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Craven, Matthew (2000)
Languages: English
Types: Article
Subjects: 4450, 8500, 8010
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    • 3 Cf. H. Lauterpacht, 'Some Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order', Symbolae Verzijl (1958) 196; J. Stone, Of Law and Nations (1974) ch. 3.
    • 4 In the past 10 years, for example, the following bodies inter alia have begun work: the International Criminal Tribunal for Former Yugoslavia (1993); the International Criminal Tribunal for Rwanda (1995); the International Tribunal for the Law of the Sea (1996); the UN Compensation Commission (1991); the EFTA Court (1994); and the WTO Dispute Settlement Body and Appellate Body (1995). On the increased use of the ICJ, see e.g. Highet, 'The Peace Palace Hots Up: The World Court in Business Again?, 85 AJIL (1991) 646.
    • 5 See, e.g., Charney, 'The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea', 90 AJIL (1996) 69; and Guillaume, 'The Future of International Judicial Institutions', 44 ICLQ (1995) 848.
    • 6 Cf. Barcelona Traction, Light and Power Case, ICJ Reports (1970) 32, paras 33-34.
    • 7 See, e.g., the extension of state responsibility to govern 'authorized' private acts (Costello-Roberts v. United Kingdom, 19 EHRR (1998) 112) or for failure to properly protect individuals against abuse (X and Y v. The Netherlands, ECHR (1985) Series A, No. 91). See Crawford, 'Revising the Draft Articles on State Responsibility', 10 EJIL (1999) 435, at 439-440; and more equivocally Chinkin, 'A Critique of the Public/Private Dimension', 10 EJIL (1990) 387, at 393-395.
    • 8 See, e.g., Draft Articles on State Succession in Relation to Nationality, GAOR, 52nd Sess., Supp. No. 10 (A/52/10), chapter IV, section c.
    • 9 E.g., EC Guidelines on Recognition (1992). See generally Warbrick, 'Recognition of States: Part 2', 42 ICLQ (1993) 433.
    • 10 E.g., NATO action in Kosovo. See generally Cassese, 'Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?', 10 EJIL (1999) 23; Simma, 'NATO, the UN and the Use of Force: Legal Aspects', 10 EJIL (1999) 1.
    • 11 The argument that certain categories of treaties must be treated in a distinctive way has, of course, been a long-standing point of debate. McNair argued in 1930, for example, that we need to 'free ourselves from the traditional notion that the instrument known as the treaty is governed by a single set of rules, however inadequate, and set ourselves to study the greatly differing legal character of the several kinds of treaties and to frame rules appropriate to the character of each kind'. McNair, 'The Functions and Differing Legal Character of Treaties', 11 BYIL (1930) 100, at 106. See also Jenks, 'State Succession in Respect of Law-Making Treaties', 29 BYIL (1952) 105.
    • 12 General Comment No. 24 (52), UN Doc. CCPR/C/21/Rev.1/Add.6, para. 17.
    • 13 ICJ Reports (1996) 595, at 645.
    • 14 Ibid, at 645-646.
    • 15 Ibid, at 649.
    • 21 Cf. S. Rosenne, Breach of Treaty (1985) 4.
    • 22 See, e.g., Draft Article 66, Waldock, 'Third Report on the Law of Treaties', Yearbook of the International Law Commission, vol. II (1964) 57. See generally Schwelb, 'The Law of Treaties and Human Rights', in M. Reisman and B. Weston (eds), Towards World Order and Human Dignity (1976) 263, at 266-272.
    • 23 See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council 276 (1970), Advisory Opinion, ICJ Reports (1971) 16, para. 101. See generally Schwelb, supra note 22, at 274-283.
    • 24 Sir H. Waldock, Yearbook of the International Law Commission, vol. I (1966) 63, para. 23.
    • 25 Ibid, at para. 68.
    • 26 See, e.g., Higgins, 'Human Rights: Some Questions of Integrity', 52 MLR (1989) 1; Redgewell, 'Reservations to Treaties and Human Rights Committee General Comment No. 24 (52)', 46 ICLQ (1997) 390; Shelton, 'State Practice on Reservations to Human Rights Treaties', 1 Canadian Human Rights Yearbook (1983) 205; Coccia, 'Reservations to Multilateral Treaties on Human Rights', 15 California Western International Law Journal (1985) 1; L. Lijnzaad, Reservations to UN Human Rights Treaties: Ratify and Ruin? (1995).
