May 14th, 2015
By Ari Maniatakis – Junior Fellow
Over the past decades, the position of the individual in the international scene has changed radically. Especially after 1950, the individual has gained substantial attention from the international community; this attention, aimed at protecting human life and dignity, has rendered individuals as the subjects of international law and the final receivers of its rules. It is widely accepted in the international legal community that nowadays the individual can claim locus standi before a certain rule of public international law or before an international legal instrument.
In the context of public international law, therefore, the growing role of the individual expands in the invocation of fundamental principles, previously restricted to state agents. Among those is the principle of reciprocity which is even integrated in various national constitutions. For example, the Greek and French Constitutions include the principle of reciprocity, permitting non-Community nationals to enjoy benefits – deriving from international conventions – otherwise restricted to them. In practice, the courts have dealt with reciprocity in cases of taxation (of foreign individuals and legal entities) and the exercise of certain professions restricted to non-Community nationals. Thus, on legal grounds, an individual can claim the principle in order to enjoy benefits abroad.
However, the invocation of the principle of reciprocity regarding humanitarian conventions is restricted by international law. Article 60, paragraph 5 of the Vienna Convention of 1969, explicitly excludes reciprocity from provisions of humanitarian conventions. And precisely because of the international character of the Vienna Convention, the exclusion is universal. As a result, certain European Union countries which could traditionally invoke their constitutional right to reciprocity are prohibited from doing so in humanitarian international relations. Of course, the tradition of human rights respect and freedom in the European continent does not create confusion in practice. But exactly because freedom is a well-rooted principle in the European psycho-synthesis, the prohibition creates confusion in theory. Eurosceptics, “souverainistes” and dualists (in legal terms) do not recognize the supremacy of international laws over their national constitutional provisions. Allegedly, any such recognition will be contradictory with the notion of sovereignty, as another well established principle of international law.
Moreover, the universal character of the Vienna Convention of 1969 does not relate only to countries that have proven their respect for human rights, but also includes others which still have a long way to go in the humanitarian field. And despite the progressive development of humanitarian international law, it seems that there is still a significant gap between setting the rules and enforcing them. And here comes the dilemma of making a choice between preserving sovereignty or protecting human rights. The principle of non-intervention is rooted deeply in international relations, and enshrined by Article 2, paragraph 4 of the UN Charter. As fundamental as this article has been for the respect of territorial sovereignty, it has been just as much of an obstacle to achieving compliance on human rights standards. Consequences due to unfortunate passivity to human rights threats include 500,000 deaths in the Sudanese civil war, more than 3 million deaths of Bangladeshi civilians during the Liberation War and around 1.7 million deaths of Cambodians during the Pol Pot regime.
Nevertheless, the international legal community still debates whether humanitarian intervention is legal or illegal based on the provisions of the Charter. Even in the 21st century, the methods certain governments choose to restrict freedom of religion and of speech prove shocking for humanity. The persecution of the Rohingya Muslims in Burma is an example of how the international community stands helpless in front of one of the biggest crimes against humanity, again, in the 21st century. United Nations pressure as well as the legal obligations of Burma in the Universal Declaration of Human Rights conventions seem not to hamper the Burmese government from displacing more than 125,000 Rohingya Muslims in the context of a violent “ethnic cleansing” outburst where 28 children were hacked to death in 2012.
Especially when violations derive from state and governmental practices, when regimes fail to respect and promote human dignity and freedom, governments become responsible to the international community, whose response may take the form of sanctions and public condemnation. The “ethnic cleansing” of the Burmese government directly violates Article 18 of the Universal Declaration of Human Rights, which the government has been violating since 1982. Yet, more than 30 years later, the punishment of the Burmese government does not stray far from the form of sanctions, while humanitarian intervention is limited to UN peacekeepers. Has this considerably ameliorated the conditions of the Rohingyas? Does that improve things in the short-term for people who lost their freedom and dignity on illogical grounds?
The fact, therefore, that violating practices make authoritative regimes directly responsible but indirectly punished reveals the need to reconsider the way international conventions are applied to contractual parties, because the latest governmental practices have rendered humanitarian intervention illegal and have left authoritative regimes with the freedom to invoke non-intervention in order to maintain impunity for their violations. It is worth wondering, do humanitarian conventions bind the majority of the international community, or do they not? If they do, shouldn’t there be mutual or reciprocal respect for their provisions? On the one hand, there are participating parties which comply with humanitarian conventions and even restrict their sovereignty by limiting their constitutionally granted principle of reciprocity. On the other hand, other participating parties openly violate humanitarian conventions and are protected on the basis of the exact territorial sovereignty which the former choose to restrict.
Thus, there is this sensitive issue of the principle of reciprocity in humanitarian conventions which, if examined, it can correct compliance discrepancies of humanitarian conventions. Through the prohibition to invoke the principle of reciprocity, we cannot but see the good will of the international community to protect fundamental human rights. But since all parties in a convention need to serve it equally, this goodwill can bring back this fundamental principle of international law in order to legitimize humanitarian intervention and promote fulfillment of the objective goals of humanitarian conventions. It is at least morally acceptable that a state forfeits its legitimacy when it violates human rights, and another state can intervene on behalf of the oppressed citizens.
