Frequently Asked Questions On International Law Aspects Of Countering .

AbbreviationsCATConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentCEDAWConvention on the Elimination of All Forms of Discrimination againstWomenCRCConvention on the Rights of the ChildCTCCounter-Terrorism CommitteeCTEDCounter-Terrorism Committee Executive DirectorateCTITFCounter-Terrorism Implementation Task ForceECOSOCEconomic and Social CouncilECHREuropean Convention of Human RightsECtHREuropean Court of Human RightsHRCHuman Rights CommitteeICCInternational Criminal CourtICCPRInternational Covenant on Civil and Political RightsICCPR-OP1Optional Protocol to the International Covenant on Civil and PoliticalRightsICCPR-OP2Second Optional Protocol to the International Covenant on Civil and PoliticalRights, aiming at the abolition of the death penaltyICERDInternational Convention on the Elimination of All Forms of RacialDiscriminationICESCRInternational Covenant on Economic, Social and Cultural RightsICJInternational Court of JusticeICRCInternational Committee for the Red CrossICRMWInternational Convention on the Protection of the Rights of All MigrantWorkers and Members of Their FamiliesICTRInternational Criminal Tribunal for RwandaICTYInternational Criminal Tribunal for the former YugoslaviaIHLInternational humanitarian lawILCInternational Law CommissionOHCHROffice of the United Nations High Commissioner for Human RightsOP-CATOptional Protocol to the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishmentviii

OP-CEDAWOptional Protocol to the Convention on the Elimination of Discriminationagainst WomenOP-CRC-ACOptional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflictOP-CRC-SCOptional Protocol to the Convention on the Rights of the Child on the saleof children, child prostitution and child pornographyTPBTerrorism Prevention BranchUNGAUnited Nations General AssemblyUNHCRUnited Nations High Commissioner for RefugeesUNODCUnited Nations Office on Drugs and CrimeUNSCUnited Nations Security CouncilVCLTVienna Convention on the Law of TreatiesVCLTIOVienna Convention on the Law of Treaties between States and InternationalOrganizations or between International Organizationsix

Introduction: how do different bodies ofinternational law relate to terrorism?There is a growing body of international law which is directly relevant to the fight againstterrorism. International law provides the framework within which national counter-terrorismactivities take place and which allows States to cooperate with each other effectively inpreventing and combating terrorism. This framework includes instruments addressing specificaspects of counter-terrorism alongside other international instruments designed for international cooperation in criminal law, the protection of human rights or refugees or theestablishment of the laws of war which provide the broader context within which counterterrorism activities take place.International law specifically addressing terrorism exists within the general framework ofinternational law including international criminal law, international humanitarian law, international human rights law and refugee law.The need to place actions to combat terrorism in the broader context is clear from the textof United Nations Security Council resolutions:Security Council resolution 1456 (2003):[ ]6. States must ensure that any measure taken to combat terrorism comply with alltheir obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, andhumanitarian law;The following chapters will draw together the fundamental principles of international criminallaw, international cooperation in criminal matters, international humanitarian law, refugeelaw and human rights law to provide the reader with a broad understanding of what Stateobligations under international law need to be borne in mind in the context of combatingterrorism. As will be seen throughout the publication, no sphere of international law isentirely independent of the wider framework. International human rights standards relatingto fair trial apply in proceedings under international criminal law and developments in international criminal law may influence the development of those same fair trial standards ininternational human rights law. Rulings on extradition proceedings will need to take intoaccount both international human rights law and refugee law. In circumstances of armedconflict where international humanitarian law applies, international human rights law willstill be applicable. This publication aims to highlight the areas of international law which aremost relevant and to give a basic insight into the ways in which different aspects of international law interrelate in a counter-terrorism context.1

2FREQUENTLY ASKED QUESTIONS ON INTERNATIONAL LAW ASPECTS OF COUNTERING TERRORISMInternational law generally imposes duties and obligations on States with regard to theirrelations with other States and with international organizations. International human rightslaw, refugee law and humanitarian law also impose duties and obligations on States in relation to their dealings with individuals. Although the development of international criminallaw does allow for individuals to be held directly responsible for serious international crimessuch as war crimes and crimes against humanity, the main focus of this publication will beon the international legal obligations of States in relation to combating terrorism.

