The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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International Conventions

An international convention is a written agreement between two or more States, establishing their obligations and rights in a specific domain. Various other terms can be used as well, such as treaty , agreement , and so on. National governments choose the content of conventions, since they decide whether to adopt them, with one important restriction: the provisions of a convention must not contradict the jus cogens or peremptory norms that bind all States. Furthermore, all States, having adhered to the UN Charter, accept that the UN Charter prevails over any other international agreement (Art. 103 of UN Charter). ▸ Hierarchy of normsInternational law

International conventions pertain to the body of “hard law,” which is made up of the rules and regulations developed and adopted with the participation and explicit consent of the States or other actors who will be bound by these rules. It stands in contrast with “soft law,” which embodies the kinds of international agreements that are called declarations or resolutions , for instance. One of the main differences between hard law and soft law is that the conventions that fall under the first category require that States ratify them, which makes them binding on the States.

In general, the rules governing the application of international conventions are codified in the Vienna Convention on the Law of Treaties, adopted in Vienna on 23 May 1969 and entered into force on 27 January 1980.

Ratification

After a treaty has been negotiated, drafted, and signed, States must ratify it in order to become parties to it. The act of ratification (which may also take the form of accession or succession) represents the approval of the relevant national organs. In most cases, ratification procedures involve the head of State, often with the authorization of the parliament or senate. The act of ratification binds the State internationally to its obligations. Most conventions enter into force only after a specific number of States—determined in the convention itself—have ratified it, though in some cases it may enter into force immediately for each State as it ratifies the convention.

Even once a convention has entered into force, it does not always immediately have an impact on the domestic order. At the time of ratification, States have the obligation to incorporate the provisions of the treaty into their domestic legislation or to modify their laws so as to bring them into conformity with the commitments contracted by ratifying.

Some treaties—for example the Geneva Conventions—are progressively assimilated into customary law, therefore binding States that have not even ratified them.

Self-Executing and Non-Self-Executing Treaties

  • States are under the obligation to ensure that their domestic laws are in conformity with international law. When a State ratifies a treaty, the treaty may either immediately become part of the domestic laws, through a system known as automatic incorporation, or it may have to be enacted into legislation, through the system of legislative incorporation.
  • Treaties (or some of their provisions) can sometimes be “self-executing.” This means that their provisions are precise enough to be implemented directly, without interpretation. In States with legislation or a constitution allowing automatic incorporation of international norms, the provisions of self-executing treaties are enforceable in the domestic courts of the State as soon as it ratifies the convention. An individual may therefore invoke these treaties before national courts even if there is no implementing legislation.

On the other hand, conventions or their provisions can be (and generally are) “non-self-executing,” even in States with automatic incorporation, because they require interpretation. In such cases, domestic legislation must be adapted or enacted to integrate the international norms into the domestic laws.

Reciprocity

The implementation of international agreements usually rests on the reciprocal engagements taken by States. If one State violates its obligations, the other States Parties may invoke this failure to respect the law in order to dispense themselves of these same obligations vis-à-vis the party that committed the violation.

Conventions relating to human rights and humanitarian law make an exception to this rule. In fact, the 1969 Vienna Convention (Art. 60.5) establishes special rules for “provisions relating to the protection of the human person contained in treaties of a humanitarian character.” In such cases, a State may not justify its own failure to respect its obligations by invoking another State’s violations of the law.

This specificity is derived from the fact that human rights and humanitarian law conventions establish objective rights for individuals and other non-state entities, as well as for States. As a consequence, States cannot bargain with the respect or non-respect of these rights. For instance, a State may never carry out a reprisal against a State or party to a conflict if that reprisal constitutes a violation of humanitarian law, even if the adverse party violated the same law. In other words, the duty to enforce humanitarian law is not tied to obligations of reciprocity, and all parties to a conflict are held to their humanitarian obligations even if the adversary is not bound by the Geneva Conventions or is not respecting them.

