On the Constitutionalization of General International Law

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jus cogens according to Article 53 of the Vienna Convention: „a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character“.

197 But Shelton, supra note 157, at 322 notes correctly that „the only established sanctions for the breach of a jus cogens norm are ... the invalidity of a conflicting treaty“.

198 Cf. e.g. Brownlie, supra note 133, at 513.

199 Cf. e.g. Bleckmann, supra note 189, at 844-52 and, particulary clear, at 847 who considers even treaties protecting certain values as jus cogens. Contra: Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AJIL 55 (1966) at 61.

200 Similarly, according to Shelton, supra note 157, at 322, „ jus cogens ... can be viewed either as a new and non-consensual source of legal obligations or as a consensual identification of certain norms in positive law that are given a normative status higher than others“. — On the possible sources of jus cogens, cf. Michael Akehurst, The Hierarchy of the Sources of International Law, 47 BYIL 273 (1977) at 282-3; Sztucki, supra note 78, at 73-6. — According to Martin, supra note 153 at 343, „Jus cogens is non-derogable, peremptory law“. It is not quite clear how this author determines the rules complying with that legal consequence turned definition. According to him, one source of such norms are widely adopted multilateral treaties.

201 In supra note 196.

202 Cf. Sztucki, supra note 78, at 106-8 discussing the paradox that the Convention is particular law but purports to introduce the category of „peremptory norms of general international law“.

203 But cf. the cautious remarks of the Special Rapporteur, quoted from Sztucki, supra note 78, at 151, that the rule embodied in Article 53 of the VTC should not be regarded „as a total invention“ or as „a completely new rule“. And cf. Sztucki, ibid., at 94: „[I]n the light of international practice, ... there has been nothing to codify“; Christian Tomuschat, International Law, in The United Nations at Age Fifty. A Legal Perspective (Chr. Tomuschat, ed.; 1995), 281 at 297: „innovative features“.

204 Christian Tomuschat, Obligations arising for States without or against their Will, 241 RdC 197 (1993 IV), at 223.

205 Cf. e.g. ECtHR, Al-Adsani v. UK, appl. no. 35763/97, judgment (Grand Chamber) of Nov 21, 2001, para. 60-1.

206 Tomuschat, supra note 204, at 223, with further references in note 35. Cf. also Carrillo Salcedo, supra note 181, at 592 who stresses that all rules of jus cogens „have a strong ethical connotation, to the extent that jus cogens tends to set certain greater values above power“; Alexander Orakhelashvili, The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions, 16 EJIL 59 (2005) 62. An example is the claim that an international crime will be part of jus cogens if it affects the interests of the international community as a whole because it threatens the peace or security of humankind, and if it shocks the conscience of humanity; cf. M Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 (4) Law and Contemporary Problems 63 (1996) at 69.

207 Tomuschat, supra note 204, at 234-6, correctly insists on this idea.

208 While it is true that „there remain objective indicators of acceptance of [certain] norms as fundamental values“, as Shelton, supra note 157 at 330 notes, this is only part of the problem; the more difficult question is which applicable norms can be deduced from those value norms. Cf. also Fischer-Lescano, quoted in supra note 145.

209 Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd ed. 1984) at 222.

210 Christian Hillgruber, The Admission of New States to the International Community, 9 EJIL 491 (1998) at 506, referring to John Dugard, Recognition and the United Nations (1987) at 123-7.

211 For instance, a norm which declares a contract concluded contra bonos mores to be void, or that a contract on the sale of immovables must be concluded by a deed of a notary public, will be interpreted as jus cogens because it is perceived as a public policy norm intended to protect the weaker party to a contract.

212 A telling example is the discussion whether there is a peremptory norm completely prohibiting commercial whaling „because of the special characteristics of whales as intelligent creatures“ or whether „what has emerged as a new peremptory norm is not prohibition, but sustainability“; cf. Douglas M. Johnston, reported in Chairman's Report, Legal Workshop on Assessment of Actions of the International Whaling Commission under the International Convention for the Regulation of Whaling (ICRW, 1996), sub II. Have the Rights and Duties of States under the ICRW been Violated? — Role of the Vienna Convention on the Law of Treaties, available at http://luna.pos.to/whale/icr_legal_chair.html, visited Jan 5, 2005, who, however, concludes that „[t]he argument for either position is too vague to be considered definitive“. And cf. the examples given by Weil, supra note 8, at 270-1.