    • 27 See, e.g., Reports of Special Rapporteur Pellet, UN Docs A/CN.4/470, and Corr.1 (1995); A/CN.4/477 and Add.1 (1996); and A/CN.4/491 and Corr.1 (1998).
    • 28 General Comment No. 24 (52), supra note 12.
    • 29 Supra note 16.
    • 30 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports (1951), at 23. The main distinction, however, is that the Vienna Convention regime gives states opposing a reservation the choice as to whether or not they wish to be regarded as bound in relation to the reserving state.
    • 31 Article 20(4)(c).
    • 32 Article 20(4)(a).
    • 33 Article 20(4)(b).
    • 34 This turns upon the perceived relationship between Articles 19 and 20 of the Vienna Convention and whether a single-stage or a two-stage test is to be employed. For the view that the latter is to be preferred, see Redgewell, supra note 26, at 404-405; Redgewell, 'Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties', 64 BYbIL (1993) 245, at 257; and Bowett, 'Reservations to Non-Restricted Multilateral Treaties', 48 BYbIL (1976-1977) 67. The two-stage test, while sound in theory, rests on the assumption that the compatibility of a reservation with the object and purpose of a treaty may be determined without any necessary input from states. The ILC, by contrast, had taken a more realistic view in stating in its commentary that Articles 16 and 17 (later 19 and 20) were to be read together 'because the legal effect of a reservation, when formulated, is dependent on its acceptance or rejection by the other States concerned'. Documents of the Conference, A/CONF.39/11/Add.2, at 23.
    • 35 This turns upon the question of severability. Cf. Belilos v. Switzerland, Series A, No. 132. See, Marks, 'Reservations Unhinged: The Belilos Case Before the European Court of Human Rights', 39 ICLQ (1990) 300.
    • 36 As Simma points out: 'In [the] case of human rights conventions, however, there is simply no contractual quid pro quo to withhold. There is, sociologically speaking, no interaction between the parties onto which reciprocity could lock. Reciprocal non-application of a reserved provision by another State Party would not only be absurd but also legally inadmissible. . . [S]ince every State Party is bound vis-à-vis every other State Party to perform the treaty obligations, a splitting up of such a treaty into pairs of bilateral contractual relations in respect of which the reciprocal alternation of the treaty standard envisaged by the Convention could operate, is impossible.' Simma, 'International Human Rights and General International Law: A Comparative Analysis', 4 Collected Courses of the Academy of European Law (1995) 153, at 181-182.
    • 37 A/CN.4/477/Add.1 (1996).
    • 38 Ibid.
    • 39 Cf. Higgins, 'The United Nations: Still a Force for Peace', 52 MLR (1989) 12.
    • 40 Article 21(3).
    • 41 See the text accompanying note 86 below.
    • 42 The problem is further exacerbated when the role of supervisory institutions is taken into account. As the Human Rights Committee pointed out in its General Comment No. 24 (52), supra note 12, para. 1: 'It is important for States parties to know exactly what obligations they, and other States parties, have in fact undertaken. And the Committee, in the performance of its duties under either article 40 of the Covenant or under the Optional Protocols, must know whether a State is bound by a particular obligation or to what extent.' If a large number of states object to a reservation on the basis that they believe it to be incompatible with the object and purpose of the treaty, whether or not they wish the reserving state to be a party to the agreement inter se, the supervisory body will necessarily have to take a view on the question of the effect of that reservation. It is clear, irrespective of the precise legal competence of the supervisory body concerned, that leaving the determination of compatibility solely in the hands of states parties acting in an individual capacity, does little to clarify that process.
    • 43 E.g., ILO Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize (1948); ILO Convention (No. 98) Concerning the Application of the Principles of the Right to Organize and to Bargain Collectively (1949); and ILO Convention (No. 122) Concerning Employment Policy (1964).
