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Problems of Interaction Between the International and Domestic Legal Orders

Published online by Cambridge University Press:  30 September 2014

Hisashi OWADA
Hisashi OWADA*
Affiliation:
International Court of Justice, The Haguemail@icj-cij.org
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Abstract

With the rapid advent of globalization, international law has come to expand into new areas which had traditionally been under the exclusive domain of municipal law. As a result, problems concerning interaction between the international and domestic legal orders have become increasingly common. Specifically, difficulties have arisen concerning the implementation of international law decisions into the domestic legal order. This paper examines this problem in three different areas: the process of incorporation of international treaties into the domestic legal order; the issue of giving effect to Security Council resolutions in domestic law; and the issue of the implementation within the domestic legal system of judgments of international courts and tribunals. The paper concludes that, in an age of the emergence of a global community as a matter of socioeconomic reality, the two legal orders should work together to promote common public policy, paying due respect to the decisions of international institutions.

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Type
Invited Articles
Information
Asian Journal of International Law , Volume 5 , Issue 2 , July 2015, pp. 246 - 278
Copyright
Copyright © Asian Journal of International Law 2014 

I. The Evolution of International Law as the Framework of Legal Order of the International Community

The traditional international system based on the Westphalian legal order is undergoing a major transformation. Many of its characteristic aspects as a system of governance for international order have come to face serious challenges from a confluence of factors that are affecting the basic structure of the international community. In particular, the emergence of globalization within the international community, which has had the effect of producing a single global society, is bringing forth an increasing challenge to the validity of the existing institutional framework of international law as the system of governance of this community. As the globalized world requires a regulatory framework fit for this globalized society as a single legal community, a novel conception of global public order as the central theme of this globalized community would seem to be in order. Such a regulatory paradigm change must go beyond the traditional Westphalian normative structure that was built on the principle of national regulation.

As a result of the progress of globalization, issues which were thought to belong primarily to the domestic legal order are becoming the active focus for international regulation. These include the protection of fundamental human rights of individual citizens, as well as the increasing need for control over global climate change, as issues of common global concern for the international public order. This concern has been observable in the field of co-ordination between separate domestic legal orders of sovereign states since the early twentieth century, as witnessed by the development in the work of the Hague Conference on Private International Law, an institution that was established in 1893 to work “for the progressive unification of the rules of private international law”.Footnote 1 In the early twentieth century, there was extensive co-ordination among essentially separate sovereign legal orders to achieve by creating, through the form of multilateral conventions, the harmonization of rules on diverse subject matters which belong to the exclusive domestic jurisdiction of sovereign states.Footnote 2

This approach to solving the problems of co-ordination through the harmonization of private international law rules may serve the current societal needs of the international community up to a point, but it can only be considered a sort of “half-way house”. In this age of globalization, more is needed to meet the overall societal needs of the globalized world community. In its stead, what Hudson called international legislation,Footnote 3 i.e. the quasi-legislative process to achieve the uniformity of the substantive regulatory order through the adoption of law-making treaties in the form of multilateral conventions, is becoming prevalent.Footnote 4 This process is restructuring international relations in the field of human rights law (and international humanitarian law) through multilateral conventions to an ever greater extent. As a result, the sphere of application of the international legal order is reaching ever deeper into the domestic legal order. In this new situation, a more permanent paradigm for regulating the interaction between the international and domestic legal order is called for.

In other areas, as well, the expansion of the field of application of international law has brought about a situation in which the line between international law and municipal law is becoming blurred in other unexpected ways. One example is the development of international law in relation to the creation and growth of what is known as the international administration of territories established through international agreements under international organizations such as the United Nations.Footnote 5 Particularly noteworthy in this respect was the 2010 Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, which the International Court of Justice (ICJ) rendered on 22 July 2010.Footnote 6 The General Assembly, in its request for that Opinion, had asked whether “the unilateral declaration of independence of the provisional institutions of self-government of Kosovo was in accordance with international law”.Footnote 7 A primary issue which the ICJ had to resolve to reach an answer to this question was whether that declaration of independence was in accordance with, or in violation of, Security Council resolution 1244 (1999). That resolution constituted the basis for the international civil (UNMIK) and military (KFOR) presence in Kosovo, and provided the major guideline governing negotiations on the status of Kosovo. In order to respond to this question put by the General Assembly, therefore, the ICJ had to determine, inter alia, whether certain regulatory measures created under this international administration to implement resolution 1244, notably the instrument promulgated under UNMIK called the Constitutional Framework,Footnote 8 were to be classified as constituting domestic or international law. The ICJ noted that this instrument was “adopted by the Special Representative of the Secretary-General on the basis of the authority derived from Security Council resolution 1244 (1999) … deriv[ing] its binding force from the binding character of resolution 1244 (1999) and thus from international law”.Footnote 9 On this basis, the ICJ concluded that “it therefore possesses an international legal character”.Footnote 10 At the same time, however, the ICJ noted:

The Constitutional Framework functions as part of a specific legal order, created pursuant to resolution 1244 (1999), applicable only in Kosovo and [having] the purpose of … regulat[ing] … matters which would ordinarily be the subject of internal, rather than international, law.Footnote 11

This situation can thus be seen as yet another illustration of the dynamic nature of international legal norms, which in certain cases are taking on characteristics more commonly viewed as constituting part of the domestic legal order. In the case of Kosovo, the internal framework for the governance of the civilian population derived its binding force from international law.Footnote 12 The international legal order, determined and dictated by the resolution of the Security Council which represented the principles of the international public order as core values, defined the contents of the domestic legal order of Kosovo.

With this variety of issues as its background, this paper will examine the issue of the interaction between the international legal order and the domestic legal order in three areas that illustrate the dilemmas which can arise when these two separate legal orders interact. My thesis is that this new situation is giving rise to a new problem of how to implement international law decisions into the domestic legal order. I propose to examine this problem in the following three different areas of interaction: first is the most classical area of interaction, i.e. the process of incorporation of international treaties into the domestic legal order; second is the issue of giving effect to Security Council resolutions, including in particular sanctions regimes which purport to have direct effects upon the domestic legal order of the Member States of the United Nations;Footnote 13 and finally, the issue of the implementation within the domestic legal system of judgments of international courts and tribunals, and in particular of the ICJ, which is an issue of growing importance in recent years.

II. THE CONCRETE AREA OF INTERACTION THAT CREATES CONFLICT BETWEEN THE INTERNATIONAL LEGAL ORDER AND THE DOMESTIC LEGAL ORDER

It should be recalled that, traditionally, the issue of the place of international law in the domestic legal order has been one of the most hotly debated issues in the doctrine and practice of international law among both international and domestic lawyers. Thus, as O'Connell has observed, “Almost every case in a municipal court in which a rule of international law is asserted to govern the decision raises the problem of the relationship of international law and municipal law”.Footnote 14 Traditionally, commentators have focused their discussion on the relationship between the two legal orders—one international, the other domestic—and argued that there existed essentially two different approaches for how a municipal court could deal with relevant international legal rules: i.e. the monist approach and the dualist approach.

According to the dualist school of thought, international law and domestic (municipal) law are completely separate legal systems.Footnote 15 The rationale for this theory is that international law is meant to regulate the legal relationships between sovereign states, whereas municipal law applies only within a state and regulates the legal relationships among individuals within that state, or the legal relationships of governance between individuals and the government. Since international and domestic law are separate legal orders according to the dualist conception, domestic legislation must be enacted to transform an international legal rule into a domestic legal rule in order to become applicable within the domestic legal order, at which point the rule is applied as a rule of domestic law and not as a rule of international law. This dualist approach is advocated by such writers as Anzilotti and Triepel.Footnote 16

According to the monist school, both international law and domestic law form part of a single uniform legal structure, with “the various systems of Municipal Law … derived by way of delegation” from the international legal system.Footnote 17 Monism is represented by such authorities as Kelsen and Lauterpacht.Footnote 18 Since the monist school takes the approach that international law and municipal law form part of the same legal order, the question as to which of the two is hierarchically superior arises. Most monists answer this question in favour of the supremacy of international law, although a minority of scholars assert the supremacy of municipal law in a monist paradigm.Footnote 19

A. The Problems of Interaction Between the International and the Domestic Legal Order in Relation to Treaties

Against this doctrinal background on the relationship between international law and municipal law, it is crucial to examine the practice of states in some salient areas to see how the interaction between the international legal order and the municipal legal order surfaces, and what kind of problems arise as a result.

In the practice of most countries, general international law or customary international law is regarded as part of the legal order of the domestic legal system of these countries. Thus, in the constitutional doctrine of the UK, customary international law, as a body of law commonly accepted by the civilized nations of the international community, has traditionally been regarded as part of the law of the land.Footnote 20 With regard to the US, this doctrine has been held to have been adopted when it inherited the common-law system from Great Britain at the time of its independence.Footnote 21 With regard to some countries belonging to the civil-law system on the European continent, such as Italy, Greece, and Austria, they also have provisions in their constitutions which stipulate that international law is applicable as an integral part of their domestic legal order and declare its supremacy over municipal law in their legal systems.Footnote 22 On the other hand, there are countries which do not have any constitutional provisions stipulating a clear rule on the domestic applicability of customary international law.Footnote 23

With regard to international conventional law, namely the place of legal norms created through bilateral treaties and multilateral conventions by states in the domestic legal order, the constitutional local practice of states is more divergent. Nevertheless, it is safe to conclude that a certain trend is discernible when the recent practice of states is examined. With the clear awareness of the increasing importance of state activities that come to be regulated by international conventions of a law-making nature and with a view to avoiding possible conflict between obligations emanating from the two legal orders, states have come to incorporate in their constitutions stipulations which assign a place to international agreements within their domestic legal orders. Some states, for example the US, treat them on an equal footing with Acts of Congress, and take an approach based on the lex posterior rule, in the sense that a treaty which is applicable as part of domestic law under the Supremacy Clause of the US Constitution, will apply even where a conflicting national law exists, provided that the treaty was ratified later in time.Footnote 24 This also means, however, that should new legislation in the form of an Act of Congress be enacted which conflicts with an existing international agreement, the legislation will have superior force.Footnote 25 A group of countries, especially many countries of the civil-law tradition—including Argentina, Belgium, France, Germany, and the Netherlands, as well as Jordan, Namibia, and Poland—uphold the primacy of an international treaty over earlier or subsequent conflicting domestic law, including legislation.Footnote 26 An interesting exception in this respect is provided by the constitutional doctrine of the UK, where the conclusion of a treaty is a prerogative of the Crown, which requires no intervention of Parliament as is the case with domestic legislation in the form of an Act of Parliament. For this constitutional reason, a legal rule created by an international treaty, as distinct from a legal rule which is founded on customary international law, cannot have automatic validity in the domestic legal order precisely because the treaty has not gone through the process of approval by Parliament.Footnote 27 Treaties therefore have to be transformed into domestic law through domestic legislation so that they may be incorporated into the domestic legal order. There are other countries which have no explicit rule as to the precise place of international treaties in the domestic legal order, especially in terms of their hierarchy in the constitutional order in relation to the legislation enacted by their parliament.Footnote 28

Against this factual background of state practice, there have been some theoretical attempts to harmonize the dichotomy between monism and dualism through a third approach. This third approach might be called the “co-ordination approach”, elaborated by commentators such as Fitzmaurice and Rousseau.Footnote 29 Scholars who advocate for this view argue that the difficulty with both monism and dualism is that these two schools of thought are based on the faulty premise that international legislation and the municipal legal system have one and the same sphere of operation. In reality the two systems do not conflict as systems, for “any conflict between them in the international field … would fall to be resolved by international law, because in that field international law is not only supreme, but in effect the only system there is”.Footnote 30 However, there may be a conflict of obligations: i.e. “if a State, in its conduct, goes beyond its sphere of activity, or exceeds its competence, as delimited or determined by international law, it will internationally be guilty of illegal excess, and consequently of a breach of international law”.Footnote 31 Rousseau, for example, argues that international law is a sort of co-ordinating system “which does not provide for automatic abrogation of internal rules in conflict with obligations on the international plane”.Footnote 32 The crux of the argument of the co-ordination school is that simply because municipal and international rules conflict does not mean that either one or the other must be void, or that the two systems are incompatible.Footnote 33 The two systems simply co-exist, but on different planes. A domestic law which conflicts with an international obligation may lead to incurring state responsibility in the international legal order, but this would have no legal relevance in the domestic legal order.

