A Framework for Equitable Humanitarian Intervention
5
A Framework for Equitable Humanitarian Intervention
I. INTRODUCTION
THIS CHAPTER WILL be dedicated to combining the lessons learned thus far in our discussion of humanitarian intervention in international law and those learned in our discussion of equity as a sub-set of the third source of international law. If equity is truly an elemental category of general principles of law, then why is the concept so rarely upheld as a means of solving legal conundrums? In particular, in the heat of the debate surrounding NATO’s Kosovo operation, when respected scholars were throwing the legal rule book out the proverbial window, why did no one reach instead for the sources of international law and outline the fact that neither equity nor the broader category of general principles had even been discussed in relation to one of the great legal disputes of recent years? Why, when the two more frequently invoked sources of international law provided such unsatisfactory answers, did scholars turn to political, ethical and moral theory, rather than invoking the third source in order to shed light on the subject? More importantly, perhaps than all of the above is the question: does this ‘third source of international law’ indeed have something to say about the issue of humanitarian intervention, or were Cassese, Simma et al wise not to raise general principles in their argumentation?
The above questions will be treated in detail in this chapter. Briefly, however, it is my contention that the turn to ethical theory on the part of the international legal community was the result not only of an inability to square the United Nations Charter regime on the use of force with their consciences, but also of an unfamiliarity with the import of general principles of law, and with equity as a corrective mechanism and gap-filler in particular. Perceived as a supplementary source of law by many,1 hardly discussed in most modern treatises on international law,2 and particularly disregarded in scholarship since the advent of the ius cogens category, general principles are hardly in fashion.3 Cheng’s 1953 text remains perhaps the leading general source on the subject.4 However, the popular perception of general principles as an afterthought, conceived to prevent a non liquet in the World Court, is dreadfully misguided. General principles represent a normative category with real teeth. Every international agreement is predicated upon the fundamental doctrine of good faith. Substance has been preferred over form both by the United Nations Security Council and by the World Court on multiple occasions. These are principles that are so fundamental, so elementary, that they are rarely remarked upon or discussed in any detail. However, their effect is so important that without them, international agreements would cease to have structure or binding effect. It would seem somewhere between farcical and impossible to conclude a treaty between two States which expressly excludes good faith doctrine. Such a doctrine, and indeed other general principles of law such as the doctrine of abus de droit, seem so inherently necessary to any bilateral or multilateral undertaking, that far from being subsidiary and a mere afterthought, they are so fundamental that dispensing with them, even if expressly convened upon by States, would seem (near-) impossible. Though perhaps not normatively superior, their fundamental nature and the necessity of considering such norms in the solution of legal disputes is undeniable, and the (quasi-) impossibility of contracting out of at least a portion of such norms renders them a curious category, but one that is undoubtedly important.
If we are indeed to craft an equitable framework for humanitarian intervention based upon general principles of law, a discussion of general principles and their relationship with other sources of international law will certainly be necessary. Therefore, the first portion of this chapter will be given over to a treatment of this relationship and its various elements. Thereafter, it is my intention to show that such general principles of law allow for the possibility of a third exception to the prohibition upon the use of force by States as prescribed by Article 2(4) of the UN Charter. This shall be discussed in the second half of this chapter.
II. THE RELATIONSHIP BETWEEN EQUITY, GENERAL PRINCIPLES AND OTHER SOURCES OF INTERNATIONAL LAW
This section will seek to clarify to some degree the rather problematic position of where general principles of law fit into the international legal system. This shall be discussed with reference first to treaty law and customary international law, and then with reference to the more complicated categories of human rights and ius cogens, which are of particular interest to us in relation to this study. Such an examination should provide context for how and when general principles may be applied.
Before beginning, it is, however, perhaps germane to note one area that will not be treated in detail in this chapter, namely the relationship between general principles and natural law in the international legal sphere. Whether or not general principles have much in common with natural law doctrine – as Lauterpacht and others have argued – is essentially irrelevant for the purposes of this discussion, or, at best, an interesting aside. The fact is that, natural heritage or not, the content of certain norms such as good faith, estoppel/préclusion, and the abuse of rights have found favour in a broad majority of legal systems in all the legal families worldwide. They have further been upheld as having normative value in judgments of the ICJ and PCIJ. It is upon these principles that I base my argument, without wishing to make subjective value judgments about whether international law is an open or closed system, or whether the general principles category represents ‘natural law by the back door’. Of course, failure to discuss the connection here, despite some basic attention to the nexus between the concepts attempted in chapters two and four, lays this work open to categorisation as the work of a natural lawyer attempting to utilise formalist logic in order to import natural law reasoning – disingenuously disguised as source-based formalism – into the debate on humanitarian intervention. However, in reality, this is far from the case. In eschewing a deeper discussion of the links between natural law theory and legal sources, I am endeavouring to avoid falling into the moralist ‘trap’ that so many of the scholars I roundly criticise in the first chapter have seemed to find themselves in. The rules used in this chapter are general principles that have found favour across the globe in domestic law, and that have been transposed into international law, as evidenced by the pronouncements of the World Court. Deep value judgments regarding their relation to the development and doctrine of natural law would neither add to, nor take away from, their normative value, but might well distract from the central thrust of this chapter. The fact is that the treatment delivered herein endeavours to garner wisdom derived from reliable legal sources – rather than aspirational moral values – in order to solve a legal problem.
A. General Principles, Treaty and Custom
The relationship between general principles and the two other principal sources of international law is an important one, particularly since no formal hierarchy exists to distinguish the three sources. Therefore, establishing a hierarchy between individual norms is extremely difficult in practice. Although general guidelines, such as the lex specialis and prior in tempore, potior in iure principles exist as general guidelines, their application is curtailed, as Sadat-Akhavi has noted, by the largely conventional nature of international law: ‘Rules of international law are set out in universal, regional and bilateral treaties. Such concepts, which do not exist at all in national laws, totally change the picture of the conflict-resolving process’.5 The prior in tempore, potior in iure rule was set aside, for example in the Mavrommatis Palestine Concessions judgment, while the lex specialis rule was, in this instance, upheld.6 It would seem that the absence of a central legislative authority renders the transposition of such rules to the international sphere tricky at best. Further, in assessing the relationship between general principles and treaty law, it is important not to forget the rules on treaty interpretation, set out in the 1969 Vienna Convention, and discussed in chapter two.