213 Shelton, supra note 157, at 303.

214 Cf. Trial Chamber of the ICTY, Prosecutor v. Furundzija (Dec 10, 1998), case no. IT-95-17/I-T, 38 International Legal Materials (1999) 317.

215 Paras 153, 155-7; footnotes omitted.

216 Accord Erika de Wet, The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law, 15 EJIL 97 (2004) 97.

217 217 Pierre-Marie Dupuy, L'unité de l'ordre juridique internationale, 297 RdC 9 (2002) at 312.

218 Cf. ICTY, Appeals Chamber, Furundzija, judgment of Jul 21, 2000, supra note 214.

219 Cf. ECtHR, Al-Adsani, supra note 205, para. 61; Supreme Court of Canada, Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, paras 62-65; UK Court of Appeal (Civil Division), Ronald Grant Jones v. The Ministry of the Interior Al-Mamlaka Al-Arabyia as Saudiya (The Kingdom of Saudi Arabia) & Anor. et al., judgment of Oct 28, 2004, [2004] EWCA Civil 1394 (appeal pending; it appears that according to a press release, the case has been listed for hearing before the House of Lords on Apr 25-27, 2006), para. 17, per Mance, LJ, para. 108, per Lord Phillips of Worth Matravers, MR; IACtHR, Maritza Urrutia v. Guatemala, judgment of Nov 27, 2003, [2003] IACHR 6, para. 92.

220 ECtHR, Al-Adsani, supra note 205, para. 61, my italics.

221 This appears to be the case, beside the cases quoted infra in the text, in Suresh v. Canada, supra note 219, para. 75, where the finding that „international law rejects deportation to torture“ stands independently of the question whether the prohibition of torture is, or is not, jus cogens; and in Urrutia v. Guatemala, ibid., where torture was prohibited under Inter-American law.

222 Cf. Furundzija, supra note 214, para. 153-7.

223 ECtHR, Al-Adsani, supra note 205, para. 66, as applied in ECtHR, Kalogeropoulou v. Greece and Germany, appl. no. 59021/00, decision of Dec 12, 2002, The Law D.1.(a). Cf. also ECtHR, Al-Adsani, para. 61, where the Court was „unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.“

224 Highest Special Court of Greece (Anotato Eidiko Dikasterio), Germany v. Margellos, Case no. 6/17-9-2002, judgment of Sept 17, 2002, unreported [data taken from de Wet, supra note 216, at 109 note 61], quoted from German Federal Supreme Court (Bundesgerichtshof), case no. III ZR 245/98, judgment of Jun 26, 2003, Neue Juristische Wochenschrift 3488 (2003), English translation and German text 42 ILM 1030 (2003) at 1034.

225 German Supreme Court, ibid., at 1033.

226 House of Lords, R v Bow Street Magistrate, ex parte Pinochet (No. 3), 2000 1 AC 147.

227 Jones v. Saudi Arabia, supra note 219, para. 124, per Lord Phillips, MR.

228 Ibid., para. 126.

229 Ibid., para. 129.

230 Ibid., para. 128.

231 Ibid., esp. paras. 128-31.

232 Cf. supra note 178.

233 This view is vigorously opposed by many authors; cf. Andrea Gattini, War Crimes and State Immunity in the Ferrini Decision, 3 JICJ 224 (2005) 234 note 41 and the quotations there. And cf. Italian Supreme Court, Ferrini case, supra note 110, which states that it cannot be doubted that the acts reproached to Germany as the defendant were an expression of imperium given that those acts were done in the course of war operations.

234 Cf. de Wet, supra note 216, at 98.

235 Supra note 110.

236 “... e, quindi, anche su quelle in tema di immunità“.

237 para. 9 of the judgment (the Court's italics); translation quoted from Pasquale de Sena & Francesca De Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, 16 EJIL 89 (2005) at 101.

