition specifically,175 together with the fact that no State has objected against the persuasion expressed in those pronouncements.176 On the contrary, many of those governments that are in principle opposed to the idea of universal human rights have made an express exception in the case of torture: „No one claims torture as part of his cultural heritage.”177 In spite of the innumerable violations of the prohibition of torture178 which appears, in addition, to be routinely applied by many States at least in the questioning of suspected terrorists, there is therefore a strong case for the assumption that the international community has adopted, in addition to the prohibition of torture laid down in treaties, international consensus law having basically the same contents, and thereby generalized that prohibition.
cc) Generalization by Proxy4cc) Generalization by Proxy4cc) Generalization by Proxy
A certain generalization of human rights treaty rules also has been achieved by the jurisprudence of treaty bodies in this way that States parties are bound by the respective treaty when acting as members of an international law-making body, be it a body set up under a different treaty, e.g. the Security Council, or the international community as a whole. However, this generalization is purely negative in this sense that it does not extend the application of the treaty rules as such to States not party to the respective treaty but only prevents the making of rules in conflict with treaty rules. As this effect is similar, or even identical, to an entrenchment of those rules, it is best dealt with when discussing third mode constitutionalization.179
c) Third Mode Constitutionalization — Entrenchment3c) Third Mode Constitutionalization — Entrenchment3c) Third Mode Constitutionalization — Entrenchment
In discussing questions of entrenchment it is important to distinguish between two modes i.e. a relational entrenchment vis-à-vis other (and therefore inferior) norms and a procedural (absolute) entrenchment which simply indicates that it is procedurally difficult, or even impossible, to amend, or to abolish, the rule thus entrenched. Of course, in municipal settings characterized by posited and hierarchical law those two modes are so closely connected that they are nearly indistinguishable: if a constitution is entrenched, that means that it cannot be amended by simple statute law and that it can only be amended in a particularly complex procedure.180 The case of both treaties as micro-legal systems embedded in general international law, and international consensus law, is different. In the case of treaty rules, the entrenchment within the micro-legal system regularly (i.e. with the exception of systems which know of secondary legislation) is only procedural whereas it is very much the question whether there is any relational entrenchment i.e. entrenchment vis-à-vis later treaty rules, or rules of general international law. Similarly, the entrenchment of consensus law as such appears to be only procedural. In contrast, the purported entrenchment by jus cogens appears to be mostly relational.181
The question of the entrenchment of international law rules is double edged. On the one hand, entrenchment is essential in the present context because without the creation of entrenched rules, international law constitutionalization will remain incomplete. Recent developments in international law appear to show that it would be naïve to believe that internationalization of the protection of individual rights as such (i.e. first mode constitutionalization) effectively can guarantee such rights in times of international insecurity (the „war on terror“). Rather, in such times, there appears to be a pronounced international tendency to roll back human rights guarantees182 by allowing politics-as-usual, as expressed e.g. in Security Council resolutions, to encroach upon them.183 Only the entrenchment of norms allows to protect those norms, to some degree, against later encroachments. This holds good for both procedural and relational entrenchment. On the other hand, some adjustments of human rights protection may indeed be necessary in times of international insecurity. In view of the procedural entrenchment of both multilateral human rights treaties and consensus law, an additional (relational) entrenchment might lead to a petrifaction of human rights law which normatively may not appear desirable. In addition to the discussion of these issues, it is necessary to discuss a relational entrenchment as it were by proxy of human rights treaty rules.
aa) Procedural Entrenchment4aa) Procedural Entrenchment4aa) Procedural Entrenchment
The procedural entrenchment of treaty rules generally is very strong. It is brought about by the very form of a multilateral treaty; to change such a treaty normally requires the unanimity of the States parties, and the ratification of the amendment by the legislatures of all States parties, i.e. a procedure generally even more demanding than that provided for in the case of municipal amendments of entrenched constitutions. In this context, it even may be appropriate to speak of over-entrenchment, or petrifaction, of treaty rules. The UN Charter, in particular the provisions concerning the permanent members of the Security Council, may be a topical case in point. There is also, seen from the view-point of the municipal legal systems, a certain procedural entrenchment of rules at least of those ratified treaties directly effective within the municipal system which lies in the very fact of the internationalization of those rules; human rights treaties, even insofar as they may be denounced by their States parties,184 cannot be denounced with immediate effect.185

Also consensus law is without more procedurally entrenched. This entrenchment is quite important: leaving aside the possibility of a later treaty, or the later emergence of customary law, once consensus law has been made, it can only be changed, it appears, in the same form as it came about i.e. by a declared consensus of a majority of States which at the same time is representative for all important groups of the international community.186 It follows that any one such group can prevent an amendment, or the abolishment, of an established rule of consensus law. To take an example: as long as, say, „old Europe“ insists on the consensus law rule prohibiting torture, this rule cannot be changed by the international community.

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