| by Dr. Ruwantissa Abeyratne
( March 16, 2012, Montreal, Sri Lanka Guardian) In the Sri Lanka Guardian of 15 March I addressed the current practices with regard to a State acceding to a treaty. The present article addresses the expectation the public would have of compliance with a treaty by a State. Traditionally, States which follow the common law (which is the law developed through decisions of the judiciary, such as it is in Sri Lanka) have adopted the dualist approach to treaties, in that they have considered treaties, which are customary international law, as being separate from domestic law. A fundamental principle of the law applicable in the United Kingdom is that unless an international treaty has been adopted into English Law by an Act of Parliament it has no legal status under domestic law. The legal legitimacy ascribed to this principle lies in a statement by Lord Atkin in the 1937 case of Attorney General of Canada v. Attorney General of Ontario where his Lordship said that the marking of a treaty is an executive act whereas its compliance, if its principles are at variance with existing domestic law, would require legislative action so that existing domestic law could be brought into consistence with that of the treaty concerned. Later, in 1971, Lord Denning in considering whether the then E.E.C. Treaty could be relied upon as principles of English law stated: “We have no notice of treaties until they are embodied in laws enacted in Parliament”.
This somewhat rigid dualistic approach of the British judiciary established certain inarticulate principles which were entrenched in the rule that the courts will not take cognizance of nor apply an international treaty to which Britain was a Party unless and until it was adopted by an Act of Parliament and that even after such adoption, the language of the treaty cannot be used as interpreting a statute in which that treaty was incorporated, particularly in instances of ambiguity in the language of the statute. Also, in accordance with a decision in 1950
(Porter v. Freudenbvurg) the courts are not at liberty, when construing a treaty which has been incorporated into English law to have recourse to the travaux préparatoires (preparatory treaty work of the conference which adopted the treaty). This judicial approach absolutely obviated the applicability and relevance in domestic law of an unincorporated treaty, making such an instrument irrelevant and inapplicable in grounding a cause of action for individuals.
A notable exception has been in the area of human rights where British courts have relied on the European Convention on the Protection of Human Rights and Fundamental Freedoms in construing the meaning of the English Immigration Act in instances affecting the rights of immigrants. This trend, which seemingly recognizes the fact that individual human rights should be based on global norms that should be seen as universally applicable irrespective of domestic legislation, has received strength in a continuing manner from the British judiciary. Lord Scarman in 1975 extended the principle to all English courts by stressing their duty to take into consideration the European Convention on Human Rights when they were adjudicating the rights of individuals in Britain.
On balance, one could argue, in view of the cursus curiae (succession of judicial decisions), that in general terms and as a matter of law treaties do not give rise to private rights and the principles discussed above relating to the dualist approach would prevail unless there are compelling circumstances for the British judiciary to apply the exception. For instance, in a 1979 decision, Megary J. held in circumstances involving a claim by a plaintiff who alleged breach of confidentiality and privacy invoking Article 8 of the European Convention that the Convention had not been ratified by the United Kingdom and as such was inapplicable under British law. In 1991 a decision followed in the House of Lords reaffirming this general approach.
Elsewhere in common law jurisdictions, the trend established by the British courts in separating treaties from domestic law has prevailed. In Australia, courts have held that an individual cannot enforce individual rights accruing from an international treaty unless such treaty was incorporated in and formed part of Australian law. Once again, in this region of common law jurisdictions, an exception has been made in the instance of fundamental human rights, as was seen in the 1994 New Zealand case of Tavita v. Minister of Immigration where the New Zealand Court of Appeals upheld the provisions of the International Covenant on Civil and Political Rights of 1966 which guaranteed the right of a child to acquire a nationality although the Immigration Act (1987) of that country did not admit of the grant of nationality to a child of a person who was in the country under a temporary residence permit at the birth of the child.
The arguments of monism and dualism aside, and as already mentioned, a State is expected to be bound by a treaty it signs and later ratifies by the legal maxim pacta sunt servanda invoked in Article 27 of the Vienna Convention which provides that every treaty in force is binding upon the parties to it and must be performed by them in good faith. A State Party to a treaty can opt out of this obligation in two instances, the first being the recording of what is called “an interpretative declaration during the diplomatic conference that discusses the text of a Treaty in the context of a multilateral treaty or during bilateral discussions in the instance of negotiating a bilateral treaty with another State. These declarations are widely used and go back in history to 1815. In essence such a declaration is made when a State has a difference of view with regard to the meaning of a particular provision. In such an instance the State concerned makes a formal statement expressing the interpretation favoured by it and that statement is usually reflected in the Travaux Préaparatiores or negotiating history (record of proceedings). It is not uncommon for a State to put forward an interpretative declaration even after a Treaty has been concluded and this occurrence is seen mainly in instances where a State realizes subsequently that a provision of a treaty it has signed and/or ratified is inconsistent or contrary to its domestic law in whole or in part thereof. A watered down version of an interpretative declaration is a political declaration which does not per se address the legality of a treaty provision in the eyes of a State but rather clarifies the State’s policy towards that provision. By making such a declaration a State may keep open a window of opportunity that would enable the State to make a reservation at the point of ratification.