In essence, this co-ordination approach stands on the premise that the two legal orders are separate and operate on different planes and therefore, theoretically, this new paradigm can transcend the division between monism and dualism.

This co-ordination approach would appear to describe best the legal reality of the contemporary international practice of states on this question. In this reality, states may make efforts to realize a harmonization of their domestic legal order to that of the international community—whatever the legal techniques they may employ through the monist doctrine or the dualist doctrine—in order to attain a unified legal order throughout the international legal community. Thus states may not just try to achieve the theoretical consistency of the system but more importantly may try to avoid the occurrence of non-compliance with international obligations that they have assumed through entering into international agreements, either bilateral or multilateral. If such occurrence of noncompliance cannot be avoided in reality, the co-ordination approach attempts to settle the situation which would ensue from such non-compliance, by explaining the situation either as one where state responsibility could be incurred, or as a situation in which the international act in question could be declared unenforceable within the domestic legal order. In other words, the so-called “co-ordination approach” might be a clever device to explain in a theoretical way the actual inconsistency that would result from the monist doctrine or the dualist doctrine. However, it does not solve the problems that we have to face in the present-day international legal order. They are real problems in the sense that they could harm the uniformity of the international legal order at a time when the international community is increasingly becoming a single global society. What, then, are the real implications of these problems?

The real nature of these problems can best be understood by examining what is actually taking place in the contemporary international legal order, where societal changes in the international community are compelling us to face the emerging dichotomy in the relationship between the international and domestic legal order. International law is evolving from a system of a network of bilateral relationships between states into an integrated system of common spheres of legal obligations binding upon all members of this global community through the device of international legislation concluded for the protection of community interests.Footnote 34 This process involves “the shaping of an international public policy in the form of the development of certain universal principles, such as human rights”.Footnote 35 In order to understand this evolution, it will be sufficient to recall in contrast that, only one hundred years ago, such an eminent authority of the day as Anzilotti described the essential function of international law as of that time as follows:

A rule of international law is by its very nature absolutely unable to bind individuals, i.e. to confer upon them rights and duties. It is created by the collective will of States with the view of regulating their mutual relations; obviously it cannot therefore refer to an altogether different sphere of relations. If several States were to attempt the creation of rules regulating private relations, such an attempt, by the very nature of things, would not be a rule of international law, but a rule of uniform municipal law common to several States.Footnote 36

It is easy to see that we live in a very different world today. It is now unquestionably the case that the ultimate goal of international law is to ensure both rights and duties for individuals as members that constitute this global society.Footnote 37

The law of international human rights, which only sixty years ago was codified for the first time at the universal level primarily through a non-binding declaration of the General Assembly,Footnote 38 has grown into a system of numerous binding global and regional law-making conventions, ensuring the rights of individuals as subjects of international law.Footnote 39 On the side of obligations of individuals as subjects of international law, the system of international criminal law has expanded exponentially in the past two decades, especially through the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, the establishment of the International Criminal Tribunal for Rwanda (ICTR) in 1994, and the conclusion in 1998 of the Rome Statute, which brought about the establishment of the International Criminal Court (ICC) in 2002.Footnote 40

Thus, in the modern international legal order, international law came to constitute the legal source of both rights and obligations for individuals. It has come to serve other purposes as well that had traditionally been left to municipal law, such as the system of local governance which has been the function of the sovereign state, as is shown for example in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).Footnote 41 In that case, decided by the ICJ in 2005, the Court upheld the relevance of the rule of law in the legal framework of local governance of the territory in question for the protection of individual rights of private persons emanating from international humanitarian and human rights law. Although the result was not to accord a specific right to compensation owed to those individuals, the ICJ held that, under the law of state responsibility, the injured state was due reparation by the state having committed the internationally wrongful act.

Likewise, there are situations in which an international court has indicated that a rule of law created by international agreement can give rise to directly enforceable rights for individuals within the domestic legal order. This was the purport of the judgment of the ICJ in Avena and Other Mexican Nationals (Mexico v. United States of America).Footnote 42 In my view, the judgment could reasonably be read as declaring that Article 36(2) of the Vienna Convention on Consular Relations can create a direct right for fifty-one Mexican nationals enforceable at the domestic law level to have their cases reviewed and reconsidered within the domestic legal order of the US.Footnote 43 Somewhat similarly, as I will discuss in more detail below, the Kadi case before the European Court of Justice (ECJ) raised an issue of the application of the relevant resolutions of the Security Council in the domestic legal order of the Member States of the United Nations. Security Council resolution 1390 (2002), which has binding force upon Member States under Article 25 of the Charter, was purported to affect, in the name of the public order of the international community that the Security Council is entrusted to represent, the rights of certain individuals within the domestic legal order by freezing their assets as part of a sanctions regime created by a Security Council resolution.

In the same way, the Nada Judgment of 12 September 2012Footnote 44 and the Al-Dulimi Judgment of 26 November 2013Footnote 45 of the European Court of Human Rights (ECtHR) raised the same issue, though in different contexts. Where an international court or an international organ of the United Nations such as the Security Council purports to affirm or deny rights of individuals enforceable in the domestic law sphere, it can no longer be claimed that international and domestic law will not come into conflict because they exist in separate spheres, as is claimed by the co-ordination approach. The international court or the Security Council in these cases is expressly reaching out with its competence into the sphere formerly belonging to the exclusive realm of domestic law.

B. The Issue Arising out of the Interaction Between the International and the Domestic Legal Order—Implementation of Security Council Resolutions

According to the Charter of the United Nations, the Security Council is endowed with the primary responsibility for the maintenance of international peace and security. For the purposes of carrying out this responsibility effectively under the collective security system enshrined in the Charter, the Security Council can take decisions that are binding on all Member States of the United Nations, especially when the Council acts under Chapter VII of the Charter. Article 25 of the Charter provides that “the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. In theory it logically follows from this provision that since all Member States have consented to be bound by the United Nations Charter, they are bound by Security Council resolutions under Article 25. The application of this provision, however, can raise complicated issues of the relationship between the international legal order and the domestic legal order in the context of the implementation of Security Council resolutions in the domestic legal order. The Security Council is a body of limited membership, with fifteen in total, including five permanent members who alone have the right to veto a resolution to which they do not give their consent. In contrast, the rest of the 193 members of the United Nations, whether being in the membership of the Security Council at the time of adoption of such a resolution or not, have no such power of vetoing the resolution and no such opportunity to give their specific consent for being bound by it. In theory, it can be argued that states have formally given their prior consent to be bound by any decisions of the Security Council by accepting Article 25. In substance, however, they cannot be considered to have given their specific consent, a priori, except through a carte blanche given to the Security Council. It is quite plausible that, when ratifying the Charter—in many cases decades ago—the states may not have foreseen the Security Council's role as it has now grown into, or may not have been able to predict the types of decision it would take, in particular with the present activist approach of the Council in the area of maintenance of international peace and security. In some cases the role of the Security Council could be regarded as quite intrusive into the sphere of national sovereignty as the concept was understood in 1945.Footnote 46 Indeed, it is most certainly the case that the founding fathers of the Charter themselves did not foresee these developments.

The following discussion examines in two separate contexts this issue of “consent deficiency” or “democratic deficit”Footnote 47 in order to illustrate the issues that can arise in the relationship between the international and domestic legal order in the context of the implementation of Security Council resolutions. First, I will discuss problems which arise in the context of the domestic implementation of Security Council sanctions regimes. Second, I will touch upon the issue of the domestic implementation of Security Council provisions relating to co-operation with international criminal tribunals.

1. Implementation of sanctions regimes under the Security Council resolutions

Sanctions regimes have been put in place by the Security Council as an effective tool for enforcement action of the United Nations in its role of maintaining international peace and security, acting under Chapter VII of the Charter.Footnote 48 In the recent practice of the United Nations, they have become an important aspect of the Council's role in the maintenance of international peace and security. As that role increases, however, the question of the domestic implementation of the sanction measures has become all the more pressing.Footnote 49 It raises complicated issues because sanctions regimes may require states to modify domestic law and/or practice. Moreover, in recent times a tendency on the part of sovereign states has arisen to forestall such modification, either through legislative or judicial means, when it would go counter to basic provisions of domestic law or established basic legal principles of the domestic legal order. This raises a question of serious consequences resulting from the under-implementation of Security Council sanctions, in spite of the solemn obligation undertaken by the Member States of the United Nations under Article 25 of the Charter.Footnote 50

In the domestic legal framework of many states, sanctions regimes and other decisions taken by the Security Council in the form of its resolutions are not treated as directly enforceable in the domestic legal order.Footnote 51 For example, the US has long considered them to have the same legal status as non-self-executing treaties.Footnote 52 The German Federal Court of Justice has held that Chapter VII sanctions are binding on Member States themselves (under Article 25 of the Charter), but that they do not have direct legal effect upon individuals within those states at the domestic law level.Footnote 53 South Africa provides for the domestic effect of Chapter VII sanctions but subjects their implementation to parliamentary control.Footnote 54 Although there are indications that sanctions regimes may be considered directly applicable in a number of states—Belgium, Argentina, Japan, Poland, and NamibiaFootnote 55—in the practice of a majority of states some subsequent legal instruments implementing the sanctions regime are enacted to make it enforceable in their domestic legal order. Whether this is legally required or enacted ex abundante cautela is not always clear, but the practice of states mainly goes in that direction.

