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² cf. Christian Walter, Constitutionalizing (Inter)national Governance – Possibilities for and Limits to the Development of an International Constitutional Law, in: 44 German Yearbook of International Law 170-90 (2001).Google Scholar

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⁴ Weil, Prosper, Vers une normativité relative en droit international?, in 86 Revue général de droit international public 5 (1982).Google Scholar

⁵ cf. Shelton, Dinah, International Law and Relative Normativity, in: Malcom D. Evans (ed.), International Law 145,46 (2003).Google Scholar

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⁹ Id. at 148.Google Scholar

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¹² Art. 53 of the Vienna Convention on the Law of Treaties, United Nations Treaty Series, Vol. 1155, pp. 331 et seq., provides that “ A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general International Law. For the purposes of the present Convention, a peremptory norm of general International Law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general International Law having the same character.”.Google Scholar

¹³ According to Kelsen, the source of international obligation is not the consent of states to be bound, but must be found in a more fundamental norm which imposes a duty to be bound by obligations freely accepted, cf. Hans Kelsen, The Pure Theory of Law, in 51 Law Quarterly Review 517 (1935). Then-ILC rapporteur Sir Humphrey Waldock suggested that international treaties ought to be void if they run contrary to fundamental principles of International Law, cf. Shelton, op. cit., at p. 153.Google Scholar

¹⁴ United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, A/Conf.129/16 (Vol. I), 17.Google Scholar

¹⁵ The ICJ noted in Hungary v. Slovakia, Gabčikovo-Nagymaros Project, ICJ Reports 1997, pp. 7 et seq., at para. 112, that both parties had not invoked any jus cogens norms relating to International Environmental Law. But see also the Nicaraguan memorial as well as the U.S. Counter-memorial in Military and Paramilitary Activities in and against Nicaragua, quoted by the ICJ in its Judgment, ICJ Reports 1986, 14.Google Scholar

¹⁶ In its North Sea Continental Shelf Judgment, ICJ Reports 1969, pp. 3 et seq., at para. 72, the ICJ refused to adress the issue of jus cogens, cf. Shelton, op. cit., at 154, there fn. 29.Google Scholar

¹⁷ cf. Shelton, , op. cit., at 154, 56 on the role of jus cogens before U.S. Courts.Google Scholar

¹⁸ cf. the dissenting opinion by Judge ad hoc Renandes in Right of Passage over Indian Territory, ICJ Reports 1960, 6 at 135, 39, 40 and the dissenting opinion of Judge Tanaka in South West Africa, Second Phase, ICJ Reports 1966, 6 at 298.Google Scholar

¹⁹ ILC, Commentary to Article 50 of the ILC Draft Articles on the Law of Treaties, in ILC Yearbook 1966-II, 247.Google Scholar

²⁰ Nicaragua v. United States of America, Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 14.Google Scholar

²¹ Democratic Republic of Congo v. Belgium, Arrest Warrant of 11 April 2000, ICJ Reports 2002, 3.Google Scholar

²² Arrest Warrant of 11 April 2000, ICJ Reports 2002 3, Dissenting opinion by Judge Al-Khasawneh, para. 7.Google Scholar

²³ Art. 103 of the UN Charter of 26 June 1945, Yearbook of the United Nations 1969, 953, reads as follows: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”Google Scholar

²⁴ Judge Lauterpacht, Separate Opinion, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Order of 13 September 1993 – Further request for the indication of provisional measures, ICJ Reports 1993, 325, 408 at 440.Google Scholar

²⁵ ECtHR, Al-Adsani v. United Kingdom, Judgment, 21 November 2001, (2002) 34 EHRR 11.Google Scholar

²⁶ OAS, Inter-American Commission on Human Rights, 81^st session, Annual Report of the Inter-American Commission on Human Rights, Victims of the Tugboat ‘13 de Marzo’ v. Cuba, Rep. No. 47 / 96, OR OEA/Ser.L/V/II.95/Doc.7, rev (1997), at pp. 146 et seq.Google Scholar