1. Selected issues related tointernational lawWhy is international law important in counter-terrorism?This section sets out the reasons why international law is important in counter-terrorism andgoes on to explain the sources of international law and how international law works. It will alsointroduce the United Nations system with a focus on United Nations action against terrorismas background information to the latter discussions on specific areas of international law.At the international level the rights and obligations of a State under international law aresuperior to any rights or duties that may exist under national law. International law is appliedin national courts as well as in international courts and informs the development and interpretation of national laws and practices. It is therefore crucial to have at least a basic understanding of international law in order to apply fully the legal framework relevant tocounter-terrorism.1.1Sources of international lawWhere does international law come from?The starting point to answer this question can be found in article 38 (1) of the Statuteof the International Court of Justice (ICJ) which lists the three primary sources and thesubsidiary sources of international law:Statute of the ICJ, article 38 (1):a) international conventions, whether general or particular, establishing rules expresslyrecognized by the contesting states;b) international custom, as evidence of a general practice accepted as law;c)the general principles of law recognized by civilized nations;d) [ ] judicial decisions and the teachings of the most highly qualified publicists ofthe various nations, as subsidiary means for the determination of rules of law.Article 38 does not establish a hierarchy between the primary sources of international law.In practice, though, it seems that an international court would give precedence to a specifictreaty provision over a conflicting rule of customary international law unless that rule is aperemptory norm of general international law or jus cogens.A peremptory norm of general international law or jus cogens is a norm accepted andrecognized by the international community of States as a whole as a norm from which no3

4FREQUENTLY ASKED QUESTIONS ON INTERNATIONAL LAW ASPECTS OF COUNTERING TERRORISMderogation is permitted and which can be modified only by a subsequent norm of generalinternational law having the same character.1 A treaty will be void if at the time of itsconclusion it conflicted with a norm of jus cogens. Even if a treaty was valid at the time ofits conclusion, it will become void if it conflicts with a jus cogens norm which emergessubsequently.An example of a peremptory norm of general international law or jus cogens is the absoluteprohibition on torture. Therefore, if a treaty were concluded in the context of counter-terrorism which contradicted that prohibition, allowing torture, that treaty would be void and couldnot be relied upon as a source of international law.1.1.1i)What are the key elements of the law of Treaties?What is a treaty?The term “treaty” in the international context is used to describe legally binding internationalagreements in general. A treaty may be bilateral or multilateral and is an agreement betweenor among States and/or international organizations. These agreements may be denominatedas conventions, pacts, charters, protocols, etc. but these denominations do not have any legalsignificance. A treaty is usually a written agreement but does not necessarily have to be inwriting to be valid and enforceable according to international law. The universal counterterrorism instruments are all treaties.In general there is a presumption that an agreement between States or international organizations is a treaty. However, agreements which are governed by national law rather thaninternational law are not treaties. Examples of agreements which would not be classified astreaties could be a contract between States on the sale of land to build an embassy, or forthe provision of military equipment intended to be governed by the national laws relatingto property or commerce.Multilateral treaties such as the universal counter-terrorism instruments are drafted throughdiplomatic conferences where participating States are represented by delegations includinglegal advisers who negotiate the text based on draft proposals prepared by States or international organizations in advance.The international law of treaties has been codified by the Vienna Convention on the Lawof Treaties 1969 (VCLT).2 The Vienna Convention on the Law of Treaties between States andInternational Organizations or between International Organizations 1986 (VCLTIO)3 amplifiesthe existing body of norms applicable to international agreements.1Vienna Convention on the Law of Treaties (VCLT), art. 53, sh/conventions/1 1 1969.pdf.2The Vienna Convention on the Law of Treaties (VCLT) entered into force in 1980.3The Vienna Convention on the Law of Treaties between States and International Organizations or between InternationalOrganizations (VCLTIO) has not yet entered into force.

SELECTED ISSUES RELATED TO INTERNATIONAL LAWii)5How does a treaty work?“Every treaty in force is binding upon the parties to it and must be performed by them ingood faith”.4 This is a fundamental principle of international law and the law of treaties, alsoknown as pacta sunt servanda. States cannot invoke national law to avoid this obligation.5A treaty shall be interpreted in good faith “in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object and purpose.”6The preparatory work of the treaty and the circumstances of its conclusion may assist in theinterpretation of treaties where the meaning is ambiguous or obscure on the face of it orleads to a result which is manifestly absurd or unreasonable.7iii)How do States agree to be bound by treaties?Treaties take full binding effect from the time when they enter into force. Bilateral treatiesenter into force when both States indicate that they agree to be bound by the treaty after acertain date. Multilateral treaties usually contain a provision which allows for entry into forceafter a specified minimum number of States have agreed to be bound by the treaty.Example:International Convention for the Suppression of Nuclear Terrorism 2005,article 25:1. This Convention shall enter into force on the thirtieth day following the date ofthe deposit of the twenty-second instrument of ratification, acceptance, approval oraccession with the Secretary-General of the United Nations.2. For each State ratifying, accepting, approving or acceding to the Convention afterthe deposit of the twenty-second instrument of ratification, acceptance, approval oraccession, the Convention shall enter into force on the thirtieth day after deposit bysuch State of its instrument of ratification, acceptance, approval or accession.A State becomes a party to a treaty when it consents to be bound by the treaty. This consent“may be expressed by signature, exchange of instruments constituting a treaty, ratification,acceptance, approval or accession, or by any other means if so agreed.”8 Usually, the treatywill specify the means. Most commonly, this will be through signature and/or ratification.In treaties requiring ratification this will usually be the second part of a two-step process. AState first signs the treaty, which is a way of authenticating the text of the treaty. This engagessome minimal obligations9 on the part of the State but signature does not necessarily meanthat the State will go on to ratify the treaty. Ratification often happens by depositing art.art.art.26.27.31.32.11.18.

6FREQUENTLY ASKED QUESTIONS ON INTERNATIONAL LAW ASPECTS OF COUNTERING TERRORISMinstrument of ratification after consultation and approval from national authorities, usuallythe legislature. Only ratification makes the provisions of the treaty binding on the State. Thetwo stage process therefore allows States to involve national authorities in the approval oftheir agreements on the international level.If a treaty is no longer open for signature, States can only accede to it. Accession has thesame legal consequences as ratification.A State “deposits” an instrument of ratification with the depositary, which has been designated by the negotiating States either in the treaty itself or otherwise. A depositary can beone or more States, an international organization,10 such as the United Nations, or the chiefadministrative officer of the organization, such as the Secretary-General of the UnitedNations.11 Depositaries must act impartially in carrying out their functions which include:12앫 Keeping custody of the original text of the treaty;앫 Preparing certified copies and additional language versions and transmitting themto the parties;앫 Receiving signatures and receiving and keeping instruments, notifications and communications relating to the treaty;앫 Informing States of acts, notifications and communications relating to the treaty aswell as informing States when the required number of signatures or instruments ofratification, etc. for entry into force has been reached.iv)Does a State have to agree to be bound by the whole treaty?Sometimes States adhere to a treaty with reservations. A reservation is “a unilateral statement,however phrased or named, made by a State, when signing, ratifying, accepting, approvingor acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certainprovisions of the treaty in their application to that State.”13Example:International Convention for the Suppression of Terrorist Bombings 1997Reservation:In accordance with paragraph 2, article 20 of the International Convention for theSuppression of Terrorist Bombings, Country X does not consider itself bound by paragraph 1, article 20 of the present Convention. Country X declares that to refer a disputerelating to interpretation and application of the present Convention to arbitration orInternational Court of Justice, the agreement of all parties concerned in the dispute t.art.76.76.77.2(1)(d).

SELECTED ISSUES RELATED TO INTERNATIONAL LAW7There are three situations in which a State’s ability to make reservations when adhering toa treaty is limited:14앫 Where a treaty prohibits reservations;앫 Where a treaty permits only certain types of reservation;앫 Where a reservation is incompatible with the object and purpose of the treaty.An example of a reservation which is incompatible with the object and purpose of a treatywould be a reservation designed to suspend a non-derogable right (such as the prohibitionon torture) in a human rights convention. In the interests of protecting the rights of persons,there has been a tendency in this kind of cases to allow the ratification while nullifying thereservation in question.15If a treaty expressly authorizes a reservation, no acceptance is required from other Statesparties.16 In some cases, a treaty may specify that a reservation must be accepted by all Statesparties.17 Where a treaty is a constituent instrument of an international organization, thereservation must be accepted by the organization in question.18If a reservation is neither expressly permitted or prohibited and is not incompatible with theobject and purpose of the treaty, the other States parties are free to choose whether theyaccept or reject a reservation.19 This can lead to a great deal of complexity as numerousdifferent relationships between States may develop through a multilateral treaty wherereservations are accepted or rejected by different States.Example:International Convention for the Suppression of Terrorist Financing 1999,article 24:1. Any dispute between two or more States Parties concerning the interpretation orapplication of this Convention which cannot be settled through negotiation within areasonable time shall, at the request of one of them, be submitted to arbitration. If,within six months from the date of the request for arbitration, the parties are unableto agree on the organization of the arbitration, any one of those parties may referthe dispute to the International Court of Justice, by application, in conformity with theStatute of the Court.2. Each State may at the time of signature, ratification, acceptance or approval of thisConvention or accession thereto declare that it does not consider itself bound by paragraph 1. The other States Parties shall not be bound by paragraph 1 with respect toany State Party which has made such a reservation.3. Any State which has made a reservation in accordance with paragraph 2 mayat any time withdraw that reservation by notification to the Secretary-General ofthe United Nations.141516171819VCLT, art. 19.See ECtHR, www.echr.coe.int/echr; OHCHR, www2.ohchr.org/English/bodies/hrc/index.htm.VCLT, art. 20(1).VCLT, art. 20(2).VCLT, art. 20(3).VCLT, art. 20(4).

8FREQUENTLY ASKED QUESTIONS ON INTERNATIONAL LAW ASPECTS OF COUNTERING TERRORISMA State may also make a statement as to wh

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