Transnational legal dialogue, a human rights-based hierarchy, and the creation of norms.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 2:30 p.m., Friday, March 26, 2010, by its moderator, Erika de Wet of the University of Amsterdam and the University of Pretoria, who introduced the panelists: Jutta Brunnee of the University of Toronto; Patricia Wald of the International Criminal Tribunal for the former Yugoslavia (retired); Eyal Benvenisti of Tel Aviv University; and Melissa A. Waters of Washington University School of Law.

INTRODUCTORY REMARKS BY ERIKA DE WET *

This panel considered legal dialogue among national, regional, and international actors and the ability of such interactions to create a human rights-based hierarchy in instances of normative conflict. In doing so, the panelists paid particular attention to the dialogue between domestic, regional and international courts and tribunals.

In essence, the issue of hierarchy is layered and complex. First, the panel was primarily concerned with a hierarchy within international law itself, rather than the relationship between international law and domestic (constitutional) law. Moreover, not all normative conflicts are that easy to identify, nor are all normative conflicts (whether explicit or hidden) necessarily resolved in a manner indicative of the existence of a normative hierarchy in international law.

An obvious normative conflict would describe those situations where giving effect to one international obligation would lead to the breach of another such obligation. A well-known example concerns the Soering line of jurisprudence of the European Court of Human Rights. (1) According to this line of argument, obligations under extradition agreements could not be given effect to if this would result in refoulement in terms of Article 3 of the European Convention of Human Rights.

Sometimes the conflict is more hidden, as it is disguised by means of interpretation, for example by interpreting either one or the other obligation narrowly. However, the manner in which such attempt at conflict avoidance takes place could tell us something about the attitude of the court in question about acknowledging the existence of a human rights-based hierarchy. For example, if it tends to give a very narrow scope to a particular human rights obligation or interprets the limitation clause very flexibly, this would indicate a reluctance to embrace such a hierarchy. A very human rights-friendly interpretation may, on the other hand, imply the opposite. However, one should also keep in mind that sometimes conflicts are resolved through classic treaty principles, which are not necessarily indicative of any hierarchy. Examples would include lex specialis or lex posterior. (2) A contested issue in this regard is whether Article 103 of the United Nations Charter would constitute a conflict rule or whether it represents normative hierarchy, as the Swiss Federal Tribunal assumed in the Nada case. (3)

To the extent that there seems to be a human rights-based hierarchy in (a particular subsection of) international law, the panelists were also asked to consider whether this was necessarily a good thing. They were asked to reflect, for example, whether it strengthened the unity of international law or had the opposite effect; whether it would be a manifestation of cultural imperialism; and whether dialogue between actors such as courts was a legitimate tool for the development of a hierarchy within international law.

* Co Director, Institute for International and Comparative Law Africa, University of Pretoria (South Africa); and Professor of International Constitutional Law, University of Amsterdam (The Netherlands). This contribution forms part of a project of the Netherlands Organization for Scientific Research (NWO) titled: The Emerging International Constitutional Order: The Implications of Hierarchy in International Law for the Coherence and Legitimacy of International Decision-Making.

(1) Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A), 11 Eur. H.R. Rep. 439 (1989).

(2) See, e.g., Marko Milanovic. A Norm Conflict Perspective on the Relationship Between International Humanitarian Law and Human Rights Law, 14 J. CONFLICT & SEC. L. 459 (2010).

(3) Youssef Nada v. State Secretariat for Economic Affairs and Federal Department of Economic Affairs (Administrative Appeal Judgment), Case No. IA 45/2007, BGE 133 II 450 (Nov. 14, 2007).

THE PROHIBITION ON TORTURE: DRIVING Jus COGENS HOME?

