Tag Archives: International Law Commission

A commentary on the African Court’s decision in the case APDF and IHRDA v Republic of Mali: why socio-cultural endemic factors of a society could never support arguments based on force majeure

Introduction

 

On 11 May 2018, the African Court on Human and Peoples’ Rights(ACtHPR, or ‘the Court’) has issued its judgement in the case of Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali.Mali, the respondent state, had submitted before the Court that they could not promulgate the 2009 Family Code which would have ended many discriminations between boys and girls under the age of 18 because of a ‘force majeure’, namely, ‘a mass protest movement against the Family Code [that] halted the process’. The Republic of Mali also claimed that ‘the State was faced with a huge threat of social disruption, disintegration of the nation and upsurge of violence, the consequence of which could have been detrimental to peace, harmonious living and social cohesion; that the mobilisation of religious forces attained such a level that no amount of resistance action could contain it’.[1]

This post focuses on the notion of force majeure under international law and argues that while the Court got it right in not recognising the events listed by Mali as constituting force majeure, they should have addressed the arguments based on this latter. Moreover, by definition, the notion of force majeure can never encompass socio-cultural factors that are endemic to the state and that already existed at the moment of the signature and ratification of a treaty.

 

The case

The applicants had submitted inter alia that Article 281 of the Malian law establishing the Family Code currently into force sets the minimum age for contracting marriage at eighteen for boys and sixteen for girls, while Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo protocol), which was ratified by Mali in 2005, sets that age at 18 for both. They further pointed out that the same law allows for special exemption for marriage as from fifteen years, with the father’s or mother’s consent for the boy, and only the father’s consent, for the girlThey also lamented that the Republic of Mali had not done enough to align itself other international treaty obligations, which included Article 1(3) of the African Charter on the Rights and Welfare of the Child,(also known as the Children’s Charter) according to which, ‘[a]ny custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency, be discouraged’; and Article 21 of the same Charter which provides that ‘[s]tate Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular those customs and practices prejudicial to the health or life of the child; and those customs and practices discriminatory to the child on the grounds of sex or other status’ [emphasis added]. This notwithstanding the alarming data provided by the World Bank concerning child marriage (i.e., more than 59% of women between 18 and 22 got married under the age of 18),

Mali had submitted that they could not promulgate a new Family Code because of a mass protest movement and an irresistible resistance from religious forces in the country, which could justify their force majeure arguments before the Court.[2] While the Court held that Mali violated Articles 2 (2) and 6 of the Maputo Protocol, Articles 1 (3) and 21 of the Children’s Charter and Articles 5 (a), 6 and 10 of the Convention on the Elimination of all forms of Discrimination Against Women(CEDAW), they fully overlooked the argument about force majeure.

 

The reasons behind the Malian argument on force majeure

 

The arguments put forward by the respondent state could adequately be met by a typical derogation clause, such as that contained in article 15 of the European Convention of Human Rights.[3]While article 15 itself provides that this clause can only be invoked in time of war or other public emergencies threatening the life of the nation, the European Court of Human Rights has consistently recognised the existence of a wide margin of appreciation upon states. However, the Court has also held clearly that state parties do not enjoy unlimited power. In particular, the measures undertaken by the state should be strictly required by the situation and cannot be inconsistent with other obligations under international law. In the case at issue, these could for instance be those stemming from the CEDAW or the Children’s Charter.  However, the African Charter and, as a consequence, its Protocols, do not contain any clause of such a kind.  The same applies to the Children’s Charter and CEDAW. Hence, arguably, the respondent state’s attempt to rely on force majeure.

 

Force majeureunder Public International Law

 

The International Law Commission (ILC)’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts includes force majeure among the circumstances excluding wrongfulness. Pursuant to its article 23 (1), ‘[t]he wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible forceor of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation[emphasis added]’. In its Commentary relating to this article, the ILC states ‘[f]orce majeure differs from a situation of distress (art. 24) or necessity (art. 25) because the conduct of the State which would otherwise be internationally wrongful is involuntary or at least involves no element of free choice.’  Moreover, the ILC expressly notes that ‘[f]orce majeure does not include circumstances in which performance of an obligation has become more difficult, for example due to some political or economic crisis’.  This was also the view of the Arbitral Tribunal set up by an agreement between France and New Zealand, in the famous Rainbow Warrior case, when the Tribunal held that ‘New Zealand is right in asserting that the excuse of force majeure is not of relevance in this case because the test of its applicability is of absolute and material impossibility, and because a circumstance rendering performance more difficult or burdensome does not constitute a case of force majeure’.[4]