It is not usually the case that sanctions measures adopted by the Security Council resolutions mandating states to take actions come to present a situation of a frontal clash with existing domestic legislation, or even with some domestic constitutional provisions on the ground that these measures may engender the restriction on constitutionally protected rights on the part of individuals targeted by such sanctions measures.Footnote 56 Nonetheless, it has been pointed out that:

In the Southern Rhodesian crisis, certain Member States, including the United States, considered that they were barred from implementing proposals relating to severance of postal, telegraphic, radio and other means of communication, or to the prohibition of insurance on the lives of passengers, by constitutional provisions relating to fundamental freedoms, including freedom of information and freedom of movement.Footnote 57

Constitutional issues have also arisen in the implementation process of internationally agreed sanctions regimes within the domestic legal order of Japan.Footnote 58 While the case of Japan that I am taking up here did not strictly involve one of sanctions measures mandated by a Security Council resolution, what happened on that occasion was very highly illustrative of the nature of the problem that I am discussing in this section. In 1969, the Japan Industrial Fair Association, a non-governmental organization of manufacturers established for organizing an industrial fair in China, applied to the Minister for International Trade and Industry of Japan for approval to export nineteen pieces of freight to the People's Republic of China. Under Article 1 of the Foreign Exchange and Foreign Trade Law, the application for approval to export was subject to the approval of the Minister, but the Minister rejected the application. The decision of the Minister was based on the ground that the application was in conflict with international agreements for the restriction of exports to certain designated countries, which Japan had entered into under the Coordinating Committee for Multilateral Export Controls (the “COCOM arrangements”), an organization created at the international level. The Industrial Fair Association brought proceedings against the decision of the Minister, arguing, inter alia, that the decision to deny export of the freight was an infringement of their fundamental constitutional rights, in particular the freedom of occupation and business guaranteed by Article 22(1) of the Constitution. The plaintiffs lost the case in the event, but on grounds which had nothing to do with this constitutional issue; i.e. the court dismissed the case of the plaintiffs on the ground that while the rejection of the application was carried out in a manner which was not strictly in conformity with the requirements prescribed by the law, the rejection of the application was nevertheless carried out within the margin of discretion given to the Minister to interpret and apply the requirements. In spite of this judgment, however, the court in the course of reaching this conclusion recognized in the form of an obiter dictum that the freedom of export was a fundamental right of individuals guaranteed by the Constitution, which cannot be denied to the plaintiffs. As a result of this finding of the Court, the Foreign Exchange and Foreign Trade Law had to be amended, to make the provision conform to the constitutional requirement by adding a condition in Article 1 that the aim of the Law was to realize the purpose of the “faithful observance of international commitments”. In other words, the position that the court enunciated was that the rejection of the application for export could have been justified, if the object and purpose of the provision of the law in question were sufficiently specific to make it clear that it purported to implement an international agreement—so that its constitutionality would be ensured under Article 98 of the Constitution.Footnote 59 With this amendment to the Law, it is generally believed in Japan that the Law as now revised could offer a secure legal ground for the government to take such measures as may be required for the implementation of sanctions regimes based on international agreement, including those imposed by Security Council resolutions. However, the fundamental issue of the compatibility of the Law with the constitutional guarantee of fundamental rights under Article 22 of the Constitution has not yet been conclusively tested in the jurisprudence of the courts in Japan.

A survey of German law leads one to the conclusion that a similar issue may arise under the German Constitution,Footnote 60 although a concrete case has not arisen so far. In particular, it has been pointed out that Security Council sanctions regimes could be considered to conflict with the right to exercise a profession under Article 12 or the right to property under Article 14 of the German Basic Law.Footnote 61

Similarly, conflicts have arisen in Switzerland between Security Council mandated sanctions regimes and Article 27 of the Swiss Constitution, which concerns economic freedom.Footnote 62 However, it could be noted that, under Article 190 of the Swiss Federal Constitution, the federal Supreme Court and other law-applying authorities are to follow federal statutes and international law even when international law is unconstitutional.Footnote 63 It is believed, therefore, that Security Council sanctions resolutions are in principle to be applied despite any unconstitutionality. It has thus been observed that in Switzerland “the conflict of norms is thereby at least practically resolved in favour of the sanctions resolutions”.Footnote 64

The implementation of sanctions regimes can also become a very complex issue, especially in the context of specific domestic governmental structures. For example, in federal systems of government, such as the US and Switzerland, even when the state as a sovereign entity at the international plane accepts the obligation to apply the sanctions as a matter of international law, the federal government may face difficulties as a matter of domestic law in ordering governmental agencies operating below the federal level to comply with their implementation.Footnote 65

The domestic law of Argentina in relation to the implementation of Security Council resolutions is also particularly noteworthy. Argentina has been following essentially a monist doctrine since the 1992 Decision of the Argentinean Supreme Court in the Ekmekdjian case. In this case, the Supreme Court held that in accordance “with the requirements of international cooperation, harmonization and integration recognized by Argentina … the proposition that there are no legal grounds to give priority to a treaty over a law is no longer correct”.Footnote 66 Nevertheless, Article 27 of the Argentine Constitution specifically requires international treaties concluded by Argentina to be in conformity with “principles of public law laid down by Constitution”. Article 75(22) and (24) of the Constitution creates a degree of hierarchy of treaties according to their object. Human rights treaties expressly listed therein, and others subsequently added, enjoy “constitutional hierarchy”, meaning that they are considered complementary to the rights and guarantees granted in the Bill of Rights under the Constitution. The United Nations Charter does not appear in this list of treaties referred to in Article 75 as constitutionally hierarchical. Thus, the possibility exists that if a sanctions regime established by a Security Council resolution on the basis of the Charter should be considered to conflict with a human rights treaty listed in Article 75 of the Argentine Constitution, such conflict would, according to Article 75, have to be resolved in favour of the human rights treaty, despite Article 103 of the Charter.Footnote 67 As two Argentine authors commenting on this problem have noted:

This would imply the need to exercise some sort of control of legality by the Supreme Court, eventually giving priority to the norms of international law of the “constitutionalized” human rights instruments, over United Nations Security Council resolutions, should the conformity of the latter with the former come into question. This could result in a variety of rather awkward situations. While the potential conflict between the obligations imposed by a United Nations Security Council resolution and human rights law of a conventional nature is solved at the international law level in favor of the former, by virtue of Article 103 of the Charter; this priority seems to have been reversed in Argentine law by the Constitution.Footnote 68

Whereas in Argentina this potential conflict remains so far essentially a theoretical question, in the US this question of conflict between national law and Security Council sanctions regimes became a real issue in 1971. In that year, the so-called Byrd Amendment (named after its sponsor Senator Harry Byrd of Virginia) was introduced into the US Congress. The Byrd Amendment was an effort to curb US sanctions on Rhodesia, which had been in place over the three preceding years. At that time, the “arguments about America's obligations to the United Nations [under] Articles 25 and 41 of the UN Charter were not well received in Congress”, and it was against this backdrop that the Byrd Amendment was enacted.Footnote 69 The Byrd Amendment thus effectively eliminated the prohibition on the import of chrome from Rhodesia imposed by the Security Council resolution on economic sanctions on Rhodesia, inasmuch as the amendment stated that it would be illegal to prohibit the import of any metal from “any free world country so long as the importation of any like ore from any communist country is not prohibited by law”.Footnote 70 Following the entry into force of the law in November 1971, the US began importing chrome from Rhodesia again, despite strong international condemnation,Footnote 71 including through the adoption of a resolution of the General AssemblyFootnote 72 and three resolutions of the Security Council.Footnote 73 Thereupon a group of concerned citizens of the US, both individuals and organizations, brought suit in federal court in the US, arguing that the Byrd Amendment was in violation of international law. The Court of Appeals for the District of Columbia Circuit, while declaring that Congress in passing the Byrd Amendment had blatantly disregarded US treaty obligations, concluded that it lacked the authority to prohibit Congress from doing so for the following reason:

Under our constitutional scheme, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it. We consider that this is precisely what Congress has done in this case; and therefore the District Court was correct to the extent it found the complaint to state no tenable claim in law.Footnote 74

A few years later, in 1976, the question of the enforceability of Security Council sanctions regimes in the domestic legal order of the US arose again, in the context of Security Council resolution 301, which called upon all states “to abstain from entering into economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory”.Footnote 75 A group of individuals brought suit in federal court seeking declaratory and injunctive relief which would prohibit the US government from continuing to deal with South Africa regarding the importation of seal furs from Namibia.Footnote 76 The plaintiffs argued that Security Council resolution 301 created a binding obligation on the US, that this resolution was self-executing, and that, without further legislative or executive action, it had become a part of judicially enforceable domestic law.Footnote 77 They argued that several visits to South Africa by officials of the US Department of Commerce in 1973−74—carried out to gather information which would allow the Department of Commerce to decide whether to grant to an American company a waiver of the Marine Mammal Protection Act of 1972 for the purpose of importing seal furs—were in direct violation of resolution 301. The federal circuit court dismissed their claim, holding that Security Council resolution 301 did not “confer on individual citizens rights that [were] judicially enforceable in American domestic courts”.Footnote 78 It reached this conclusion through an analysis of the domestic law governing whether treaties are “self-executing”, that is, whether they confer rights directly upon individuals absent further domestic implementing legislation. The Court stated that “in determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse must be had to the circumstances surrounding its execution”.Footnote 79 It then applied this logic, developed with respect to treaties, to Security Council resolution 301, concluding that the latter was not addressed to the judicial branch of the government, and did not by its terms confer rights upon individual citizens, but rather called upon governments to take certain action.Footnote 80 In conclusion, the court refused to enforce the Security Council sanctions regime at the domestic level.

Perhaps the most important recent case to address whether a Security Council sanctions regime clashed with constitutional protections guaranteeing fundamental rights of individuals was the Kadi case which came before the ECJ in 2008. This decision of the European Court was followed by another decision of the same court in 2013. Both of these judgments were addressed to acts of the European Union implementing a series of Security Council resolutions prescribing the suppression of international terrorism that were adopted under Chapter VII of the Charter. These resolutions required Member States to freeze the financial assets of certain designated individuals and entities associated with Osama bin Laden, al-Qa'ida, and the Taliban.Footnote 81 The specific list of the individuals and entities in question was prepared by the Sanctions Committee of the Security Council originally in March 2001 and regularly updated.Footnote 82 Kadi, the plaintiff who brought the case before the European Court, was a Saudi Arabian national with substantial assets in a Member State of the European Union. He was included in that list, and consequently had his assets frozen. He brought suit against the Council and the Commission of the European Union, arguing that this constituted a serious miscarriage of justice, and that the regulation of the European Union purporting to implement the Security Council resolution in question violated his fundamental rights to property, to a fair hearing, and to judicial redress.Footnote 83 In particular, he argued that the act infringed his right to property under Article 1 of Protocol 1, the right to a fair hearing in accordance with earlier case-law of the ECJ, and the right to judicial process under Article 6 of the European Convention on Human Rights (ECHR). In response, the Council and Commission of the European Union argued that the European Union was bound by international law to give effect to Security Council resolutions, in particular those adopted under Chapter VII, within the European Union legal order.Footnote 84

The General Court (then the Court of First Instance) ruled that the primacy of the Charter over other international agreements, codified in Article 103 of the Charter, extended also “to decisions contained in a resolution of the Security Council, in accordance with Article 25 of the Charter of the United Nations, under which the Members of the United Nations agree to accept and carry out the decisions of the Security Council.”Footnote 85 Citing the jurisprudence of the ICJ in the Lockerbie case, the Court of First Instance concluded that under Article 103 of the Charter, “the obligations of the Parties in that respect prevail over their obligations under any other international agreement”.Footnote 86 Thus, it was held that the Security Council sanctions regime prevailed over the ECHR and European Union law concerning Kadi's fundamental rights.

