Enforcing International Law: From Self-help To Self-contained Regimes

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ENFORCING INTERNATIONAL LAW

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Enforcing International Law From Self-help to Self-contained Regimes

MATH NOORTMANN

© Math Noortmann 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Math Noortmann has asserted his moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Gower House Croft Road Aldershot Hants GU11 3HR England

Ashgate Publishing Company Suite 420 101 Cherry Street Burlington VT 05401-4405 USA

Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Noortmann, Math Enforcing international law : from self-help to self-contained regimes 1. Pacific settlement of international disputes 2. Diplomatic negotiations in international disputes 3. Sanctions (International law) 4. Reprisals I. Title 341.5 Library of Congress Cataloging-in-Publication Data Noortmann, Math. Enforcing international law : from self-help to self-contained regimes / by Math Noortmann. p. cm. Includes bibliographical references and index. ISBN 0-7546-2443-9 (alk. paper) 1. Pacific settlement of international disputes. 2. Arbitration, International. 3. Self-help (Law) 4. International law. 5. International relations. I. Title. KZ6010.N66 2005 341--dc22 2005003587 ISBN 0 7546 2443 9

Typeset by IML Typographers, Birkenhead, Merseyside and Printed in Great Britain by MPG Books Ltd. Bodmin, Cornwall.

Contents Acknowledgements 1

Introduction Enforcement in International Law Self-help and Self-constraint – A Problematic Relationship? Self-help and Self-constraint – Two Phenomena … One Discourse Method and Structure Notes

PART 1

THE INSTITUTION OF SELF-HELP

ix 1 1 3 4 7 9 13

Introduction Notes

15 16

2

The Objectives of Self-help Introduction Symbolism Protection Remedies Manipulation Punishment Notes

17 17 18 19 21 24 25 27

3

Self-help Terminology Introduction Sanctions Countermeasures Reprisals Reciprocal Measures Suspension and Termination of Treaties Retorsion Notes

33 33 33 35 38 39 40 42 45

4

The Normative Modalities Introduction A Prior Infringement of Rights or Interests Pre-emptive Measures of Self-help A Prior Demand for Redress Resort to Alternative Means

53 53 53 55 56 58

vi

Enforcing International Law

The Obligation to Settle Disputes by Consensual Means Prior to Resorting to Self-help Proportionality Conclusion Notes PART 2 CONSENSUAL DISPUTE SETTLEMENT: A REFLECTION OF SELF-CONSTRAINT Introduction 5

60 69 73 75

83 85

Self-constraint as Reflected in the Principle of Settling Disputes by “Peaceful Means” and Alternative Dispute Resolution Article 2 (3) of the UN Charter as an Expression of Self-constraint The Meaning of “Peaceful Means” Self-help in the Context of Alternative Dispute Resolution Notes

87 87 88 91 101

6

Institutionalized Dispute Settlement Introduction The Pre-initiation Phase The Litigation Phase Notes

107 107 108 112 117

7

Implementing “Consented” Outcomes Introduction Compliance and Non-compliance Enforcement of Judicial Decisions Conclusions Notes

121 121 121 123 124 125

PART 3

8

SELF-CONTAINED REGIMES

127

Introduction Notes

129 130

The Concept of Self-contained Regimes Introduction Regime Theory Regime Theory and International Law Objective Regimes Self-contained Regimes Notes

131 131 132 135 138 140 143

Contents

9

10

11

vii

The European Community Introduction The Prohibition of Self-help Dispute Settlement or Administration of Justice? (Non-)compliance and Enforcement Notes

147 147 149 151 154 157

The World Trade Organization Introduction Constructing, Deconstructing and Reconstructing the GATT Dispute Settlement Mechanism “Rule Orientation” v. “Power Orientation” The Dispute Settlement Process: Proliferation or Unification? Mandated Self-help: Constrainment or Containment? Notes

