What are "Self-Contained Regimes"? and How Do They Work?
--- Contemporary Features of Enforcement System of International Law ---
with
special reference to International Human Rights Law


Ryo YAMAMOTO
Associated Professor of International Law Miyagi University of Education, Japan

 Introduction

Peaceful settlement of international disputes has been main purpose of international law since 17th century. As to this point, one of the features of contemporary international law is obligation of States is fairly multiplied. That is to say, States are usually obliged to settle international disputes according to general international law. This is called an obligation of peaceful settlement of international disputes, stipulated in 33 of the United Nations Charter. On the other hand, in some cases, they are also required to settle specific disputes pursuant to the procedures set up by multilateral treaties. You may frequently find this kind of situation in the field, such as international economic relations, international protection of human rights, and international protection of environment.
This phenomenon raises following two questions. First, which means of dispute settlement are States supposed to choose, when they actually face the situation.? Secondly, while the pro- cedures set up by multilateral treaties are recently called 'self-contained regimes', do they ex- clude uses of remedies under general international law? Referring to intenational human rights law, this talk tries to show the theory and function of self-contained regimes in international law.
Concept of 'Self-Contained Regimes' in International Law
(1)Hostage case(1980)
First of all, let me go back to the origin of the term 'self-contained regimes'. This term was mentioned by Intenational Court of Justice(ICJ), in the judgment of Hostage case in 1980. I guess you know it well, this case was brought about during Isramic Revolution; namely, approximately 3000 militant students(called "Muslim Student Followers of the Imam's Policy")seized United States diplomatic and consular personnel as hostage in Teheran. Of course, this was flagrant violation of diplomatic relations law. So, the United States unilaterally filed an Applica- tion instituting proceedings against Isramic Republic of Iran. The International Court of Justice unanimously decided that Iran was responsible in this case. The point here is what the Court said in its judgment concerning the characteristics of diplomatic relations law. I quote; "[T]he rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, forsees possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse." [unquote] This was substantially for the first time that 'self-contained regimes' was highlighted in the vocaburary of international law. It meant that even if the members of the United States mission in Teheran abuse their privileges and immunities, Iran can not seize them as hostage; she should have ask them to leave Iran as persona non grata(this is Latin, and it means "unwelcomed person" ); otherwise she should have broken off the diplomatic relations with the United States(and acutually no diplomatic relations exist between two States since this case). (2)Discussion of 'Self-Contained Regimes' in the Internnational Law Commission(ILC) of the United Nations It was Hostage case which gave birth to the self-contained regimes. However, it is also very important to see the discussion in the Internnational Law Commission(ILC; subsidary organ of the United Nations General Assembly), to understand the meaning of self-contained regmes. The ILC has been engaged in the codification of State Responsibility since 1963, and it is still in progress. It was Second Special Reporter, late Willem Riphagen(Netherlands) who extensively referred to the concept self-contained regimes. According to him, some States may conclude treaties between them, and provide for a special regime of responsibility for the breach of obligations; namely, this regime provides specific provision in advance, for disputes between the contaracting Parties. Though he called it 'subsystem', it is equivalent to the self-contained regimes. So, in case a State fails to perform obligations of this regime, the other State(viz. victim State)is precluded from using remedies under general international law; instead, she is required to settle the dispute acccording to the procedures provided in the regime. For example, suppose there is a trade dispute between Japan and the United States(both are contracting Parties of GATT, and dispute settlement system of GATT is one of the typical example of self-contained regimes); according to his argument, the United States is required to settle this dispute through GATT system, and is not able to use countermeasure, such as 301 of Trade Law, outside GATT system. In short, self-contained regimes are kind of watertight system for dispute settlement as well as enforcement of international law. That was substantially what he meant during the discussion of the ILC. However, if you look at the realities of international relations, there is no system having such strict, and watertight features in positive international law. For example, dispute settlement system of World Trade Organization(WTO), which substantially succeded GATT, has very adavanced, and judicialized system for dispute settlement. Still, there is some room for unilateral measures of States, as Elizabeth Zoller(France)and former US Trade Representative, Canter pointed out. In fact, many members of the ILC criticized Riphagen's understanding of the self- contained regimes. And, his successor, Arangio-Ruiz(Italy) eventually gave up the concept of self-contained regimes, as far as codification work of the ILC concerns. In my opinion, self-contained regimes should be understood a little more elastically(and should not be understood as tight as Riphagen and Bruno Simma's). In other words, if multilateral treaties have some kind of enforcement system in its provision, or some kind of means to counter the violation of other Parties, they deserve to be called 'self-contained regimes'. Of course, they are not separated from system of general international law; still they count a lot in dispute settle- ment, enforcement of international law, and for maintenance stable international relations. International Human Rights Law as 'Self-Contained Regimes' (1)Enforcement System of International Human Rights Law Treaties for protection of international human rights are also typical example of self- contained regimes, because they ususally have their own enforcement system. Let us take Inter-national Covenant on Civil and Political Rights(1966) as an example. It established a Human Rights Commitee(HRC), and conferred verious functions, in order the States Parties to observe the Covenant. For example, first, every States Parties are required to submit [to the Human Rights Committee] "on the measures they have adopted which give effect to the rights recognized[in the Covenant], and on the progress made in the enjoyment of these rights" within one year after their ratification of the Covenant. After the submission of the first report, they are also required to submit the same kind of report to the Commission every five years. For example, Japan ratified the Covenant in 1979, and submitted first reprt in 1980; after this, she also sub- mitted the report in 1987, 1991, and 1997 respectively. This is called "Reporting System" of the Covenant. Secondly, a State Party may charge another Party with a