In its final judgment on appeal of 3 September 2008, the ECJ reversed the judgment of the Court of First Instance and annulled the challenged European Union regulations.Footnote 87 The court explained that it “must ensure the review … of [European Union] measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations”.Footnote 88 It stated that “obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the [European Community] Treaty, which include the principle that all Community acts must respect fundamental rights”.Footnote 89 It concluded that the fundamental rights at issue constituted “a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement”.Footnote 90 On this basis, the Court went on to consider the fundamental rights at stake, concluding that the European Union regulation freezing Kadi's assets constituted an unjustified infringement of his right to property,Footnote 91 although the judgment declared somewhat enigmatically that “any judgment given by the Community judicature deciding that a Community measure intended to give effect to such a resolution [adopted by the Security Council] is contrary to a higher order of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law”.Footnote 92 Thus it would appear that the judgment made a distinction between “the primacy of the [Security Council] resolution in international law” and the “lawfulness of the Community acts” to implement this resolution at the Community law level, which the “Community judicature enact, in accordance with the powers conferred on it by the EC Treaty”. It tried to explain this situation by declaring that “the Charter of the United Nations does not impose the choice of a predetermined model for the implementation of resolutions adopted by the Security Council”.Footnote 93

In 2013, the Kadi dispute again reached the ECJ.Footnote 94 Following the Court's 2008 Judgment and certain steps by the EU Institutions in implementation of that judgment, the EU Commission passed a new regulation which nevertheless continued to impose sanctions against Mr Kadi.

Mr Kadi again filed suit to challenge this new regulation. The General Court of the European Union (the first instance EU court) dealt with the “alleged breach of the rights of the defence and of the right to effective judicial protection” and a “disproportionate restriction on the right to property”.Footnote 95 It annulled the contested Regulation to the extent it concerned Mr Kadi, finding that the regulation violated the “principle of effective judicial protection” and the principle of proportionality in respect of the violation by the regulation of his right to property.Footnote 96

The Commission, Council, and several Member States of the European Union brought respective appeals against this judgment to the ECJ. The ECJ, sitting as a Grand Chamber, upheld the General Court's ruling and annulled the contested regulation, although it identified some errors of law in the General Court's reasoning. In essence, the ECJ developed the applicable test for reviewing the lawfulness of the contested Commission regulation. The Court held that, in accordance with its previous case-law, such a regulation would be annulled unless “at the very least, one of the reasons mentioned in the summary provided by the Sanctions Committee [was] sufficiently detailed and specific … substantiated and … constitute[d] in itself sufficient basis to support that decision”.Footnote 97 The Court explained that:

Such a judicial review is indispensable to ensure a fair balance between the maintenance of international peace and security and the protection of the fundamental rights and freedoms of the person concerned … those being shared values of the UN and the European Union … Such a review is all the more essential since, despite the improvements added, in particular after the adoption of the contested regulation, the procedure for delisting and ex officio re-examination at UN level … do not provide to the person whose name is listed on the Sanctions Committee Consolidated List and, subsequently, in Annex I to Regulation No 881/2002, the guarantee of effective judicial protection, as the European Court of Human Rights, endorsing the assessment of the Federal Supreme Court of Switzerland, has recently stated in paragraph 211 of its judgment of 12 September 2012, Nada v. Switzerland.Footnote 98

As can be seen from the passage of the judgment quoted above, of relevance to the present discussion is the Nada case which was decided by the ECtHR in 2012. This case dealt with the issue of the implementation of Security Council resolutions and the potential conflict between the obligations under the United Nations Charter and the ECHR.Footnote 99

The Nada case was brought before the ECtHR by a citizen of Italian and Egyptian nationality, Mr Nada, who claimed that bans imposed by the court of Switzerland on him entering or transiting through Switzerland, on the basis of Security Council mandated sanctions, had violated his rights to liberty (Article 5 of the ECHR), to respect for private and family life, honour and reputation (Article 8 of the ECHR), his freedom to manifest his religion or beliefs (Article 9 of the ECHR), and his right to an effective remedy (Article 13 of the ECHR). On the alleged violation of Article 8 of the Convention, the ECtHR found that:

[Switzerland] could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded [this] Court that it had taken—or at least had attempted to take—all possible measures to adapt the sanctions regime to the applicant's individual situation … The important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonize the obligations that they regarded as divergent.Footnote 100

On the alleged violation by Switzerland of the ECHR to deny Nada's right to an effective remedy, the ECtHR found that “the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged”.Footnote 101

A similar issue arose recently again in the case Affaire Al-Dulimi et Montana Management Inc. c. Suisse, which was decided in 2013 by the ECtHR. In this case, that Court found a violation by Switzerland of Article 6(1) of the European Convention on Human Rights, which concerns the right to a fair trial.Footnote 102 The Court's finding was based on Switzerland's implementation of UN Security Council sanctions relating to the situation in Iraq that did not allow any discretion to Member States.Footnote 103 In contrast to the situation in the Nada case, in which the ECtHR saw a degree of discretion on the part of Switzerland,Footnote 104 the Court's finding in this case was absolute. In Al-Dulimi, the Court first found that the UN system failed to provide for the required “equivalent protection”.Footnote 105 Second, the Court found that Swiss domestic law also failed to guarantee compliance with Article 6(1) of the ECHR. It thus concluded as follows:

[t]he Court takes the view that, for as long as there is no effective and independent judicial review, at the level of the United Nations, of the legitimacy of adding individuals and entities to the relevant lists, it is essential that such individuals and entities should be authorised to request the review by the national courts of any measure adopted pursuant to the sanctions regime. Such review was not available to the applicants. It follows that the very essence of their right of access to a court was impaired.Footnote 106

The whole discussion in this subsection relating to the issue of the correlation between the sanction measures decided by the Security Council and the basic human rights principles enshrined in the constitutional legal principles of the domestic/community legal order, leads us to the following conclusion: as Security Council sanctions regimes increase in importance, so have the possible conflicts with the domestic legal order. These conflicts take the form, in a variety of different contexts, of conflicts with domestic constitutional protections of fundamental human rights enshrined in the domestic/community constitutional order, in such diffuse areas as the freedom of information and the freedom of movement (in the case of the US in relation to Southern Rhodesia), the freedom of export (in the case of Japan in relation to the COCOM/China), the right to exercise a profession (in the case of Germany), the right to exercise economic freedoms (in the case of Switzerland), the right to property (in the case of the European Union in relation to the 2008 Kadi case), the right to effective judicial protection (in the case of the European Union in relation to the 2013 Kadi case), the rights to private and family life and the right to effective remedy (in the case of the European Union in relation to the 2012 Nada case), and the right to a fair trial (in the case of the European Union in relation to the 2013 Al-Dulimi case). Some domestic courts, such as those in the US, have come to the same result of non-compliance by even taking the position that Security Council sanctions regimes simply do not confer rights upon individuals but rather call upon governments to take certain actions. It is for all of these reasons that the issue of the implementation and enforcement of Security Council sanctions regimes creates delicate problems of conflict between the international legal order and the domestic legal order.Footnote 107

What is the correct approach to such situations? I shall come back to this problem after reviewing another area of conflict between the dictates of the international legal order and the prescriptions of the domestic legal order—i.e. the issue of the implementation of judgments of international courts and tribunals.

2. Legislation of the obligations to co-operate with the international criminal tribunals created by the Security Council

This section will examine a problem that could arise relating to states’ obligations to carry out the decisions of the Security Council in the context of those resolutions of the Council calling upon Member States to co-operate with international criminal tribunals.

As is well known, the ad hoc international criminal tribunals established to try individuals for alleged international crimes in the former Yugoslavia and Rwanda—the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)—were created by resolutions of the Security Council.Footnote 108 The ICTY was established by Security Council resolution 827 of 25 May 1993, acting under Chapter VII of the Charter, whereas the ICTR was established by Security Council resolution 995 of 8 November 1994. (Because of the identical language used in these two Security Council resolutions for, respectively, the ICTY and the ICTR, for the purpose of our examination I am going to confine my argument to the case of the ICTY, but the same argument will apply, mutatis mutandis, to the case of the ICTR.)

With regard to the ICTY, Security Council resolution 827 provides, inter alia, as follows:

Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute.Footnote 109

Article 29 of the ICTY Statute provides, accordingly, that “States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law”.Footnote 110 In particular, it requires states to “comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; [and] (e) the surrender or the transfer of the accused to the International Tribunal”.Footnote 111

Additional obligations on states to co-operate are provided for in the ICTY Statute, including the obligation to allow the Prosecutor to investigate on the territory of the state,Footnote 112 to recognize judgments passed by the tribunal, and to co-operate in the execution of measures ordered in addition to imprisonment.Footnote 113

All of these provisions could create serious legal problems for states in the process of implementation. As a typical example of such problems, the obligation to surrender an individual at the request of an international tribunal should be examined. It is clear to see that this obligation poses legal difficulties, to the extent that it may directly conflict with domestic laws on extradition, which have fairly elaborate provisions on the procedure to follow for the extradition of an individual for the purposes of protecting the human rights of the individual involved. In Japan, for example, the extradition of an individual can only take place in accordance with the Law on the Extradition of Fugitive Criminals (Law No. 68 of 1953), which specifies extremely elaborate conditions for extradition. Article 2 of the Law specifies no less than nine categories of conditions which have to be met before the extradition can take place, such as the condition of observing the principle of non-extradition of a person of Japanese nationality and the condition of meeting the principle of double criminality in both of the jurisdictions. The Law prescribes that persons cannot be extradited if they should fall within one of the nine categories of cases specified. Procedurally, the extradition can only take place through the judgment of the Tokyo High Court. The person subject to the extradition procedure has a constitutional right to petition for habeas corpus. Thus the procedure prescribed for the transfer/surrender of the accused to the ICTY/ICTR under their Statutes and Rules of Procedure could not meet the conditions of such a domestic constitutional system guaranteeing the constitutional rights of the accused. For example, the Security Council resolution requiring the transfer of the accused to the tribunal without going through a state's prescribed procedure for extradition could come into direct conflict with that state's law on extradition and possibly even with the Constitution of that state. In view of such legal difficulties, many countries have enacted new domestic legislation providing for co-operative arrangements with the international criminal tribunals,Footnote 114 but this may not be legally sufficient if the constitutionality of such legislation entailing an exception to the law of extradition is challenged.