    • 44 Geneva Conventions I to IV (1949).
    • 45 Protocol I Concerning the Protection of Victims of International Armed Conflicts (1977); Protocol II Concerning the Protection of Victims of Non-International Armed Conflicts (1977).
    • 46 Hague Regulations of 1899 and 1907.
    • 47 E.g., Vienna Convention on Consular Relations (1963). See Case Concerning Consular Rights of Detained Foreign Nationals, Inter-American Court of Human Rights, Advisory Opinion, OC-16/99.
    • 48 General Comment No. 24 of the Human Rights Committee notes, for example, that human rights treaties 'are not a web of inter-state exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-state reciprocity has no place save perhaps in the limited context of reservations to declarations on the Committee's competence under Article 41.' General Comment No. 24 (52), supra note 12, para. 17. See generally A. Cançado Trinidade, A Protecao International dos Direitos Humanos - Fundamentos Juridicos e Instrumentos Basicos (1991) 10-12.
    • 49 The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75), Advisory Opinion OC-2/82 of 24 September 1982, Inter-American Court of Human Rights (1982), Series A, No. 2, para. 30.
    • 50 Mavrommatis Palestine Concessions Case (Jurisdiction), 1924 PCIJ Series A, No. 2, at 12.
    • 61 See generally H. Lauterpacht, Private Law Sources and Analogies of International Law (1927) 155-180; and J. Brierly, The Law of Nations (6th ed., 1963) 317-327. R. Jennings and A. Watts, Oppenheim's International Law, vol. I (8th ed.) 877, defines treaties as 'agreements, of a contractual character, between States, or organizations of States, creating legal rights and obligations between the parties'.
    • 62 Bernhardt defines a treaty as 'a consensual agreement between two or more subjects of international law intended to be and considered by the parties as binding and containing rules of conduct under international law for at least one (normally for all) of the parties'. Bernhardt, 'Treaties', in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. VII (1984) 459, at 460.
    • 63 An 'agreement' would naturally appear to represent a concurrence of opinion or belief as between two or more persons in relation to some fact or course of action.
    • 64 See, e.g., Nuclear Tests Case (Australia v. France; New Zealand v. France), ICJ Reports (1974), at 253; Military and Paramilitary Activities in and against Nicaragua, ICJ Reports (1986), at 131, para. 259; Frontier Dispute Case, ICJ Reports (1986) 554, at 573; and Border and Transborder Armed Actions Case, ICJ Reports (1988) 105-106, para. 94. See generally Franck, 69 AJIL (1975) 612; Rubin, 'The International Legal Effects of Unilateral Declarations', 71 AJIL (1977) 1; Macdonald and Hough, 'The Nuclear Tests Case Revisited', 20 German Yearbook of International Law (1977) 337.
    • 73 See, e.g., Simma, who points out that '[t]o recognize that in the case of a human rights treaty States parties do not exchange any tangible benefits is one thing. But then to assert that such absence of factual, or “sociological” reciprocity, as it were, leads to the absence of reciprocal legal rights and duties proper is quite another matter. By no means is the second claim a necessary conclusion from the first.' Simma, 'From Bilateralism to Community Interest', Hague Recueil (1994) 369.
    • 74 Simma, 'Reciprocity', in R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. 7 (1984) 400.
    • 75 Cf. Ago, who makes the more extensive claim that there was always 'a correlation between a legal obligation, on the one hand, and a subjective right, on the other': Ago, Second Report, Yearbook of the International Law Commission, vol. II (1970) 192.
    • 76 Simma, supra note 73, at 400-401, states that: 'From a purely formal point of view, reciprocity governs every international agreement, independently of its content, and consequently underlies the rules concerning the conclusion and entry into force of treaties, and their application, termination, amendment and modification.'
    • 77 See, e.g., Article 58 of the Vienna Convention on the Law of Treaties (1969).
    • 88 As was pointed out by the ICJ in the Case Concerning the Legality of the Use of Force (Yugoslavia v. Canada), 2 June 1999, para. 19: 'the Court has repeatedly stated “that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction” (East Timor, Judgment, ICJ Reports (1995) 101, para. 26); and . . . the Court can therefore exercise jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned.' Ironically enough, this would mean that, by objecting to a reservation to Article IX (concerning the jurisdiction of the ICJ), a state would in fact affirm the effectiveness of the reservation.