²⁷ ICTY, Prosecutor v. Furundzija, Judgment, Case No. IT-95-17/1-T, para. 153.Google Scholar

²⁸ The ILC Draft Articles on State Responsibility were included in General Assembly Resolution 56 / 83 (Responsibility of States for internationally wrongful acts) of 12 December 2001 as an annex, cf. UN Doc. A/RES/56/83.Google Scholar

²⁹ Art. 40 (Application of this chapter) states: “1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general International Law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.”Google Scholar

³⁰ Art. 41 (Particular consequences of a serious breach of an obligation under this chapter) reads as follows: “ 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. 3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under International Law.”Google Scholar

³¹ So the representative of Brazil at the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, A/Conf.129/16 (Vol. I), 188.Google Scholar

³² Shelton, , op. cit., at p. 159.Google Scholar

³³ Id.Google Scholar

³⁴ Id.Google Scholar

³⁵ cf. Koskenniemi, Martti, Hierarchy in International Law: A Sketch, in: 8 European Journal of International Law 1997, 566 at 571.Google Scholar

³⁶ Art. 53 of the Vienna Convention on the Law of Treaties (1969) 1155 United Nations Treaty Series 331 states that „a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general International Law. For the purposes of the present Convention, a peremptory norm of general International Law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general International Law having the same character“ The text of Art. 53 of the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, (1986) UN Doc. A/Conf. 129/15 (1986) is identical. Later the idea of jus cogens was accepted by the ICJ as well: ICJ, Nicaragua v. United States, Military and Paramilitary activities in and against Nicaragua, ICJ Reports 1986, pp. 14 et seq., at p. 100. On the acceptance of jus cogens in International Law cf. Gennady M. Danilenko, International Jus Cogens: Issues of Law-making, in: 2 European Journal of International Law (1991) 42.Google Scholar

³⁷ Belgium v. Spain, Case concerning the Barcelona Light and Traction Power Company, Limited (Second Phase), ICJ Reports 1970, 3 at para. 33.Google Scholar

³⁸ cf. note. 23.Google Scholar

³⁹ Cf. supra B. I.Google Scholar

⁴⁰ Weiler, J. H. H. / Paulus, Andreas L., The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law ?, in 8 European Journal of International Law (1997), 545 at 562.Google Scholar

⁴¹ cf. Juan Antonio Carrillo Salcedo, Reflections on the Existence of a Hierarchy of Norms in International Law, in: 8 European Journal of International Law 1997, 583 at 583.Google Scholar

⁴² cf. UN SC Res. 1373 of 28 September 2001, UN Doc. S/RES/1373 (2001).Google Scholar

⁴³ Shelton, op. cit., at p. 171.Google Scholar

⁴⁴ The proliferation of values through International Law still meets resistance: The president of the ICJ, Shi, only recently likened any attempt of value-proliferation through International Law to imperialism, cf. the Concluding Speech by the President of the International Court of Justice, Shi Jiuyong, at a Joint ASIL / NVIR Conference in The Hague on 5 July 2003, to be published in January 2004 by T.M.C. Asser Press in the conference proceedings entitled „From Government to Governance ? The Growing Impact of Non-State Actors on the International and European Legal System“, cf. also Stefan Kirchner, Conference Report – “From Government to Governance? The Growing Impact of Non-State Actors on the International and European Legal System” – 6 th ASIL / NVIR / T.M.C. Asser Institute Joint Conference in The Hague, 3 – 5 July 2003, 4 German Law Journal 827, 849 (August 2003). On the problem in general see Serge Sur, The State between Fragmentation and Globalization, 8 European Journal of International Law 421 at 428 (1997).Google Scholar

⁴⁵ cf. Akehurst, Michael, The Hierarchy of the Sources of International Law, 47 British Yearbook of International Law 273 (1975).Google Scholar

⁴⁶ The question for example comes up in the Tadic/Nicaragua – debate, in which a general court, the ICJ, and a court attached to a self-contained regime, the ICTY came to different conclusions on the question of third party involvement, specifically third party control of paramilitary forces, in armed conflicts, cf. Nicaragua v. United States of America, Military and Paramilitary activities in and against Nicaragua, ICJ Reports 1986, 14. and ICTY, Prosecutor v. Tadic, Case No. IT-94-1.Google Scholar