The second instance wherein a State could opt out of its obligation from adhering to an entire treaty is when it records a reservation to any particular provision in the Treaty at the point of definitive signature or ratification. Article 19 of the Vienna Convention provides that a State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: the reservation is prohibited by the treaty; the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or in cases not failing under the abovementioned conditions, the reservation is incompatible with the object and purpose of the treaty. A reservation is a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.
A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation will be considered as having been made on the date of its confirmation. An express acceptance of, or an objection to a reservation made previously to confirmation of the reservation does not itself require confirmation.
In practice a reservation need not necessarily be unilateral and two or more States can put forward the same reservation. There is also a derogation which should be distinguished from a reservation, the former being a concession accorded by a treaty to States’ Parties to derogate from a provision or provisions of that treaty to accommodate special exigencies such as a state of emergency.
A reservation established with regard to another party modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and modifies those provisions to the same extent for that other party in its relations with the reserving State. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.
A reservation can be withdrawn at any stage and such an instance usually occurs when the situation prevailing in a State at the time the reservation is made ceases to exist. The Vienna Convention expressly provides that unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.
The pacta sunt servanda element of a treaty (consent to be bound) may be adversely affected in instances of State succession when one State succeeds wholly or in part to the legal personality of another State, both of whom are parties to the same treaty. Instances of war and armed conflict, although they do not automatically sever treaty relationships between States may affect them. A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. The basic principle, following the Charter of the United Nations is that treaties are no less binding in instances of war. However, termination of a treaty may be by consent of the parties, express or implied. Article 54 of the Vienna Convention prescribes that the termination of a treaty or the withdrawal of a party may take place either in conformity with the provisions of the treaty; or at any time by consent of all the parties after consultation with the other contracting States. A treaty does not terminate merely because the number of Parties to that treaty falls below the required number to enter into force. The termination of a treaty under its provisions or in accordance with the Convention releases the parties from any obligation further to perform the treaty but does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
There is no room for doubt that common law jurisdictions follow the dualist approach mainly because of their adherence to the doctrine of separation of powers. The doctrine of separation of powers ascribes separate powers to the three limbs of a State: the legislature; judiciary and the executive. The judiciary dispenses justice based on applicable domestic law and as such a treaty would be considered by the judiciary as part of domestic law only if it is adopted as a legislative enactment by the legislature and incorporated into the law of the land. A corollary to this approach is that the rights of a citizen lie primarily in domestic legislation and if a treaty were to be applicable within a State, it has to be formally included in the Statute books. This brings to bear the perennial debate on the primacy of international law over domestic law in instances where a State not only places its signature on a treaty but ratifies it subsequently.
There have been many different theories on which takes precedence over which – whether international law has primacy over municipal or domestic law or it is the other way around. In essence therefore it is a “toss up” between the dualist (or pluralistic) theory and the monist theory. The former considers that international law is law between sovereign States and municipal law is between citizens and the executive and therefore they are mutually exclusive and neither legal order has the power to create or amend the principles or rules of the other. Therefore, in the dualist view the doctrine of incorporation is a rule of construction that allows international law to apply within the municipal context if it has been formally adopted within a jurisdiction. The latter (monism) espouses the principle that international law is supreme even within the municipal arena. Monism implies that the State is but an abstraction of insularity which has no right to override the norms of international law that protect such fundamental legal entitlements as human rights, particularly when treaties incorporating such rights have been ratified by that State.
Whatever may be the judgment of a municipal court on this issue, from a wider perspective one wonders whether a State could hide behind its internal laws to ignore a rule of an international treaty it has ratified on the ground that its internal law prescribes the opposite or different rule from the international rule. The law on this is quite clear. The Vienna Convention provides that a State party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Furthermore, a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
It is submitted that from a logical perspective, monism triumphs. How else could one justify or legitimize the act of a State which is represented with full powers, sitting in an international arena at a diplomatic conference, signing off on global principals which it then ratifies, if it can say later on, “I really did not mean what I did when I accepted the principles in this treaty”; or “I really did not mean to be bound by this treaty”; or, more importantly , “I meant that the principles contained in this treaty should apply to all others expect the citizens of my country”. In the aeronautical context, this logicality becomes significant in that there would be no meaning and purpose for a member State of ICAO to ratify a treaty by which say, that State undertakes to mark plastic explosives or prosecute a person who hijacks an aircraft if its local laws prevent such prosecution on subjective grounds. It is for the State to decide either way using its legislative clout rather than let a hapless judiciary address the issue, the only duty of which is to dispense justice in accordance with municipal law.