This problem has already been encountered with regard to Swiss domestic law. Switzerland addressed this problem by adopting new legislation meant to ensure full co-operation with these international criminal tribunals.Footnote 115 Concerning the transfer of individuals to the tribunals, the Swiss law speaks of “transferring persons sought by the international criminal tribunals” rather than “extraditing”, so as to make clear that this practice does not fall under the Swiss laws on extradition.Footnote 116 Nevertheless, this Swiss legislation requires that the principle of double criminality be met before a transfer may take place, and it has been argued that this is because “the principle of double criminality is of fundamental importance in any extradition procedure”.Footnote 117 Thus, even though the new legislation attempts to distinguish this procedure for “transfer/surrender” from that of “extradition” stricto sensu with a view to avoiding the application of the law on extradition, the new legislation has maintained many of the same aspects of the law of extradition as far as the fundamental principle of the protection of human rights is involved. Moreover, the issue of transfer of Swiss citizens to an international criminal tribunal came to present another potential conflict, because under Article 45 of the Swiss Constitution, as it then stood, no Swiss citizen could be expelled from Switzerland.Footnote 118 Switzerland has dealt with this problem in the new legislation it adopted by securing from the international tribunals the guarantee that a Swiss national may only be surrendered to the international tribunals if the latter guarantee that the individual will be returned to Switzerland at the end of the procedure, and that the Swiss national, if convicted of a crime by an international tribunal, will serve his or her sentence in Switzerland. Article 45 of the Constitution was then revised, which is now its Article 25, to provide that: “Swiss citizens may not be expelled [expulsés] from Switzerland and may only be extradited [remis] to a foreign authority with their consent.”Footnote 119 In other words, a transfer of a Swiss citizen to the international tribunal is construed as not constituting expulsion, so long as the individual, if convicted, serves his or her sentence in Switzerland (unless he or she consents to serving it elsewhere).

In my view, these examples demonstrate the kind of challenges that a state may have to face in trying to comply with those Security Council resolutions requiring co-operation with international tribunals. In the case of Switzerland, not only did the state have to enact major new legislation outlining the procedure for co-operation with the international tribunals, but it even had to change its Constitution.

A somewhat similar situation occurred in Germany. Following the establishment of the ICTY and ICTR, the German Federal Parliament passed two substantially similar laws with respect to ICTY and ICTR, establishing a general duty of the German judiciary to co-operate with those tribunals, in particular in relation to the transfer of accused persons at the request of those tribunals.Footnote 120 According to the applicable laws, the transfer procedure is assimilated to an extradition procedure in that country.Footnote 121 As in Switzerland, this raised a constitutional problem, because Article 16 of the German Basic Law provided that “No German may be extradited to a foreign country”.Footnote 122 Given the ad hoc nature of these tribunals, whose jurisdiction had a defined limitation in its scope of application in terms of space and time, the German government took no steps to rectify this issue. It, however, had to take more fully-fledged legislative measures when it sought to ratify the Rome Statute of the International Criminal Court, under which the same issue arose. Eventually, the Parliament amended Article 16 of the German Basic Law to read: “A different regulation to cover extradition to … an international court may be laid down by law, provided that constitutional principles [rechtsstaatliche Grundsätze] are observed.”Footnote 123 Just as in the case of Switzerland, the obligation to co-operate with international criminal tribunals has required Germany not only to pass implementing legislation but also to amend its Constitution. In spite of those efforts, however, the scope of the provision that “constitutional principles are [to be] observed” in the new legislation is not quite clear, though it has since been elaborated in doctrine and German constitutional jurisprudence.Footnote 124

As these examples demonstrate, states, attempting to comply with resolutions of the Security Council concerning co-operation with international criminal tribunals can face serious legal problems arising out of the interaction between the international legal order and the domestic legal order. First, the domestic legal order of many states may require implementing legislation to carry out any obligations imposed by these Security Council resolutions, either because they are not considered self-executing and thus binding as such in the domestic legal order, or because specific problems raised by these resolutions create inconsistencies with existing laws such as those on extradition, or both. Second, and more fundamentally, the legal process for transferring individuals to international criminal tribunals, even if mandated by the Security Council, can give rise to a legal dilemma of inconsistency with a state's constitution. The fact that several states have passed implementing legislation,Footnote 125 and have even amended their constitution, is strong evidence that a fundamental rethinking of the issue of the interaction between the international and the domestic legal order is required in order to cope with the dilemma arising from the attempt to ensure compliance with Security Council resolutions relating to co-operation with international criminal tribunals.

C. Interaction Between the International and Domestic Legal Order in Relation to Judgments of International Courts

The third and final area which I am going to discuss here—and which poses another type of significant problem of interaction between the international legal order and the domestic legal order—concerns the implementation of decisions of international courts and tribunals. A number of countries—Japan and the US are but two examples—have specific provisions to specify that international treaties concluded by them are considered to be part of “the law of the land”; however, when it comes to the judgments rendered by international courts and tribunals as binding upon the States Parties to the case, virtually no country has a comparable rule specifically referring to the legal effect in the domestic legal order of judgments of international courts and tribunals addressed to and binding on them in the international legal order. It could, of course, be argued that those judgments are as binding upon the states involved as the international treaties from which a given international court derives its legitimacy and jurisdiction. One could argue that these judgments are equally binding by virtue of the binding character of those instruments—in the case of the ICJ, the UN Charter, and Statute of the Court. However, this is a somewhat indirect and even formalistic argument which may not necessarily ensure that such judgment can actually be implemented and enforced within the domestic legal order of the state to which the judgment in question is addressed.

The ICJ has recently been faced with this issue, as is illustrated by the Odysseyean judicial wanderings that originated from the judgment of the ICJ in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) of 2007.Footnote 126 In this judgment, the Court decided, inter alia, that “by not informing, without delay upon their detention, the 51 Mexican nationals [at issue in the case] of their rights under Article 36(1)(b) of the Vienna Convention on Consular Relations of 24 April 1963, the United States of America breached the obligations incumbent upon it under that [provision]”.Footnote 127 On the basis of this reasoning, the Court in its operative paragraph 153(9) of the 2007 Judgment, concluded that:

The appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the [Vienna] Convention [on Consular Relations] and of paragraphs 138 to 141 of this Judgment.Footnote 128

This decision came to raise an issue of a unique character for the implementation of, and therefore for the compliance with, the judgment.

Following the Avena Judgment, one of the Mexican nationals covered by the judgment's provisions, José Ernesto Medellín, brought a habeas corpus petition in the Federal Court of the United States on the ground that the state of Texas, where he had been convicted and sentenced to death, had failed to implement this judgment of the ICJ. On the basis of this judgment, which left to the US the choice of means to provide review and reconsideration of the convictions and sentences, the President of the United States instructed the states which had failed to carry out the said obligations under the Vienna Convention on Consular Relations to comply with the judgment. The President, inter alia, issued a Presidential Memorandum of 28 February 2005 (the “Presidential Memorandum”) instructing the Attorney General of the United States to implement the judgment at the constituent state level. The State Supreme Court of Texas where the accused, Medellín, sought his remedy on the basis of the ICJ Judgment, refused to give the requested remedy. Medellín therefore appealed to the Federal Court of the United States on constitutional grounds. When this case came before the Supreme Court of the United States as a constitutional issue in Medellín v. Texas, the Executive Branch argued in effect, first, that the judgment of the ICJ was binding upon the US, including its constituent states, and second, that the President had the constitutional power to determine that states should comply with the judgment based on the constitutional power of the President in the conduct of the foreign affairs of the US, and that this determination was thus lawful and binding on the states, including on their courts.Footnote 129

The Supreme Court in its judgment of 25 March 2008 in Medellín v. Texas, while accepting that the Avena Judgment constituted an international obligation on the US as such, nevertheless held that the Avena Judgment did not as such constitute a legally enforceable norm which was binding upon the domestic courts of the US and thus was not directly applicable to state courts. It was ordered that the federal government, therefore, could not force the Texas court to provide Medellín with a remedy.Footnote 130 The US Supreme Court ruled that the international law obligations emanating from the judgment were clearly incumbent upon the Federal Government of the United States to carry out, but did not constitute as such binding domestic norms enforceable by the domestic courts of the US, because none of the relevant treaty sources to which the US was a party—the UN Charter, the ICJ Statute, and the Optional Protocol of the Vienna Convention on Consular Relations—was “self-executing” in the domestic legal order of the US. In addition, the Supreme Court ruled that, under US constitutional provisions governing the separation of powers between the executive and legislative branches, the President under his power to conduct foreign affairs did not possess the authority to act through the Presidential Memorandum to instruct the judicial branch of the US to enforce the Avena Judgment in a manner that would override contrary state law “procedural default rules” under which Medellín had been denied the right of individual review by the Texas court.

Following the Supreme Court's decision in Medellín, the United States Executive Branch continued to urge state governments to co-operate with the Federal Government to implement the obligations incumbent upon the US flowing from the Avena Judgment.Footnote 131 This effort has produced no positive result for the implementation of the Avena Judgment in states such as Texas. An alternative rule suggested by the Supreme Court Judgment in the Medellín case was to create new Federal legislation specifically to make ICJ judgments enforceable at the state level. The most recent digest of US practice in international law highlighted that “the U.S. Senate continued to consider legislation that would facilitate compliance with the consular notification and access provisions of the [Vienna Convention on Consular Relations] and comparable bilateral agreements”.Footnote 132

The Avena meanderings have raised a number of highly intriguing yet vexatious questions relating to the issue of compliance with ICJ judgments. It has been pointed out that the US is not necessarily doing everything it could have done to comply with the judgment without infringing the constitutional doctrine of the separation of powers—it could have, and still can, enact implementing legislation through Congress, for example.Footnote 133 This episode provides an intriguing example of the difficulties of compliance that can arise, in particular as judgments of international tribunals purport to create directly applicable individual rights.