violation of the Covenant. For example, suppose State A believes State B is violating the Covenant. Then, State A may make this allegation in a formal statement to State B, and State B must answer to this charge within a period of three months. And, in case both Parties do not resolve their differences within a period of six months, each of them has a right to submit the matter to the Human Rights Committee. This is called "Inter-State Complaint System" of the Covenant. In fact, this system is optional, and can be exercised only by and against States Parties which made separate declarations, pursuant to41 of the Covenant, to recognize the jurisdiction of the Committee. Still, this means can be appraised as a special system of international human rights law. Thirdly, Civil and Political Rights Covenant is supplemented by the Optional Protocol to the Covenant. It enables private parties, alleging to be victims of a violation of the Covenant, to file complaints with Human Rights Committee. Actually, this complaints may be filed only against States Parties which have ratified the Optional Protocol, in addition to the Covenant. However, this individual petition system is also revolutionary in the law of international protection of human rights. More or less, you can find these three means of enforcement system in international human rights law, having universal characteristics. (2)International Human Rights Law in Practice Though international human rights law have very detailed means of enforcement, the only means which substantially works(or I should say, which is successful) is "Reporting System" of the Covenant. This is due to the fact that number of States Parties to the Optional Protocol is quite limited, in comparison to those of Covenant itself; and "Inter-State Complaint System" has never been used since the Covenant has been adopted. And, it is also expected that it will not be used in future. As a result, the enforcement system of internaitonal human rights law is more complete in theory rather than in practice. In this connection, following two points can be mentioned. First; as I explained, States Parties are required to submit a report to Human Rights Committee, but it is required to do so only every five years. So, "Reporting System" of the Covenant takes pretty much time, and is not able to respond to immnent violations of human rights. This is one of the reason why the United States and other Western States maintain that they have rights to deal with human rights issue, outside the enforcement system of international human rights law. According to them, the enfocement system of international human rights law is not intended to supplant, but supplement remedies of general international law. In particular, the United States argue that she has a right of humanitarian intervention, in cases violations of human rights are gross, systematic and serious. On the contrary, former Soviet Union tried to insist that the only way to deal with human rights issue is through the "Reporting System" of the Covenant(and it should not be discussed in the other place). This is because she did not want human rights isssue(in this case, especially, treatment of political dissidents in the former Soviet Union)to be diplomatic stake with the United States(and not because she wanted the enforcement system of human rights law to be perfectly "self-contained"). Secondly, the report submited by States Parties to the Human Rights Committe is discussed by 18 Members of the Committee, and Human Rights Committe makes comments in the end. This is called "Concluding Observation". However, it is not judgments of a court, or regulation having binding force. Rather, it tries to pursuade the State Party to redress human rights situation within the State, through (what is called)"constructive talks". As I mentioned before, this "Reporting System" fares pretty well. But, it does not work, when the States decide to dis- regard the Observation, and to be defiant. These points show that the enforcement of internaional human rights law rests not only upon the detailed system; it also rests on the essential cooperation of the States Parties. Concluding Remarks Finally, I should briefly mention the situation in Japan. There are marked and two contra- dictory ways of thinking concerning international human rights law; namely, excessive expecta- tion and ignorance. Those who believe in human rights treaties, tend to understand that human rights treaties are panacea, having almighty power of redress(they think as if everything will be going well, if Japan ratifies such and such human rights treaties). That was a case of Convention of the Rights of the Child. But if you correctly understand the enforcement system of the Convention of the Rights of the Child (viz. the Reporting System only), it is very clear that serious problems, such as abuse of children, very strict regulations in compulsory education and high competition to enter universities, (all these problems)do not fade away, just because Japan ratified the Conven-tion. They need long and painstaking efforts. I am afraid that too much expectation eventually ends in disapointment. On the contrary, Japanese courts are very careful when they deal with these human rights treaties. In almost all cases, these treaties are not understood as having "self-executing" character- istics, and treaty provisions are required to have additional implementing legislation, if they were to be applied in Japanese courts. This is partly due to that lawyers, especially judges in Japanese courts do not get used to dealing with international human rights law. Though this situation is slightly changing, there still remains a long ways to go! In my opinion, both attitude are little too extreme and need an alteration. Namely, in order to appreciate human rights treaties correctly, it is very important to understand that how these treaties are designed to work, and how they do work within the contracting Parties.
Appendix 1 Charter of the United Nations Article 33 1. The parties to any dispute, the continuance of which is likely endanger the maintenance of international peace and security, shall, first of all, seek a solution by negociation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangement, or other peaceful means of their own choice. Appendix 2 Dictum of the Judgement in the Case concerning United States Diplomatic and Consular Staff in Teheran(Hostage case)[United States v. Iran)](1980) The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, forsees possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse. Appendix 3 International Covenant on Civil and Political Rights Article 40 1. The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for the States Parties concerned; (b) Thereafter whenever the Committee so requests. Article 41 1. A State Party to the present Covenant may at any time declare under this article that it recog- nizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another Party is not fulfilling its obligations under the present Covenant. Communications under this Article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Com- mittee. No communication shall be received by the Committee if it concerns a State Party which has not made such declaration. Communication received under this article shall be dealt with the following procedure: Appendix 4 Optional Protocol to the International Covenant on Civil and Political Rights Article 1 A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol.