The customary  law nature of article 62 of the 1986 Vienna Convention on the Law of Treaties

The United Kingdom’s decision to leave the European Union, commonly referred to as Brexit, was the first of many unexpected developments in British politics over the course of the last three years. In the last few days, international lawyers have been surprised by the attempt to invoke article 62 of the Vienna Convention of the Law of Treaties in order to facilitate the passing of a third vote by the UK Parliament of the Withdrawal Agreement.

Several commentators have explained the flaws inherent to the application of a provision requiring a fundamental change of circumstances that cannot be foreseen (see the excellent blog by Marko Milanovik here, including comments by Alessandra Asteriti & Aoife O’Donogue),  and for which an extraordinarily high threshold was established by the International Court of Justice in the Gabčíkovo-Nagymaros Project case (commentary by Philippe Sands who represented Hungary before the Court here). In successive tweets Matin Paparinskis has unearthed the historic opposition of the UK to the doctrine of fundamental change of circumstances and suggested that arguments based on the doctrine of necessity may provide better legal grounds for the unilateral termination of a treaty.

The applicability of article 62 underlines every analysis I have encountered so far. Commentators refer to the Vienna Convention of the Law of Treaties without specifying whether they are referring to the 1969 Convention only applicable to treaties between states, or the 1986 Convention for treaties between States and International Organisations (the latter not yet into force). This is not an oversight. The clarification seems unnecessary because article 62 is presumed as a codified expression of customary international law that applies to any treaty, whether concluded between States or between States and international organisations.

The International Court of Justice has supported this view on several occasions. In its admissibility decision on the Qatar v Bahrain case, the Court applied the definition of treaty enshrined in article 2 of the 1969 Vienna Convention of the Law of Treaties, despite neither Qatar nor Bahrain being parties to the Convention. The Court did not justify its approach implicitly suggesting that the definition contained in the Vienna Convention had customary law status, a conclusion categorised as ‘surprising’ by Jan Klabbers ‘given the fact that it is, after all,  but a definition, and, moreover, a definition for purposes of the Vienna Convention only’ (page 366). The Court was forced into a more explicit approach in Gabčíkovo-Nagymaros because Hungary argued that the Vienna Convention was not applicable to the concerned agreement, suggesting that the Court should establish ‘the conformity of the prescriptions of the Convention with customary international law’ on a case-by-case basis (paragraph 43). The International Court resolved the issue in a sweeping statement only substantiated by its own jurisprudence (paragraph 46):

“The Court has no need to dwell upon the question of the applicability in the present case of the Vienna Convention of 1969 on the Law of Treaties. It needs only to be mindful of the fact that it has several times had occasion to hold that some of the rules laid down in that Convention might be considered as a codification of existing customary law. The Court takes the view that in many respects this applies to the provisions of the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in Articles 60 to 62 (see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports. 1971, p. 47, and Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 18; see also Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, pp. 95-96).”

The International Court of Justice has repeatedly been unwilling to support its statements referring to the existence of customary law, using state practice and/or evidence of opinio juris (for a recent criticism referring to the Chagos case, see Milanovic here). International lawyers should be careful in adopting the same method when it is difficult or impossible to corroborate the existence of a customary rule. Reference to the jurisprudence of the Court does not suffice because the Court has failed to engage, for the most part, with proper analysis in this area. The fundamental change of circumstance’s clause, where acceptance of the validity of the rule can be derived from general consensus of opinion among states rather than state practice, might fit better the categorisation of general principle of international law.




Have Your Cake and Eat It Too: The Impossible Stance on The Syrian Strike

On 13 April 2018, the United States of America, the United Kingdom and France launched an armed attack against Syria with the honorable objective of deterring the Assad regime from using chemical weapons in the future. Only the United Kingdom offered a written legal position explaining its own understanding of the legality of humanitarian intervention and how the case at hands met the conditions to carry out an armed attack on this ground.  This document is almost identical to one published in 2013 by the British government to support its right to use armed force in Syria, an action blocked by the Parliament at the time.  None of the States involved in the Syrian strikes of April 2018 sought previous authorization by their legislative bodies, raising issues on the legality of the action at domestic level (see e.g. here, here, and here). From an international law perspective, the consensus among academics on the weakness of the arguments put forward by the United Kingdom and the illegality of the strikes overall has been almost unanimous (see here, here, here or here; for opposing views see here and here).

