On the Constitutionalization of General International Law

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There may be, however, treaty based developments which, while not necessarily constitutive of the relational entrenchment of rules of general international law, may emulate its consequences to some extent. Of course, a relational entrenchment proper of human rights treaties does not appear arguable in the present positive international law system. Under Article 30 of the VTC, reflecting customary law, a successive treaty relating to the same subject-matter may supplant an existing treaty for those States parties to both treaties. In the case of conflicting treaty obligations of one State in relation to different other States, all the treaty rules are valid although the international responsibility of the first State might be engaged.241 Finally, according to its Article 103, which is the subject of a proviso in Article 30 (1) of the VTC, the UN Charter (including, under Article 25, Security Council resolutions) is entrenched vis-à-vis all other treaties including human rights treaties. Concerning general international law, it is undisputed that there is no hierarchical relationship between treaty law and customary law so that a treaty may be amended or even extinguished by the development of a new and contradicting rule of customary law242 and, presumably, consensus law.243
But a relational entrenchment by proxy may follow from general treaty law. By entrenchment by proxy I understand that, while treaty rules may well be affected by certain later and conflicting rules, and therefore are not properly entrenched vis-à-vis the latter, the States parties to the treaty may be prohibited, under that treaty, to participate in the making of such conflicting rules, or even obligated to prevent, within their respective legal possibilities, such making. The effect of such a duty, if respected, may be to prevent the emergence of conflicting rules and thereby to maintain those treaty rules which, by that means, effectively become entrenched beyond their mere procedural entrenchment. Such a prohibition or obligation may flow from the „obligation of good faith to refrain from acts calculated to frustrate the object of the treaty attached to a State which has signed a treaty“,244 recognized under general international law,245 and specifically from the central undertaking given by the States parties to the human rights treaties i.e. to respect and to ensure to all individuals subject to their jurisdiction the rights guaranteed by those treaties.246 Indeed, this undertaking has been developed in the jurisprudence of different treaty bodies to include a duty to refrain from certain ways of participating in international decision-making which would produce rules detrimental to those rights.
According to the ECtHR, the decisions taken by the United Kingdom in a two-step EC procedure which led to a measure of the EC depriving the inhabitants of Gibraltar of their right to vote in the elections to the European Parliament247 were an exercise of jurisdiction and therefore to be judged against the said undertaking. In the framework of the EC procedure, the United Kingdom first assented to a decision of the Council of the EC, which had to make a proposal by unanimous vote, and then adopted that proposal — together with the other Member States — in accordance with its constitutional requirements. The measure therefore was basically a treaty. The Court held the United Kingdom, together with all the other Member States of the EC, responsible for that measure. It expressly rejected the United Kingdom's contention that, „[i]n the case of the provisions relating to the election of the European Parliament, the United Kingdom had no [effective] control [over the act complained of]“.248 The ECtHR's reasoning, it is submitted, is based on only two aspects: that the United Kingdom could have prevented the measure (even if it had no positive control over it), and that it had a duty under the ECHR to do so as the measure failed to secure human rights protected under that treaty.249 Its decision therefore is authority for the proposition that States parties must not affect, by concluding subsequent250 treaties, the rights guaranteed under the ECHR.
The HRC has expressed the view, in a General Comment,251 that the parties to the ICCPR deliberately intended to exclude the possibility of a denunciation of the latter. It has based that view inter alia on the consideration that [t]he rights enshrined in the [ICCPR] belong to the people living in the territory of the State party. The [HRC] has consistently taken the view ... that once the people are accorded the protection of the rights under the [ICCPR], such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the [ICCPR].252
The last clause („any subsequent action“) clearly covers also the conclusion of subsequent treaties which would divest the peoples of those rights. Therefore, this General Comment is authority for a proposition analogous to the one stated above.
In a slightly different context, the UN Committee on Economic, Social and Cultural Rights (ESCRC) has considered, also in a General Comment, „that the provisions of the [ICESCR] ... cannot be considered to be inoperative ... solely because a decision has been taken that considerations of international peace and security warrant the imposition of sanctions“.253 And the ESCRC continued: „it should also be recalled that every Permanent Member of the Security Council has signed the Covenant“.254 This clearly implies that, in the ECSRC's view, those members have to respect that Covenant even when voting in the Security Council,255 and must not vote for a measure detrimental to ICESCR rights. The assumption is not farfetched that the same applies, in the ESCRC's view, to the conclusion of subsequent treaties that would affect the rights guaranteed by the ICESCR. Again, therefore, this General Comment is authority for an analogous proposition.