Aside from the above, it would seem that while the lex specialis principle may be suited for dealing with conflicts between treaties, and indeed to an extent to conflicts between treaties and customary international law, it is relatively inadequate in treating some – though not all – cases of conflicts between treaties and general principles.7 Such a conclusion follows the position which is prevalent in national legal systems. Taking, for example the French Code civil as an example of the tendency in continental European legal systems toward legislating for every eventuality, it would seem that the need for general principles should have almost disappeared, or at least that their applicability would be entirely effaced by the leviathans of specific law, due to the lex specialis legi generali derogat principle. This, however, has not been the case. French lawyers have continued to find a place for good faith and equity in both legal arguments and judgments. Certain general principles have themselves been written into the Code, further reinforcing their continuing presence in the law.8 Practice has shown that specific clauses in the Code will rarely, if ever, derogate from these general principles (though it is worth observing, for clarity’s sake, that other general principles are frequently derogated by specific law). The same is true in common law systems, although a limited exception in both cases may exist in the case of strict liability (responsabilité sans faute), though both legal systems (exceptionally) justify the doctrine on the basis that one voluntarily and knowingly takes responsibility for the things which are under one’s control (sous sa garde) and which are likely to be inherently dangerous. For example, for wild animals kept in captivity (such as lions or bears), called animals ferae naturae, the common law presumes the owner’s scienter of the danger the animal represents.9 Such a model, involving voluntary assumption of responsibility in all circumstances, effectively serves as a conscious waiver of rights on the part of the individual who is responsible for the dangerous animal, preserving the import of general principles, generally, but waiving the rights which arise from them in this instance.
Without the lex specialis principle as a useful aid in resolving conflicts between sources of law, we are forced to examine the nature of general principles themselves. As Sadat-Akhavi has lamented, the main problem of general principles of law vis-à-vis other legal sources lies not in their characterisation, but rather in their effectiveness, or lack thereof, in resolving conflicts between sources. He cites three main problems: first, that general principles are often ‘self-effacing’ insofar as they frustrate their own application; secondly, that certain ideas such as lex specialis and lex posterior often contradict one another with no obvious ‘winner’; and thirdly, that they are, by their very nature, vague and not entirely concrete, making founding legal solutions upon them rather difficult.10 Charles Rousseau has voiced similar concerns.11 Nonetheless, if one examines national legal systems and their methods for dealing with general principles of law, and one further takes into account the practice of the PCIJ and ICJ in this regard, one may be assuaged. As Bassiouni has noted, general principles are unlike other legal rules, in that the focus should fall more upon their functions than their specific content.12 Such principles aim for a given goal, a given solution, and are, in the main, less bound by rules of form than other legal norms.
Despite the inherent flexibility of such principles, however, it is clear from their genesis in national legal systems that they may interact with other norms in a variety of ways, either as an interpretative source for other norms, as a legislative guide for developing new law, as a supplemental source and gap-filler, or occasionally as a modifier or superseding normative category. This is also the case in international law, where general principles may be used infra legem, praeter legem, or contra legem, though the latter category is controversial.13 However, particularly as regards equitable principles, there is little reason to exclude the possibility of application of general principles in derogation of treaty or customary international law. Rossi has pointed out that such a position would represent the transposition of classical doctrine regarding equity’s operation to the international sphere.14 In the previous chapter, we demonstrated the reception of equity into international law by way of international legal practice. If such principles have been received by the World Court and are accepted by States, there is no reason to suppose that they should function any differently at international level to national level. Such a position would be inconsistent with the nature of such principles and would therefore rob them of a significant portion of their function. Furthermore, it is clear that the drafters of the PCIJ Statute were aware of notable arbitral cases such as The Neptune15 and L’Affaire Yuille, Shortridge et Cie,16 where general principles had been held to derogate from the written law. In drafting the PCIJ (and later the ICJ) Statute without explicitly excluding the possibility of contra legem application of general principles, the learned Advisory Committee of Jurists was expressing the opinion that the law had not changed in this regard. This position was reinforced by subsequent arbitral judgments,17 and by pronouncements from within the World Court itself.18
The fact that contra legem application of general principles has not found frequent application in the judgments of the PCIJ and ICJ should not come as a surprise, however. The nature of the aforementioned arbitral awards was usually one of fairly exceptional circumstances. The cases which have come before the World Court have, in the main, been, at least relatively speaking, fairly mundane and somewhat more predictable in terms of the legal issues at stake. Further, there is the issue of judicial reluctance to explicitly make reference to general principles of law to consider. If general principles are the controversial category which may only enter ‘by the back door’, then contra legem application of such principles is the ultimate taboo. Nonetheless, neither this reluctance on the part of the World Court, nor Cheng’s mistaken omission of contra legem applicability from his ‘list of functions’ of general principles is indicative of the truth of the matter. The oversight of a leading scholar and the cowardice of a court cannot be used to pervert the law. The evidence is clear, and international law has not substantially changed in terms of its conception of the sources of law and their function since the arbitral awards of the 1920s. Classical doctrine has undoubtedly been transposed to international law, particularly as regards equitable general principles, as Bassiouni and Rossi have rightly argued.
While mapping out when and where treaty and custom may feel the influence of general principles of law is extremely difficult, partly due to a recalcitrant ICJ, and partly due to a lack of detailed scholarly attention to the subject, it is sufficient for our purposes to note the normative parity which the three sources enjoy, the possibility of infra-, praeter-, and contra legem applicability of general principles, and the controversial, rare, and exceptional status of the latter – and to a lesser extent the second – of these categories.
B. General Principles and Human Rights Norms
If the situation regarding the relationship between general principles of law and treaty and customary international law is somewhat unclear, then the relationship between general principles and human rights norms is even more so. This is particularly the case in the context of our present discussion. The regime surrounding the use of force by States deals with the rights and obligations of States as actors in international law. Human rights, on the other hand, are primarily the preserve of individuals, and have little prima facie bearing upon the duties that States owe to one another.
To present such a picture is, however, both over-simplistic and inaccurate. Individual rights have come a long way in a short time in international law, from a position in 1924 where the PCIJ asserted that
[i]t is an elementary principle of international law that a state is entitled to protect its subjects … Once a state has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the state is [the] sole claimant.19
Here, the PCIJ effectively held that in such cases, although the subject-matter of the claim is the individual and/or his property, the legal claim in international law is essentially that of the State, which may exercise its sovereign discretion as to whether to uphold such a claim against the offending State(s). While the above case concerned diplomatic protection of individuals, the principles laid down in the judgment might have been applied to any individual rights which were internationally opposable at the time. However, human rights have developed a real life of their own since the 1920s. Particularly in the aftermath of the Second World War, significant strides were made to impose real and binding obligations upon States to respect the rights of individuals.
Inspired to some degree by the ‘Four Freedoms’ enunciated by Franklin Roosevelt,20 the United States pushed for the inclusion of a reference to human rights in the Charter of the United Nations, despite some resistance from the United Kingdom and the Soviet Union.21 Eventually, the American position prevailed, and references to human rights were inserted into both the Preamble and the Purposes Clause of the Charter. This purpose was to be pursued, at least at first, by the elaboration of an international bill of rights, which President Truman promised ‘will be as much a part of international life as our own Bill of Rights is part of our Constitution’.22 This was a bold promise. The American Bill of Rights is a series of 10 amendments to the Constitution, appended to the main text in order to secure fundamental freedoms for the citizens of the United States. Forming part of constitutional law, it is superior to federal legislation and is directly opposable by individuals against other individuals as well as against the State. It creates rights and obligations, and may be used as a basis for action by any private person in court.
