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Reciprocity, Rule of Law and International Law?

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Reciprocity, Rule of Law and International Law? Is Reciprocity a Foundation of International Law or Whether International Law Creates Reciprocity? Shahrad Nasrolahi Fard Thesis submitted in the fulfilment of the requirements for the degree of Doctor of Philosophy in the Faculty of Social Sciences, Aberystwyth University 2013 Department of Law and Criminology Table of Contents Summary………………………………………………………………………………………1 Declaration…………………………………………………………………………………….2 Acknowledgements……………………………………………………………………………3 Table of Abbreviations………………………………………………………………………...4 Table of Cases …………………………………………………………………………………6 Introduction……………………………..………………………………………………...11 Aims and Focus of the Study………………………………………………………………...14 Structure of the Thesis………………………………………………………………………. 17 Research Methodology……………………………………………………………………….22 Chapter One: Principle of Reciprocity in General Context 1. Introduction.……………………………………….……….……………………………...25 2. The Role of Reciprocity in General Context……......…………………………………….26 2.1. Reciprocity in Anthropological and Social Fields……………....………………28 2.2. Reciprocity in Historical and International Relations Fields………………....…36 3. Conclusion…………………………………………………………………………………39 Chapter Two: Reciprocity in Nature and Sources of International law 1. Introduction……..…………………………………………………………………………41 2. Nature of International Law……………………………………………………………….43 3. Sources of International Law………………………………...……………………………48 3.1. International Treaty Law………………………………………………………...49 3.2. Customary International Law……………………………………………………64 3.2.1. State Practice…………………………………………………………..66 3.2.2. Opinio Juris……………………………………………………………72 3.2.2.1. How Can Opinio Juris be Proven and is this Proof Necessary?..74 3.2.2.2. How Important, Necessary and Helpful is Opinio Juris?............77 3.3. The General Principle of Law…………………………………………………...82 4. Is International Law Independent from International Politics?............................................85 5. Conclusion…………………………………………………………………………………92 Chapter Three: Reciprocity, Rule of Law and International Law? 1. Introduction………………………………………………………………………………..96 2. What Constitutes the Rule of Law?.....................................................................................99 2.1. Legality…………………………………………………………………………102 2.2. Consistency, Coherency and Uniformity………………………………………105 2.3. Legitimacy……………………………………………………………………...108 2.4. Justice…………………………………………………………………………..109 3. The Rule of Law and International Law…………………………………………………115 3.1. Interpretation of Rules in the Context of International Law…………………...120 3.2. Pacta Sunt Servanda and Good Faith………………………………………….122 3.3. Jus Cogens Rules and Obligaions Erga Omnes…………………...……………….123 3.3.1. Reciprocity in International Humanitarian Law……………………...131 4. Case Study on Interpretation of the Rules of International Law…………………………138 4.1. Torture in International Law...………..……...………………………………...139 4.2. The US Interpretation of International Rules relating to Torture and Unjust Treatment…………………………………………………………………………………...143 5. Critical Examination of the US approach in relation to Interpretation of the Rules of International Law, Torture and Unjust Treatment………………...………………………..145 5.1. Reservations……………………………………………………………………145 5.2. Jus Cogens Rules and the Interpretation of the Bush Administration…………146 5.3. Interpretations of the Definition of Torture and Unjust Treatment…………….147 5.4. Interpretations of the Rights of Detainees under the 1949 Geneva Conventions............................................................................................................................150 6. Conclusion………………………………………………………………………………..153 Chapter Four: Reciprocity and Enforcement Mechanisms of International Law 1. Introduction ………………………………………………………………………………158 2. Non-centralised Enforcement Measures…………………………………………………161 2.1. Self-Defence as Remedial Response…………………………………………...161 2.2. Counter-Measures as Remedial Response……………………………………..171 3. Centralised Enforcement Measures………………………………………………………178 3.1. The International Court of Justice……………………………………………...178 3.2. The UN Security Council………………………………………………………185 3.2.1. The Power of the UN Security Council………………………………185 3.2.2. The Role and Power of the Permanent Members of the UN Security Council……...............................................................................................................189 3.3. The Connection between the ICJ and the UNSC ………………………………197 3.4. Issues with International Law Enforcement through the Security Council and the International Court of Justice……………………………………………………………….201 3.4.1. Equality and Democratic Representation in International Dispute Settlements……………………………………………………………………….....202 3.4.2. Compliance and Commitment of States to International Law or the Obligations Set for States………………………………….