Coming to the case at issue, while it is evident that the mass protests and the religious forces were –by the admission of Mali- ‘socio-cultural realities’ of Mali,[5]and therefore could not be seen as an unforeseen event, theoretically they could, however, represent an ‘irresistible force’. Yet, the respondent state should have proved that the events would not make it simply difficult for the State to promulgate the law, but actually impossible. Otherwise, the lack-of-free-choice requirement provided by Article 23 of the 2001 ILC’s Draft Articles could not be met. Most importantly, the very same word ‘occurrence’ suggests that the event at stake should happen after the relevant state signs and ratifies the treaty. It is therefore quite obvious that a socio-cultural factor, such as the presence of conservative religious forces in the territory of a state, cannot trigger any argument based on force majeure. To the contrary, claiming that the decision was taken under force majeure would run counter article 26 of the Vienna Convention on the Law of the Treaties (VCLT), which reads as follows: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’.

Furthermore, article 61(1) of the VCLT provides that ‘[a] party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.’ Yet, the ILC has clarified that while force majeure applies to the single obligation arising from the treaty, supervening impossibility results in the suspension of the treaty as a whole.[6]Thus, unless Mali wanted to suspend the treaty as such, this route could not constitute an option.

 

Conclusion

 

In the case Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali, Mali had submitted before the African Court on Human and Peoples’ Rights that they could not comply with their treaty obligations because of force majeure.  In particular, Mali argued that religious forces in the country were resisting the adoption of a new Family Code that would eliminate all discrimination against girls when it came to marriage. This post has investigated the reasons why Mali might have turned into force majeure arguments and concluded that this might depend on the fact that the international instruments that were invoked by the applicants do not include any derogation clause. The Court completely overlooked the arguments based on force majeure and concluded that Mali had violated its treaty obligations arising from CEDAW, the Children’s Charter and the Maputo Protocol. However, the arguments based on force majeure could not be considered admissible, as socio-cultural ‘realities’ of a country could not be seen as unforeseen events, nor could they represent new factors ‘occurring’ after the signature and ratification of the relevant treaties.    

 

 

[1]Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali(ACtHPR, 11 May 2018), at 64.

[2]ibid.

[3]See, also, American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art 27.

[4]Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990), p. 253 [emphasis added].

[5]Ibid (1), at 66.

[6]ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) The Yearbook of the International Law Commission, 2001, vol. II, Part Two, as corrected, at page 71.au

Advertisements

1 Comment

Filed under Human Rights, Public International Law

Redefining Jus Cogens. An Insight into the International Law Commission’s Discourse on Peremptory Norms of General International Law

Ana Srovin Coralli (Master in International Law from the Graduate Institute (Geneva) and Master in Law from the Faculty of Law (Ljubljana); ana.srovin@graduateinstitute.ch) &

Christian Bukor (Master student in Law, European Faculty of Law (Nova Gorica); cbukor@gmail.com)

 

Three months have passed since the 70thannual session of the International Law Commission (ILC) came to its conclusion in August 2018.[1]Perhaps it is no exaggeration to say that jus cogens was for the majority of the members, at least with respect to the meetings which took place in Geneva, the most intriguing topic scheduled on this year’s agenda. Indeed, the third report on peremptory norms of general international law, which resulted in 13 draft conclusions,[2]not only triggered significant interest from a great majority of the ILC members, but it also stimulated a vivid and provocative discussion among them.

 

Even though nowadays a special status of jus cogens in international law is beyond dispute, many controversies and disagreements surrounding the legal consequences and effects of peremptory norms still persist. Having this in mind, it is crystal clear that the Special Rapporteur Dire Tladi has been confronted with no easy task. Precisely because of the difficulty of the subject matter, it is important to note that the ILC members generally agreed on the quality of his third report, noting that it makes an important step forward in clarifying the consequences and the effects of the highest norms in international law.[3] This post provides a summary of the ILC’s discourse on the jus cogens debate in Geneva, with a focus on the most controversial aspects of the relevant report.

 

Overview of the report and the draft conclusions

 

At the outset, it should be explained that the ILC’s topics under consideration are mainly handled by the individual Special Rapporteurs, whose duties include the preparation of reports on the assigned topics and the proposition of draft conclusions, which could then potentially serve as guidelines or articles of a treaty. The present contribution will tackle both the newly-proposed draft conclusions on the topic of jus cogens and the yearly report of the Special Rapporteur on the same topic.