Truman’s vision has not yet come to proper fruition, but enormous progress has nonetheless been made. The ‘international bill of rights’ was watered down to a declaration – the Universal Declaration of Human Rights (UDHR), due to ideological opposition between West and East over its content. Instead of a binding treaty, the international community crafted something which, ‘on its own … represented little more than an exhalation of hot pious air’.23 Despite this somewhat justified criticism, the UDHR transpired to be enormously important, precisely because it did not need to stand alone, as States began to adopt international treaties which protected a variety of human rights. The UDHR has served as the foundation for two binding UN human rights covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and the principles of the Declaration are elaborated in international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of Discrimination Against Women, the United Nations Convention on the Rights of the Child, the United Nations Convention Against Torture and others besides. Due to these more recent developments, the aspirations enshrined in the UDHR have acquired normative force, with many leading commentators contending that the vast majority of the UDHR is now part of the corpus of customary international law.24 From a watered-down bagatelle, the UDHR is now an oft-cited normative powerhouse, providing a series of rights that are legally opposable by individuals against States.
The treatment of rights provided above is admittedly very brief. A more detailed history of the evolution of human rights norms can be found in any generalist public international law treatise, as well as in the myriad specialist texts on the subject. Where progress in the field has fallen short, however, is regarding enforcement mechanisms. The Universal Declaration on Human Rights provides that
everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.25
While national tribunals provide recourse, to varying degrees, to individuals for wrongs committed against them by the State, there exists no global ‘World Court of Human Rights’ to which one may appeal for relief for human rights violations occasioned by one’s own State or by another State.26 In certain regions, arrangements such as the European Convention on Human Rights and the Inter-American Convention on Human Rights have been put in place, which provide for an international human rights court to which individuals may petition. Nonetheless, such courts, while commendable in and of themselves, are of regional jurisdiction only, and do not provide a universal solution. While human rights have taken root and established themselves in the international legal sphere by way of treaty and customary international law, upholding and enforcing such rights against States remains problematic.
The relationship between human rights and general principles of law is multi-layered. The Corfu Channel case would seem to provide evidence that general principles of law are, in and of themselves, a source of certain human rights norms, with its reference to ‘elementary considerations of humanity … even more exacting in peace than in war’ as part of the dispositif in its judgment.27 The scope of this human rights component within the general principles corpus has not, however, been explained by the Court, nor indeed the precise legal principles upon which such rights are grounded. If we are to understand that such elementary considerations of humanity derive from general principles of law recognised by the majority of States with developed legal systems, then their basis is murky indeed, since conceptions of what constitute elementary considerations of humanity are quite varied amongst the constitutional and statute law of the world’s legal systems. A comparative analysis of from whence such principles emerge, and their normative content at national level is beyond the ambit of this modest study, though happily for our purposes, a thorough examination of their import and existence is unnecessary. Simply acknowledging that the general principles of law category incorporates some limited human rights content is sufficient for now.
The second tenet of the relationship between human rights and general principles, beyond what can be stated about the relationship between general principles and any rights arising from treaties, is more important for our purposes. This is the idea that general principles may enhance the effective protection of individual rights. Such enhancement may take a variety of forms, but ultimately, the strength of general principles of law is that, by enlarge, they apply across the spectrum of general international law, and therefore principles such as good faith, ubi ius, ubi remedium, the doctrine of abus de droit and estoppel must necessarily have a role to play in human rights cases. Perhaps the best example of general principles being applied in the World Court came in the Jurisdiction of the Danzig Courts Advisory Opinion, where the principle nullus commodum capere de sua iniuria propria was applied. Here, the Permanent Court held that
it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and enforceable by the national courts.
This being the case, Poland could not claim that the Danzig courts were not entitled to apply the provisions of the Beamtenabkommen simply due to its own failure to transpose the relevant provisions of the treaty into its national law. The Court therefore held that States may not derive profit from their own misdeeds.28 A general principle was of law providing the justification for the Court to compel a State to give effect to individual rights.
The idea that general principles may enhance the actionability or effective protection of individual rights has become both increasingly relevant and increasingly important in recent decades. As human rights have gradually acquired a firm normative footing in international law, their potential to interact with general principles of law, and particularly with equity, has increased. It is not the nature of either category to perfect imperfect rights or titles,29 but when such rights are already properly founded in law, equity and general principles may give effect or afford protection to such rights. A treatment of how this may be relevant to the idea of humanitarian intervention will be discussed later in this chapter.
C. General Principles and Ius Cogens
Finally, it is necessary to turn our attention to the relationship between the ‘general principles of law recognised by civilised nations’ and the still-controversial category of ius cogens. Little attention has been paid to any potential nexus between these categories, and at first glance, this is hardly surprising. After all, ius cogens may be labelled as the ‘hardest’ normative category in the international legal sphere – a non-derogable core of peremptory norms – whereas general principles conversely represent the ‘softest’, since they are comparatively malleable, vague, and may be adapted to the circumstances of a given case. The two categories would seem to be poles apart, and have little to do with one another, except to note that when they conflict with one another, ius cogens, as a peremptory normative category, must always prevail.
However, such a simplistic conception of the relationship between the two categories is misguided at best. Bassiouni has noted a link of sorts between the two categories, but one that is not easily defined or framed. He has linked the demise of scholarship on general principles to the advent of the ius cogens category, which holds more promise for legal scholarship, a more enticing category, which has devoured much of the theoretical impetus that would otherwise have been directed at general principles of law.30 The trouble with charting a clearer link in normative terms between the two categories is that they are both substantially unclear, with their boundaries and functions, to some degree, at least, both controversial and still in dispute. As regards general principles, our study has already charted how and why this is so. Concerning ius cogens, however, the problems are not entirely dissimilar.
Chief amongst the problems that beset the ius cogens category is the doctrinal debate, which has been both ambiguous and confusing. Anthony D’Amato sarcastically branded the sheer ephemerality of ius cogens ‘an asset’, remarking that it enables ‘any writer to christen any ordinary norm of his or her choice as a new ius cogens norm, thereby in one stroke investing it with magical power’.31 Andrea Bianchi has echoed such a position, describing international lawyers as ‘magicians, administering the rites of ius cogens and invoking its magical power’.32 D’Amato notes that ius cogens lacks a real substantive content of its own, and that the views of publicists – which are by no means uniform – have developed an added importance in the determination of what this category entails, since States and international courts are not inclined to refer to it as often as they might. Bianchi agrees, citing the fact that the ICJ chose instead to refer to obligations erga omnes in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, but noting, contrastingly that in the recent Congo case, an important legal issue – here the Court’s jurisdiction – was settled with reference to ius cogens.33 Both authors have drawn attention to the underlying issue that while international treaties, most notably Article 53 of the Vienna Convention on the Law of Treaties, have prescribed the existence of the ius cogens category, it has fallen to legal scholarship to devise which norms may fall within its ambit.34
Parker and Neylon have noted that it has become a common assertion in international legal scholarship that most (but not all) of the human rights corpus now holds the status of ius cogens.35 The boundaries of which human rights norms do and do not fall under this heading are, however, in some dispute. However, it seems to be generally agreed that (at the very least) the prohibition of torture;36 the prohibition of maritime piracy;37 the prohibition of genocide;38 that of slavery and those of war crimes and crimes against humanity39 all represent cogentes norms.