The British Defense Secretary and the President of the United States have repeatedly referred to the problematic notion of  ‘civilized nations’. In different statements by their  allied counterparts the President of France, the British Prime Minister and the Defense Secretary have claimed to represent the ‘international community’. The immediate reactions that followed, while critical of the hegemonic thinking revealed in the actions of these three States, failed -as rightly highlighted Alex Morrehead on this blog–  to reflect on the views of the many States who have opposed the use of armed force outside the confines of self-defense and the United Nations Charter (in addition to those listed by Morrehead the statement by the African Union condemning the strikes can be found here). However, on 22 April 2018, a group of researchers  (Alonso Gurmendi Dunkelberg, Rebeca Ingber, Priya Pillajand and Elvina Pothelet) published a compilation of State reactions to the Syrian strikes based on a preliminary sample of 100 States,  a fantastic resource for any future analysis on this event.

Also missing from the myriad of analyses available, is reference to the significance of the attacks when carried out by Permanent Members of the Security Council with veto-wielding power. For the reasons I outlined a few months ago, illegal uses of armed force by the United Kingdom, France and the United States are damaging the authority of the Security Council and the United Nations organisation as a whole.  It is at the very least paradoxical, that the five Permanent Members are, on the one hand, expanding beyond recognition the scope of the competences of the Security Council and the reach of its decisions; while on the other hand, undermining its legitimacy by failing to uphold the rules that benefit them the most. The same States that are using -or abusing- the rights conferred by the United Nations Charter to impose obligations on every other State by e.g. approving certain resolutions on terrorism issues or articulating as binding the implementation of some aspects of the Iranian deal, negate the limits imposed to such exorbitant powers.

The Secretary General has reminded the members of the Security Council about their ‘primary responsibility for the maintenance of international peace and security’ and the importance of respecting the Charter. States that don’t enjoy the privileges of the Permanent Members seem willing to uphold current rules. However, it is difficult to foresee a future where the extraordinary powers of the Permanent Five, including their legal possession of nuclear weapons, will be respected if they don’t govern their own actions. You cannot have your cake and eat it too.

UK’s lost seat at the International Court of Justice: a reflection on the authority of the Security Council

On 20 November 2017, following a ‘bruising diplomatic battle’ and for the first time since the creation of the United Nations, the United Kingdom relinquished its seat at the International Court of Justice, where judges nominated by the five permanent members of the Security Council have been customarily granted a place on the bench. The failure of the United Kingdom to prevent the adoption of the UN General Assembly resolution 71/292 (June 2017) requesting the International Court of Justice to provide an advisory opinion on the legality of the separation of the Chagos Archipelago from Mauritius in 1965 seems, in hindsight, premonitory. The Chagos resolution was adopted by 94 votes in favour, 15 against and 65 abstentions, with European Union countries among the majority of abstaining States. Over the five rounds of voting held on 13th November 2017 to re-elect a judge of the International Court of Justice, it became apparent that the widening gap in the General Assembly between the Indian candidate, Dalveer Bhandari, and the British one, Christopher Greenwood, was steadily increasing in favour of Judge Bhandari.

Whatever other reasons may explain the weakened position of the United Kingdom in international affairs, the undermined legitimacy of the current structure of the Security Council is particularly relevant. The different attempts to reform the UN Security Council have demonstrated two things. First, that there is a growing consensus on the need to reform the Council to ensure a better representation of the UN membership, drastically different from the founding members. Second, the impossibility of implementing such reform due to legally ingrained obstacles that prevent their modification. The question of equitable representation on, and increase in the membership of the Security Council has been on the UN General Assembly agenda since 1979 and continues to be frequently addressed in that forum. The decision to rejuvenate efforts to comprehensively reform the Security Council in all its aspects reflected in the 2000 UN Millennium Declaration (paragraph 30), followed by the concrete proposals put forward by the High level Panel on Threats, Challenges and Change in 2004 (paragraphs 244-260), reignited the academic and diplomatic debate. Successive waves of reform proposals resulted in ‘beauty contests’ where states parade a myriad of economic, political, military or geographic merit they deem relevant to deserve a position in a reformed Security Council, without yielding any result.