238 De Wet, supra note 216, at 106, quoting U.S. District Court for the District of Columbia, Princz v. The Federal Republic of Germany, 26 F 3d at 1168, and Court of First Instance of Levadia, Greece, Prefecture of Voiotia v. Federal Republic of Germany, case 137/1997, summarized by Bantekas, 92 AJIL 765 (1998).

239 Also this view is vigorously opposed by many authors; cf. Gattini, supra note 233, at 236-7, with futher references also for the contrary opinion.

240 The legal possibility of such an entrenchment is discussed infra sub 6 b aa.

241 Wolff Heintschel von Heinegg, § 12: Der Geltungsbereich von Verträgen, in Knut Ipsen, Völkerrecht 124 (4th ed. 1999) at 131.

242 Wolff Heintschel von Heinegg, § 15: Ungültigkeit von Verträgen und Fortfall der Vertragsbindung, in ibid., 146 at 179.

243 Cf. the decisions cited in supra note 75.

244 Thus the formulation of the International Law Commission (ILC), Draft Articles on the law of treaties with commentaries, YBILC 1966, II, 187, 202, Article 15 comm. (1).

245 Cf. e.g. ICJ, Case concerning the Gabcíkovo-Nagymaros Project, ILM 1998, 195 et seq., diss. op. Fleischhauer; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, Reprint ed. 1987, at 117: „it follows that it is not permissible, whilst observing the letter of the agreement, to evade treaty obligations by ... ,indirect means'“. In the Vienna Convention on the Law of Treaties, this obligation is even recognized for the time predating the ratification of a treaty; cf. Article 18 of the Convention.

246 Cf. e.g. Article 2 (1) of the ICCPR, Article 1 of the ECHR.

247 ECtHR, case of Matthews v. United Kingdom (appl. no. 24833/94), judgment of Feb 18, 1999, Rep. 1999-I, 251, paras 33-34, confirmed in ECtHR, case of Prince Hans Adam II of Liechtenstein v. Germany (appl. no. 42527/98), judgment of Jul 12, 2001, para. 46. The only relevant decision of the HRC — comm. no. 217/1986, H.v.d.P. v. the Netherlands, views of Apr 8, 1987 — concerns the case of a staff measure taken by the administration of an international organization and does not discuss the question under review.

248 ECtHR, Matthews case, ibid., paras 26, 34.

249 The further reference by the Court to the fact that EC and Gibraltar legislation had the same effects on the population of Gibraltar (ibid., para. 34) is meant to show that the right to vote to the European Parliament is, for that population, part of the guarantee of a practical and effective right to vote in general.

250 ECtHR, Matthews case, ibid., para. 32.

251 HRC, General Comment No. 26: Continuity of obligations : . 08/12/97. CCPR/C/21/Rev.1/Add.8/Rev.1, paras. 1-3.

252 But the HRC did not challenge the successor States of the USSR which „have generally preferred to accede rather than succeed to the human rights treaties adhered to by the predecessor State“: Menno T. Kamminga, State Succession in Respect of Human Rights Treaties, 7 EJIL 469 (1996) at 483.

253 CESCR, The relationship between economic sanctions and respect for economic, social and cultural rights:.12/12/1997.E/C/12/1997/8, CESCR. General Comment 8, para. 7.

254 Ibid., para. 8.

255 On the question whether it is a valid defense against the reproach of having committed a violation of the ICCPR in occupied territory for the U.S. to claim that this violation was authorized by a Security Council resolution cf. Schilling, GLWP, supra note 183, at 21-38.

256 Indeed, the ECtHR made its decision in the Matthews case much more powerful by pronouncing not only the defending State but all the States participating in the multilateral action (all of which were at the same time States parties of the ECHR) to be responsible for that measure. Cf. ECtHR, Matthews case, supra note 247, para. 33.

257 On the scope of the international law „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“ cf. Schilling, GLWP, supra note 183, at 32-4.

258 Supra note 49 applies mutatis mutandis.

259 Cf. text at supra note 25.

260 Bryde, supra note 4, at 67, stresses the importance of the universal treaty bodies' jurisprudence for the subject under discussion.