⁴⁷ On the need to strengthen the Public Law Approach in International Law cf. Jochen Abraham Frowein, Konstitutionalisierung des Völkerrechts, in Jost Delbrück et al. (eds.), Völkerrecht und Internationales Privatrecht in einem sich globalisierenden internationalem System 427 at. 427 (2000).Google Scholar

⁴⁸ A good overview (in English) on the interaction between national and international/european constitutional conceptions is given by Giegerich, Thomas, Europäische Verfassung und deutsche Verfassung im transnationalen Kosntitutionalisierungsprozess: Wechselseitige Rezeption, konstitutionelle Evolution und föderale Verpflichtung, in: 157 Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 1445 at 1447 (2003).Google Scholar

⁴⁹ cf. Shelton, op. cit., at 163.Google Scholar

⁵⁰ On the lack of coherence cf. Andrea Bianchi, Ad-hocism and the Rule of Law, 13 European Journal of International Law 263 at 269 (2002).Google Scholar

⁵¹ Spiro, Peter J., Treaties, International Law, and Constitutional Rights, in: 55 Stanford Law Review 1999 at 2021 (2003).Google Scholar

⁵² Bianchi, , op. cit., at 272.Google Scholar

⁵³ The literature on the debate ensuing in the wake of the 1999 Kosovo War is extensive, see for example Dino Kritsiotis, The Kosovo Crisis and NATO's Application of Armed Force against the Federal Republic of Yugoslavia, 49 International and Comparative Law Quarterly 330 (2000); Falk, Richard A., Kosovo, World Order, and the Future of International Law, 93 American Journal of International Law 847 (1999); Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 European Journal of International Law 1 (1999); and Antonio Cassese, Ex inuiria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community ? – Comment on Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 European Journal of International Law 23 (1999).Google Scholar

⁵⁴ Art. 2 (4) UN Charter requires that “All Members […] refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”Google Scholar

⁵⁵ In this case, Art. 103 UN Charter provides a rather clear, yet at times unsatisfactory solution in favor of Art. 2 (4) UN Charter, cf. fn. 23.Google Scholar

⁵⁶ After three decades, the Yellowfin Tuna dispute between the U.S. and Mexico was solved only in early 2003. See also the WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, in: 37 ILM (1998), pp. 832 et seq. and WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/RW Doc. 01-5166, 22 October 2001, also available online at http://www.wto.org/english/news_e/news01_e/dsb_21nov01_e.htm.Google Scholar

⁵⁷ On Humanitarian Intervention after 9/11 see Farer, Tom J., Humanitarian Intervention before and after 9/11: legality and legitimacy, in: Holzgrefe, J. L. / Keohane, Robert (eds.), Humanitarian Intervention (2003), pp. 53 et seq.Google Scholar

⁵⁸ Speech by Prime Minister Tony Blair on 18 March 2003, available online at http://politics.guardian.co.uk/iraq/story/0,12956,916790,00.html; Speech by U.S. President George W. Bush at the General Assembly of the United Nations on 12 September 2002, available online at http://www.whitehouse.gov/news/releases/2002/09/20020912-1.html.Google Scholar

⁵⁹ On the cases cf. Christine Gray, Legality of the Use of Force, 49 International and Comparative Law Quarterly 730 (2000).Google Scholar

⁶⁰ cf. Stefan Kirchner, The Human Rights Dimensions of International Peace and Security and Humanitarian Intervention after 9/11 (2003), available online at http://ssrn.com/abstract=445124.Google Scholar

⁶¹ cf. John R. Bolton, Should we Take Global Governance Seriously?, in: 1 Chicago Journal of International Law 205 at 221 (2000).Google Scholar