Humanitarian law establishes certain specific provisions to this effect:

  • The 1949 Geneva Conventions and their 1977 Additional Protocols establish that States “undertake to respect and to ensure respect for” humanitarian law in all circumstances (GCI–IV Common Art. 1, API Art. 1.1). This formulation clearly indicates that the obligation to respect these conventions is mandatory and is not subject to conditions of reciprocity.
  • The fact that a party to a conflict denounces the Conventions and renounces its obligations thereunder does not relieve any other party to the conflict of its obligation to respect humanitarian law (GCI Art. 63, GCII Art. 62, GCIII Art. 142, GCIV Art. 158, API Art. 99).
  • The High Contracting Parties to the Geneva Conventions are internationally recognized States. In practice, however, parties to a conflict may not be States. This is particularly true of civil war situations, in which a government faces a rebellion, or in non-international armed conflicts where States are confronted by organized non-state armed groups. The fact that a party to the conflict has not ratified the relevant conventions of humanitarian law (whether because it is not a State actor or because it has not ratified the Conventions) must not in any way limit the application of such law. The Geneva Conventions are hence applicable to all parties to the conflict, regardless of their legal status, and without in any way affecting their legal status (GCI–IV Common Art. 3, API Art. 1.1).
  • The Geneva Conventions also apply this principle of non-reciprocity to issues of criminal responsibility. “No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party” with respect to alleged grave breaches of humanitarian law (GCIV Art. 148).

AmnestiesHigh Contracting PartiesParties to the conflict

Reservations

A reservation is a unilateral statement made by a State whereby it purports to exclude or modify the legal effect of certain provisions of a convention on that State. States may make reservations concerning entire articles of a convention or words, sentences, and so on.

Restrictions on reservations are clearly determined in the conventions themselves. The general rules governing such restrictions were codified by the 1969 Vienna Convention (Art. 19):

  • the treaty may prohibit reservations;
  • the treaty may establish that only specified reservations may be made;
  • reservations that are incompatible with the object and purpose of the treaty in question are prohibited.

When a State formulates a reservation, the legal consequences of the reservation depend on the acceptance or objection of other States:

  • If the reservation is accepted, it is applicable only to the State that formulated the reservation (the “reserving State”). If the reservation was made with regard to a specific article, the treaty enters into force for the reserving State and is in force between that State and States Parties that have accepted the reservation without the article in question.
  • If another State makes a simple objection to the reservation, it does not prevent the treaty from entering into force for the reserving State. However, the provisions to which the reservation relates do not apply between the two States, and a compromise acceptable to both will have to be found.
  • If a State expressly objects to a reservation, it prevents the entire treaty from entering into force between itself and the reserving State, hence precluding any link between the two States via this convention.

Allowing reservations sometimes helps encourage more States to ratify a treaty but, conversely, may threaten the very nature of the treaty. Furthermore, it means that the actual content and obligations defined in a treaty are not the same for all States.

To limit the extent to which reservations may be used, humanitarian and human rights conventions prefer to use a system of optional articles or protocols. These usually involve issues concerning complaints, investigations, or treaty-monitoring procedures. Hence, States may become parties to conventions without having to adhere to such mechanisms.

Interpretation of Conventions

A convention, like any legal text, is subject to interpretation when it is implemented. Often, each adverse party tries to use the law to its advantage and may reach contradictory interpretations. It is therefore important that rules of interpretation be established by States with regard to each convention.

Rules for Interpreting Treaties

The Vienna Convention establishes the following principle (Art. 31):

  • A treaty must be interpreted in good faith, in the light of its object and purpose.
  • A treaty must also be interpreted on the basis of the intention of the drafters. It is therefore important to refer to the spirit and context in which the rules were formulated.

The provisions of a convention that establish rules for the protection of individuals must never be interpreted in a way that infringes on or limits this protection. The 1949 Geneva Conventions take the precaution of referring to this principle (GCI–III Art. 9, GCIV Art. 10, and API Art. 75.8).

In practice, it is useful for nongovernmental actors to know these principles of interpretation so as to be able to contest interpretations that States may make in order to justify their behavior. It is simply “easier” for a State to ignore the existence of an obligation by making a biased interpretation of the law than to admit and assume a violation thereof.