261 The ECtHR has been described as a „sort of world court for human rights“ by John B. Attanasio, Rapporteur's Overview and Conclusions: of Sovereignty, Globalization, and Courts, in International Law Decisions in National Courts 373 (Thomas M. Franck and Gregory H. Fox, eds., 1996) at 383.

262 Cf. text at supra note 189.

263 Italian Supreme Court, Ferrini case; ECtHR, Al-Adsani case; UK Court of Appeal, Jones case; Highest Special Court of Greece, Margellos case; German Federal Supreme Court, case no. III ZR 245/98; cited respectively in supra notes 110, 219 and 224.

264 ECtHR, Matthews case; HRC, General Comment No. 26; ESCRC, General Comment 8; quoted respectively in supra notes 247, 251 and 253.

265 Cf. e.g. Article 34 of the ECHR and the Optional Protocol to the ICCPR.

266 The best known case is House of Lords, R v Bow Street Magistrate, ex parte Pinochet (No. 3), supra note 226. Also members of the Argentine Junta were subject to extradition procedures; cf. e.g. BBC News of Aug 20, 2004, available at http://news.bbc.co.uk/2/hi/europe/3584424.stm, visited Apr 16, 2005.

267 Cf. UK Court of Appeal, Jones case, supra note 219; Italian Supreme Court, Ferrini case, supra note 110. For the U.S., the Alien Tort Statute cases must be mentioned in this context; cf. in particular Supreme Court, Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004).

268 Cf. ICJ, Advisory Opinion of Jul 8, 1996 on the Legality of the Threat or Use of Nuclear Weapons, para. 25; ICJ, Construction of a Wall, supra note 168, para. 102-13, 127-31, although, in the latter opinion, the ICJ refrained from considering customary or consensus law.

269 Cf. text at supra note 135.

270 Cf. text at supra note 158 et seq.

271 The expression is Bruce Ackerman's, first used, it appears, in his Constitutional Politics/Constitutional Law, 99 Yale L.J. 453 (1989) 489. His definition, in his A Generation of Betrayal, 65 Fordham L. Rev. 1519 (1997) 1519, is this: A constitutional moment „occurs when a rising political movement succeeds in placing a new problematic at the center of American political life“. The expression has been applied to international law by Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 Harv. Int'l L.J. 1 (2002), and to European law by Neil Walker, The Legacy of Europe's Constitutional Moment, 11 Constellations 368 (2004). My use of the term differs slightly from Ackerman's, as is evident from the text.

272 Cf. e.g. Articles 53 of the ECHR, 5 (2) of the ICCPR.

273 The famous U.S. reservations, declarations and understandings, International Covenant on Civil and Political Rights, 138 Cong.Rec. S7481-01 (daily ed., April 2, 1992), of which the HRC „believes that, taken together, they intended to ensure that the United States has accepted only what is already the law of the United States“ (HRC, Concluding Observations of the Human Rights Committee: United States of America.03/10/95.CCPR/6/79/Add.50; A/50/40, paras. 266-304, at para. 279) only made into law the expectations most treaty States have at least originally.

274 It is here that the „global civil society“ (on which cf. e.g. Falk, supra note 20, at 81-102) plays an indirect but increasingly important rôle in international law-making that is respectful of individual rights. On the origins of that society, cf. Mary Caldor, The Ideas of 1989: The Origins of the Concept of Global Civil Society, in Reframing the International: Law, Culture, Politics 70 (2002, Richard Falk et al., eds.) at 70: „These ideas centered on the coming together of peace and human rights ... . The highly contested concept of ... Global Civil Society can be said in some sense to encompass or encapsulate these strands of thinking“.

275 Cf. Schilling, supra note 62, at 248. This could be seen as one instance of global civil society instrumentalizing the State; cf. Falk, supra note 20, at 100.

276 Doubtful Kumm, supra note 3, at 915.

277 As the leaders of democratic nations are democratically more accountable than officials integrated in transnational networks, this kind of consensus law to some degree might be immunized against the critique by Kumm, ibid.