Arguably, scholars interpret the concept of reprisals, or countermeasures, as an element of reciprocity. The International Law Commission Articles on State Responsibility, Parts One, Two and Three, do not leave open the possibility of invoking reciprocity and demand reparations by the injured parties. However, Articles 48 and 54 provide exceptions for the permissibility of countermeasures for obligations above all (erga omnes). In 1970, the International Court of Justice accepted that there are international customary rules which cannot be altered and are obligations “erga omnes”. The Court referred to these obligations deriving from “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”. It is questionable, therefore, whether ICJ jurisprudence and Articles 48 and 54 of ILC Articles on State Responsibility are contradictory with Article 60(5) of the Vienna Conventions of 1969, since the former provide a legitimate basis for reciprocal invocation of countermeasures.
Equally important is the positive notion of reciprocity. The international community has frequently interpreted the principle of reciprocity based on negative practices. In legal terms, it implicitly accepts that the principle is a form of a reservation in international conventions; and on this basis, Article 60 of the Vienna Convention bans it from humanitarian conventions. But respectfully to Public International Law, there should be a clear distinction between reservations and the principle of reciprocity in humanitarian conventions. According to the Vienna Convention of 1969, there is no prohibition of reservations in international human rights conventions, though there is the prohibition of the principle of reciprocity in order to discourage reservations. According to the same convention, there is no officially recognized international authority to control the legal quality of reservations which might lead to arbitrary practices, especially in human rights conventions, including those of torture (1965), of discriminations against women (1979) and of child protection (1989). However there is a significant increase in the authorities of international organs to monitor the implementation of human rights conventions (examples include the European Court of Human Rights) which are actually authorized to monitor the legitimacy of reservations.
Discerned from the notion of reservations, the principle of reciprocity should not be regarded by a defensive point of view, but rather as a means of promoting human rights. Instead of using the negative interpretation of reciprocity, human rights conventions should take the positive interpretation and incorporate it in human rights provisions. For example, instead of using the interpretation “that a State may refuse a particular treatment to another if the latter refuses to take an attitude similar to that of the former”, international conventions on human rights could read “a State may accept a particular treatment to another if the latter accepts to take an attitude similar to that of the former” in order to positively engage States to implement their obligations in a treaty. On the basis of respecting religious freedom, the principle can be used as a means of encouraging respect of religious minorities. At the same time, this can be applied to ethnic minorities. The establishment of such a practice could lead to a positive start of reciprocal respect of religious or ethnic groups. Thus, instead of banning the fundamental notion of reciprocity, causing confusion, human rights conventions should stand at its positive interpretation and integrate it in the very core of their texts. That would encourage the promotion of human rights respect and freedom, even in countries where such practices are not yet as widespread as they ought to be.
In a nutshell, we argue that the restrictive character of Article 60 of the Vienna Convention of 1969 sidelines the fundamental principle of reciprocity from international humanitarian law. Arguably, it is not reciprocal that countries with long traditions in respecting human rights restrict their constitutional right of invoking the principle (thus restricting their sovereignty), while others that oppress human rights invoke the same notion of sovereignty to escape from countermeasures to their actions, especially when they all participate in the same humanitarian conventions which bind them in the same way. We contend that the incorporation of reciprocity in humanitarian conventions will prove to be a significant step towards legitimizing humanitarian intervention and will encourage the convergence of the way humanitarian conventions are applied by the international community.
The European Legal Forum. Issue 5-2002
 Roukounas Emmanuel. Public International Law. Athens. National Library of Law. 2010. Print
 Vienna Convention on the law of treaties
 Définition du souverainisme, Souverainisme, L’Europe des Nations
 THE WORLD; Sudan’s Strife Promises to Outlive Rebellion, 19 July 1992
 Bangladesh Islamist leader Ghulam Azam charged, May 13, 2012
 Burma: End ‘Ethnic Cleansing’ of Rohingya Muslims. Humman Rights Watch, April 22, 2013 (http://www.hrw.org/news/2013/04/22/burma-end-ethnic-cleansing-rohingya-muslims)
 Article 18: An Orphaned Right. A Report of the All Part Parliamentary Group on International Religious Freedom.
 Barry M. Benjamin. Unilateral Humanitarian Intervention: Legalizing the Use of Force to Prevent Human Rights Atrocities. Fordham International Law Journal. Volume 16, Issue 1. Article 4, 1992
 Klein, Eckart. Denunciation of Human Rights Treaties and the Principle of Reciprocity. Oxford University Press
 Case Concerning the Barcelona Traction, Light and Power Company, Limited (1970). I.C.J. Reports 3, 32
 Roukounas Emmanuel. Public International Law. Athens. National Library of Law. 2010. Print