The ius cogens status of the prohibition upon the use of force is a slightly more complicated matter. It is certainly true that an overwhelming majority of leading scholars view the prohibition as peremptory in nature.40 The International Law Commission (ILC) has also adopted this position.41 While the World Court has been recalcitrant about referring to the peremptory category of norms, it did state in the Nicaragua judgment that the prohibition upon the use of force by States constituted ‘a conspicuous example of a rule of international law having the character of jus cogens’.42 However, it is important to note here, as James Green has done, that the Court in this case was merely quoting (albeit seemingly approvingly) an earlier statement of the ILC.43 Green notes the myriad problems associated with the classification of the prohibition of the use of force as a peremptory norm, including the inherent flexibility of the law on the use of force, the variety of associated rules and sources, the debated exceptions and the uncertain scope of the regime.44 Further, Nikolas Stürchler has noted that Article 2(4) places the prohibition of the threat of armed force on a normative par with the prohibition upon its active use by States, while further observing that this position is not borne out by the practice of the community of States.45 In order to eschew the complicated, contradictory, and occasionally paradoxical reasoning brought about by conceiving of the prohibition upon the use of force by States – incorporating its accepted (flexible) exceptions, State practice and extraneous norms – as a norm of ius cogens, Orakhelashvili prefers to conclude that ‘the ius ad bellum as a whole is peremptory’.46 However, this approach is itself problematic, as Green notes, since the ius ad bellum is not a norm, but rather a network thereof.47 For the purposes of the present discussion, it would render any potential derogation from the general prohibition upon the use of force significantly easier to justify if one were to qualify it as anything less than a peremptory norm. However, despite the legitimate concerns voiced by Green and others as to such a classification, the overwhelming majority of legal opinion would appear to hold to the position that the prohibition is peremptory in nature, and thus it is not the intention of this work to contest its ius cogens standing to any significant degree.
While a certain central core of norms are rarely disputed (particularly since the collapse of the Soviet Union) as having peremptory character, ‘frequent references to ius cogens, or in its other appellation, “peremptory norm”, or the undisciplined use of such terms as “compelling”, “inherent”, “inalienable”, “essential”, “fundamental” and “overriding” does not contribute greater clarity to the concept’.48 Yet such language is frequently used by legal scholars. Bianchi notes the pitfalls inherent in such frequent invocation of the category, stating that ‘one of the major threats to the concept of ius cogens is the tendency by some of its most fervent supporters to see it everywhere’.49 The dangers of emotive language and moralising in international legal scholarship have been thoroughly discussed (and condemned) in chapter one, due primarily to the subjectivity that necessarily accompanies any non-normative language in such contexts. Further dilutions of clarity may occur when standard definitions of certain terms are taken exception to by States in order to eschew clashing with ius cogens norms through redefining them. This has been much discussed with reference to the United States and the notorious ‘torture memos’ in the context of the ‘war on terror’, whereby a limited definition of torture was adopted in order to allow practices which would normally be outside the boundaries of law.50 Such subjectivity – on both sides – leads to a regrettable dilution of legal certainty, which is of added importance in the international legal sphere, due to the absence of a central law-making authority, rendering any certainty which is achieved delicate and easily upset by reckless scholarship or unscrupulous governments. Loss of legal certainty may upset international order as States adopt different flexible interpretations of what was formerly a single standard rule, leading to conflict.
This is not the only characteristic that is shared between general principles and ius cogens norms. While general principles are normally branded as being the ‘softest’ of the principal norms of international law, and ius cogens norms the ‘hardest’, such a position amounts to something of an oversimplification of reality. While general principles may sometimes be more malleable, and while they will certainly be the subject of derogations on the basis of the lex specialis principle, for example, as discussed above with reference to treaty law, others are unlikely to bend to more specific norms. This is certainly the case with the principle of good faith, which would seem to be essentially non-derogable. Further, certain principles of equity are, by their very nature, derogatory, in that their sole function is to derogate more specific norms. This is certainly the case with estoppel, the doctrine of abus de droit and the prioritisation of substance over form. All of these principles may derogate specific legal provisions, be they treaty law or something else. This power derives from their nature at national level, which has been transposed to the international legal sphere, and which has been applied in concreto in cases before the PCIJ and ICJ, as discussed in chapter four. Therefore, despite their prima facie ‘softness’, general principles occasionally have the ability to stand firm against other sources. Whether this is the case as regards ius cogens, however, is a tricky question.
This may not be the end of the story, however. At domestic level, purposive interpretation of constitutional norms has led to certain judges expressing the opinion that formal legal hierarchy may be derogated from in extreme cases on the basis of abusive invocation, for example, of temporary constitutional provisions concerning emergency powers, due to its conflict with general legal precepts such as good faith and the prohibition of abus de droit. Whether general principles may be employed against ius cogens norms in international law in the same manner in which they have been employed against constitutional and other fundamental norms at national level is debatable, but such a possibility cannot be entirely excluded. In order to determine whether such an approach may be possible at international level, it is necessary for us to have due regard to at least one instance in which general principles and overriding interests have been invoked as a means to override constitutional norms at national level. The best examples of such instances are in the rare cases where the constitutionality of constitutional amendments has been put into question by national courts. By carefully examining such cases, it may be possible to understand whether the approach used in such cases may be transposed to international law or whether such an idea is misguided. There are, perhaps, three categories of such cases, which may be distinguished. The first refers to cases where certain provisions of a Constitution are specifically referred to as being ‘unalterable’, and are then altered. The second refers to situations where a Constitution is amended without the proper procedure, that is where amendment requires a two-thirds electoral majority, and an amendment is appended on the basis of only a simple majority. Such situations, while not entirely uninteresting, are largely irrelevant for the purposes of our study. It is the third category, however, from which some guidance may be gleaned, namely the rare and controversial occasions on which the constitutionality of constitutional amendments is challenged due to their content and its incompatibility with implicit and unwritten fundamental principles of whatever nature. Such cases are few and far between, but examples of discussions in this regard do exist, and I shall proceed to furnish a brief discussion of a number of them.