 

As a preliminary remark, it should be emphasized that the ILC generally promotes the idea of relying on the1969 Vienna Convention of the Law of Treaties(VCLT) when preparing draft conclusions on the topic of jus cogens. It has been agreed among the members that this was respected by Mr. Tladi, as his report clearly takes the VCLT into account.[4]It would, however, be premature to conclude that no concern was raised by the ILC members during the debate on the subject. Recalling that the VCLT was drafted with a particular subject in mind, namely the law of treaties, some of the members warned that the Convention should be considered with caution when adopting a new set of rules on a different topic.[5] This approach seems more correct, as it stresses that international law is an evolving and flexible system, although consistency between legal documents remains crucially important in law. It is for this reason that the ILC should consider other relevant sources and take into account the development of international law over time.

 

Another issue raised during the debates was whether it is appropriate to focus on certain consequences and effects of jus cogens.[6]Specifically, some of the members were reluctant to support the explicit reference to the United Nations Security Council (SC) resolutions and certain issues concerning international criminal law.[7]Noting that such references might be selective and consequentially problematic, the majority of members refused to include it in the draft conclusions. In so doing, an opportunity was missed to explore the consequences of jus cogens more widely, including the implications of a conflict with SC resolutions, and the impact of peremptory norms in international criminal law. There is furthermore a need for an explicit stipulation affirming that any principle or rule established through any source of international law, including general principle of law, may not be valid if it is in contrast with a norm of jus cogens nature.

 

Specific issues on the table

 

The effect of jus cogens on treaty relations has been acknowledged as one of the most uncontroversial aspects of the third report.[8]In the eyes of the ILC members, the Special Rapporteur managed to prove the inherent nature and non-derogability of jus cogens norms. Therefore, all treaties must be consistent with these norms.[9]Nevertheless, the remaining matter of controversy is the general rule on the non-severability of treaty provisions, when a provision is part of a treaty which was in conflict with jus cogens at the time of its conclusion.[10]Whereas some of the members agreed on this matter, the stability of treaty relations was prioritized by others, who claimed that the general rule of severability would be preferable. By taking the latter approach, the rule of non-severability would be presented as a special rule for cases relating to article 53 of the VCLT, which would, in effect, result in the prioritization of treaty relations without departing from the VCLT.

 

Another interesting question on the recommended dispute settlement procedure in case of invalidity of a treaty because of a conflict with jus cogens was pointed out during the debates.[11]More precisely, doubt was raised as to the immediate consequences following a decision by the International Court of Justice (ICJ) or by an arbitral tribunal; would such decision lead to the invalidation or termination of a treaty, or would it be merely declaratory in nature? In the view of the majority, the treaty would, in fact, become invalid immediately.

 

Furthermore, the draft conclusion 17 explicitly states that SC resolutions do not establish any binding obligations if they violate jus cogens norms. Recalling the aim of the presented draft conclusions, which is to formulate general rules, this approach was unwelcomed by the majority of the ILC members.[12]Indeed, as the legal order in international law now stands, it would be possible for a state to refuse the fulfillment of any obligation endorsed in SC resolutions on the basis of a conflict with jus cogens. It is nevertheless clear that if such a provision was adopted, this could not only result in political disturbances – it would be almost impossible to implement it in practice.

 

As for the responsibility of states, two draft conclusions concerning states’ obligation with respect to a situation conflicting with jus cogens have been brought into question by the ILC members.[13]To be exact, the bone of contention was whether it is justified to differentiate between the active and the passive state obligations, namely the “duty to cooperate” and the “duty not to recognize and assist”, depending on the gravity of breach of jus cogens norm. This approach conflicts with previous documents of the ILC (see article 41 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts). In spite of the departure from the wording used in the aforementioned article, it seems reasonable to support the Special Rapporteur’s insistence to differentiate between different states’ obligations. Imposition of a lower standard, namely, not to recognize and assist in any situation which resulted from a violation of jus cogens norms, should be regarded as a welcome novelty. Indeed, it would be completely absurd to consider the gravity of the breach of jus cogens in this situation and therefore give the impression that it is lawful to recognize and assist in situations where the breach of jus cogens norms is not considered “serious”.[14]

 

