Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia“ , Andre de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence” and Zoran Oklopcic’s “Reflections on self-determination, and the status of Kosovo in light of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia“
Under the heading of ‘rescuing Russians as a case of self-defence’, the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia quite sensibly and with good cause rejects this claim on the part of Russia and observes that attacks on nationals or members of the nation abroad cannot be equated to an attack against the territory of a State. However, in its application to the specific case, it then observes (volume 2, p. 288) that:
“[t]he constitutional obligation to protect Russian nationals (…) cannot serve as a justification for intervention under international law. Domestic law can in principle not be invoked as a justification for a breach of an international legal rule” (italics not in original; the attached footnote 211 then refers to article 26 VCLT, which is probably intended as a reference to article 27 VCLT).
But the Report then surprisingly, not to say shockingly, appears to envisage the possibility that:
“[a]t most, domestic constitutional law could be invoked as a defence against obligations imposed on a state by international law if those obligations contradict core elements of the national constitution” [italics not in original].
The Report then claims that article 61(2) of the Russian Constitution, which proclaims that “[t]he Russian Federation guarantees its citizens defence and patronage beyond its boundaries”, is not a basic principle of Russian constitutional law.
Aside from the already mentioned fleeting reference in footnote 211 to article 26 VCLT, laying down the principle of pacta sunt servanda, the Report fails to address article 27 which precisely excludes an appeal to internal law as a justification for the non-performance of treaties (the reference in that provision to article 46 VCLT is not relevant for present purposes, as it only allows an appeal to rules of internal law of fundamental importance for the expression of consent to treaties). Nor is any thought given to the provision of article 3 of the Draft on the Responsibility of States for Internationally Wrongful Acts (DSR; cf. also article 32 DSR) which observes “… The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.” Similar provisions have been introduced into the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (article 27(2-3)), and the Draft on the International Responsibility of International Organizations (DIOR, adopted on first reading by the International Law Commission this year (article 31(1) DIOR; inclusion of a provision into the DIOR similar to article 3 DSR has been rejected by the ILC, cf. ILC, Report 2009, pp. 54-55).
What has moved the drafters of the Report to even consider allowing the invocation by a State of its own constitutional law as a justification for non-observance of international obligations cannot be fathomed. Though restricted, apparently, to an invocation of core elements or basic principles of a State’s constitution (or those constitutive of a national constitutional identity), the Report provides no authority or support whatsoever for its proposition. And in view of the ICJ’s more recent rulings in the LaGrand and Avena cases, it seem unlikely that any authority or support could be found. As all organs of a State may display conduct that constitutes a breach of an international obligation, and are bound as a matter of international law to give effect to such an obligation (cf. article 4 DSR and LaGrand, Order on Provisional Measures, para. 28, and Judgment, paras. 111-115), the rule of article 27 VCLT operates to prevent even a division of powers between the federal and state governmental institutions (cf. also article 29 VCLT), clearly basic to the national constitutional identity of any federation, being invoked as a defence. The position that internal law and in particular also a constitution cannot be invoked to justify non-performance of international obligations was already confirmed in the advisory opinion of the Permanent Court of International Justice (Treatment of Polish Nationals, Series A/B, no. 44, p. 24), in which it emphatically stated that: “… a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.”
Furthermore, the drafting history of article 27 of the Vienna Convention confirms that the reference to internal law comprises the constitution of a State party. In fact, the amendment proposed by Pakistan initially claimed “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith, and no party may invoke the provisions of its constitution or its laws as an excuse for its failure to perform this duty” (Vienna Conference, Documents, p. 145; adopted: 55 in favour, none against, 30 abstentions (Vienna Conference, First Session, p. 158)). Though certain hesitations may be observed on the part of the participants in the Vienna Conference in 1968-1969 to support the resulting provision (adopted: 73 in favour, 2 against, 24 abstentions; Vienna Conference, Second Session, p. 54), as to this particular point, the provision did find favour and only two States (Venezuela and Iran) expressed their opposition suggesting the primacy of their constitutional law over treaties. Two States (Venezuela and Guatemala) specifically attached reservations on this point, against which objections have been raised by certain other States (see here).
The rules given expression in article 27 VCLT and article 4 DSR, are broadly accepted as reflections of longstanding, existing rules of customary international law (cf. M. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009, pp. 374-375, and Commentary Article 4 DSR, YBILC 2001, Volume II, Part Two, p. 38, paras. 1-9), and may be deemed to be part of the international constitutional identity or meta-law on international norm-creation of international law at large. Indeed, any other construction than the inability to invoke the internal law, including the constitution, of a State would not be viable, since this would allow a State an (easy) escape of its own (unilateral) design from the observance of international law. Though in the present day and age many constitutions are entrenched and envisage their amendment by weighted procedures, the suggestion made by the Report would put a bonus on reconsidering such procedures in view of the possibility to invoke constitutional provisions against a State’s international obligations.