………………………..204 3.4.3. Risks to International Peace and Security……………………....……205 3.5. International Trade Dispute Settlement………………………………………...212 3.5.1. Most Favoured Nation………………………………………………..214 3.5.2. National Treatment…………………………………………………...215 3.5.3. Trade Dispute Settlement Process……………………………………217 4. Conclusion………………………………………………………………………………..221 Chapter Five: Reciprocity and Co-operation between States in the Context of International Law and International Relations 1. Introduction………………………………………………………………………………229 2. What is International Co-operation?..................................................................................230 3. Evolution of Co-operation………………………………………………………………..232 3.1. Collective Security……………………………………………………………..233 3.2. Concert of Europe……………………………………………………………...235 3.3. League of Nations…………..………………...………………………………...238 4. Co-operation in International Law……………………………………………………….239 5. Co-operation in International Relations and its Relationship with International Law…...241 5.1. Liberalism v. Realism……………...…………………………………………….242 5.2. Unilateralism v. Multilateralism...……………………………………………….247 5.3. Functionalism and Neo-Functionalism…………...……………………………...254 6. Why do States Co-operate? What are the Benefits and Drawback of Co-operation for States?...........................................................................................................................256 7. What are the Barriers of International co-operation and how can Co-operation be Further Achieved?.....................................................................................................................260 8. Conclusion………………………………………………………………………………..269 Final Conclusions…………………………………………………………………………...273 Bibliography………………………………………………………………………………...284 Primary Sources…………………………………………………………………………….284 Secondary Sources………………………………………………………………………….297 Organizations……………………………………………………………………………….327 Summary The absence of a powerful uniform legal authority, to enforce international law and international agreements, has placed reciprocity in a pivotal position in inter-State relations and the extent to which States rely on reciprocity. This thesis examines the significance of reciprocity and the extent to which reciprocity manifests itself in international law, more specifically is this manifestation a foundation of international law or whether international law creates reciprocity. The present work argues how reciprocity in international law is a multifaceted concept. On the one side it is a principal tool incentivising States away from wrongful acts, and to abide by their obligations; alternatively it is a tool for establishing the right to a reciprocal response. Thus the study sets out to explore how international law shapes the international community’s interactions and how, in turn, these interactions shape international law. Considering the important role that the rule of law plays in the context of international law, the thesis aims to provide an in-depth analysis of the rule of law particularly in its relationship with international law. This analysis will provide a useful discussion on the interactions between the rule of law and reciprocity. The United Nations was established to enhance co-operation amongst the international community with the goal of maintaining international peace and security. This thesis will explore the role of reciprocity in international law on enhancing international commitment and international co-operation. The significance of this lies in reciprocal and ‘remedial’ options in international law that maintain States’ commitment to international obligations which in turn develops friendly relations and international co-operation. This thesis will aim to contribute to scholarly works to bridge the existing gap in interdisciplinary studies exploring the connection between reciprocity, co-operation and the rule of law in the realm of international law. 1 DECLARATION This work has not previously been accepted in substance for any degree and is not being concurrently submitted in candidature for any degree. Signed ...................................................................... (candidate) Date ........................................................................ STATEMENT 1 This thesis is the result of my own investigations, except where otherwise stated. Where *correction services have been used, the extent and nature of the correction is clearly marked in a footnote(s). Other sources are acknowledged by footnotes giving explicit references. A bibliography is appended. Signed ..................................................................... (candidate) Date ........................................................................ [*this refers to the
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