In a growing number of cases, domestic courts are confronted with arguments based on jus cogens norms, such as the prohibition on torture, and hence with claims invoking a human fights-based hierarchy of legal norms. However, it is not so clear that the increased legal dialogue in domestic courts, among domestic courts, and between domestic courts and treaty bodies, has strengthened the prohibition on torture or clarified its peremptory effect. I begin with some brief observations about the status of jus cogens in international law, and the manner in which its peremptory effects have been invoked in domestic courts. I then focus on three Canadian cases. Two of these, Suresh and Bouzari, involved the prohibition on torture. (1) The third, Hape, dealt with, among other things, the domestic effects of international law. (2)

JUS COOENS

The existence of a category of peremptory norms of international law is generally accepted. But aside from the fact that peremptory norms are non-derogable, (3) the legal effects that flow from the jus cogens status of a norm are far from settled. There is no clear state practice, and no unequivocal authority from the International Court of Justice, on any of the attendant issues. (4) Bluntly put, states have been largely unwilling to realize the normative ambition of jus cogens in international practice. Perhaps in part for this reason, individuals and human rights organizations have turned to domestic courts to scope out the legal ramifications of jus cogens, especially in relation to the prohibition on torture.

In hindsight, high-profile decisions, such as that of the British House of Lords in Pinochet, (5) seem to have done little to clarify the implications of jus cogens for jurisdiction and immunity in criminal cases. While much reference was made to jus cogens by the various Law Lords, the majority decision ultimately relied on the Convention on Torture and not on customary law. (6) In turn, in Congo v Belgium, the ICJ rejected the Belgian argument that the Congolese Minister of Foreign lacked immunity in respect of international crimes that amounted to jus cogens violations. (7) In recent civil cases, courts actually appear to be retrenching from bold assertions that violations of jus cogens imply waivers of immunity, let alone import exceptions to immunity. (8) Notably, in its 2006 decision in Jones, the House of Lords specifically rejected the argument that torture could not be an official act of the state and so did not attract subject-matter immunity. (9)

In all of these cases, the jus cogens arguments failed because the judges were not convinced that, under international law, peremptory norms had the legal effects that the various promoters of the cases were attributing to them. However, there is another barrier that the efforts to enforce jus cogens norms through domestic channels have encountered, at least in Canada.

JUS COGENS IN CANADIAN COURTS: DEROGATING FROM THE NON-DEROGABLE?

In its 2001 decision in Suresh, the Supreme Court of Canada went to great lengths to engage with the argument of the intervener, Amnesty International, that the prohibition on torture is jus cogens. (10) The case involved an appeal of a deportation order by a refugee who was a member of the Tamil Tigers, considered by the Canadian government to be a terrorist organization, on the grounds that deportation to Sri Lanka would expose him to the risk of torture. The government had argued that pursuant to the Canadian Immigration Act, it could return a refugee who was a danger to national security.

Although the Court carefully examined international authority on the peremptory nature of the anti-torture norm, it ultimately declined to pronounce on its status in international law, noting that the parties to the case had not asked it to do so. (11) Lawyers for Suresh had based their case on the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights. The Supreme Court confirmed that both treaties contained a non-derogable prohibition on deportation to torture and concluded that "international law rejects deportation to torture, even where national security interests are at stake." (12) And yet it went on to conclude that Canadian law permitted deportation to torture in "exceptional circumstances." (13) How was this possible? The question before the Court was whether the provision of the Immigration Act that permitted deportation on national security grounds was compatible with the Canadian Charter of Rights and Freedoms, which required that limits on "life, liberty and security" of a person accord with the Charter's principles of fundamental justice. In keeping with a long line of decisions, the Court observed that:

International treaty norms are not ... binding in Canada unless ... incorporated into Canadian law ... However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada's international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling itself. (14) The conclusion that the Charter's principles of fundamental justice generally (but not always) preclude deportation placed the Supreme Court at odds with other national and international legal actors. For example, the House of Lords and the new UK Supreme Court both held that no deportation to torture is possible. (15) The same conclusion was reached, in explicit rejection of Suresh, by...

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