On the Constitutionalization of General International Law



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supra note 98, at 242.

114 First multi-lateral prohibition in Article LXVIII Schedule 15 of the Final Act of the Vienna Congress (1815) — Declaration of the Powers on the Abolition of the Slave Trade of Feb 8, 1815, reprinted in Martens, Nouveau recueil général des traités et autres actes relatifs aux rapports de drout international, 2nd Series, Vol. II, p. 432.

115 HRC, General Comment No. 06: The right to life (Article 6):30/04/82.

116 Quoted in supra note 99.

117 of Dec 19, 1966, entry into force Mar 23, 1976, UNTS vol. 999 p. 171.

118 of Dec 19, 1966, entry into force Mar 1, 1976, UNTS vol. 993, p. 3.

119 of Nov 22, 1969, entry into force Jul 18, 1978, UNTS vol. 1144, p. 143.

120 of Jun 26, 1981, entry into force Oct 21, 1986, ILM 1982, 58.

121 of Dec 10, 1984, entry into force Jun 26, 1987, GAOR 39th Sess., Resolutions, p. 197.

122 of Dec 18, 1979, entry into force Sep 3, 1981, UNTS vol. 1249, p. 13.

123 of Dec 9, 1948, entry into force Jan 12, 1951, GA Res. 260 (III).

124 of Sep 27, 1968.

125 The same applies for the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of Feb 1, 1971, entry into force Aug 20, 1979 (four Contracting States on Oct 29, 2004).

126 Cf. also Globalization and its impact on the full enjoyment of all human rights. Preliminary report of the Secretary-General, UN Doc. A/55/342, Aug 31, 2000, para. 14: „There are points of potential convergence between trade principles and objectives and the norms and standards of international human rights law.“

127 In the preamble of the GATT, the contracting governments declare themselves „desirous ... of entering into ... arrangements directed to the ... reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce“.

128 The same does not apply to the rest of the main agreements and the „additional details“ i.e. other goods agreements and annexes as well as services annexes, and especially for individual countries' market access commitments.

129 Cf. e.g. Article I Sec. 8 cl. 3 of the U.S. Constitution (interstate commerce clause); Articles 28-30, 39, 43, 49 EC Treaty.

130 Consecrated in Article 16 of the EU Fundamental Rights Charter. According to the explanations of the Bureau of the Convention, available at http://www.europarl.eu.int/charter/pdf/04473_en.pdf, this Article is based on European Court of Justice case-law which has recognized freedom to exercise an economic or commercial activity and freedom of contract, and Article 4 (1) and (2) of the EC Treaty which recognizes free competition.

131 On such a right of the United Nations, but also „in a variety of other multilateral contexts as well as in bilateral inter-State relations“ cf. Simma, supra note 81, at 221-2 with further references.

132 132 Cf. e.g. Article 6 ECHR; Article 14 ICCPR.

133 On which, and on their comparison, cf. Ian Brownlie, Principles of Public International Law, 5. Aufl. 1998, at 523-8.

134 Ibid. at 529-30.

135 Cf. e.g. Kelsen, supra note 51, at 230, dealing with the human rights of a municipal constitution; Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AJIL 757 (2001) at 777.

136 Cf. Hulsroj, supra note 100, at 243, with further references. This fact is overlooked by Roberts, supra note 135, at 777, who states that „[b]reaches [of human rights obligations] are sensational and likely to attract attention, but that should not be allowed to obscure a general pattern of less publicized observance”.

137 The Amnesty International Report 2005, available at http://web.amnesty.org/report2005/index-eng, visited Jul 21, 2005, documents human rights violations for the year 2004 in 149 countries and territories.

138 Cf. text at supra note 68.

139 And cf. International Law Association Committee, supra note 83 at 15, à propos of omissions: „there could have been other reasons, unconnected with international law, why a State might have abstained“ (my italics). Cf. also ibid. at 37.

140 Helmut Steinberger, § 173: Allgemeine Regeln des Völkerrechts, in VII Handbuch des Staatsrechts der Bundesrepublik Deutschland 534 (J. Isensee/ P. Kirchhof, eds., 1992), para. 16; Mendelson, supra note 70, at 188.

141 Cf. also Roberts, supra note 135, at 777, with further references in note 206.

142 But cf. Roberts, ibid., with further references in note 207-8.

143 Cf. text at supra note 131.

144 Cf. text at supra note 132.

145 According to Fischer-Lescano, supra note 44, at 733-5, this is a value consensus which, while real enough, is meaningless: values do not allow the decision of value conflicts.