D. Unconstitutional Constitutional Amendments
One recent prominent case relevant to our discussion is that of the Anayasa Mahkemesi (Constitutional Court of the Turkish Republic) of 5 June 2008. Here, the Court issued a decision annulling Parliament’s amendments to the 1982 Constitution regarding the principle of equality and the right to education; the goal of Parliament having been to abolish the ban on headscarves in universities.56 The Court held that such an amendment was unconstitutional, since it infringed upon the principle of secularism, which was constitutionally protected. While the idea of an unconstitutional constitutional amendment might seem in and of itself a self-contradictory concept,57 many scholars have argued that fundamental values which constitute the embodiment of – and are essential to – the meaning and purpose of a Constitution may not be altered, at least beyond a certain point.58
Theoretical bases for limitations upon which constitutional provisions may be amended are too varied to be explored in full here. However, it is worth mentioning one of the more dominant and enduring arguments, presented by l’Abbé Sieyès, who distinguished the constituent power – the extraordinary power stemming from the immediate expression of the nation – from the constituted power – the power created by the Constitution. Per Sieyès, these two powers exist on different planes, and while the Constitution may grant the constituted power the ability to amend the Constitution, it may not alter the fundamentals established by the constituent power, or may not enact amendments which go so far as to overthrow the fundamental aspects of the Constitution.59 French constitutional ideals and those of the Francophonie have been heavily influenced by this thinking. While French and other Constitutions up until the current 1958 Constitution de la Vème Republique have incorporated ‘unamendable’ provisions (such as Article 89 of the 1958 Constitution dealing with the republican form of government60), Sieyès’ theory has also been used to argue for the existence of implicitly unamendable constitutional provisions.61 Carl Schmitt seized upon Sieyès’ terminology, arguing that a distinction must be drawn between the constituent power and the amendment power; the former being the power to establish a new Constitution, whereas the latter is the power to amend the Constitution in force, which, like every constitutional authority, is necessarily limited in scope.62 For Schmitt, broad amendments could be made, but not revisions to the fundamental political decisions forming the substance of the Constitution. For example, a constitutional amendment transforming a democratic State into a totalitarian monarchy would not be constitutional.63
From the twentieth century onwards, cases concerning unconstitutional constitutional amendments often concerned basic rights, either enshrined explicitly as unamendable or implicitly argued to have this status. Article 79(3) of the German Grundgesetz, for example, prohibits amendments affecting human dignity, the constitutional order, or the basic institutional principles establishing Germany as a democratic State. Other protected principles included the separation between Church and State,64 Islam as the State religion,65 democratic governance,66 and the separation of powers.67 These provisions rarely found themselves challenged, except in specific jurisdictions and circumstances, such as the long-running controversy in Turkey between the secular Constitution and the ruling AKP party which wishes to abrogate elements of its secularism (laiklik). Instead, the elevation of basic fundamental rights to potentially unamendable constitutional norms formed the centre point for much of the debate in this field. Turkey is nonetheless an interesting case, since the Anayasa Mahkemesi has seen fit to review the constitutionality of constitutional amendments with regards to their substance, despite the fact that the 1982 Constitution restricts such review to a review on formal grounds (Article 148(1)). This process is indicative of a broader trend amongst courts in such circumstances, which will set aside formal rules as regards procedure and jurisdiction when the values at stake in the case at hand are of such magnitude that to do otherwise would be profoundly unjust and contrary to the spirit of the law. This trend mirrors the principle that equity looks to the substance rather than the form, and is itself mirrored by the reasoning of the ICJ in the Nicaragua jurisdiction hearing, discussed earlier.
In recent decades, however, fundamental rights have played a leading role in cases where the constitutionality of constitutional amendments has been questioned. In the Indian Supreme Court, for example, in the celebrated GolakNath case, it was found – albeit obiter – that no amendment which violated the fundamental rights provisions of the Indian Constitution would be held constitutional.68 The argument underlying the Court’s reasoning ran thus: per Article 13(2), any law abridging these rights is void. The Court decided that a constitutional amendment was itself a sort of ‘law’, and hence must be held void if it purported to abridge said rights. Further, in Kesavanda Bharati v State of Kerala, the Supreme Court, although overruling GolakNath (holding that ‘law’ does not refer to a constitutional amendment), nonetheless held that ‘the power to amend the constitution does not include the power to alter the basic structure, or framework of the constitution so as to change its identity’.69 This ‘basic structure’ doctrine was used as a bulwark to protect, inter alia, fundamental rights. After Kesavanda, the Indian Supreme Court used the doctrine on four further occasions to strike down the validity of amendments to the Constitution.70 The rationale for this continued invocation was best expressed in the Minerva Mills case: ‘If by a constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it’.71
The idea of a limited amendment power is also prevalent in many African legal systems. Here, the influence of the French and Portuguese traditions on this subject is quite clearly evident, particularly in Francophone76 and Lusophone77 States. However, the theory has not been universally adopted throughout the continent78 although the theory has been influential in South Africa. The Indian legal system was a significant source of inspiration for the drafters of the South African Constitution; ergo this should not come as a great surprise. However, the Indian basic structure doctrine has not been fully and formally incorporated into South African law by the Constitutional Court, despite positive reference to it by the judiciary.79 A revealing statement was made by the Court in the case of Premier of KwaZulu-Natal v President of the Republic of South Africa. Here, Mahomed DP, with the rest of the judges concurring, stated that: ‘It may be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the constitution, might not qualify as an “amendment” at all’.80
This position, although case law on the subject is sparse, has received broad approval throughout a variety of African jurisdictions.
E. The State (Ryan) v Lennon
The case in question centred on the 1922 Constitution of the Irish Free State. The fledgling State was still feeling the reverberations of the 1921–22 Civil War and public unrest was still rife throughout the 1920s. As a result, a number of Public Safety laws were enacted, which provided for internment as well as for trials by military tribunal.82 Such emergency measures did not sit easily with the guarantee of personal liberty which was enshrined in Article 6 of the Constitution and the Article 70 limitations on the power of military tribunals.83 Such measures were made possible by an extraordinary provision which had been inserted into the Constitution, providing for its amendment by way of ordinary legislation for a period of eight years after its enactment. This power had been inserted at the 11th hour, and was justified by the document’s chief draughtsman, Hugh Kennedy, the Irish Chief Justice, as useful ‘so that drafting or verbal amendments, not altogether unlikely to appear necessary … might be made without the more elaborate process proper for the purpose of more important amendments’.84 Kennedy was later to lament his own draughtsmanship in this regard, since such a provision was to pave the way for alterations ‘far removed in principle from the ideas and ideals before the minds of the first authors of the instrument’.85 The most striking of such alterations were achieved under the Constitution (Amendment No 16) Act of 1928 and the Constitution (Amendment No 17) Act of 1931. The former extended the period allowing for constitutional amendment by ordinary legislation from 8 to 16 years, and the latter, enacted in the extended period, introduced a new Article 2A into the Constitution. The content of this new Article was expansive, with 5 parts, 32 Sections and an Appendix, but importantly, it provided for a standing military tribunal, composed of army officers selected by the executive, which was empowered to try any offence which was referred to it (again, by the executive), from which there might be no right of appeal, and which was empowered to impose any penalty, including death, even if this contradicted ordinary law. Furthermore, Article 2A stated that all other Articles of the Constitution should be construed subject to those of Article 2A, and if irreconcilable differences arose, Article 2A should prevail.
The case involved an appeal from the High Court by several persons who had been arrested and tried under the provisions of Article 2A, and who wished to dispute its constitutionality on the basis of the unconstitutionality of the two aforementioned constitutional Amendment Acts. It has been described as a ‘jurisprudential goldmine’, an assessment with which I warmly concur.86 It pits a resort to higher principles – mostly through an invocation of natural law – by the Chief Justice and drafter of the Constitution, Hugh Kennedy, against a reluctant, sarcastic, but strictly positivistic reading of the two offending amendments by FitzGibbon and Murnaghan JJ, and while its relevance in a discussion of the legality of humanitarian intervention may not be entirely obvious from the outset, I would beg the patience of the reader while I attempt to explain the connection.
