I Introduction
It is always in times of greatest strain that legal boundaries are most important. The US governtment has been able to conclude with a number of countries in Africa, Asia, Latin America and the Middle East, a ‘Non–Surrender Treaty’ and continues vigorously to negotiate with numerous countries all over the globe. The target of this agreement is poor and weak countries all over the world. And the object of this agreement is the establishment of a legal relationship between the developing states and the United States of America under which US military and civilian personnel suspected of committing international crime on the sovereign territory of these states (including their quasi-territories such as ships and aircrafts) will not be turned over to the International Criminal Court (ICC) or in other words, will enjoy immunity from the jurisdiction of the ICC, while the developing states will benefit in terms of economic and military aid. An international agreement of this nature undermines not only the sovereignty, independence and the principles equality of states but importantly violates some of the principles of the 1969 Vienna Convention on the Law of Treaties to which USA and some of the signatory states are parties.
Ghana became one of the independent states compelled by circumstances to sign the ‘Non– Surrender Treaty’ with the US not in a normative void, but against a backdrop of established international law. In Ghana, the document received parliamentary approval through ratification on 30th October 2003 with a vote of 101 in favour, 53 against and no abstention (See, Daily Graphic of 31st October, 2003). The parliamentary approval was manifested by clear partisan approach but that is not the focus of the present article.
The present article seeks to set out the fundamental principles and general rules governing the conclusion of treaties of this nature; the extent to which the ‘Non– Surrender Treaty’ between the US and other states (some of which had already accepted the obligations of the Rome Statute) violates the principles and rules of international law and order. The article does not address the substantive issues in the ‘Non-Surrender Treaty’ itself in any detailed form due to the limited scope, nor advocate any position beyond the application of international law as set out here. Apart from looking at the situation as in Ghana, the aim is to provide a resource for those grappling with many legal questions raised by the situation so far as the Rome Statue and the ‘Non–Surrender Treaty’ are concerned. The article attempts answering general questions which include the following. What is the fate of a treaty that violates international legal principles embodied in the United Nations Charter? Whether and in what circumstances is the use of coercion permissible in treaties? Whether the ‘Non–Surrender Treaty’, a bilateral treaty, violates the Rome Statute (a multilateral treaty) or contradict with any existing peremptory norm of international law, and what can be done in this situation?
II In violation of the Principles of the UN
The principle of sovereign equality of states include respect for the sovereignty of all states irrespective of economic or military power. The principle of sovereign equality of states is embodied in Article 2(1) of the United Nations Charter, which states that “the organization is based on the principle of the sovereign equality of all its members” Interpretation of that principle is given in many authoritative international documents and especially in the Declaration on Principles of International Law of 1970 which is binding on the organization and all its members. Sovereignty means a state’s complete authority over its own territory and independence in international relations. Accordingly, that principle obliges a state to respect the full authority of any other state over its own territory and its independence from other states constituting sovereign entities that are juridically equal. Unfortunately, the same international law contains principles and norms that sanctioned its violation. For example, states under the cover of the principle of self-defence wage war against one another and they always try to justify their course of action on the basis of such principles.
In modern international law the substance of the principle of sovereign equality of states is wider. It includes the following proposition:
Each state has the duty to respect its territorial integrity and political independence of other states;
All states are juridically equal. They have equal rights and obligations as members of the international community irrespective of differences in their economic, social and political system.
States may create norms of international law through agreements on the basis of equal rights, no one state or group of states can impose on another or other states norms of international law that it creates itself.
The last of the above three substances is of primary concern here with regard to the ‘Non- Surrender Treaty’.
Of course, the legal equality of subjects of international law does not imply their acutual equality. There is a certain contradiction between the principle of sovereign equality of states and their actual equality. We can only talk of equity and not equality. There are states with small population (e.g. Togo with 6.6 million) and others whose population are a thousand times larger (e.g. China with ) entering into agreement on equality basis.. In the same way we are witnessing a situation in which a rich, influential and powerful state like the USA is entering into a bilateral agreement with poor and weaker states.
The legal equality and independence of sovereign states confers upon each state the right of conduct its internal affairs free from the interference of other states, subject only to the rules of international law. This is known as the doctrine of non-intervention and as the International Court explicitly observed in Nicaragua v United States (Merits) (1986) ICJ Reports, p. 14, at p. 106.
‘The existence in the opnio juris of states of the practice of non-intervention of backed by established practice. It has moreover been presented as a corollary of the principle of the sovereign equality of states.’
States are obliged to refrain from action which may be construed as ‘intervention’ in the sovereign affairs of other states. The classical definition of the term ‘intervention’ was elaborated in the following passage:
‘Intervention is dictatorial interference by a state in the affairs of another state for the purpose of maintaining or altering the actual condition of things… Intervention can take place in the external as well as the internal affairs of a state …But it must be emphasized that intervention proper is always dictatorial interference, not interference pure and simple’. Oppenheim, L. International Law (Eighth edition, 1955), Vol. I, para, 134.
