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Article Excerpt
CONTENTS
I Introduction II Facts and Issues in the Case A The Facts B The Issues III The Mutual Assistance Convention and Art 2(c) A France's Reliance on Art 2(c)--Majority Judgment B France's Failure to Give Reasons under Art 17--Majority Judgment. C France's Reliance on Art 2(c)--Declaration of Judge Keith IV Avoiding Abuse of Self-Judging Clauses A The Standard of Review Applied in the Majority Judgment B The Standard of Review Applied by Judge Keith V Conclusion
I INTRODUCTION
Self-judging clauses are clauses that allow states to reserve to themselves a right of non-compliance with international legal obligations in certain circumstances. These circumstances arise predominantly where the state in question considers that compliance will harm its sovereignty, security, public policy, or more generally, its essential interests. (1) Self-judging clauses can usually be identified by the inclusion of language such as 'if the state considers', (2) which confers discretion on a state to determine that, in particular circumstances, the state is not obliged to comply with certain obligations it has accepted under a particular international agreement. (3)
A good example of a self-judging clause can be found in art 2(c) of the Convention concerning Judicial Assistance in Criminal Matters, (4) which provides that assistance in proceedings relating to criminal offences may be refused [...] if the requested State considers that the execution of the request is likely to prejudice its sovereignty, its security, its ordre public or other of its essential interests.
As well as appearing in international treaties, self-judging clauses can be found in other types of international instruments including in optional declarations under art 36(2) of the Statute of the International Court of Justice ('ICJ Statute')--unilateral declarations whereby states accept the jurisdiction of the International Court of Justice vis-a-vis any other state accepting the same obligation (5)--and in reservations to international treaties. (6) They appear, however, most frequently in various types of international treaties, (7) including treaties on mutual assistance and extradition, trade and investment, or private international law and arbitration. It is this latter type of self-judging clause that is the focus of this case note. (8)
Despite their pervasiveness, until the recent decision of the ICJ in Djibouti v France, (9) self-judging clauses in international treaties had not received more than passing reference in international dispute resolution. (10) The question of the appropriate role of international dispute settlement bodies when asked to resolve disputes regarding allegations of abuse or breach of a self-judging clause is, however, of growing importance. As the range of human activity regulated by international agreements proliferates, self-judging clauses constitute one mechanism that allows states to actively engage in the expanding international legal order, while retaining a right to relieve themselves of international obligations in circumstances where the state determines that its essential interests are at risk. The presence of such exit-valves arguably enhances international cooperation, in that states are prepared to cooperate more deeply than would have been possible in the absence of such an ability to side-step international obligations under specific circumstances. At the same time, the large potential for abuse of such clauses could also have a chilling effect on international cooperation because each state party retains, to a certain extent, the right to determine the scope of the international obligations it has assumed. In adjudicating on disputes concerning the application of self-judging clauses, international dispute settlement bodies must therefore balance the need to apply a sufficiently robust standard of review to prevent abuse of such clauses against the need to respect the discretion that such clauses confer upon the state relying on them.
This case note outlines the ICJ's interpretation of the role and operation of self-judging clauses in the context of a dispute between Djibouti and France relating to France's compliance with the Mutual Assistance Convention. It also analyses how effective the Court has been in achieving the necessary balance between enforcement of an obligation and a state's discretion to limit this obligation. The case note focuses in particular on Judge Keith's declaration in Djibouti v France, which draws on principles of domestic administrative law in determining the appropriate standard of review to apply in cases where a breach of a treaty provision of a self-judging nature is alleged. This case note also briefly outlines the other legal issues raised in Djibouti v France and the Court's decision in respect of these issues.
II FACTS AND ISSUES IN THE CASE
A The Facts
The individual stories behind this dispute could of themselves form the basis of a novel. (11) A simplified summary of the facts follows. A French judge, Bernard Borrel, died in suspicious circumstances in Djibouti in 1995 while seconded as a Technical Advisor to the Djiboutian Ministry of Justice. Judge Borrel's charred body was found at the bottom of a cliff some 80 kilometres from the city of Djibouti. The Djiboutian judicial investigation into Judge Borrel's death upheld a theory of suicide.