146 World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc. A/CONF. 157/23 of Jul 12, 1993.

147 of Dec 20, 2001.

148 Preamble, para. 9.

149 Cf. Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Georgia Journal of International and Comparative Law 287 (1995) at 327 et seq., quoting statements of the five Nordic States, of Bolivia, Azerbaijan, Chile, Colombia, Mexico, Nicaragua, the United States, Uruguay, and Venezuela, as well as letters of Austrian, Azeri, Czechoslovakian and Senegalese officials to the author; however, concerning the latter, it must be doubtful whether such private correspondence can be of any legal relevance. Cf. also for Canada Statement 95/1, Notes for an address by The Honourable Christine Stewart, Secretary of State (Latin America and Africa), at the 10th annual consultation between non-governmental organizations and the Department of Foreign Affairs and International Trade in preparation for the 51st session of the United Nations Commission on Human Rights (January 30 - March 10, 1995), Ottawa, Ontario, January 17, 1995. Cf. also the verbal acts quoted in the text at supra notes 82, 84 and 86. And cf. the discussion by Simma, supra note 81, at 213 et seq.

150 Oscar Schachter, International Law in Theory and Practice (1991), quoted from Henry J. Steiner & Philip Alston, International Human Rights in Context 226 (2nd ed 2000) at 228.

151 In the case of the Vienna Declaration this is shown most clearly by para. II 4 where „[t]he World Conference on Human Rights strongly recommends that a concerted effort be made to encourage and facilitate the ratification of and accession or succession to international human rights treaties and protocols adopted within the framework of the United Nations system with the aim of universal acceptance“.

152 As of Jun 9, 2004, 152 States have ratified the ICCPR and eight more, including China, have signed it; cf. Status of Ratifications of the Principal International Human Rights Treaties, available at http://www.unhchr.ch/pdf/report.pdf, visited Jan 20, 2005.

153 Cf. text after infra note 164. — Francisco Forrest Martin, Human Rights and the Hierarchy of International Law Sources and Norms: Delineating a Hierarchical Outline of International Law Sources and Norms, 65 Sask. L. Rev. 333 (2002) at 344-5 claims that non-derogable rights guaranteed by widely adopted multilateral treaties have jus cogens status binding all the States. This appears not to be arguable. In addition, the reference made by Martin to Pinkerton and Roach v. United States (1987), Inter-American Commission on Human Rights 3/87, Annual Report 1986-1987, available at http://www.cidh.org/annualrep/86.87eng/chap.3.htm, visited Jan 7, 2005, is misleading: while the Commission held „that in the member States of the OAS there is recognized a norm of jus cogens which prohibits the State execution of children. This norm is accepted by all the States of the inter-American system, including the United States“ (para. 56), this finding was not founded on the basis „that approximately 70 per cent of OAS members ware states-parties to the ACHR“, as Martin, ibid., claims, and it was not decisive of the case (cf. para. 60).

154 154 Cf., in a slightly different context, on the right to life ECtHR, case of Streletz, Kessler und Krenz v. Germany (appl. nos. 3044/96, 35532/97 and 44801/98), judgment of Mar 22, 2001, para. 96: „The convergence of the [Universal Declaration, the ICCPR and the ECHR] is significant: it indicates that the right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights“. But of course, most human rights are protected at the same time by the three instruments mentioned, and also by other human rights instruments.

155 Supra note 148.

156 Thus Michael Bothe & Andreas Fischer-Lescano, Protego et obligo. Afghanistan and the paradox of sovereignty, 3 German LJ No. 9 (2002), at para. 14.

157 It has been claimed by Dinah Shelton, Human Rights and the Hierarchy of International Law Sources and Norms: Hierarchy of Norms and Human Rights: Of Trumps and Winners, 65 Sask. L. Rev. 299 (2002) at 304, that „John Finnis has convincingly shown that the moral values underlying human rights are universal“. The quotation following (from John Finnis, Natural Law and Natural Rights (1980) c. IV) deals with human life, different forms of sexual relations, truth, coöperation, friendship, property, and religion. While it is easy to recognize in this bundle of values a conservative agenda, which might appeal to Asian governments generally not inclined to accept human rights treaty obligations, it is quite impossible to find there the enlightenment values of individual freedoms central to the human rights catalogues of the ECHR or the ICCPR e.g. freedom of expression.