Hugh Kennedy’s judgment is the important one for the purposes of our study, and while ultimately his renowned defence of his vision of the 1922 Constitution as a document founded on the basic principles of natural law, fundamental rights and popular sovereignty was to finish in the minority, the resultant positivist victory was to be a hollow one; Irish constitutional law was to be strongly influenced by the ideals which Kennedy enunciated right up until the present day. Kennedy’s dissenting judgment is a jurisprudential tour de force, placing principles emanating from an overreaching conception of popular sovereignty and natural law above the text of the constitutional amendments. Kennedy’s statement upholds natural law on the basis that it is irrational to conceive of certain rights as being self-evident and existing beyond the limits of legislation, and yet allowing the legislature free reign to erode and destroy such rights.87 Kennedy argues that the basic tenets of the Constitution were agreed upon by a constituent assembly of the Irish people, and that such tenets may only be altered with the explicit and express consent of the Irish people, either by way of a referendum, or by the re-convocation of a constituent assembly, rather than via the vote of a simple parliamentary majority. Kennedy employs the language of natural law and basic principles, but there is, interestingly, a frequent invocation of such terminology in defence of individual rights. This is quite singular, since the language of human rights was yet to be fully developed in the 1930s. For example, Kennedy quotes with approval the statement of Alexander Hamilton that
[t]he creation of crimes after the commission of the fact or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favourite and most formidable instruments of tyranny.88
The idea that the creation of retrospective legislation which deprived individuals of their basic rights was reprehensible and tyrannical was not a new one, as Hamilton’s statement attests, but the argument that such individual rights as those arising from due process may not be unjustly fettered by governmental or parliamentary edict is more in tune with post-Second World War ideals.
Kennedy goes on to state that ‘it is clear that the new Article 2A is no mere amendment in, but effects a radical alteration of, the basic scheme and principles of the Constitution enacted for the Saorstát by the Constituent Assembly’.93 Kennedy notes the strict separation of powers laid down in the original Article 2, and points out that Article 2A amounts to a usurpation of effective judicial power by the executive. He goes on to say that
it falls to the Courts of Justice of the State to stand between the citizen and the Executive … as the only defence of the citizen against encroachments on his rights and liberties, always in danger of such encroachments when watchfulness slackens.94
Kennedy notes the revisionist position adopted by the Government Stationery Office of the Irish Free State, which attributes the redaction and enactment of the 1922 Constitution to the Oireachtas (combined Houses of Parliament). Kennedy notes that it was rather he himself who principally drafted the document, and the Third Dáil Éireann, sitting as a Constituent Assembly, which enacted said Constitution. The Oireachtas did not come into existence until the Constitution itself had entered into force on 6 December 1922. In light of this historical clarification, he asserts that since the Constituent Assembly conferred a limited, eight-year power upon the Oireachtas to alter the content of the Constitution, such a power could only be extended or altered by re-convocation of the Constituent Assembly. In this manner, Kennedy argues that Article 50, which confers upon the Oireachtas power to amend the Constitution, is ‘limited and circumscribed by a number of restrictions in respect of the manner and conditions of its exercise and of the substance of the amendments permitted’.96
Kennedy’s outlining of the circumscription of such powers is, however, by modern standards somewhat antiquated. He refers first to the Constitution Act, the Act which establishes the 1922 Constitution as law, noting that it refers to all lawful authority flowing from God to the people, as the basis for the natural law pillar of his argument. Secondly he refers, on somewhat firmer ground, to Article 2 of the 1922 Constitution, unaltered by Article 2A, which states that ‘all powers of government and all authority, legislative, executive and judicial, in Ireland, are derived from the people of Ireland’. It is in this second excerpt that he frames the popular sovereignty pillar of his discourse.
Dealing first with natural law, while Kennedy is certainly correct in his assertion that much of the brutality of Article 2A necessarily offends against natural law principles, his citation of the Constitution Act – and more particularly of one sentence of this Act – is illustrative of the shaky ground upon which he was to found his argument. The fact that Kennedy resorted to this Act is a result of the fact that the 1922 Constitution itself failed to refer to God or natural law at any point in its text. An earlier draft of the constitutional document, replete with several religious references, had been rejected. While it was plain that Kennedy felt that the most recent changes were repugnant to the spirit of the Constitution, he struggled for a means of expressing this. Resort to natural law was a misguided approach, as Murnaghan and FitzGibbon JJ were quick to point out in their majority judgments. Therefore, the resort to natural law principles, while intellectually interesting, is surprisingly (for the Chief Justice and a noted academic) poorly founded in law, and we would do well to turn our attention to other aspects of his argument.
Kennedy’s second qualm also relates to the Constitution Act, and seems, on the face of it, to be better founded than his appeals to the natural law. In Section 2 of that Act – which was enacted by the Constituent Assembly – it is stated that
if any provisions of the said Constitution or of any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative.97
This argument was based on the fact that the British Parliament and the Irish Constituent Assembly had passed one single Act which passed effective control of 26 counties of the island of Ireland to the Irish people, under the supervision of the British Sovereign. The ‘Scheduled Treaty’ referred to the Treaty between Ireland and the United Kingdom, and repugnancy with the provisions of this Treaty was impossible for the Constitution, per the provisions of the Constitution Act. However, Kennedy – again surprisingly – dismissed the potential legal consequences that Commonwealth membership could entail and failed to rely on the international treaty to any great degree.
Where Kennedy did find more purchase was the concept of popular sovereignty as a source of general principles, which the Constitution was bound to respect. Per Kennedy,
the Constituent Assembly … enunciated certain propositions, containing statements of fundamental principle in the constitutional sphere so expressed as to convey clearly the intention that they are to be accepted for the purposes of the Constitution as immutable and absolute, subject only to the specific qualifications expressed in certain cases.98
Amongst these propositions, Kennedy holds, are the separation of powers, and the inviolability of personal liberty, per Article 6 of the Constitution, ‘except in accordance with law’. In addition, the phrase ‘in accordance with the law’ would appear to be a limited one, since
[a]n enactment to the general effect that a citizen may be taken and detained in custody, without being charged with an offence known to the law but just whenever and for as long as a soldier or policeman deems it expedient … would be invalid and void and could not be sustained under the power of amendment.99
Kennedy held that the same principles applied regarding Article 7 (inviolability of private dwellings), Article 8 (freedom of conscience and religion) and Article 9 (freedom of expression and freedom of assembly, subject to public morality). Per Kennedy, the Third Dáil Éireann (the Constituent Assembly) had effectively proclaimed certain general principles to be ‘fundamental and absolute (except as expressly qualified) and, so, necessarily, immutable’.100
Kennedy’s reliance upon the powers of the Constituent Assembly to implicitly render sections of the Constitution unalterable did not end there, however. Having attacked the substance of the Constitution (Amendment No 17) Act of 1931, he proceeded, using the same tools, to attack the substance of the Constitution (Amendment No 16) Act of 1928, which had extended the period during which the Oireachtas might enact ordinary legislation to amend the Constitution from 8 to 16 years. It was notable that amendments to the Constitution needed to be passed by both Houses of Parliament, then submitted to a popular referendum, requiring either a majority of registered voters or two-thirds of those who actually cast their ballots to vote in favour of an amendment. This was a rather high bar. However, for the first eight years, a special power was conferred upon the Oireachtas to amend the Constitution by way of ordinary legislation. However, Kennedy noted that amendment by way of referendum was also possible during this eight-year period, and that such a dual amendment procedure suggested that only certain kinds of amendment would be suitable for enactment under what Kennedy repeatedly refers to as a ‘special power’.101 Such a position is generally accepted in France since the Third Republic, where technical and procedural amendments may be undertaken by way of legislative enactment, but where significant and radical constitutional amendments require direct consultation of the citizens. Kennedy, however, does not refer to the French constitutional tradition in this regard, and we may ask whether he was aware of it, as there is no evidence of him having spoken French. Under the French model – which Kennedy’s reasoning mimics – serious changes such as those effected via the 16th and 17th Amendments to the 1922 Constitution would be impermissible without prior consultation of the people via a referendum. This particularly applies to the former of the two amendments, since the eight-year special power was seen by Kennedy as a ‘grace’ bestowed upon the Oireachtas by the Constituent Assembly, and not something which the Oireachtas itself could extend, stating that if the power to amend the Constitution during the eight-year period included power to amend the length of the period itself, he would have expected this to be explicitly stated.102 Kennedy believed that the power to make amendments was not an essential component of a Constitution, since amendment can always be effectively achieved by re-convocation of a constituent assembly in any case, which could amend the former text or simply enact a new Constitution.