The Vienna Convention on the Law of Treaties—adopted in Vienna on 23 May 1969 and entered into force on 27 January 1980—sets forth the general rules that govern international treaties, including the manner in which they should be interpreted. The Convention thus limits the risk of each State giving a different interpretation to a treaty and the obligations to which it has committed. It is an important tool to counter cynicism and bad faith in the interpretation of international law, and it can also be used in negotiations concerning humanitarian action*.*

Interpretive Bodies

In international law, States both make the laws and interpret them. There is no centralized and compulsory organ responsible for interpreting treaties or ruling on the law to be applied, but several options are possible.

The International Court of Justice is the judicial body created by the UN under Chapter XIV of its Charter. Its goal is to settle legal disputes between States. It is competent, inter alia, to give advisory opinions or examine complaints concerning the interpretation of a treaty or any point of international law submitted by the General Assembly, the Security Council (advisory opinions), or States who have accepted its jurisdiction (complaints) (Art. 36 of the ICJ Statute).

The International Court of Justice ruled in numerous cases to recall the principles of interpretation of international law, as reflected in customary law and the 1969 Vienna Convention on the Law of Treaties. In addition to the principle of interpretation of a text in good faith and according to the intention of its drafters, the ICJ emphasized that the interpretation made by States cannot leave the meaning ambiguous or obscure, or lead to a result that is manifestly absurd or unreasonable. (See Oil Platforms [ Islamic Republic of Iran v. United States of America ], Preliminary Objection, Judgment, ICJ Reports 1996 [II], p. 812, para. 23; Kasikili/Sedudu Island [ Botswana v. Namibia ], Judgment, ICJ Report 1999 [II], p. 1059, para. 18; Sovereignty over Palau Ligitan and Palau Sipadan [ Indonesia v. Malaysia ], Judgment, ICJ Reports 2002, p. 625, para. 37; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004, p. 136, para. 94.)

Certain international human rights conventions provide specific mechanisms of interpretation that States are free to accept or not:

  • the European Court of Human Rights is competent to interpret the European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 45 of the European Convention);
  • the Inter-American Court of Human Rights is competent to interpret the American Convention on Human Rights “and other treaties concerning the protection of human rights in the American states” (Art. 64 of American Convention);
  • the African Commission on Human and People’s Rights is competent to interpret the African Charter on Human and People’s Rights (Art. 45 of African Charter).

The Geneva Conventions entrust the ICRC with a certain responsibility in terms of interpreting the Conventions: they establish that, if parties to a conflict disagree on the interpretation of the provisions of the Conventions, the protecting powers must lend their good offices with a view to settling the dispute, in the interest of the protected persons (GCI–III Art. 11, GCIV Art. 12). In the absence of a protecting power, the Conventions establish that the International Committee of the Red Cross will act as substitute protecting power and take on its functions.

African Commission and Court on Human RightsEuropean Court of Human RightsInter-American Court and Commission on Human RightsInternational Court of JusticeInternational lawProtecting Powers

Monitoring the Implementation of Conventions

Some conventions create an organ responsible for monitoring their implementation. Depending on the convention, States, individuals, or organizations may refer complaints to these organs in case of violations of the treaty. Such monitoring bodies may be judicial, in which case they may render a ruling on the violation and sanction it, or non-judicial (more frequently in the area of human rights and humanitarian law), in which case the procedures are generally of a recommendatory nature.

The available recourses in case of violations of humanitarian law and human rights are elaborated in the entries on ▸ Human rightsIndividual recourse and under the headings of the different courts, commissions, and committees in this domain.

African Commission and Court on Human RightsCommittee against TortureCommittee on the Elimination of Discrimination against WomenCommittee on the Elimination of Racial DiscriminationCommittee on the Rights of the ChildEuropean Committee for the Prevention of TortureEuropean Court of Human RightsHuman rightsHuman Rights CommitteeIndividual recourseInter-American Court and Commission on Human RightsInternational Court of JusticeInternational Criminal CourtInternational Fact-Finding CommissionUN High Commissioner for Human Rights/Human Rights CouncilRed Cross and the Red Crescent

For Additional Information: Brownlie, Ian. Principles of Public International Law . Oxford: Oxford University Press, 2003, esp. 603–43.

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