    • 89 This is particularly important if one is to take seriously the idea that human rights treaties are constitutive of quasi-independent 'legal regimes'. See the text accompanying notes 122-125.
    • 90 A similar provision is found in Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965). Article 29 of the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and Article 30 of the Convention Against Torture similarly provide for submission of disputes to arbitration.
    • 91 The Effect of Reservations on the Entry into Force of the American Convention (Arts 74 and 75), Advisory Opinion OC-2/82, Inter-American Court of Human Rights (1982), Series A, No. 2.
    • 92 Austria v. Italy (Pfunders Case), 11 January 1961, 4 Yearbook of the European Convention on Human Rights (1961) 116.
    • 93 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports (1951) 23.
    • 99 Article 62 of the Inter-American Convention on Human Rights (1969).
    • 100 The Inter-American Court has affirmed that 'recommendations' of the Commission do not have 'the character of an obligatory judicial decision for which the failure to comply would generate State responsibility': Caballero Delgado and Santana Case, Inter-American Court of Human Rights, 3 IHRR (1996) 548, 17 HRLJ 24.
    • 101 As is pointed out by Hampson ('Working Paper on Reservations to Human Rights Treaties', UN Doc. E/CN.4/Sub.2/1999/28, para. 10): 'When one considers the number of multilateral treaties to which many States are party and the number of potential other parties, it would be surprising if States were meticulous in examining the reservations of other States in order to indicate a view. Silence seems to be a common response. It would seem unlikely to be usually the result of conscious deliberation on the part of other high contracting parties.'
    • 102 Cf. General Comment No. 24 (52), supra note 12.
    • 110 Article 24, for example, provides that states may refer to the Commission 'any alleged breach of the provisions of the Convention', and not merely breaches that involve nationals of the complaining state. See also, in that regard, Application of the Convention (article on the Prevention and Punishment of Genocide), ICJ Reports (1996) para. 34.
    • 111 It is a curiosity that only one Article of the Convention (Article 55) actually refers to the process as one of 'dispute settlement', and this only by way of excluding recourse to other such processes.
    • 112 Ireland v. United Kingdom, ECHR, Series A, No. 25, Judgment of 18 January 1978, 2 EHRR 25.
    • 113 Ibid.
    • 114 Ibid.
    • 119 Cf. Fitzmaurice, who comments that '[c]ertain kinds of multilateral treaties do not involve direct benefits for any of the participating countries. The benefit is of a general character arising from participation in a common cause for the general good.' Fourth Report on the Law of Treaties, UN Doc. A/CN.4/120, 2 Yearbook of the International Law Commission (1959) 54.
    • 120 This idea was initially propounded by Kant, 'To Perpetual Peace: A Philosophical Sketch' [1795] in Perpetual Peace and Other Essays (Humphrey trans. 1983) 107. It has since been endorsed by e.g. F. Teson, A Philosophy of International Law (1998) 9-14; Doyle, 'Liberalism and World Politics', 80 APSR (1986) 1151; Rummel, 'Libertarianism and International Conflict', 27 Journal of Conflict Resolution (1983) 27.
    • 121 See, e.g., Slaughter, 'International Law in a World of Liberal States', 6 EJIL (1995) 503; Teson, supra note 120.
    • 122 On 'regime theory' generally, see A. Hasenclever, P. Mayer and V. Rittberger, Theories of International Regimes (1997). See also Simma, 'Self-Contained Regimes', 16 Netherlands Yearbook of International Law (1985) 111.
    • 123 One way of explaining this framework without reference to the idea of a contractual bargain, may be by resort to the notion of erga omnes obligations. Cf. Simma, supra note 73, at 370.
    • 127 E.g., H. Hart, The Concept of Law (1956) 77-96. See also Combacau and Alland, ' “Primary” and “Secondary” Rules in the Law of State Responsibility: Categorizing International Obligations', 16 Netherlands Yearbook of International Law (1985) 81.
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