Conforming to Higher Principles of International Law
Eliott Boumrar is the CEO of FEUTURE International Consulting. In this legal article he unpacks the increasingly nonconformist actorness of international courts.
Today, international courts face a fantastic dilemma. Should they obey traditional instruments of international law (custom, treatises, general principles, unilateral acts…)? Or should they build future-oriented and “higher” (though “non-neutral”) instruments even without the formal consent of States?
In other words, have international courts disconnected from the text of the law to better conform to the spirit of the law? Answering a few related key questions will exemplify this issue:
(1) May an international court create principles superior to any other law?
(2) May an international court decide the exact opposite of a treaty article?
(3) May an international court veto a revision to its founding treaty?
One might well be tempted to respond the answer is no. The fact is that these three questions are based on real cases, and that international courts repeatedly proved the answer to be a resounding “Yes!” Surprisingly or not, states have not always condemned these decisions. Often, they ended up conforming with them. Should this be interpreted as tacit approval, or not? In any case, this might spill over into private law and modify the very nature of legal interpretation.
May an international court create principles superior to any other law?
Whether for good or bad, international courts are increasingly referring to imperative principles of general public law. The concept appears in the Treaty of Vienna of 1969 under the following guideline: there is a special category of law known as jus cogens which is superior to any other law. To prevent contradictions, the newest norm of jus cogens is superior to the older ones. The fact that most countries did not ratify this treaty speaks for itself. However, an absence of formal opposition might also be a form of passive ratification.
The international penal courts for former-Yugoslavia and Rwanda, as well as the European Court of Justice, invoked principles of jus cogens. As these are not expressed by states through any clear means, one might say they were de facto created by international courts. Imperative norms of international public law would include, according to international courts, a ban on crimes against humanity even if those were committed “legally” by a government against its own population. One might say this is a moral act and a means of legitimizing humanitarian aid whatever its formal legality and regardless of the principles of non-retroactivity and territoriality of state law.  Court of Justice of the European Union, Case C-370/12 Thomas Pringle v Government of Ireland and Others, 2012.
May an international court decide the exact opposite of a treaty article?
The first question was about the application of a general treaty provision which was not ratified by most states, but that might be considered passively approved and “moral enough” to be accepted despite uncertain formal legality. The second question concerns the power of a court to overtly bypass the text of a treaty article. From a theoretical point of view, the very nature of international law implies that this is by no means a possibility. In principle, states create binding treatises (or custom) which should also bind international courts.
The European Court of Human Rights ruled on the legality of extraditing someone sentenced to death. In its decision on Soering v United Kingdom , the court stated that in this case it is not legal, but only because the death penalty in the United States of America involves the so-called “corridor of death”, which may be regarded as contrary to the text of the European Convention on Human Rights. On the death penalty itself, the court stated that even if the Convention clearly authorizes a death sentence, the court has the power to decide that this is no more the case and that it might use this power in the future (“a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contacting States to abrogate the exception provided for under Article 2(1) and hence remove a textual limit on the scope for evolutive interpretation of Article 3.”)
May an international court veto a revision to its founding treaty?
The question is not about the obvious ability of international courts to control the authenticity of a treaty revision, especially when it comes to checking signatures and the lawfully expressed will of the states. The tricky point is whether an international court may publicly declare it will decide if a lawful decision of all the Member States to change a treaty is valid or not. The following example does not imply that the answer would be positive in all cases, but it is significant enough to destabilize the common representation of the role of international courts.
The European Council composed of 28 heads of states and governments activated the Treaty revision procedure of Article 48(6) TEU to modify Article 136 TFEU. The question of the legality or illegality of this decision unexpectedly went to the European Court of Justice. The court ruled that it had full powers to appreciate the validity of a decision taken unanimously by the representatives of 28 States as any other secondary legal act.
The paradox lies in the fact that these seemingly nonconformist decisions are easily accepted by states. International courts openly bypass the text of the law to achieve “higher”, though nonneutral, principles of international law. International courts are increasingly invoking Treaty Preambles and declaring them superior to Treaty Articles. This is becoming the new norm, both ‘legally’ (as States do not always condemn it) and ‘legitimately’ (as little effort is made to slow down this process). After all, if states do not always conform with international law, why should international courts?
 Court of Justice of the European Union, Case C-370/12 Thomas Pringle v Government of Ireland and Others, 2012.
 European Court of Human Rights, Soering v United Kingdom 161 Eur. Ct. H.R., 1989.
 Wechsler, Herbert. Toward neutral principles of international law, Harvard Law Review, 1959-1960.