In these various ways, the treaty bodies consider the respective treaties as protected against encroachments by subsequent treaties or other developments based on the States parties' consent (e.g. the adoption of a Security Council resolution or, it is submitted, the adoption of consensus law) in this sense that the States parties, individually or acting together,256 are prohibited from concluding such treaties, or to grant their consent to such a resolution or such a law. There are two sides to that entrenchment: on the one hand, there is a certain measure of third mode constitutionalization of the treaty rules themselves, protecting them against encroachments by general international law. However, as the treaties are not universally applicable, and are therefore subject to the usual polynormativity of international law, this third mode constitutionalization is not matched by a constitutionalization in the second mode.
But on the other hand, in a kind of snowball effect, the States parties' undertaking to respect and secure the treaty rules, if respected, is likely to prevent, on the universal level, the emergence of rules in conflict with those treaty rules. Indeed, while the undertaking applies only within the respective jurisdiction of the States parties, as the treaty States, even in the case of regional human rights treaties, form an important group of the international community, its respect must prevent the emergence of a consensus on rules, and thereby the adoption of consensus law, in conflict with those treaty rules. By the same token, an actual State practice in conflict with those treaty rules, which might lead to the emergence of corresponding customary law, evidently cannot develop if the undertaking is respected. Similarly, as four of the permanent members of the Security Council are States parties to the ICCPR, and three of them also of the ECHR, the respect of the undertaking must prevent the adoption of Security Council resolutions in conflict with the treaty rules and applicable in the jurisdiction of any of the States parties of those treaties, that jurisdiction covering the territory of those States parties but also their security forces even if acting outside their respective territory.257 In this way, while the treaty rules themselves remain subject to international law's usual polynormativity, they prevent, if respected, on the universal level the formation of new law in conflict with them. With that negative effect, they therefore may be considered as constitutionalized in the third but also in the second mode.
5. Second Excursus: Treaty Constitutionalization as a Model for General International Law Constitutionalization25. Second Excursus: Treaty Constitutionalization as a Model for General International Law Constitutionalization25. Second Excursus: Treaty Constitutionalization as a Model for General International Law Constitutionalization258
Before moving on to the fourth step, the question should be asked whether the discussion of general international law constitutionalization might benefit from aspects of the debate on the constitutionalization of treaty systems. That debate largely ignores the procedural entrenchment as an aspect of the constitutionalization of human rights treaty systems. Rather, the fact that most human rights treaties provide — at least as an option — for individually available judicial or quasi-judicial remedies against human rights violations committed by their States parties often and correctly is seen by itself as an aspect of their constitutionalization.259 But those provisions also open ways to strengthen the constitutional character of the said treaty systems even further. They allow the respective treaty bodies to systemize and develop the rights provided for in the treaties, and thereby to achieve results equivalent to, or even surpassing, municipal human rights guarantees as protected in the more advanced States. This systemizing and developing jurisprudence is sometimes described as, and certainly is an aspect of, the constitutionalization of the subsystems established by those treaties.260 The ECtHR, of course, is the body most successful, and most influential even outside its own treaty system, in this endeavour.261
In the same way in which the systemizing jurisprudence of the treaty bodies contributes to the constitutionalization of the respective treaty system, two strands of jurisprudence discussed above, the one mainly of municipal courts and the other one of treaty bodies, may be seen as contributing to the constitutionalization of general international law by systemizing it. The basis of any systemization of a legal order, of course, is an objective conception of that order. As mentioned above, such a conception of international law went hand in hand with the emergence of international jus cogens.262 Building on this basis, the mainly municipal judicial decisions discussed above263 have created — positive or negative — correlations between quite different strands of international law rules which had hitherto generally been considered as strictly separate i.e. between those human rights rules considered as jus cogens, and the rules of State immunity. While there is no agreement, between the different jurisdictions, as to the effective form that correlation takes, the mere fact that it has been created at all is an important step in the constitutionalization of international law. Similarly, the jurisprudence of the treaty bodies leading to the generalization and entrenchment by proxy of human rights treaty rules264 contributes to the constitutionalization of general international law even beyond the fact of that entrenchment by integrating treaty law into general international law and thereby helping to systemize international law as a whole. Seen thus, the constitutionalization of those treaty systems serves indeed as a model for the constitutionalization of general international law.
But the modeling goes beyond that fact; it extends to some degree to the judicial protection of individual rights which is a hallmark of human rights treaties.265 While it is true that the court protection of generalized international human rights is much less systematic than the rather well developed (quasi )judicial protection of treaty-guaranteed human rights, still some such protection is available. On the municipal level, the concept of universal jurisdiction or, more restrictedly, the concept of jurisdiction over foreign crimes against a State's own citizens has permitted some courts to deal with certain human rights violations committed in foreign parts.266 This jurisdiction may be criminal as well as civil.267 At least in civil matters the access to the courts is individually available. While it emphatically is not available on the level of general international courts, the ICJ repeatedly has been called upon to give its opinion on similar questions.268 It appears therefore that we witness a — certainly slow — constitutionalization of general international law also in a way precast by the debate on the constitutionalization of international subsystems.