161 161 161 164 166 169 170

Final Conclusions Note

173 178

References Index

179 191


Acknowledgements This publication is based on my Ph.D. thesis, which was completed in 1997 but in contrast to Dutch tradition never published. In contrast to my Ph.D. thesis, self-help and consensual dispute settlement are not perceived as a normative dichotomy, which should be assessed in terms of a subordination of the primitive institution of self-help to the – normatively speaking – dominant concept of “the peaceful settlement of disputes”. In this publication, selfhelp and consensual settlement of disputes are understood as parallel and complementary developments in the evolution of the enforcement of international rules and norms; as different value systems that emerged at different points in time and place and function and develop side by side. In assessing the relationship between these two value systems, the concept of “self-contained regimes” has been adopted as a “third way” in which the relationship between self-help and consensual dispute settlement is institutionalized. While the first two parts of this publication still reflect the legal and perhaps positivistic approach from the Ph.D. thesis, the third part seeks to draw from both legal as well as social sciences and international relations insights. The latter has definitely been the result of my encounter with these disciplines when I lectured international law at the Universities of Wageningen and Amsterdam respectively. In retrospect I owe my former colleagues at these institutions for their academic approach to global problems. This publication would have been written differently if I had not met them. However, this publication would not have been written at all if my former teacher and friend Terry D. Gill had not encouraged me to pursue an academic career. Alison Kirk, Carolyn Court, Bibi Stoute, Jane Read and last but not least Jacqui Cornish of Ashgate Publishing deserve to be mentioned for all their assistance, editing work and suggestions. Finally, I have to admit that I have learned to appreciate Julliette’s anthropological cross-examination on the matters of methodology and theory. I wonder whether a legal scholar can ever satisfy the methodological hunger of his/her colleagues in the social and political sciences departments. At least I tried. Math Noortmann Utrecht


Chapter 1

Introduction They actually say that they were prepared in the first place to submit the matter to arbitration. The phrase is meaningless when used by someone who has already stolen an advantage and makes the offer from a safe position; it should only be used when, before opening hostilities, one puts oneself on a real and not an artificial level with one’s enemies … It is laid down in a treaty that differences between us should be settled by arbitration, and that, pending arbitration, each side should keep what it has. The Spartans have never once asked for arbitration, nor have they accepted our offers to submit to it. They prefer to settle their complaints by war rather then by peaceful negotiation … [w]ar could be avoided if Athens revoke the Megarian decree which excluded the Megarians from all parts in the Athenian Empire and from the Market of Attica itself. Thucydides, History of the Peloponnesian War, trans. by RexWarner (Harmondsworth: Penguin Classics, 1967), 34, 48 and 92.

Enforcement in International Law Thucydides’ account of the Epidamnusian dispute contains the – probably – oldest recorded normative and political arguments on the appropriateness of negotiation and arbitration over war, boycotts and other forms of self-help as methods to settle “international” conflicts. Contemporary international relations provide ample examples of conflicts and disputes, which – like the Epidamnusian one – at one time or another have been the subject of both unilateral measures of self-help as well as diplomatic and/or (quasi) judicial procedures in an attempt to settle an outstanding issue. As such, the debate on the appropriateness and the normative relationship between unilateral measures of self-help and consensual dispute settlement methods in international conflicts is anything but new. The arguments in the inter-Greek dispute on (perceived) treaty obligations and actual behaviour could equally serve the advocates of contemporary states defending or challenging the resort to unilateral measures of selfhelp or questioning the recourse to consensual means of dispute settlement. The United States’ counsel in the US v. France air services dispute formulated it as follows: France cannot justifiably argue that the arbitration provision of the agreement precludes any recourse to unilateral measures pending arbitration [since] France could have refrained from taking such action [in the first place] and requested arbitration.1

The Pakistani representative argued in a dispute with India before the International Court of Justice that: the party alleging material breach cannot act as a judge in its own cause and unilaterally suspend the treaty; the issue must be settled either by the consent of the parties or must be resolved through third-party settlement.2