The criticism addressed, of the democratic deficits and lack of representation of the Security Council, often ignore the rationale for the permanent membership and veto powers. The United Nations was established after World War II with the primary objective of ‘…saving succeeding generations from the scourge of war’. The prohibition of the use of armed force to settle international disputes was established for this purpose and the Security Council was conferred with the unique responsibility to maintain global peace and security. Outside the confines of self-defense, the use of armed force could only take place if the States most likely to provoke a third world war were in agreement. Arguably, the fact that these rules have been openly broken by veto-wielding permanent member states with the primary responsibility of upholding them, has had a profound impact on the legitimacy of the Security Council and the United Nations as a whole. The first blatant manifestation was the NATO intervention in Kosovo, repeatedly characterised as illegal but legitimate, following the impossibility of securing Security Council authorisation, opposed by Russia and China. The military intervention in Iraq followed suit in 2003, with ousted Judge Greenwood (as an academic at that time), playing a significant role in providing legal cover for it, ignoring the clear lack of endorsement by the Security Council. More recently (2013), the UK published its legal reasoning to support its right to unilaterally use armed force in Syria, an action blocked by its own Parliament. In 2017, the US resorted to military strikes in Syria, without even trying to provide legal varnish for its actions despite adverse domestic level pressure. The practice of both countries put their geo-political interest ahead of their responsibility to maintain peace and security and the institutional system of which they are primary custodians.

The ‘paralysing’ effects referred to by commentators when reporting on the misuse of veto powers, tend to omit the fact that such paralyses have often halted military interventions with uncertain outcomes. Even when good arguments exist to defend illegal but legitimate use of force, (or  to defend other internationally banned practices such as torture), it is worth remembering that they weaken the law, the institutions and actors acting as their guardians. In this context it is unsurprising that the community of States is showing its discontent with the privileges enjoyed by permanent member states that have contributed to undermine the authority of the Security Council through their actions. The loss of the British judge is symbolic in this sense. The lack of respect for Security Council rules by its permanent member has spread to the rest of the world. The real problem is the uncertainty ahead. It seems increasingly implausible that the United Nations will survive in its current form for another 70 years. Judging by its track record, it is also unlikely to self-reform. The world needs inspired leadership to redesign and effectively implement a credible system of collective security accepted as legitimate by the international community. In the meanwhile, all signs point towards the progressive dismantling of the existing framework without anything to replace it with.

The Assange saga: who does the Working Group on Arbitrary Detention represent?

It is not a normal occurrence to see the decision of one of the so called ‘special procedures’ of the United Nations receiving worldwide attention. However, the opinion of the Working Group on Arbitrary Detention categorising the situation of Julian Assange as arbitrary deprivation of liberty, on 4 December 2015, has attracted the attention of the press, social media and experts’ commentary around the globe.

Suspiciously enough coming from the founder of WikiLeaks, this response was sparked by Assange himself, when he announced, a day before the Working Groups’ opinion became public, that he would surrender to UK authorities if the Working Group concluded that the Swedish and British authorities had acted legally.

Background: The Working Group on Arbitrary Detention consideration of individual cases

The Working Group on Arbitrary Detention is one of the ‘thematic special procedures’ of the United Nations Human Rights Council. The creation of a special procedure is dependent on the approval of a resolution creating the mandate by a simple majority of a governmental body (the Human Rights Council or its precursor, the Commission on Human Rights). These resolutions are therefore result of political negotiations between states, although the mandate-holders of special procedures are independent experts. As a consequence, the scope of competence and methods of work are framed in vague terms, and mandate-holders have enjoyed great flexibility and autonomy in operationalising their activities.

While intervention in individual cases was well-established among other mandate-holders of special procedures when the Working Group on Arbitrary Detention was created in 1991, this was the first special procedure to be explicitly endowed with the power of ‘investigating cases’ falling within its mandate. The Working Group has adopted methods of work  similar to treaty-bodies dealing with individual complaints, complete with conclusions concerning the existence of a violation by the State concerned. Special procedures do not require  the exhaustion of domestic remedies to be able to access them, one of the many features making these mechanisms particularly attractive to those who need a reaction from an international body, including the possibility of ‘urgent appeals’ which can be sent in a matter of hours, if there is an imminent risk to the life or physical integrity of the victim.

Undermining human rights bodies: reactions to the opinion of the Working Group on Assange

It is not the purpose of this commentary to assess the content of the opinion of the Working Group, largely criticised for its shaky legal foundations elsewhere (see for instance: Mathew Happold here, Joshua Rozenberg here, or a more nuanced view by Liora Lazarus here). Instead, it seeks to highlight the implications of the reaction to the opinion, which risk damaging international human rights bodies, at a time when mistrust towards the international human rights regime, often voiced by countries ‘in the South’ as attempts to undermine their sovereignty, are increasingly being augmented by the voices of Western States including the UK.

Continue reading