6. The Fourth Step: Structural Possibilities of International Law Constitutionalization26. The Fourth Step: Structural Possibilities of International Law Constitutionalization26. The Fourth Step: Structural Possibilities of International Law Constitutionalization
We have found that at present, international law is strongly constitutionalized in the first mode i.e. that it contains many human rights rules applicable to many States. There is also some constitutionalization in the second mode i.e. some rules protecting human rights are part of general international law: prominent among them are the droit de regard as customary law and the proscription of torture as consensus law. Further, there is a constitutionalization in the third mode insofar as human rights treaty rules and consensus law are procedurally entrenched. In addition, there is some constitutionalization in the form of a systemization of general international law, and of the availability of judicial protection of human rights. In contrast, although the concept of jus cogens is rather widely accepted by international and municipal courts, this acceptance has not (yet) led to a constitutionalization in the third mode in the form of a relational entrenchment of human rights rules in international law (even if there is some entrenchment by proxy). The next and last step of the enquiry therefore must be to ask whether a further constitutionalization of general international law in the second and third modes is legally possible, normatively desirable, and factually likely.
a) Second Mode Constitutionalization — Generalization3a) Second Mode Constitutionalization — Generalization3a) Second Mode Constitutionalization — Generalization
As stated above, there are structural reasons preventing most aspects of human rights from becoming customary law,269 but not from becoming consensus law. A further generalization of international human rights law by the issuance of consensus law is therefore possible. That it is normatively desirable cannot really be in doubt. To answer the question whether it is factually likely — especially in view of the opposition of an important group of States which hitherto has prevented the issuance of such consensus law —270 it must be asked under which conditions human rights consensus law might be expected to be issued. Consensus law, it has been stressed, is posited law as is treaty law and municipal statute law. It might therefore be illuminating to look at the circumstances in which human rights have been guaranteed in municipal systems, and in treaties.

In municipal systems, there is ample evidence that human rights generally have been enacted in times in which politics-as-usual temporarily was suspended i.e. either after a successful revolution or once a repressive regime had been ended by other means. Leaving aside the Magna Carta Libertatum, this applies to the four oldest human rights legislations i.e. the English Habeas Corpus Act of 1679, the English Bill of Rights of 1698, the French Déclaration des droits de l'homme et du citoyen of 1789 and more or less the 1st to 10th Amendments to the U.S. Constitution of 1791. It applies also, in more recent history and to name but a few, for the Italian Constitution of 1947 and the German Basic Law of 1949, and for the post-1989 constitutions of the Eastern European States. It is one common aspect of those legislations that they were drafted in a serene „constitutional moment“271 in which the solemnity of the occasion prevented politics-as-usual from encroaching on the higher aspirations of the drafters, making it possible to disregard countervailing interests to a degree not generally accepted in less serene times.

While the Universal Declaration on which the human rights treaties are substantially based may be considered as having been drafted, still in the aftermath of the Second World War, in a „constitutional moment“ similar to those at the basis of municipal human rights legislations, most human rights treaties were not drafted themselves in such a moment. It is therefore no surprise that the protection the resulting treaties provide generally is not fully equivalent to the protection achieved municipally in the more advanced States, as is witnessed by the clauses safeguarding existing human rights, routinely included in those treaties:272 in general, and in normal times, no State knowingly would accept treaty human rights obligations going beyond its own municipal obligations.273
Concerning human rights consensus law, such law is based on verbal acts of States which are given in full view of the critical international public274 and therefore dictated to a higher degree by ethical considerations than their actual acts,275 and, to some degree, it is legitimized by that fact under aspects of democracy.276 One might therefore assume that such law-making might emulate a constitutional moment. But, up to the present, this is not demonstrated by actual developments. Therefore, in all likelihood, an actual constitutional moment (that actually would be grasped by the leaders of the world) would be required for the emergence of comprehensive human rights consensus law. As such a moment, one could perceive a decisive victory over terrorism, however defined: if the leaders of the leading nations of the world would make statements, at such a moment, to the effect that, to commemorate that victory, and to prevent the resurgence of terrorism, they would consider, say, the rights pronounced in the Universal Declaration henceforth as binding law, it is probable that no group of States would object, and that corresponding consensus law thus would be made.277 In this way, a higher degree of second mode constitutionalization of general international human rights law might be achieved.