2


Conflicts in which states have resorted to self-help, as well as to diplomatic and judicial means, have not only divided the parties to that conflict on questions concerning the appropriateness and legality of a specific course of action. Scholars seem to be equally divided on the question of whether and for what reason states should or must resort to coercion or cooperation. An interesting question is whether – considering the unique resemblance in the arguments and behaviour of the respective antique and contemporary adversaries – anything has changed over the past 25 centuries. De-contextualization, however, may not be taken for granted. Global economic interdependence, technical developments, sophistication of means of communication, existence of weapons of mass destruction, environmental and humanitarian threats and the proliferation of international actors and stakeholders, to mention only some of the more recent developments, cannot be disassociated from the political and normative structures. International conflicts and disputes provide pick-and-choose arguments for both empirical as well as normative oriented scholars, who seek to argue in one direction or another. Coercive and non-coercive elements can equally be observed and detected. Ultimate settlements can be the result of both power politics as well as consensual agreements. The predominant cause of the ending of conflicts seems to lie in the eyes of the beholder or – to put it in analytical terms – in the eyes of the researcher and his or her disciplinary and methodological approach. Both unilateral measures of self-help as well as methods of consensual dispute settlement can be considered as enforcement mechanisms in the broader sense of the word, especially in international relations and international law. Instances of self-help in international relations are a double-edged sword for the realist. Self-help reinforces the power element in the realist paradigm while consensual dispute settlement stresses the lack of centralized enforcement mechanisms and the perceived primitivism of the international legal system. Centralized enforcement or rather the absence of centralized enforcement, however, is a key element in the realist and positivist conceptions of international law. The lack of centralized means of enforcement in the international legal order has indeed provided many critical and cynical arguments as to the value and effectiveness of international law, amongst realists and positivists alike. International law is easily (dis)qualified as “primitive”, “reflecting the state of nature” or “selfhelp system” in political science as well as legal literature. Where deviations and violations of substantial rules are so easily observed, as in international relations, it is not easy to argue that centralized enforcement is basically immaterial to the functioning and indeed the very existence of the international legal regime. As in any other normative system, the international public legal order is predominantly based on the subscription of its subjects to that order and its underlying values and norms rather than to each and every single rule that springs from bureaucratic processes, whether they are legal or political. The global normative system should be understood as a transnational “contrat social”. The Roman civil law basis of international law can neither explain global public order processes nor can it assess nor account for the increasing number of participants in these processes. Darwin’s evolutionism applies to the process of development of political and legal systems as well. If there is no natural selection between the rules, procedures

Introduction

3

and instruments that work and those that do not, mankind’s ability to make rational choices has been greatly overestimated. However, if we perceive: human history in “generation time” rather than “clock time”, hunting and gathering was the basic hominid way of life for about 250,000 generations, agriculture has been in practice for about 400 generations, and modern industrial societies have only existed for about 8 generations. … The conditions of 250,000 generations do have an impact on the last 8.3

Assuming that socio-political systems evolve along the same lines as species, selfhelp as the traditional enforcement mechanism has been around for far more generations than organized or centralized enforcement and is still very dominant in modern global society. At the same time, we cannot but admit that for at least 200 generations other forms of enforcement have been developed.4 Like hunting, farming and industrial generations co-exist and affect each other, so do socio-political regimes and enforcement systems. The contemporary relationship between various enforcement systems is at least problematic, but it is clear that self-help as the traditional enforcement mechanism and conceptions of international relations based on the paradigm of self-help are challenged, both politically and academically.5 Self-help and Self-constraint – A Problematic Relationship? Throughout history, we can observe two interesting and perhaps related trends in the normative assessment of conflict and cooperation in international relations. One approach promotes and prefers a peaceful settlement of disputes while the other is essentially concerned with questioning the lawfulness and appropriateness of an unbridled right of self-help which includes the right to military force. Today, these trends have merged in the growing normative assumption that the obligation to settle disputes by “peaceful means” has a confining impact upon the right of states to resort to unilateral measures of self-help. Notwithstanding a clear and general preference for the peaceful settlement of disputes and an increasing scepticism concerning the traditional institutions of selfhelp and reprisals in legal discourse, the very existence, as well as the scope and content, of a rule requiring the prior exhaustion of or prior resort to procedures for peaceful settlement, before any resort to self-help, is highly controversial. Judicial policy and legal prudence arguments regularly enter into the legal debate. From a broader, interdisciplinary and political perspective, the “sanctions” discourse is not confined to strictly legal arguments. Considerations of a humanitarian character, for example, which in particular have entered the UN sanctions discourse,6 have equally been applied in the field of unilateral measures of self-help.7 The main legal problem is that international law traditionally recognizes both the right (or faculty) of states to safeguard their own rights through the resort to unilateral measures of self-help as well as the obligation of states to settle their disputes by accepted and recognized diplomatic and judicial methods. Both concepts are based on their own merits, which are presumed to be still valid in contemporary international law. It is the primary purpose of this study to determine which rules and principles govern the relationship between the two notions of dispute settlement within the