The Medellín case provides a most striking example of the difficulties in implementing an international judgment in the domestic legal order, though it is not the first time that a US court applied the same logic in relation to the issue of the interaction between the international legal order and the domestic legal order. For example, in a 1988 case before the United States Court of Appeals for the District of Columbia Circuit,Footnote 134 the plaintiffs, a group of organizations and individuals who opposed US policy in Central America, alleged to have suffered physical, economic, and other injuries from the war in Nicaragua, and advanced the claim before the US courts that continued funding by the US government of the Contras in Nicaragua harmed their interests. The legal basis of their claim was that the funding violated the judgment of the ICJ in the case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America). The Court of Appeals dismissed their claim, stating:

Neither individuals nor organizations have a cause of action in an American court to enforce ICJ judgments. The ICJ is a creation of national governments, working through the U.N.; its decisions operate between and among such governments and are not enforceable by individuals having no relation to the claim that the ICJ has adjudicated—in this case, a claim brought by the government of Nicaragua. Appellants try to sidestep this difficulty by alleging that our government has violated international law rather than styling their suit as an enforcement action in support of the ICJ judgment. The United States’ contravention of an ICJ judgment may well violate principles of international law. But, as we demonstrate below, those violations are no more subject to challenge by private parties in this court than is the underlying contravention of the ICJ judgment.Footnote 135

The Court of Appeals emphasized that Article 94 of the UN Charter, providing for the enforcement of judgments of the ICJ, spoke of such enforcement by “parties”, but that only states could be parties to disputes before the Court. It reasoned that, under Article 59 of the ICJ Statute, “the decision of the Court has no binding force except between the parties and in respect of the particular case”.Footnote 136 It therefore concluded that “taken together, these … clauses make clear that the purpose of establishing the ICJ was to resolve disputes between national governments”.Footnote 137 It thus held that the drafters of the Charter and the ICJ Statute had “no intent to vest citizens who reside in a UN member nation with authority to enforce an ICJ decision against their own government”.Footnote 138

While this case did not directly concern the issue of the enforceability of a direct right of an individual, recognized at the international level, at the level of the domestic legal order of the US, the logic employed by the Court of Appeals in this case, Committee of United States Citizens Living in Nicaragua v. Reagan, shows a similar line of thinking to that developed by the US Supreme Court twenty years later in the Medellín case.

Such difficulties in implementing a judgment of the ICJ in the domestic legal order would seem likely to arise more often in the following scenarios: where the domestic legal order at issue treats the UN Charter and the ICJ Statute as “non-self-executing”; where the international judgment in question purports to be directly applicable in the domestic legal order in its legal effect (e.g. by declaring that the dispute in question relates to individual rights created under the international agreement at issue); or where the issue of the domestic legal order in question is complicated by a federal structure of the judicial system, in which the federal government has limited control over certain actions of the local government which purports to maintain its independence from the power of the federal government to which the judgment of the Court is addressed.

III. CONCLUSION

With regard to these complex situations relating to the issue of interaction between the international legal order and the domestic legal order as described above, it is not easy to offer a one-size-fits-all solution to the difficult problems that arise in different forms in different contexts. Each case will depend upon the specific characteristics of the values to be protected in the domestic legal order involved. While it can safely be stated, for example, that as a general proposition the ratio of compliance with judgments of the ICJ has in reality been quite high,Footnote 139 the issue of implementation of the judgments of the ICJ, as distinct from the issue of compliance, could well be a much more complex legal proposition. This former issue could involve the implementation of the prescriptions emanating from the international legal order into the domestic legal order, which will frequently be a complex task, especially when the rights in question relate to the issue of justiciable rights of individuals created by international treaties and envisaged as enforceable in the domestic legal order.

In these highly complex situations surrounding the issue of the interaction between the international legal order and the domestic legal order, a generalized proposition to be addressed to all these situations has to be carefully avoided. Commenting on the 2008 Kadi Decision by the ECJ, an author observed that:

The striking similarity between the reasoning and interpretative approach of the U.S. Supreme Court in Medellín and that of the ECJ in Kadi regarding the relationship between international law and the “domestic constitutional order” at the very least calls into question the conventional wisdom of the United States and the EU as standing at opposite ends of the spectrum in their embrace of or resistance to international law and institutions.Footnote 140

I tend to agree with this view. This comment goes to the crux of the matter of the competing and even conflicting claims between the international legal order and the domestic legal order, in which each attempts to assert its own respective value system as reflected in their respective conception of the public order to be safeguarded by their own legal system. In the context of globalization, the international community as one society is expected to share common perspectives in relation to the conception of the public order of this global community. In an age of emergence of a global community as a matter of socioeconomic reality, the two legal orders should work together to promote the common public policy of this global community in spite of the juridico-institutional reality of the compartmentalization of competence embedded in the Westphalian order. It seems undeniable to me that in the Medellín case in the Supreme Court of the US and in the Kadi cases of 2008 and 2013 in the ECJ, the courts insisted on their own particular value systems by refusing to allow international law—i.e. the judgment of the ICJ in the case of Medellín and the Security Council resolution in the case of Kadi—to prevail or to be given effect in the domestic legal order because fundamental principles contained in the domestic legal order were threatened to be replaced by the doctrine of the supremacy of international law. In the case of Medellín, the conflicting domestic law was a procedural default rule in the Texas criminal justice system. In the case of Kadi (as well as in Nada and Al-Dulimi), the conflicting law was the protection of fundamental rights of an individual based on what the judgments described as “the fundamental principles of human rights on which the European value system was based”. But is this perception of the courts accurate?

While the three concrete areas of conflicting interactions between the domestic legal order and the international legal order that I have illustrated present distinct challenges, they raise the same basic problem that I described at the beginning of this paper: how best to incorporate and integrate the international legal order which is transforming both in its substantive and in its institutional aspect the domestic legal order of each sovereign state as a member of the international community. With the fast growing reality of globalization, international law has come to regulate new areas, and thus to intrude into areas which had traditionally been under the exclusive domain of municipal law. The social reality of the present-day world is that international institutions (such as the United Nations or the ICJ) are attempting to engage in functions previously only assumed by domestic institutions of governance by creating and confirming direct rights or obligations of individuals. In this process, naturally, the international institutions, be it the judiciary (as is the case with the ICJ) or the executive (as is the case to some degree with the Security Council), should be conscious of the fundamental concerns of the value system of this global community compared with the value systems entertained in essence by the respective domestic legal orders of sovereign states. This will require both scientific precision in making this assessment and the ability to arrive at a fair and impartial assessment of various value factors involved. It is important to recognize, in my view, however, that there should be a prima facie presumption, needless to say, challengeable and rebuttable, that such an assessment by international institutions is a reflection of the public order of the global community as such. This conception of the public order of the global community, as reflected by the universal nature of the organs of this community, must be given respect over particular regional or national preferences and values. While both the domestic and international side have to make efforts, the domestic legal order must pay much closer attention to the needs of a new global public order than it has sometimes done.

It is against this background of the societal reality of the international community in a globalizing world that, whether it be the implementation of a Security Council resolution in the European Union, or the implementation of an ICJ judgment in the US, the same basic challenge inevitably surfaces because of the growing gap—or mismatch—between the socio-political reality of the international community and the juridico-institutional framework in which it still operates in the essentially Westphalian structure of the world. There is no easy answer to this challenge. Nonetheless, it is encouraging to discern a clear trend which shows that states are in fact recognizing the essential relevance of the international legal order to their respective domestic legal orders and in some cases are trying to integrate the two, through developing international law to reflect a greater degree of universality of common values to be protected as well as through revising their national constitutions to conform to such universal values accepted as common goods of the global community. The examples of the Swiss and German revisions of their constitutions illustrate these new attempts, however ad hoc and ineffectual they may be in particular cases, and reflect the serious efforts for harmonizing the domestic legal order with the emerging international public order.

There clearly is no easy answer to this dilemma, given the dichotomy in the system of governance which still exists in the present-day world. Nevertheless, these questions touch on some of the most fascinating new areas that are emerging as new realities on the horizon of international life in the globalizing world. This new development deserves our attention and is to be taken into account both in the function of the domestic legal order and the international legal order, the continuation of which together will forge a system or legal framework of the emerging world of global governance with its universally accepted values to be the linchpin of the new public order of this global community.

Footnotes

*

Judge and former President, International Court of Justice. This paper is based on the original address that the author gave at the Singapore Academy of Law in 2010, that has since been revised and brought up to date. The views expressed in this paper are the personal views of the writer and do not reflect in any way the position of any institution that the author belongs to or is associated with.

1. Statute of the Hague Conference on Private International Law, 31 October 1951 (entered into force 15 July 1955), art. 1.

2. Council Decision 2006/719/EC on the Accession of the Community to the Hague Conference on Private International Law OJ L297 (2006).

3. See e.g. HUDSON, Manley O., International Legislation: A Collection of the Texts of Multipartite International Instruments of General Interest Beginning with the Covenant of the League of Nations (Washington: Carnegie Endowment for International Peace, 1931–1950).

4. See, however, on the parallel development of “private regulation” on the global level, e.g. BÜTHE, Tim and MATTLI, Walter, The New Global Rulers: The Privatization of Regulation in the World Economy (Princeton/Oxford: Princeton University Press, 2011).

5. WILDE, Ralph, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (New York: Oxford University Press, 2008); KNOLL, Bernhard, The Legal Status of Territories Subject to Administration by International Organizations (New York: Cambridge University Press, 2008).

6. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] I.C.J. Rep. 403.

7. Request for an Advisory Opinion of the International Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo is in Accordance With International Law, 8 October 2008, GA Res 63/3, 63 GAOR Supp. (No. 49) 10.

8. Regulation on a Constitutional Framework for Provisional Self-Government in Kosovo, UN Doc. UNMIK/REG/2001/9 (2001).

9. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] I.C.J. Rep. 403 at 439−40, para. 88.

10. Ibid.

11. Ibid., at 440, para. 89.

12. Compare this to the famous Advisory Opinion of the Permanent Court of International Justice (PCIJ), seen as an early example of the recognition that individuals could bear international rights (see e.g. PARLETT, Kate, The Individual in the International Legal System: Continuity and Change in International Law (New York: Cambridge University Press 2011) at 347). The PCIJ interpreted the Beamtenabkommen in the Jurisdiction of the Courts of Danzig Advisory Opinion, and concluded that:

In the intention of the contracting Parties, the relations between the Polish Railways Administration and the Danzig officials should be governed by the Beamtenabkommen, the provisions of which constitute part of what the High Commissioner calls the “contract of service”, and that, consequently, the Danzig officials have, in accordance with the first part of the Decision, a right of action against the Polish Railways Administration for the recovery of pecuniary claims based on the Beamtenabkommen.

See Jurisdiction of the Courts of Danzig, Advisory Opinion [1928] P.C.I.J. Rep. 15, Series B, para. 47.

13. Difficulties in the implementation of Acts of international organizations in general are discussed in REINISCH, August, ed., Challenging Acts of International Organizations Before National Courts (New York: Oxford University Press, 2010).

14. O'CONNELL, Daniel Patrick, International Law, Vol. I (London: Stevens and Sons, 1970) at 38.

15. See TRIEPEL, Heinrich, Völkerrecht und Landesrecht (Leipzig: C.L. Hirschfeld, 1899) 15; Dionisio ANZILOTTI, Cours de Droit International (1929 French translation from the Italian by Gilbert Gidel, this edition published in 1999) at 43−4.