b) Third Mode Constitutionalization — Entrenchment3b) Third Mode Constitutionalization — Entrenchment3b) Third Mode Constitutionalization — Entrenchment
aa) Legal Possibility4aa) Legal Possibility4aa) Legal Possibility

Article 53 of the VTC defines jus cogens as entrenched.278 But the entrenchment of jus cogens rules with regard to other general international law rules is not really made out.279 It should be recalled that apparently no court or tribunal was yet called upon to decide on such an entrenchment, and that no court applied the jus cogens test provided for in Article 53 of the VTC, so there is no guidance to be gleaned from (quasi )judicial decisions. As to publicists, concerning the jus cogens concept according to Article 53 of the VTC, it has been remarked that „[t]he final relative clause in Article 53 [of the VTC] is badly drafted“.280 But it is not just badly drafted; it is deeply flawed as a rule of recognition of jus cogens rules.281 Indeed, to derogate from, or to modify, jus cogens according to Article 53 of the VTC, there are inevitably, in addition to subsequent jus cogens norms and, of course, desuetudo, at least two ways. The first possibility to derogate from such jus cogens is a truly universal treaty.282 Under the procedural view of jus cogens, which of course is the view of Article 53 of the VTC, such a treaty, concluded by (nearly) all the States, must be considered as apt to change preëxisting jus cogens as those selfsame States, acting together as the international community, are considered as the legislature accepting and recognizing jus cogens. As to the second possibility, it has been claimed that, according to the principle of acte contraire, „a rule of jus cogens will cease to be jus cogens if the overwhelming majority of States decide that it is no longer jus cogens — even though it may still remain a rule of law“.283 It is not clear, however, whether international law provides for such a possibility separately to take away the attribute of jus cogens from a norm.284 But in any case, this is a needlessly complicated construction. If a new general international law rule emerges as customary law, or is issued as consensus law — e.g. a rule permitting the use of force against a State for the purpose of arresting a war criminal found on that State's territory —,285 and if this rule is not reconcilable with an existing jus cogens rule, it will without more first (partially) „demote“, and than change or restrict, the jus cogens rule without however necessarily being itself jus cogens.286 To take another example, if a consensus of the international community had emerged, as it has not, supporting the position of the U.S. Justice Department paper concerning torture of al-Quaeda suspects,287 then even the most clearly established jus cogens rule of them all — the proscription of torture — would have suffered an exception, and it is difficult to see on which basis (other than a pure natural law basis)288 anybody could have denied the validity of such a change in the law. Seen thus, the entrenchment of jus cogens according to Article 53 of the VTC with regard to other general international law rules is more apparent than real; such law cannot be protected against encroachments by later consensus law issued by the international community as „legislature“. Its entrenchment therefore does not go beyond the protection of human rights consensus law provided for by the latter's procedural entrenchment.289 The same, it appears, would apply to jus cogens according to precedent.
In the last analysis, therefore, it appears that the importance of jus cogens for a hierarchization of general international law is largely exaggerated. It may be useful in treaty law although it aptly has been remarked that „it may be taken for granted that arrangements of that nature [i.e. contrary to jus cogens] would never be given the status of treaties to which the concept of jus cogens might apply“.290 The concept was also useful in this sense that it triggered off the realization that international law has become systemized.291 But this, it is submitted, has exhausted the usefulness of jus cogens in general international law.292 Concerning its proper function as entrenched law, in the context of general international law it must be considered a red herring.293
bb) Normative Desirability4bb) Normative Desirability4bb) Normative Desirability
There remains the normative question as to the desirability, or legitimacy, of a relational entrenchment proper of human rights rules beyond the procedural entrenchment of treaty and consensus law. The normative approach here chosen considers it desirable to transpose the achievements of the constitutional State system to the international level. One of those achievements is the protection of human rights which, in the municipal context, is guaranteed by the (procedural and relational) entrenchment of the respective provisisons in the constitution. But this kind of entrenchment, while its details differ between different States, in no State excludes the adaptation of human rights provisions to changing circumstances. Indeed, the possibility to change the constitution, including its human rights provisions, by democratic means is itself an achievement of the constitutional State system.294

The transposition to the international level of this form of the protection of human rights rules therefore requires a certain measure of, but not an absolute, entrenchment of human rights rules; a certain adaptability of protected rules to possibly changing circumstances is desirable also on the international level. It is submitted that the procedural entrenchment of consensus law and human rights treaties corresponds to, but is also sufficient — in the case of human rights treaties largely sufficient — for, the purpose of preventing frivolous restrictions of human rights. In contrast, a relational entrenchment proper of human rights rules by jus cogens — implying that courts must disregard purported international law, whether customary, consensus or treaty law, that had been developed by the (international community of) States after the emergence of the relevant jus cogens rule but had not itself the character of jus cogens — might well lead to a petrifaction of human rights rules on the international level that might prove counterproductive. In any case, it would go beyond what is required under the normative approach here chosen. Under that approach, the relational entrenchment of human rights rules as provided for by jus cogens therefore does not appear desirable.

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