4


larger framework of enforcement. The question to be addressed in this study may be formulated as follows: what is the relationship between self-help and self-constraint in the contemporary international normative order? Is the traditional right of states to resort to unilateral measures of self-help in cases of infringements of legal rights and interests conditioned by self-imposed obligations of constraint? Obligations of constraint are made operational through voluntary and compulsory mechanisms for the settlement of international disputes. Are states in particular obliged to seek or actually resort to dispute settlement mechanisms prior to (any) resort to unilateral measures of self-help? Self-help and Self-constraint – Two Phenomena … One Discourse Those who have taken an interest in the normative development of international law have generally avoided addressing the institution of self-help. As a result, the relationship between self-help and consensual dispute settlement has until recently never been a basic issue in legal discourse. Political scientists, as well as lawyers, seem to assume that self-help and consensual dispute settlement are two completely distinct and unrelated phenomena in international relations. In the fields of international law and international relations the two institutions are studied in remarkable isolation.8 Moreover, if the number of publications in a given discipline may be taken as an indicator for that discipline’s predominant focus and discourse, one cannot fail to note the overwhelming legal literature in the field of the “peaceful settlement of disputes” and the overwhelming political science preoccupation with “sanctions as a foreign policy tool”. To the extent that the relationship between self-help and consensual dispute settlement has been a serious issue in international legal and political science discourses, it has been subordinated to or considered to be part of the more general discourse on the law of treaties, state responsibility or foreign policy analysis. The codification work of the International Law Commission on the law of treaties and the adoption of Article 65 of the Vienna Convention on the Law of Treaties of 1969 indicated a first substantial reconsideration of the itemistic approach towards self-help and dispute settlement. Article 65 stipulates inter alia that the parties to a dispute should “seek a solution through the means indicated in Article 33 of the UN Charter”, if the target state objects to a suspension or termination of the treaty on the basis of Article 60 of the Vienna Convention. The Air Services Agreement case demonstrated that states were willing to submit questions concerning the lawfulness of self-help to the judicial test. In 1978, the governments of France and the US differed in opinion on the question of whether the terms of the 1946 Air Services Agreement allowed Pan American Airlines to change gauge in London on its flight to Paris. The disagreement turned into a dispute, which became the subject of negotiations, measures of self-help and, finally, arbitration.9 One of the questions submitted to the Arbitral Tribunal by France and the US concerned the lawfulness of the “countermeasures”, which the US Civil Aeronautics Board (CAB) had initiated against Air France and the Union des Transports Aeriens (UTA). In the course of the proceedings, France submitted that the obligation to negotiate or arbitrate, as stipulated in the Air Services Agreement, limited the right of the US to employ countermeasures against French airlines.

Introduction

5

However, neither the work of the International Law Commission (ILC), nor the entry into force of the Vienna Convention, which signalled that states were willing to accept qualified conventional limitations on their right to resort to self-help, nor the Air Services Agreement case triggered a substantial academic debate on the subject. It was not until the ILC’s work on the law of state responsibility10 and especially the codification or, in any case, the progressive development of the concept of “countermeasures” that the relationship between self-help and dispute settlement gained considerable scholarly attention.11 The Commission held in the initial stage of its work that the wrongfulness of unilateral measures of self-help was in principle precluded if these measures were taken in response to a prior international wrongful act.12 The legal details, including the confinements posed on this right to take unilateral measures of self-help, were to be discussed in a later part of its work. The stage for a heated legal debate was set when ILC’s Special Rapporteur Arangio-Ruiz proposed that: no [countermeasures] by an injured State shall be taken prior to … the exhaustion of all the amicable settlement procedures available under general international law, the United Nations Charter or any other dispute settlement instrument to which it is a party …13