16. Ibid.

17. LAUTERPACHT, Hersch, ed., International Law: A Treatise, Vol. I, 8th edn. (by L. Oppenheim) (London: Longmans, Green and Co., 1955) at 38.

18. See on the “Monistic Doctrine”, ibid., at 38−9. Kelsen's monism is related to his general theory of law and state. Thus, Kelsen explains that:

The subjects of international law are—like the subjects of national law—individual human beings. States as juristic persons are subjects of international law in the same way as corporations as juristic persons are subjects of national law. The statement that states as juristic persons are subjects of international law does not mean that individuals are not the subjects of the obligations, responsibilities, and rights established by that law. It only means that individual human beings are indirectly and collectively, in their capacity as organs or members of the state, subjects of the obligations, responsibilities, and rights presented as obligations, responsibilities, and rights of the state. Besides, human beings are also directly and individually subjects of obligations, responsibilities, and rights established by international law.

See KELSEN, Hans, Principles of International Law (New York: Rinehart and Company, 1952) at 114−115.

19. E.g. WENZEL, Max, Juristische Grundbegriffe (Berlin: F. Dümmlers Verlagsbuchhandlung, 1920) at 387.

20. BLACKSTONE, William, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769) at 67.

21. BRADLEY, Curtis, International Law in the U.S. Legal System (New York: Oxford University Press, 2013) at 142.

22. See art. 28 of the Greek Constitution, which reads as follows:

1. The generally recognised rules of international law, as well as international conventions as of the time they are ratified by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.

(Hellenic Parliament, ed., The Constitution of Greece: As Revised by the Parliamentary Resolution of May 27th 2008 of the VIIIth Revisionary Parliament (2008) at 45); see also art. 10 of the Italian Constitution, which reads as follows: “The Italian legal system conforms to the generally recognised principles of international law.” (Senato della Repubblica, ed., Constitution of the Italian Republic (2007) at 6); and art. 9(1) of the Austrian Federal Constitution, which reads as follows: “The generally recognized rules of international law are regarded as integral parts of Federal law.” (Bundespressedienst, ed., Austrian Federal Constitutional Laws (selection) (2000) at 10).

23. E.g. the French and Dutch Constitutions contain no explicit rules on the domestic applicability of customary international law (see Conseil Constitutionnel, ed., Constitution of 4 October 1958 (web version, as amended on 23 July 2008), and Ministry of the Interior and Kingdom Relations, Constitutional Affairs and Legislation Division, ed., The Constitution of the Kingdom of the Netherlands (2008)).

24. See art. VI(2) of the US Constitution. On the later-in-time rule, see Whitney et al. v. Robertson (9 January 1888) 8 S.Ct. 456 at 458.

25. DUBINSKY, Paul R., “United States” in Dinah SHELTON. ed., International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (New York: Oxford University Press, 2011), at 638.

26. In relation to France, see art. 55 of the French Constitution; in relation to Germany, see arts. 25 and 59 of the German Federal Constitution; in relation to the Netherlands, see arts. 93, 94, and 120 of the Dutch Constitution; in relation to Poland, see art. 91 of the Polish Constitution; in relation to Jordan, the Constitution of Jordan does not explicitly address the question of hierarchy, but the country's constitutional jurisprudence has recognized that customary international law and self-executing treaties have superior status to domestic legislation; in relation to Namibia, see art. 144 of the Constitution of Namibia; in relation to Belgium, the country's constitutional jurisprudence indicates that self-executing treaties have priority over any incompatible domestic legislation. See generally Shelton, ibid., and GOWLLAND-DEBBAS, Vera, ed., National Implementation of United Nations Sanctions: A Comparative Study (Leiden: Martinus Nijhoff Publishers, 2004).

27. See e.g. Maclaine Watson v. Department of Trade and Industry, 81 ILR 670 at 684.

28. Thus, the Constitution of Japan does not explicitly specify a hierarchy, except that art. 98 of the Constitution provides as follows: “This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity. The treaties concluded by Japan and established laws of nations shall be faithfully observed.” (Prime Minister of Japan and His Cabinet, ed., The Constitution of Japan). This provision has been interpreted in doctrine and practice as the recognition that treaties and customary international law are superior to statutes. The Constitution of Uganda is also silent on the specific hierarchy of international law in the domestic legal order.

29. See generally Gerald FITZMAURICE, “The General Principles of International Law Considered from the Standpoint of the Rule of Law” 92 Recueil des Cours (The Hague Academy of International Law, 1957, II) at 68−94; Charles ROUSSEAU, “Principes de droit international public”, 93 Recueil des Cours (Hague Academy of International Law, 1958, I) at 465−74.

30. Fitzmaurice, , ibid., at 72.

31. Ibid., at 69.

32. “Il n'existe pas davantage de règle générale suivant laquelle une norme internationale abrogerait automatiquement une norme interne qui lui serait contraire” (Rousseau, supra note 29 at 473).

33. O'Connell, , supra note 14 at 44.

34. See generally Bruno SIMMA, “From Bilateralism to Community Interest in International Law” 250 Recueil des Cours (Hague Academy of International Law, 1994) at 217.

35. Vera GOWLLAND-DEBBAS, “Implementing Sanctions Resolutions in Domestic Law”, in Gowlland-Debbas, supra note 26 at 37.

36. ANZILOTTI, Dionisio, Il Diritto Internazionale nei Giudizi Interni (Bologna: Ditta Nicola Zanichelli, 1905) at 177

37. See e.g. Parlett, , supra note 12; PAUST, Jordan J., “Non-State Actor Participation in International Law and the Pretense of Exclusion” (2011) 51 Virginia Journal of International Law 977; ORAKHELASHVILI, Alexander, “The Position of the Individual in International Law” (2001) 31 California Western International Law Journal 241; PORTMANN, Roland, Legal Personality in International Law (New York: Cambridge University Press, 2010), especially 126−72.

38. Universal Declaration of Human Rights, GA Res. 217 A (III), GAOR 3rd Session Part I 71, UN Doc. A/810 (1948).

39. See e.g. BUERGENTHAL, Thomas, “The Evolving International Human Rights System” (2006) 100 American Journal of International Law 783–807.

40. See generally SCHABAS, William, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (New York: Cambridge University Press, 2006).

41. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, [2005] I.C.J. Rep. 168.

42. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, [2004] I.C.J. Rep. 12.

43. This view was not accepted by the Supreme Court of the United States in Medellín v. Texas (25 March 2008) 552 US 491.

44. Nada v. Switzerland, Appl. No. 10593/08, European Court of Human Rights, Grand Chamber [2012] 56 EHRR 18.

45. Al-Dulimi and Montana Management Inc. v. Switzerland, Appl. No. 5809/08, European Court of Human Rights, Chamber (Second Section), (26 November 2013).

46. As Krisch notes, “On the basis of [Article 41 of the UN Charter] the Council has broadened the scope of its action well beyond the initially envisioned, circumscribed responses to particular crises, and it has turned into a legislator, regulator, administrator as well as a jury on a broad range of issues related to peace and security.” (KRISCH, Nico, “Article 41” in Bruno SIMMA et al., eds., The Charter of the United Nations: A Commentary, Vol. II (Oxford: Oxford University Press, 3rd edn., 2012), at 1309.

47. See on the issue of “democratic deficit” with respect to the Security Council, TZANAKOPOULOS, Antonios, Disobeying the Security Council: Countermeasures Against Wrongful Sanctions (New York: Oxford University Press, 2011) at 12.

48. See Krisch, , supra note 46 at 1312−1319.

49. Ibid., at 1324−9.

50. This question is addressed by Tzanakopoulos, supra note 47.

51. In this context, the database on national implementation measures of UN sanctions and respect for human rights of the Council of Europe's Committee of Legal Advisers on Public International Law contains relevant information ranging from 2006 to 2011 from a number of mostly European countries. See CAHDI, “Database on National Implementation Measures of UN Sanctions and Respect for Human Rights” (30 August 2011) Council of Europe Doc. CAHDI (2011) Inf 10.

52. As Dinah Shelton notes, there is variation in the terminology used across countries when “deciding whether or not to enforce a treaty provision invoked by one of the parties to a pending case. The courts of several countries, including the United States and Japan, refer to the doctrine of ‘self-executing’ treaties, while European courts tend to discuss ‘direct applicability’ or ‘direct effect’. In all these instances, however, the courts are similarly examining the question of whether the treaty provision in question is capable of judicial enforcement or whether an intervening legislative or executive act is required.” (Dinah SHELTON, “Introduction” in Shelton, supra note 25 at 11).

53. Gowlland-Debbas, , supra note 35 at 39−40.

54. Erika De Wet, “South Africa”, in Shelton, supra note 25 at 576.

55. Gowlland-Debbas, , supra note 35 at 40−41.

56. Ibid., at 52.

57. Ibid., at 56.

58. The following discussion is adapted and taken from Hisashi OWADA, “Japan” in Gowlland-Debbas, supra note 26 at 286−7

59. Ibid., at 287.

60. Jochen Abraham FROWEIN and Nico KRISCH, “Germany” in Gowlland-Debbas, supra note 26 at 257.

61. Ibid.

62. Mathias-Charles KRAFFT et al., “Switzerland” in Gowlland-Debbas, supra note 26 at 570.

63. Ibid., at 568.

64. Ibid.

65. As Shelton notes:

Three main issues concerning international law arise in federal systems. The first is the extent to which, if at all, foreign affairs matters, including the conclusion of treaties, are reserved exclusively for the national government. The second issue is (p. 21) the place of international law in the law of the component parts of the federal system, including the problem of “federalizing” local matters through exercise of the treaty-making power. Finally, debate has arisen over the extent to which local authorities may regulate local matters through adoption of international law.

Shelton, , supra note 25 at 20−21.

66. Ekmekdjian, Miguel Angel c/ Sofovich, Gerardo y otros (7 July 1992) Fallos 315:1492 (discussed in Emilio J. CÁRDENAS and Mariano GARCIA-RUBIO, “Argentina” in Gowlland-Debbas, supra note 26 at 94).

67. Cárdenas, and Garcia-Rubio, , ibid., at 95−97.

68. Ibid., at 97−8.

69. LOWENFELD, Andreas F., “United States” in Gowlland-Debbas, supra note 26 at 621.

70. Byrd Amendment, reproduced in Gowlland-Debbas, supra note 26 at 621.

71. Lowenfeld, , supra note 69 at 621.

72. Question of Southern Rhodesia, GA Res. 2946 (XXVII), 7 December 1972.

73. Security Council Resolution 314, 28 February 1972, UN Doc. S/RES/314; Security Council Resolution 318, 28 July 1972, UN Doc. S/RES/318; Security Council Resolution 320, 29 September 1972, UN Doc. S/RES/320.

74. Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972).