Yet, the real trigger for divergent opinions were the draft conclusions addressing specific aspects of jus cogens and international criminal law. They stipulated state obligation to prosecute in cases of commission of “jus cogens crimes”, i.e. crimes violating jus cogens norms, and the irrelevance of the immunity ratione materiae for those offences.[15]These findings involve a number of highly complex issues. Firstly, any suggestion on a universal agreement concerning the duty to exert universal jurisdiction for all jus cogens crimes is insufficiently proven. This is evidenced by the fact that many states have expressed a clear reluctance towards the existence of the aforementioned duty.[16]Secondly, the discussion on the (ir)relevance of immunity ratione materiae for jus cogens crimes has demonstrated a certain level of misunderstanding among the ILC members, e.g. concerning the difference between immunity from civil and criminal proceedings. More importantly, a clear line between state and personal immunity has not been emphasized sufficiently. As a result, the reference to the ICJ judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), as proof that there exists an exception to the rules on immunity,[17]appears inaccurate and unpersuasive. In this case, the ICJ has even explicitly stated that the only immunity in question is the immunity of a state, and that in any event, this should be considered without prejudice to the immunity of an official of the state.[18]

 

What comes next?

 

The ILC’s discussions on jus cogens are to be continued next year and many challenging questions will come into play again. According to the emphasis given to the issue, an illustrative list of jus cogens norms is to be expected sometime in the future.[19]Also, the need for a separate discussion on regional peremptory norms has been stressed on many occasions.[20]It would, therefore, be interesting to see how such norms could be subsumed under the current definition of jus cogens which stipulates them as “norms accepted and recognized by the international community of States as a whole.”[21]

 

Before concluding the present analysis, it is important to point out a core concern: it is evident that the ILC considers states’ consent and agreement to be crucial in all matters related to jus cogens. In this respect, it should be noted that the values protected by jus cogens are above states and their will, hence, their consent can never be the most relevant or the only decisive factor for their definition. Regardless of states’ perception of the peremptory norms, jus cogens should be perceived as principles which aim to protect the interests of the international community as a whole, and which therefore impose legitimate limitations to some other key principles of international law, such as stability of treaty relations, or the superior and binding nature of SC resolutions. While we do not wish to prejudge the accuracy of the ILC’s current approach, we wonder whether it is truly independent from state or political influence.

 

 

 

 

[1]The session ended on 10 August 2018 as provided by the UNGA Resolution 72⁄116 (7 December 2017) UN Doc A⁄RES 72⁄116, at para 14.

[2]For the full text of the proposed draft conclusions see ILC, ‘Third report on peremptory norms of general international (jus cogens) by Dire Tladi, Special Rapporteur’ (12 February 2018) UN Doc A⁄CN.4⁄714, at para 160.

[3]ILC, ‘Report of the ILC on the Work at its 70th Session (30 April–1 June and 2 July–10 August 2018) UN Doc A⁄73⁄10, at para 111.

[4]Ibid, at para 113.

[5]Apart from the individual ILC members, Mr. Tladi also raised similar concerns. Ibid, at para 153.

[6]See, e.g., ibid, at para 131.

[7]See full texts of draft conclusions 17, 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[8]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 154.

[9]See full text of draft conclusions 10 to 13 in ILC, ‘Third report’ (n 2), at para 160.

[10]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 119.

[11]Ibid, at paras 123–124.

[12]Ibid, at para 132.

[13]See full text of draft conclusions 20 and 21 in ILC, ‘Third report’ (n 2), at para 160.

[14]This argument was also introduced by the Special Rapporteur. ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 159.

[15]See full text of draft conclusions 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[16]Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the basic concept’ (2004) 2 JICJ 754. See also Dapo Akande’s response related to the topic: (…)“where universal jurisdiction is lawful the state exercising it will usually be permittedto prescribe globally. But it is not required to do so.” Galli Toma, ‘Universal Jurisdiction or Regional Lawfare’ (EJIL: Talk!, 1 June 2016)         <https://www.ejiltalk.org/universal-jurisdiction-or-regional-warfare/>  accessed 2 November 2018.

[17]See, e.g., ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 161.

[18]Jurisdictional Immunities of the State (GermanyvItaly, Greece intervening), Judgment, ICJ Reports 2012 (3 February 2012), at para 91. See also para 87 of this judgment.

[19]Ibid, at para 150.

[20]Ibid, at para 151.

[21]Vienna Convention on the Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 53.Jus cogensJus cogensJus cogens

Leave a comment

Filed under Public International Law