Intervention has become synonymous with the use of force. This was clearly recognized by the international Court in the Corfu Channel Case (Merits) (1949) ICJ Reports, p. 4. In reply to the contentions of the United Kingdom that mines weeping operations in Albanian waters had been carried out for the purposes of obtaining evidence for subsequent international litigation, the Court made the statement that:
‘The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, I the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law…’
Attempts have been made to ascertain the content of the principle of non-intervention. General Assembly Resolution 2131 (XX) of December 14, 1960 concerning the Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States, declares the following duties to be a consequence of the principle of non-intervention:
i) No state has the right to intervene, directly or indirectly, for any reasons whatever, in the internal or external affairs of any other state. Armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural element, are condemned.
ii) No state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights to secure from it advantages of any kind. Also, no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrown of the regime of another state, or interfere in civil strife in another state.
These statements were reiterated in the General Assembly Declaration on Principles of International Law Concerning Friendly Relation and Co-operation among States in Accordance with the Charter other United Nations, GA Resolution 2625 (XXV), of October 24, 1970.
Since independent, the principle of sovereign equality remains one of the manifestations of African states. It serves to ensure each state’s free development and to protect them from policies of diktat and subordination as they currently possess a numerical superiority in universal international organizations. The only guarantee for the poor countries in achieving real equality and non interference is to be mindful of basic value underlying any agreements they enter into with the rich and powerful nations and the objective which these agreement seek to attain should bear directly on long term national interest and security of their states. The political cost should not be higher than the benefit to be derived from those states through gift of cash and military hardware. Unfortunately this is not the case we see in recent times but rather increasing number of unequal treaties which have no real value for the poor states. This of course leads us to the next discussion concerning the illegal imposition of the \’Non-Surrender Treaty’ on selected poor and weak states around the globe.
III Treaties concluded under coercion of force and threat of force
Treaties represent the explicit intention of states to be bound by agreed terms within the treaty document. It is this voluntary assumption of obligation that lies at the heart of international law. The Vienna Convention on the Law of Treaties, 1969 is an important Convention, codifying some aspects of treaty law and innovative in other aspects.
Under the Convention, a number of reasons and causes may justify a treaty being declared invalid. The reasons may include: error relating to a fact (Art.48), fraudulent misrepresentation of stat authority (Art. 49), corruption during negotiation (Art. 50) and Coercion (Art. 51, 52). Apparently, there is no evidence established for the first three causes so far as the non-surrender treaty is concerned. But, by implication, it is certain that there is a convincing element of coercion which can be discussed here.
Consent on the part of a state to a contractual obligation shall have no legal effect if it was procured:
By the coercion of the representative of the state (Article 51); or
By the threat or use of force in violation of the principles of international law embodied in the United Nations Charter (Article 52).
In the Fisheries Jurisdiction Case (Jurisdiction) (1973) ICJ Reports, p. 14, the International Court observed that:
‘There can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agreement concluded under the threat or use of force is void. It is equally clear that a court cannot consider an accusation of this serious nature on the basis of a vague general charge unfortified by evidence in its support.’
The Court displayed a similarly restrictive approach to the application of this principle in Case Concerning the Territorial Dispute between Libya and Chad in 1955.
The World Federalist Association (WFA) report carried by the Ghanaian media in 2003 states that the US was threatening to withhold $89.28 million worth of military aid if the countries by November 1, 2003 did not give their consent to granting American Citizen immunity from prosecution by the International Criminal Court (ICC). The 32 countries which faced US threat of sanctions included Ghana. This presumably compelled Ghana to quickly ratify the agreement without any serious considerations and consultations. Policies to establish military bases on territories of other states (which are nuclear free states) amounts to “twisting arms” and is clear violation of Articles 51 and 52 of the 1969 Vienna Convention on the Law of Treaties. Moreover, the coercion of state as demonstrated in the ‘Non- Surrender Treaty’ makes the treaty invalid especially when this entails the threat or use of force, as embodied in Article 2(4) of the United Nations Charter.
A right to participate in a treaty whether bilateral or multilateral attaches directly to interested states but must be on the basis concordance of the wills of interested states.
ie – states whose legitimate interest bear directly on the object of the treaty. The Non – Surrender Treaty is not a treaty of economic or social cooperation to talk of mutual benefit but a cooperation in which one party (Ghana) agrees to defy an international agreement. It is also important to note that, the right of Ghana to conclude a bilateral treaty with any other state exists independently whether or not other state do the same or other states recognise that state or its government. Similarly the existence of diplomatic or consular relations between corresponding states is not a prerequisite for concluding a treaty. A rupture of such relations does not entail cessation of its operation unless the treaty’s execution requires such relations, tt is therefore wrong for any state to refer to the number of states that have approved or disapproved an agreement as a basis of its own action or non-action towards an agreement. In the early years of Ghana’s independence Ghana led other African countries in foreign policy and others follow. Today it is the Vise–vesa and it is becoming more difficult to take independent decisions in our external relations because we have failed to find alternatives in the solution of problems that lead us in subordination to the wills and interest of the rich and powerful nations. One can not reject the statement by Kwame Boafo – Arthur that “even though Dr. Nkrumah in some instances adopted subversive, aggressive and hostile policy orientation centered essentially on African Unity, decolonization and national development that constitute the moving force in Ghana’s foreign policy. In fact in the past Ghana was an object in the light of world opinion in relation to events of umcompromising antagonism of the social forces for the direction of social economic development. Ghana is unable to sustain the leadership role though with the full capacity of sustainability.