75. Security Council Resolution 301, 20 October 1971, UN Doc. S/RES/301 (1971).

76. Diggs v. Richardson, 555 F.2d 848 (1976).

77. Ibid., at 849.

78. Ibid., at 850.

79. Ibid., at 851.

80. Ibid.

81. Security Council Resolution 1390, 16 January 2002, UN Doc. S/RES/1390; Security Council Resolution 1333, 19 December 2000, UN Doc. S/RES/1333; Security Council Resolution 1267, 15 October 1999, UN Doc. S/RES/1267.

82. See the List established and maintained by the Sanctions Committee pursuant to Security Council resolutions 1267 (1999) and 1989 (2011) with respect to individuals, groups, undertakings, and other entities associated with al-Qa'ida, online: The Al-Qaida Sanctions Committee <http://www.un.org/sc/committees/1267/aq_sanctions_list.shtml>.

83. Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union, Joined Cases C-402/05 P and C-415/05 P, European Court of Justice, Grand Chamber [2008] ECR I-06351, at paras. 46 and 49.

84. Ibid., para. 153.

85. Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Case T-315/01, European Court of Justice, Court of First Instance [2005] ECR II-03649, at para. 183.

86. Ibid., at para. 184.

87. Kadi and Al Barakaat v. Council, Grand Chamber, supra note 83.

88. Ibid., para. 326.

89. Ibid., para. 285.

90. Ibid., para. 316.

91. Ibid., paras. 370−1.

92. Ibid., para. 290.

93. Ibid., para. 298.

94. European Commission, Council of the European Union, United Kingdom of Great Britain and Northern Ireland vs. Yassin Abdullah Kadi, Joined Cases C-584/10 P, C-593/10 P and C 595/10 P, European Court of Justice, Grand Chamber, 18 July 2013.

95. Ibid., para. 37

96. Ibid., paras. 44−5.

97. Ibid., paras. 130−2.

98. Ibid.

99. Nada v. Switzerland, Appl. No. 10593/08, European Court of Human Rights, Grand Chamber [2012] ECHR 1691.

100. Ibid., paras. 196−7.

101. Ibid., para. 213.

102. Al-Dulimi, supra note 45

103. The sanctions were imposed pursuant to Security Council Resolution 1483, 22 May 2003, UN Doc. S/RES/1483.

104. The Court in Al-Dulimi compared the underlying sanctions regimes in the case and in Nada as follows:

The Court takes the view that the present case should be examined in the light of the equivalent protection criterion, particularly on account of the fact that the relevant Security Council resolutions, especially paragraph 23 of Resolution 1483 (2003), do not confer on the States concerned any discretion in the implementation of the obligations arising thereunder. This essentially distinguishes the situation in the present case from that of the Nada case, where the Grand Chamber found that Switzerland had a certain latitude in implementing the relevant Security Council resolutions (see Nada, cited above, §§ 175−180).

Al-Dulimi, supra note 45, para. 117. English translation, online: <http://hudoc.echr.coe.int>. The quote in French, the original language of the judgment, is as follows:

La Cour estime que la présente affaire se prête à un examen à la lumière du critère de la protection équivalente, en particulier du fait que les résolutions pertinentes du Conseil de sécurité, notamment le paragraphe 23 de la Résolution 1483 (2003), ne confèrent aux Etats visés aucun pouvoir discrétionnaire dans la mise en oeuvre des obligations en découlant. A cet égard, la situation de l'espèce se distingue essentiellement de celle de l'affaire Nada, précitée, dans laquelle la Grande Chambre a conclu que la Suisse jouissait d'une certaine latitude dans la mise en oeuvre des résolutions pertinentes du Conseil de sécurité (Nada, précité, §§ 175−180).

105. Ibid., paras. 118−21.

106. Ibid., para. 134. English translation, online: <http://hudoc.echr.coe.int>. The quote in French, the original language of the judgment, is as follows:

La Cour estime que tant qu'il n'existe pas d'examen judiciaire efficace et indépendant, au niveau des Nations unies, de la légitimité de l'inscription des personnes et entités sur leurs listes, il est essentiel que ces personnes et entités soient autorisées à demander l'examen par les tribunaux nationaux de toute mesure prise en application du régime des sanctions. Or, les requérants n'ont pas bénéficié d'un tel contrôle. Il s'ensuit que leur droit d'accès à un tribunal a été atteint dans sa substance même.

107. Thus, Verdirame highlights the effect of domestic lawsuits on the procedural reforms of the sanctions regime at the UN level as follows:

Despite the inevitable differences between various courts, it was clear by the late 2000s that the Security Council and its sanctions committees were not going to be given a carte blanche from courts in a number of jurisdictions. The pressure of domestic and human rights litigation has prompted some procedural reforms.

VERDIRAME, Guglielmo, The UN and Human Rights: Who Guards the Guardians (New York: Cambridge University Press, 2011) at 319.

108. See further Schabas, supra note 40; SANDHOLTZ, Wayne, “Creating Authority by the Council: The International Criminal Tribunals” in Bruce CRONIN and Ian HURD, eds., The UN Security Council and the Politics of International Authority (Abingdon/New York: Routledge, 2008), at 131.

109. Security Council Resolution 827, 25 May 1993, UN Doc. S/RES/827, para. 4 [ICTY Statute].

110. Ibid., art. 29(1).

111. Ibid., art. 29(2).

112. Ibid., arts. 18(2) and 29; Security Council Resolution 955, 8 November 1994, UN Doc. S/RES/955, arts. 17(2) and 29 [ICTR Statute].

113. ICTY Statute, supra note 109, art. 24(3); ICTR Statute, ibid., Annex, art. 23(3).

114. International Committee of the Red Cross, “Practice Relating to Rule 161: International Cooperation in Criminal Proceedings”, online: Customary International Humanitarian Database <http://www.icrc.org/customary-ihl/eng/docs/v2_cha_chapter44_rule161>.

115. Arrêté fédéral relative à la coopération avec les tribunaux internationaux charges de poursuivre les violations graves du droit international humanitaire, 21 Décembre 1995, RS 351.20.

116. Krafft, et al., supra note 62 at 565.

117. Ibid., at 565.

118. Ibid. Similarly, art. 7 of the law on international judicial assistance in criminal matters prohibits the extradition of Swiss nationals to foreign authorities.

119. Ibid., at 566.

120. Frowein, and Krisch, , supra note 60 at 258.

121. Ibid., at 259.

122. Ibid.

123. Ibid., at 260.

124. See e.g. Hans-Georg MAAßEN, “Artikel 16” in Volker EPPING and Christian HILLGRUBER, eds., Beck'scher Online-Kommentar Grundgesetz, 18th edn. (Munich: C.H. Beck, 2013), paras. 50−8.

125. The Netherlands has passed similar implementing legislation to Switzerland and Germany. See Alfred H.A. SOONS, “Netherlands” in Gowlland-Debbas, supra note 26 at 368−9.

126. For this judicial wandering, see typically the case before the Supreme Court of the United States of Medellín v. Texas (25 March 2008) 552 US 491.

127. Avena and Other Mexican Nationals (Mexico v. United States of America), [2004] I.C.J. Rep. 12, at 71, para. 153(4).

128. Ibid., at 72, para. 153(9).

129. Medellín v. Texas (25 March 2008) 552 US 491.

130. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), [2009] I.C.J. Rep. 3, at 10−11, para. 24.

131. See e.g. “Letter from Secretary of State Condoleezza Rice and Attorney General Michael Mukasey to Rick Perry, Governor of the State of Texas”, 17 June 2008. Supreme Court of the United States, Appendix to Petition for Writ of Certiorari to the Court of Criminal Appeals of Texas or for Extraordinary Writ of Habeas Corpus, pp. 80a–81a, online: <http://www.scotusblog.com/wp-content/uploads/2008/07/Medellin_Appendix.pdf>.

132. CarrieLyn D. GUYMON, ed., Digest of United States Practice in International Law 2012, Office of the Legal Adviser of the US Department of State, at 17.

133. See e.g. CHARNOVITZ, Steve, “Correcting America's Continuing Failure to Comply with the Avena Judgment” (2012) 106 American Journal of International Law 572, at 578 (noting that “Congress has many options for bringing the United States into compliance with the VCCR”).

134. Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. cir 1988).

135. Ibid., 934.

136. Ibid., 938.

137. Ibid.

138. Ibid.

139. SCHULTE, Constanze, Compliance with Decisions of the International Court of Justice (Oxford: Oxford University Press, 2004) at 271−273:

Only on a few occasions have states openly and wilfully chosen to disregard the Court's judgments: in the Corfu Channel, Fisheries jurisdiction, Tehran hostages, and Nicaragua cases. Even in these cases, the effects of non-compliance were mitigated to a certain extent, given eventual or partial compliance by the losing party, or changes in the law, or political scene that diminished the relevance of the original decision … In some cases, fears of non-compliance proved unfounded in spite of substantial grounds for concern because of important interest involved or past military clashes. Thailand followed through with its obligations under the judgment in Temple of Preah Vihear, despite its initial reaction to the decision. In the Territorial Dispute (Libya/Chad) case, Libya withdrew its troops from the area in question despite fears that it might refuse to do so. These cases point positively to the respect of parties for the Court's role in the settlement of disputes, as it demonstrates that states will comply even with judgments contrary to their national interests.

See also on this issue, with similar conclusions but varying methodological approaches, SHANY, Yuval, “Assessing the Effectiveness of International Courts: A Goal-Based Approach” (2012) 106 American Journal of International Law 225; PULKOWSKI, Dirk, “Testing Compliance Theories: Towards US Obedience of International Law in the Avena Case” (2006) 19 Leiden Journal of International Law 511; LLAMZON, Aloysius P., “Jurisdiction and Compliance in Recent Decisions of the International Court of Justice” (2007) 18 European Journal of International Law 815; HUNEEUS, Alexandra V., “Compliance with International Court Judgments and Decisions” in Cesare ROMANO et al., eds., The Oxford Handbook of International Adjudication (New York: Oxford University Press, 2014), 437–463; JONES, Heather L., “Why Comply? An Analysis of Trends in Compliance with Judgments of the International Court of Justice since Nicaragua” (2011) 12 Chicago-Kent Journal of International and Comparative Law 57; THIRLWAY, Hugh, “The International Court of Justice 1989−2009: At the Heart of the Dispute Settlement System?” (2010) 57 Netherlands International Law Review 351 (noting that “the record as regards contentious cases is good; there have been hardly any cases in which compliance with a judgment was repudiated”).

140. BÚRCA, Gráinne DE, “The European Court of Justice and the International Legal Order After Kadi” (2010) 51 Harvard International Law Journal 1 at 49.

* Judge and former President, International Court of Justice. This paper is based on the original address that the author gave at the Singapore Academy of Law in 2010, that has since been revised and brought up to date. The views expressed in this paper are the personal views of the writer and do not reflect in any way the position of any institution that the author belongs to or is associated with.