158 Cf. the short indications given by Steiner & Alston, supra note 150, at 538, the position of the Singapore Prime Minister, reproduced ibid. at 546, and the White Paper of the Information Office of the State Council (Beijing 1991), reproduced ibid. at 547.

159 Bilhari Kausikan, Asia's different Standard, 92 Foreign Policy 24 (1993) reproduced in excerpts by, and here quoted from, Steiner & Alston, ibid. at 539, 541. Kausikan is a „government official” in Singapore; cf. ibid. at 549. And cf. Mark Hong, Postscript. U.S. and Asian Views on Human Rights. Prospects for Convergence, in The United States and Human Rights. Looking Inward and Outward 377 (David P. Forsythe, ed., 2000) at 381: „responsibility and discipline are paradoxically also human rights! Human rights are essentially expressions of values, and responsibilty and discipline are as much values as freedom“.

160 Cf. e.g. Jack Donelly, Cultural Relativism and Universal Human Rights, 6 Hum. Rts. Q. 400 (1984); and the contributions in I Ethik der Menschenrechte. Zum Streit um die Unversalität einer Idee (H.-R. Reuter, ed., 1999). And cf. Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 EJIL 566 (1997) at 582: „Official Western views are ... raised to the level of ,universality', while non-Western values are relegated to the realm of exotic cultures“.

161 Cf. e.g. on the Islamic Hudud punishments Mashood A. Baderin, International Human Rights and Islamic Law (2003) at 75 et seq.; on the freedom to change one's religion ibid., at 188 et seq. and the comments by Abdullahi An-Na'im, 15 EJIL 400 (2004) at 401.

162 Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (1998) at 196.

163 Para. 5. According to Habermas, supra note 7, at 164-5 the convocation of the Vienna World Conference for Human Rights confirms the necessity of an inter-cultural dialogue on the disputed interpretation of the UN's own principles.

164 Thus the Singapore Foreign Minister at the Vienna World Conference for Human Rights, cf. Steiner & Alston, supra note 150, at 546.

165 It may well be that not cynicism but honesty are at the basis of this refusal to sign the ICCPR. Indeed, the internationalization of human rights protection can be seen as, or lead to, protectionism; cf. e.g. Kelly-Kate Pease, Economic Globalization and American Society, in The United States and Human Rights, supra note 159, 31 at 46-7.

166 Cf. in particular para. 2 (2) of the Asian Human Rights Charter – A Peoples' Charter (available at http://www.ahrchk.net/charter/pdf/charter-final.pdf, visited Jan 24, 2005): „We believe that rights are universal, every person being entitled to them by virtue of being a human being. Cultural traditions ... do not detract from the universalism of rights which are primarily concerned with the relationship of citizens with the state and the inherent dignity of persons and groups.“

167 Cf. text at supra notes 104 et seq.

168 It is noteworthy that ICJ, Advisory Opinion of Jul 9, 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 86-113, does not mention consensus (or customary) human rights law among the rules against which it measured the erection of the wall. But cf. e.g. Hannum, supra note 149, at 352 et seq.

169 As restrictively defined in Article 1 (1) (2) of the UN Anti-Torture Convention, cited supra note 121, according to which „pain or suffering arising only from, inherent in or incidental to lawful sanctions“ are not covered by the term „torture“ within the meaning of the Convention.

170 Paras 54 et seq.

171 Resolution 3452 (XXX) of the UN General Assembly of Dec 9, 1975.

172 Cited supra note 121.

173 Enumerated by Jean-Bernard Marie, International Instruments relating to Human Rights. Classification and status of ratification as of 1 January 1998, 10 Revue Universelle des Droits de l'Homme 59 (1998).

174 As of Jun 9, 2004; cf. Status of Ratifications, supra note 152, visited Jan 24, 2005.

175 Cf. for instance the statement by U.S. President G.W. Bush quoted in the text at supra note 82.

176 Cf. U.S. Amicus Curiae Memorandum: „... no government has asserted a right to torture its own nationals. Where reports of torture elicit some credence, a state usually responds by denial or, less frequently, by asserting that the conduct was unauthorized or constituted rough treatment short of torture“, quoted from U.S. Circuit Court of Appeals, 2nd Circuit, Filartiga v. Pena-Irala, 630 F. 2d 876 (1980), ILM 19 (1980), at 966, 974.

177 Thus the Singapore Foreign Minister, reproduced by Steiner & Alston, supra note 150, at 547. In the same vein, Kausikan, supra note 159, at 543, recognizes „a clear consensus on a core of international law [prohibition of genocide, murder, torture or slavery] that does not admit of derogations on any grounds”.

178 Cf. e.g ECtHR, case of Selmouni v. France, judgment of Jul 28, 1999, paras. 82 et seq., and the press reports on the torture applied by U.S. forces in Iraq which apparently were not just transgressions of individual soldiers, e.g. Seymour M. Hersh, Chain of Command, The New Yorker, May 17, 2004, at 38; Mark Danner, Torture and Truth. America, Abu Ghraib, and the War on Terror (2004). Cf. also the reports on „extraordinary rendition“, e.g. Jane Mayer, Outsourcing Torture. The secret history of America's extraordinary rendition program, The New Yorker, Feb 14 & 21, 2005, at 106.

179 Cf. infra sub III 4 c cc.

180 A rule issued by a legislator in a more complex procedure regularly is entrenched against a rule issued in a less complex procedure; cf. Schilling, supra note 51, at 437-47.

181 Unfortunately, it is inevitable, in the context of the present contribution, to open „for the Nth time, the debates about, say, jus cogens ... and the other staples of the hierarchy discourse“, as Juan Antonio Carrillo Salcedo, Reflections on the Existence of a Hierarchy of Norms in International Law, 8 EJIL 583 (1997) at 595 quotes J.H.H. Weiler/ Andreas L. Paulus, The Structure of Change in International Law or is There a Hierarchy of Norms in International Law?, 8 EJIL 545 (1997) at 546, thereby slightly diverging from their published text.

182 Cf. e.g. Anthea Roberts, Righting Wrongs or Wronging Rights? The United States and Human Rights Post-September 11, 15 EJIL 721 (2004) 733.

183 This is a sure recipe for eventually undermining the latter and one of the problems of Article 103 of the UN Charter. The problem is discussed by Theodor Schilling, Der Schutz der Menschenrechte gegen Beschlüsse des Sicherheitsrats. Möglichkeiten und Grenzen, 64 ZaöRV (HJIL) 343 (2004); idem, Is the United States bound by the International Covenant on Civil and Political Rights in Relation to Occupied Territories?, Global Law Working Paper GLWP 08/04, available at http://www.nyulawglobal.org/workingpapers/GLWP_0804.htm, visited May 13, 2005.

184 On this question, cf. text at infra note 251.

185 Cf. e.g. ECHR, „Article 58 - Denunciation (1) A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months' notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties. (2) Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.“

186 Cf. text at supra note 79.

187 Cf. Hermann Mosler, Jus cogens im Völkerrecht, 25 Schweizerisches Jahrbuch für internationales Recht 9 (1968) at 14-5.

188 Cf. Weil, supra note 8, at 273: „Une théorie inadaptée à la structure du système international“.

189 Cf. Albert Bleckmann, Allgemeine Staats  und Völkerrechtslehre. Vom Kompetenz  zum Kooperationsvölkerrecht (1995) at 844: „Die Entwicklung zwingenden Rechts setzt ... voraus, daß die alte Konzeption des Völkerrechts als eines Bündels von subjektiven Rechtsverhältnissen durch eine objektive Konzeption der Völkerrechtsordnung überwunden wird.“

190 The expression is used by Weil, supra note 8, at 263.

191 For jus cogens as „a functional equivalent of national constitutions“ cf. Bothe & Fischer-Lescano, supra note 156, at para. 16.

192 When jus cogens is said to involve „the irrelevance of protest, recognition, and acquiescence: prescription cannot purge this type of illegality. Moreover, it is arguable that jus cogens curtails various privileges“ (Brownlie, supra note 133, at 514), it is understood as the sum of international public policy norms having derogatory supremacy over other norms of international law. And Sztucki, supra note 78, at 131, notes that „[i]t is, indeed, difficult to dissociate oneself fully from the construction [of international public policy], once one accepts the category of international jus cogens — and, especially, if one at the same time wishes to avoid a direct association with natural law theories“.

193 Mosler, supra note 187, sharply distinguishes between jus cogens as limitation of the freedom of contract (at 14-22) and jus cogens and the public order of the international community (at 22-6). Similarly, Sztucki, supra note 78, at 66-9 distinguishes between the application of jus cogens to treaties and to unilateral acts. But their are points of contact in civil law, too; cf. infra note 211.

194 The list, given by Bassiouni, supra note 61, at 801-2, of divergences among scholars concerning practically all imagineable attributes of jus cogens is quite impressive.

195 This is the primary legal consquence of a rule's being jus cogens according to Article 53 of the Vienna Convention: „A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.“
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