As a general rule a treaty is absolutely invalid if it has been null and void ab initio (from the very first stage).
The ‘Non–Surrender Treaty’ suggests, from the preparatory stage, a notion of “first class and second class citizens” in the administration of international justice involving those who commit various crimes against humanity.
IV Contradictions between the non-surrender treaty and Rome statute
The norms of international law are divided into non- mandatory norms and preremptory norm. Non-mandatory are norms from which states can deviate though mutual agreement if this does not harm the right and legitimate interest of other states. Peremptory norms are norms from which no derogation is permitted even by mutual agreement, and treaties contraditing such norms are legally void (Art 53 of the Vienna Convention on the Law of Treaties). It follows therefore that with regard to the principle of the non–use of force or threat in international relations, the ‘Non-Surrender Treaty’ between US and other states violates that prinicple and therefore invalid. If the treaty is invalid as a result of a contradiction with an existing peremtory norm of internaional law then its signatories are obliged, as far as possible, to remove the consequences of any action carried out on the basis of the terms of the treaty contradicting that norm. If on the other hand, the treaty is declared unvalid as a result of the emergency of a new imperative norm, this does not influence the rights and obligations of the signatories resulting from the treaty before its termination, provided that the rights and obligations themselves do not contradict that imperative norm. The basic cause for the emergence of peremptory norms is the growng internationlization of various aspects of social life especially of economic life, and the increasing role of global international problems. This serves to increase the number of issues whose uncontrolled regulation on a local multilateral or bilateral basis may harm the interest of other states. It is time all states are unanimous in considering that peremptory norms include above all the basic principles of modern international Law.
Article 98(2) of the Rome Statue which provides that the ICC may not proceed with a request for surrender that would require the requested state to act inconsistently with its obligations under international agreements, only provides an orderly process for handling of suspects among States cooperating with the ICC. It must not be narrowly interpreted to mean that a state which has refused to cooperate with the court is free to negotiate bilateral agreement that secure exemption for its citizens from presecution. Such an interpretation undermines not only the common objective which the Rome statue seeks to attain but seriously devides the international community into two groups namely the equal (superior) and unequals (inferior). While the US seeks for its citizens from surrender to the ICC, immunity it is ready to pay for the arrest and extradiction of other citizens suspected of international crime to the international court of Justice and the International criminal court that it undermines. Above all there is a hierarchy between norms of the United Nations Charter and those of other international treaties. According to Art 103 of the charter, “in the event of a conflict between the obligations of 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. In particular,one should distinguish the bilaterl Non- Surrender Treaty concluded by Ghana with the US from the Rome Statue whose obligation Ghana had accepted. While according to international law, both are binding on Ghana in the event of collision, priority will be given to Rome statute concluded at the multistate level of course, parties to a treaty may decide to proceed other wise.
Note that the US does not approve the Rome statute just the same way it refused to sign with the International Court of Justice which is the principal body of the UNO. International law does not precluse the exercise of treaty based universal jurisdiction over the nationals of Non-Party states and in fact this pracitice is vital to the fight against international crimes. Through the implementation of the ICC statute, a number of states that previously lacked legislation have enacted universal jurisdiction legislation which enable them to exercise such jurisdiction over the crimes within the ICC statute: genocide and crimes against humanity. Recent law reform efforts in national systems, brought on in large part by ratification of the ICC statute which at the time of writing, currently stands at 42 states including Ghana, have contributed to the system of international justice. It is sad, therefore, to see signatory states to the Rome statute undermining a treaty which is in their own interest considering the aumorous war crimes and genocide in Africa, Asia and the Middle East. As it has not entered into force and will not have retroactive effect (Article II), the ICC statute is not yet binding as a treaty law. Negotiated over more than five intense years by some 160 states, the statute may, however, provide guidance on customary law, although this must be treated with some caution. It has been noted – in Art 10 of the statute itself and by commentators – that the ICC definitions do not necessarily reflect customary process that gave rise to the statute it is in several respects more restrictive than customary law requires. It is relevant therefore to look not only at the statute buta also other interpretative sources. With this in mind the statute itself notes at Art 10, that “nothing in this part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for the pruposes other than this statute.”
V Conclusion
In the particular situation at hand, if international consensus is infact sufficiently cohesive, the inertia that has so often been cause by lack of political will and division in international opinion (at least of poor and weak states) may not arise. The acceptance of ‘Non-Surrender Treaty’ by Ghana means it is unable to take decisive measures necessary for her independent existence. Exempting the current situation from framework of international law will discredit and undermine the universality of the rule of law, laying the foundation for future violations.
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