278 Cf. quotation in supra note 196.

279 Critical on „The Question of Dynamism of Peremptory Norms“ also Sztucki, supra note 78 at 108-14.

280 Akehurst, supra note 200, at 285 note 5.

281 It is telling that Martin, supra note 153 at 344, finds the greater legal authority of jus cogens in the claim that „states do not need to consent to a jus cogens norm to be legally bound by that norm“.

282 Cf. Sztucki, supra note 78, at 112-3 and 115 with further references.

283 Akehurst, supra note 200, at 285 note 5.

284 In the somewhat parallel case of municipal legislation it must be distinguished between the decision on the contents of a law, typically made by a parliament, and the order that a law with those contents indeed be law, typically made by the Head of State. Generally, the Head of State cannot revoke that order once it has been given; positive law will not allow for such an actus contrarius. Cf. Schilling, supra note 51, at 95-6.

285 And cf. Cassese, supra note 26, at 24-5, welcoming an emerging doctrine in international law allowing, under stringent conditions, the use of forcible countermeasures to impede a State from committing large-scale atrocities on its own territory.

286 Cf. Weil, supra note 8, at 271: „A cela s'ajoute que le mécanisme qui permet à une norme ordinaire de passer au rang supérieure d'une norme impérative ... ressemble comme un frère à celui qui donne naissance à toute norme, même ordinaire, du droit coutumier“.

287 Available at http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf, visited Jan 6, 2005.

288 On which cf. text at supra note 207.

289 On which cf. text at supra note 186.

290 By Sztucki, supra note 78, at 21 and n. 67, who also discusses „Claims of Voidness of Treaties“ ibid. at 29-33. Recent arrangements coming to mind that might be considered as contrary to jus cogens include the „Operacion Condor“, i.e. the (apparently quite formal) agreement between Latin American miltary rulers on the disappearance of their supposed enemies (cf. e.g. Pierre Abramovici, «Opération Condor», cauchemar de l'Amérique latine, Le Monde diplomatique 24-5 (May 2001), and the agreements between the U.S. and a host of other States necessarily underlying the policy of „extraordinary rendition“ on which cf. Mayer, supra note 178. Weil, supra note 8, at 273 mentions „[l]'accord passé par l'Allemagne nazie avec tel ou tel de ses voisins pour échanger des juifs contre des camions“. And cf., on a completely different subject, Johnston, supra note 212, on Article 64 of the VTC and the ICRW.

291 Cf. text at supra note 189.

292 And cf. Weil, supra note 8, at 282: „il faut laisser ... [la] théorie [de jus cogens] au droit des traités, dont elle n'aurait jamais dû sortir.“

293 For Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 EJIL 113 (2005) at 122, international jus cogens is kitsch: it has „no clear reference in the world but ... invoke[s] a longing for such reference and create[s] a community out of such longing“.

294 Note that under Article 79 (3) of the German Basic Law, only amendments affecting the basic principles inter alia of Article 1 are inadmissible. Relevant in the present context is Article 1 (3) according to which „[t]he following basic rights shall bind the legislature ... as directly enforceable law“. Those following basic rights themselves may well be amended, and in fact very often have been amended.

295 Andreas L. Paulus, Commentary to Andreas Fischer-Lescano & Gunther Teubner: The Legitimacy of International Law and The Role of the State, 25 Mich. J. Int'l L. 1047 (2004) at 1050.

296 Cf. text at supra note 217.

297 Supra note 214.

298 Cited supra note 110.

299 Gattini, supra note 233, at 230.

300 Cf., most recently, Security Council Resolution 1593 (2005), adopted by the Security Council at its 5158th meeting, on Mar 31, 2005, para. 6 of which was inserted on the insistence of the U.S.: „Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State“. — According to Neha Jain, A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court, 16 EJIL 239 (2005), this kind of resolution is illegal.

301 B.S. Chimni, Towards a Radical Third World Approach to Contemporary International Law, 5 no. 2 ICCLP Review 14 (2002) at 23-4.

302 Or, in the case of the pouvoir constituant originaire, even from the amendment procedure.

303 And cf. the quotation from Weil, supra note 8, in supra note 48.

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