For a combination of the above reasons, the Chief Justice held that the Constitution (Amendment No 16) Act, No 10 of 1929 was invalid, and the amendment of the Constitution contained therein was inoperative, null and void. By extension, the Constitution (Amendment No 17) Act, No 37 of 1931 was enacted ultra vires and without the proper procedure, and therefore never became law. Further, the Chief Justice noted that had the new Article 2A, or at least parts thereof been validly enacted, it would have been incapable of becoming part of the Constitution even if it had been amended prior to the expiration of the eight-year period, by reason of its content.
Kennedy’s judgment is a fascinating one for a number of reasons. For the purposes of our discussion, however, it is germane to note that his opinion as regards the unconstitutionality of the two amendments was based, at least in part, upon their incompatibility with certain general principles of law which Kennedy, as drafter of the 1922 Constitution, regarded as fundamental. Amongst such principles were elements of the natural law corpus and the notion of popular sovereignty as cornerstones of the Irish constitutional order, but other principles were also involved. A close reading of the judgment reveals principles which are perhaps more familiar to private lawyers, such as the ultra vires doctrine, excès de pouvoir, and abus de droit, or at least concepts closely analogous to such principles.
Quite aside from the above, however, it is important to restate the fact that the Chief Justice found himself in a minority in the Irish Supreme Court. Murnaghan and FitzGibbon JJ both penned judgments which are almost as fascinating as that devised by Kennedy. FitzGibbon’s judgment, in particular, is strongly instructive regarding the dilemma faced by the judges in the Supreme Court. In clinging to a more positivist interpretation and upholding the 1922 Constitution, as amended, FitzGibbon nonetheless did his best to expose the inadequacy of the protection afforded to individual rights, since no rights were sacrosanct unless expressly stated as such. FitzGibbon points out that the separation of powers to which Kennedy seems so attached means that it is the duty of the courts ‘to ascertain and declare the law to the best of our ability and we are not concerned with the wisdom or propriety of the Acts of the Legislature’.103 He points out that the potential for rights protection to be effective and immutable is removed by the caveat allowing for derogations in accordance with law, the content of which may be determined by the legislature. In rejecting the argument that the rights clauses in the Irish Constitution may be held to be modelled on that of France and the United States, FitzGibbon argues that
the fact that the Constitutions of other countries prohibit such invasions of the rights of liberty and property, and such extraordinary innovations in the methods of administering justice in criminal cases as have been introduced into our Constitution by Amendment No. 17, affords no ground for condemning as unconstitutional in this country, or as contrary to any inalienable rights of an Irish citizen, an enactment which appears to have received the almost unanimous support of the Oireachtas.104
Indeed, it would seem that any kind of abuse of this kind would be valid, regardless of how repugnant it may be to the general principles which are held dear by other democratic and civilised nations.105 FitzGibbon went on, to somewhat darkly speculate as to whether these new amendments ‘more truly represent our national ideals’,106 adding, in a tone dipped in sarcasm, that
we find the Briton’s conceptions of liberty and justice set forth in his Magna Charta and his Bill of Rights; those of the American in his Declaration of Independence and his Constitution; while those of the Gael are enshrined in Amendment No. 17.107
In finding that nothing in the ‘spirit’ of the Constitution prevented amendments that, in essence, went so far as to rip the original text and the intent of its drafters asunder, FitzGibbon’s judgment (and that of his colleague Murnaghan) should seem logically to have been the authoritative ones. Indeed, in the legal dispute at hand, this was the case. The decision of the High Court was upheld by the Supreme Court, the order of habeus corpus was refused, and the constitutionality of the two offending amendments was upheld. However, in the longer term, the case became massively influential, and it was to Kennedy’s judgment and not those of his colleagues in the majority that most attention has been paid. Indeed, despite FitzGibbon’s sarcastic pronouncements, Kennedy’s judgment – rather than Amendment No 17 – is seen by some as a cornerstone of the foundation of an indigenous Irish legal Volksgeist, distinct from the British common law tradition.108 The ‘loopholes’ which permitted the bastardisation of the 1922 Constitution were avoided in the drafting of the 1937 Constitution, which came into force only two years after the reporting of State (Ryan) v Lennon. The 1937 Constitution affords tighter and more concrete protection to fundamental rights, dedicates the document ‘In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred’ which gives a stronger indication of natural law influence, and also affords an important – perhaps even pre-eminent – position to popular sovereignty, as evidenced by a series of cases from the 1990s.109 Such measures brought the protection of individual rights in Ireland into line with those in other democratic and civilised nations, surpassing that of many other jurisdictions.
A joint reading of the judgments of Kennedy and FitzGibbon JJ, combined with an awareness of the influence of State (Ryan) v Lennon on the Irish legal Volksgeist is instructive on a number of levels. FitzGibbon and Kennedy disagreed as to whether such a pronounced schism between the 1922 Constitution’s original ideals and the text as amended caused its invalidity. However, both recognised the fact that certain general tenets of democratic and civilised constitutional order existed in other jurisdictions, and had existed in Ireland prior to the enactment of the offending amendments. FitzGibbon’s sarcastic assertion that Amendment No 17 represented the Irishman’s basic conceptions of liberty and justice are generally seen as the expression of the profound frustration that he felt at having to find in favour of the legality of such morally reprehensible constitutional amendments. In essence, the protection that certain general and fundamental principles were afforded in other jurisdictions was lacking in Irish law. That both sides of such a prominent judgment found this situation so reprehensible that it prompted vitriol and sarcasm on one side, and resort to dubious legal reasoning based upon concepts such as natural law on the other, indicates that the tenets of the constitutional amendments offended deeply against some deeply-held shared values. What these values are may be difficult to discern in concreto, but it is clear that the Government’s actions in enacting Amendments Nos 16 and 17 amounted to acts that went deeply against the spirit of the powers entrusted to them by the 1922 Constitution, a breach of good faith and an abuse of their position. Whether such an act, interpreted according to the laws of Ireland and according to the provisions of the 1922 Constitution, was legal and legitimate (per FitzGibbon) or was not (per Kennedy), is not necessarily the most important question that this case raises. Rather, both judges agreed that certain principles existed which could, in certain constitutional regimes, derogate from the letter of the law, and even perhaps invalidate constitutional amendments, which would otherwise be completely legally valid. Where they differed was whether the Irish Free State could be included into such a category, with FitzGibbon’s majority judgment concluding that it could not, simply due to the legal draughtsmanship which handed the keys to unfettered amendment, and therefore, to unlimited power, to the executive. In essence, Kennedy, as drafter of the Constitution, had only himself to blame.