A judicial investigation was also commenced in France in 1995. In 1997, the investigation became an investigation into the murder of Judge Borrel on the basis of evidence casting doubt on the hypothesis of suicide. His wife and children were civil parties to these investigations. Indeed, Mrs Borrel has dedicated a significant portion of her life since the death of her husband to ensuring that his murderer is found and has been heavily involved in all of the judicial investigations and related proceedings. The French Government even sought to have her appear as a witness in the ICJ proceedings. The request was refused by the Court on the basis that 'the evidence to be obtained from Mrs Borrel did not appear to be that of a witness called to establish facts within her personal knowledge which might help the Court to settle the dispute brought before it'. (12)
During the course of the inquiry, various French investigating judges made use of mechanisms under the Mutual Assistance Convention on a number of occasions to obtain various documents and statements, to reconstruct the events and to visit the scene of Judge Borrel's death. This included the issuing of three international letters rogatory to Djibouti. Djibouti responded positively to the letters rogatory in each instance.
In the course of the investigation, a number of Djiboutian Government officials were implicated in the murder of Judge Borrel, including the President of Djibouti (who at the time of the murder was the Chief of Staff of the former President). The French media also adopted this theory of the murder, with the motive said to be that Judge Borrel had uncovered evidence linking high-level Djiboutian officials with a drug- and gun-running ring. (13) This led to a complaint in 2003 by the Djiboutian Minister for Foreign Affairs to the French Minister for Foreign Affairs who noted his disappointment that France had taken no action to counteract the false allegations being made about the Djiboutian President in the French press and requested that the French Government expedite the conclusion of the judicial investigation. (14)
In parallel to the judicial investigations, judicial proceedings were opened in respect of subornation of perjury in France against the Procureur de la Republique of Djibouti and the Djiboutian Head of National Security. Both were accused of having exerted pressure on witnesses who had given evidence in the judicial investigation (one implicating the President of Djibouti, and the other discrediting such evidence). In early 2004, these two Djiboutian officials were summoned to appear before the French court conducting the proceedings. (15)
In 2004, the Djiboutian Government decided to reopen the judicial investigation into Judge Borrel's death in Djibouti and requested, by way of international letter rogatory, the transmission of the record of the French investigation. Despite initial positive assurances from the French Ministries for Justice and Foreign Affairs that the request would be satisfied, the French investigating judge with responsibility for responding to the international letter rogatory decided on 8 February 2005 not to transmit the requested files. She noted that, since no new element had come to light since the closing in December 2003 of the first Djiboutian judicial investigation, and given the absence of any reason connected with the opening of the new Djiboutian investigation, the new investigation
appear[ed] to be an abuse of process aimed solely at ascertaining the contents of a file which includes, amongst other things, documents implicating the procureur de la Republique of Djibouti in another [judicial] investigation being conducted at Versailles ... where his personal appearance had been requested. (16)
She further noted that:
Article 2(c) of the [Mutual Assistance] Convention ... provides that the requested State may refuse a request for mutual assistance if it considers that execution of the request is likely to prejudice [the] sovereignty.... security, ... ordre public or other ... essential interests [of France]. (17)
She concluded that in the presence of 25 declassified 'defence secret' documents on the file from two French intelligence services:
[t]o accede to the Djiboutian judge's request would amount to an abuse of French law by permitting the handing over of documents that are accessible only to the French judge. Handing over our record would entail indirectly delivering French intelligence service documents to a foreign political authority. Without contributing in any way to the discovery of the truth, such transmission would seriously compromise the fundamental interests of the country and the security of its agents. (18)
There was some dispute between the parties about when this decision was in fact notified to Djibouti and whether adequate reasons were given. France claimed to have notified the Ambassador of Djibouti in Paris by letter from the Ministry of Justice dated 31 May 2005, which referred to France's reliance on art 2(c) of the Mutual Assistance Convention. Djibouti claimed never to have received this letter and to have received notification of the decision only in a letter dated 6 June 2005 from the French Ambassador in Djibouti to the Djiboutian Minister of Foreign Affairs. This letter simply stated that France was not in a position to comply with the request for the execution of the international letter rogatory.
Meanwhile, the judicial investigation into the murder of Judge Borrel was continuing in France. On 18 May 2005 and then again on 14 February 2007, the investigating judge invited the President of Djibouti, who was on official visits in France, to appear as a witness in the judicial investigation. In each case, the fact that such a request had been made was reported in the French press on the same day. (19) France accepted that the first request was not made in accordance with French law, but submitted that the second request was validly made. In each case, the President of Djibouti declined to...
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