What are "Self-Contained Regimes"? and How Do They Work?
--- Contemporary Features of Enforcement System of International Law ---
special reference to International Human Rights Law
Associated Professor of International Law
Miyagi University of Education, Japan
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 ¡ø33 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
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.
"[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."
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 ¡ø301 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 to¡ø41 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.
Charter of the United Nations
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.
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.
International Covenant on Civil and Political Rights
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.
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:
Optional Protocol to the International Covenant on Civil and Political Rights
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