⁶² cf. Walter, op. cit., at 171.Google Scholar

⁶³ Id. at 172.Google Scholar

⁶⁴ Id at 201.Google Scholar

⁶⁵ Id. at 188.Google Scholar

⁶⁶ Id. at 173 (emphasis as in the original text).Google Scholar

⁶⁷ Id. at 191.Google Scholar

⁶⁸ cf. above E. IV.Google Scholar

⁶⁹ Therefore it would go too far to consider the UN Charter to be a constitution of humankind, since the UN Charter only includes a general reference to Human Rights, without defining them explicitly.Google Scholar

⁷⁰ Art. 2 (1) UN Charter: “ The Organization is based on the principle of the sovereign equality of all its Members.”Google Scholar

⁷¹ Currently these issues are covered mainly by Art. 38 ICJ Statute and the Vienna Convention on the Law of Treaties, yet, apart from the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations neither is so far taking into account the role of non-state actors.Google Scholar

⁷² cf. Art. 33 UN Charter, which provides “1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.”Google Scholar

⁷³ On the question where to locate Human Rights guarantees appropriately, on a national or on an international level, cf. Spiro, op. cit., at 2001, 2021.Google Scholar

⁷⁴ Albeit decisions by the ECtHR are increasingly cited outside Europe, the most spectacular case, which yet went almost unnoticed in Europe, was the U.S. Supreme Court's recent decision in Lawrence and Garner v. Texas of 26 June 2003, Case No. 02-102, (the text of the decision is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-102#opinion1), in which for the first time ever the U.S. Supreme Court cited the ECtHR in a majority opinion.Google Scholar

⁷⁵ Preferably with a single „all-inclusive“ Human Rights Convention and an ECtHR-style International Human Rights Court.Google Scholar

⁷⁶ The preamble of the Charter of the United Nations reads as follows: “We the Peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of International Law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims. Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.”Google Scholar

⁷⁷ According to Art. 1 (3) of the Charter of the United Nations, one of the purposes of the UN is to “[…] achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion […]”.Google Scholar

⁷⁸ cf. fn. 23.Google Scholar

⁷⁹ Human Rights Committee General Comment No. 24 (52), UN Doc. CCPR/C/21/Rev.1/Add.6., para. 17.Google Scholar

⁸⁰ Bosnia and Herzegovina v. Yugoslavia (now Bosnia and Herzegovina v. Serbia and Montenegro, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections), Judgment of 11 July 1996, ICJ Reports 1996, pp. 595 et seq., sep. op. Weeramantry, at 645.Google Scholar

⁸¹ According to Art. 60 (5) VCLT “Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”Google Scholar

⁸² Art. 103 UN Charter, cf. fn. 23.Google Scholar

⁸³ Art. 38 (1) (c) ICJ Statute: “1. The Court, whose function is to decide in accordance with International Law such disputes as are submitted to it, shall apply: […] c. the general principles of law recognized by civilized nations […].”Google Scholar

⁸⁴ E.g. of International Trade Law.Google Scholar

⁸⁵ On the relation between Human Rights treaties and other rules of International Law, albeit focussing on the question of reciprocity cf. Craven, Legal Differentiation and the concept of the Human Rights Treaty in International Law, European Journal of International Law 2000, 489.Google Scholar

⁸⁶ This lack of state interests (which doesn't mean that the states don't have an interest in compliance with the treaty in question, cf. Craven, op. cit., at p. 510.) is reflected in the lack of reciprocity in most Human Rights treaties, cf. e.g. Inter-American Court of Human Rights, The Effects of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75) (Advisory Opinion), Advisory Opinion OC-2/82, 24 September 1982. Instead we can speak of a common interest, cf. ICJ, Reservations to the Convention on the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion), ICJ Reports 1951,13.Google Scholar

⁸⁷ Frowein, , op. cit., at p. 443; Spiro, op. cit., at p. 2024, speaks of a „new global human rights community“. On the impact of the world community's opinion on judicial decisions cf. Atkins v. Virginia, 536 U.S. 304, 316 n. 21 (2002), a ruling preventing the execution of a mentally retarded offender.Google Scholar

⁸⁸ Spiro, , op. cit., at p. 2024; cf. also Anne-Marie Slaughter, Governing the Global Economy Through Government Networks, in Michael Byers (ed.), The Role of Law in International Politics 177 (2000).Google Scholar

⁸⁹ Spiro, , op. cit., at p. 2024; Philip Allott, Eunomia 254 (1990, reprinted with new a foreword in 2003); Brun-Otto Bryde, Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts, 42 Der Staat 61 at 64 (2003).Google Scholar

⁹⁰ Bryde, , op. cit., at 61.Google Scholar

⁹¹ Although states are no longer the only actor in the field of International Law, only states can become members of the UN, cf. Art. 4 (1) UN Charter: “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”Google Scholar

⁹² On the creation of legal regimes independent of states cf. Craven, op. cit., at 519.Google Scholar

⁹³ One of the most impressive examples of recent years certainly being the Campaign for a ban on Landmines.Google Scholar

⁹⁴ Albeit an incomplete and outdated one, since neither Human Rights nor lawmaking are included sufficiently, and outdated, since it only recognizes states as full subjects of International Law.Google Scholar

⁹⁵ cf. fn. 23.Google Scholar

⁹⁶ Criminal Law is here understood as a part of public law in a wider sense and consequently international criminal law generally is considered part of public International Law.Google Scholar

⁹⁷ cf. in this context also Koskenniemi, op. cit., at. 577.Google Scholar

⁹⁸ Khan, Daniel-Erasmus / Paulus, Andreas L., Gemeinsame Werte in der Völkerrechtsgemeinschaft, in: Erberich, I. / Hörster, A. et al. (eds.), Frieden und Recht, 38. Assistententagung Öffentliches Recht, Münster, 1998, 217 at 253, 56.Google Scholar

⁹⁹ cf. C. III. (at the end).Google Scholar

¹⁰⁰ Uerpmann, Robert, Internationales Verfassungsrecht, 56 Juristen Zeitung 565 at 571 (2001).Google Scholar

¹⁰¹ cf. fn. 23.Google Scholar

¹⁰² If such a consensus is possible at all, cf. fn. 44.Google Scholar

¹⁰³ UN Security Council Res. 1373 of 28 September 2001, UN Doc. S/RES/1373 (2001).Google Scholar

¹⁰⁴ Art. 41 UN Charter reads as follows: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”Google Scholar

¹⁰⁵ cf. fn. 23.Google Scholar

¹⁰⁶ While the inclusion of criminal law aspects in public International Law has made a great step forward during the 1990s, it remains to be seen whether indeed private International Law is going to be absorbed by public International Law as well, as is argued by Paul, Joel R., The Isolation of Private International Law, in: 7 Wisconsin International Law Journal 149 at 152 (1988) and by Joel P. Trachtman, The International Economic Law Revolution, in: 17 University of Pennsylvania Journal of International Economic Law 33 at 37 (1996).Google Scholar

¹⁰⁷ cf. fn. 46.Google Scholar

¹⁰⁸ As an example for early concerns see the discussion on the name of the ILC Working Group designated to deal with the matter in Report of the International Law Commission on the work of its fifty-fourth session, 29 April – 7 June and 22 July – 16 August 2002, UN Doc. A/57/10, para. 500.Google Scholar

¹⁰⁹ cf. fn. 23.Google Scholar

¹¹⁰ Not necessarily treaties, albeit many have been codified by now.Google Scholar

¹¹¹ In so far, the assertion by Fastenrath, Ulrich, Relative Normativity in International Law, in: 4 European Journal of International Law (1993), pp. 305 et seq., at p. 323, that the problem of hierarchy of norms is of little practical importance is less true today than it was in 1993. Yet he assumed correctly that the increasing complexity of the international legal system would make the formulation of common values necessary, which in turn leads to a higher degree of Relative Normativity, Id. at 339.Google Scholar

¹¹² cf. Spiro, , op. cit., at 2027.Google Scholar

¹¹³ cf. Bryde, , op. cit., at p. 62 as well as Walter, op. cit., at 173.Google Scholar

¹¹⁴ Shelton, op. cit., at 159.Google Scholar

¹¹⁵ cf. Walter, , op. cit., at 194.Google Scholar