However, it is instructive to see that the 1937 Constitution differed so greatly from its predecessor, and that fundamental rights, equity and general principles of law – all, albeit, in different respects – enjoy a significant place in the current Irish legal architecture. It may be argued that, owing to the accepted significance of State (Ryan) v Lennon, and its influence upon Irish jurisprudence, that incompatibility with general principles of fundamental importance is an unsustainable model in a ‘civilised’, developed legal system. Such a position is borne out by Kennedy’s resort to every possible means to justify voiding Amendments Nos 16 and 17, by FitzGibbon’s sarcasm, and above all by the fact that the document which was soon to replace the 1922 Constitution took such careful heed of the problems of the past. Article 38 of the PCIJ and ICJ Statutes speaks of ‘the general principles of law recognised by civilised nations’. It would seem clear that the word ‘civilised’ resonates a little more meaning than it is generally credited with nowadays when one considers the implications of a case such as State (Ryan) v Lennon. The fact that these principles were absent from the Irish legal framework created discomfort for Kennedy, Murnaghan and FitzGibbon, one of whom considered them so important that he desperately tried to derive them from different sources, and two of whom contented themselves with scathing sarcasm which amounted to stating that an absence of such principles was an abhorrent reflection upon the protection of rights and the separation of powers in a civilised country – a fairly astonishing moral commentary to accompany a judgment. Further, the situation helped to create the impetus for the incoming Fianna Fáil Government to replace the 1922 Constitution with a document which ensured that adequate, permanent protection would be afforded to the separation of powers, popular sovereignty, natural law and general principles.
That three such significant – albeit diverse – reactions to constitutional amendments, which were enacted according to the letter of the law, were provoked by the content of such amendments evinces the fact that a lack of protection of general principles and fundamental values in a developed legal system is a difficult situation to sustain. Such a situation – allowing governments to employ loopholes and faulty draughtsmanship to act in a manner that would otherwise be ultra vires and contrary to good faith – does not sit well with the legal culture of a civilised and developed State. The fact that rectification via the 1937 Constitution was necessary is particularly demonstrative in this regard. The word ‘civilised’ employed in Article 38 of the Statute of the PCIJ and ICJ sits uneasily with modern legal commentators, who see it as an anachronistic throwback to a 1920s vision of the world, with the ‘haves’ of the European elite being contrasted with the ‘have nots’ of Asia, Africa and South and Central America.110 However, if one closely examines the text of the procès-verbaux of the Advisory Committee of Jurists that drafted the PCIJ Statute, it is clear that such a position amounts to an oversimplification. ‘Civilised’ refers rather to the level of development of the legal systems that are to be considered in deciding which general principles will fall into this category. The fact that ‘general principles’ and ‘civilised nations’ are mentioned together in the same sentence indicates a close nexus between the two concepts. The sources of law clauses in the PCIJ and ICJ Statutes do not seek to impose a purely Westernised legal vision upon the international community of States, but rather continue the traditional international legal vision of voluntarism by and large. However, the most progressive move towards a ‘shared values’ approach is contained in the ‘general principles’ clause. Limiting ‘general principles’ to a category of States (or ‘nations’) with ‘civilised’ legal systems reflects a certain value judgment by the drafters of the PCIJ Statute – and, by extension, by the community of States that accepted Article 38 as a restatement of the sources of law – as regards the level of development of legal systems to be considered. The fact that State (Ryan) v Lennon caused such a furore due to the inability of Irish constitutional law to permit, in extreme circumstances, general principles such as good faith and the ultra vires doctrine to adequately fetter the power of the executive to abuse their own position, indicates that the Irish legal system had fallen foul of the requirement to recognise general principles of law which are necessary for ‘civilised nations’. This explains FitzGibbon’s allusions to other legal systems, and Kennedy’s generally repugnant attitude.
If we are to argue that the failure to adequately recognise general principles of law pushes a legal system outside that group which is considered to constitute the category of ‘civilised nations’ – and such a position is certainly suggested by the wording of Article 38 of the ICJ Statute as well as the judgments of both FitzGibbon and Kennedy – then that legal system and its conception of general principles cease to be relevant in framing and defining the constitutive elements of the third source of international law. The Irish Free State, in the mid-1930s, was therefore no longer a State the legal system of which might be considered in deciding cases before the PCIJ which dealt with ‘general principles of law recognised by civilised nations’ since it failed to adequately espouse such principles at national level. The logical consequence of such a position is that certain general principles must be, if not supra-constitutional, then at least be universally pervasive at all normative levels. Good faith, and related doctrines such as the prohibition of the abuse of rights (détournement de procedure), represent perhaps the best examples of these. If such principles may be derogated from at will by governments, then the system would seem to fall foul of the test enunciated in Article 38. This does not necessarily condemn the legal system as illegitimate – since such judgments are inherently value-laden – but it would seem that a legal system which does not respect general principles of law, or which attributes to them a lesser or residual value, cannot be considered from an international legal viewpoint when seeking to identify ‘civilised nations’ which recognise general principles of law. Hence, such a position would maintain that unless there exists the potential for general principles to be applied in an effective manner at all normative levels, then such legal systems will not be considered to exert an influence upon the international legal corpus, at least in this regard. This is not to say that such general principles must be given a formal status or value within domestic legal systems, particularly since the modalities of reception of such principles are so varied. However, some level of respect for such principles must exist within a developed legal system in order for it to be included within the Article 38 category.
To move a little further with this reasoning, while it is clear that international law and national law are not one and the same thing, it may be held that, in the field of general principles of law, at least, the modality of operation of selected general principles which are transposed to international law from national legal systems will mirror, as closely as is possible and practicable, that of the national legal systems from which they are derived. While it is clear that a norm of ius cogens may only be modified by another subsequent norm of the same standing, the modalities of how this modification may take place are somewhat unclear. General principles of law may well exert significant influence upon how, for example, peremptory human rights norms impact upon the (equally peremptory) general prohibition upon the use of force.111 Bearing this in mind, there is good reason to argue that if legal systems in which general principles may potentially act infra legem, praeter legem and very occasionally contra legem vis-à-vis all levels of norms are those which may be considered ‘civilised’ for the purposes of international law, then the same modalities will be applied when using such general principles at international level. This would entail that general principles of law could have a pervasive effect not merely upon norms with which they enjoy hierarchical equality, such as treaty and custom, but also as regards peremptory norms (ius cogens).