The qualified, but far-reaching proposal met with serious reservations and opposition within the International Law Commission, the ILC’s Drafting Committee and members of the Sixth Committee of the United Nations General Assembly. The content of the requirement to pursue the peaceful settlement of the dispute was the “most controversial and debated” provision in the context of the drafting work on “countermeasures”.14 The International Law Commission did not follow Special Rapporteur, Arangio-Ruiz in his progressive development of the law. Arangio-Ruiz resigned as Special Rapporteur, to be succeeded by James Crawford who – pragmatically – reformulated Arangio-Ruiz’s proposal in an attempt to secure the adoption of the draft and to make the draft politically acceptable. The “1996 acquis” included a completely reformulated provision on the “conditions relating to the resort to countermeasures.”15 This provision reflects Crawford’s “instrumental approach to countermeasures, as well as (for the most part) the careful balance between the interest of the injured state and the responsible state achieved in the substantial provisions on countermeasures.”16 The final provision in the 2001 draft on state responsibility is only a scant reflection of what Arangio-Ruiz originally proposed.17 The legal discourse on the relationship between self-help and consensual settlement can be characterized as “principled” versus “pragmatic” or “idealistic” versus “realistic”; Arangio-Ruiz representing the “principled/idealistic” approach and Crawford representing the “pragmatic/realistic” approach. The debate in the International Law Commission reflects (in the opinion of the author) the traditional clash in legal discourse between the academic and the practitioner. In the international relations discourse, the overwhelming interest in the phenomenon of self-help is outweighed by a remarkable lack of interest in addressing non-coercive foreign policy tools. Even in studies on “dispute resolution”, the balance between coercion and conciliation as policy tools is missing. Patchen’s work, with the promising title Resolving Disputes between Nations; Coercion or

6


Conciliation, is exemplary in this respect.18 The sanctions debate mainly addresses the question of whether and how sanctions work.19 The growing awareness that the “utility” of self-help can only be assessed in terms of “comparative utility”, i.e. compared to other strategic options and policy alternatives, has not triggered a substantial debate on dialogue and other forms of consensual settlement as a valuable alternative to self-help. Preeg’s list of “alternatives to [unilateral] sanctions” stresses the lack of “alternative” thinking in the international relations discourse on foreign policy tools. Four possible alternatives are identified: (1) no sanctions at all (“the Null Hypothesis”), (2) multilateral sanctions (3) aid (carrots instead of sticks) or (4) military intervention. Note that consensual dispute settlement is completely absent.20 Princen, in his study Intermediaries in International Conflict, considers third party intervention and correctly concludes that “[t]hird party intervention – especially mediation – has received little attention in the study of international politics.”21 While the same conclusion is equally true for arbitration and adjudication, one cannot fail to observe an increasing attention for “legalized dispute resolution” in international relations studies.22 Several factors have generated an attention shift. First of all, it is difficult not to observe the proliferation of international dispute settlement mechanisms since the beginning of the 1990s. The enormous expansion of the international judiciary has been qualified by one scholar as “the single most important event of the post-cold war age”.23 Secondly, the paradigmatic aversion of classical realists for normative, legal and moral elements in the analysis of international relations is relaxing. Notions of legitimacy and authority increasingly permeate the traditional focus on calculated, rationalized self-interest and power politics. International public order considerations increasingly enter the political scientists’ vocabulary.24 The dilemma international relations scholars are facing with respect to the relationship between calculated self-interest and power on the one hand and international public interest, principles and rules on the other hand is evident. Keohane’s After Hegemony speaks volumes in this respect.25 His structural institutionalism aims at a “modification” of realism rather than “replacing” it. The modification he seeks is to be found in the balance between “egoistic self-interest” and a “conception of self-interest in which empathy plays a role”.26 As such, Keohane has “no intention of debunking explanations resting on the assumption of selfinterest”.27 Instead he seeks to “construct an alternative, and plausible, explanation [for behaviour that appears to be motivated on empathy] on the premises of egoism”. Within the traditions of realism, however, he challenges the “presumption that in a self-help system empathy plays a subordinated role”.28 Whether empathy is based on calculated, egoistic or enlightened self-interest or whether it can be explained by rational choice theories is immaterial to the actual result of such behaviour as it is likely to promote consensual dispute settlement and cooperation over self-help. Keohane’s conception of the relation between “discord and co-operation” stresses two points: (1) international regimes are to be assessed as “intermediate factors”, and (2) “the norms and rules of regimes can exert an effect on behaviour” of states. It is in this respect that international regime theory becomes relevant for the debate on the enforcement of international law. It is in the idea of “self-contained regimes” that the relationship between self-help and consensual dispute settlement finds its proper place. The International Court of Justice’s erroneous characterization of the law on diplomatic immunities as a “self-contained regime” triggered a short but intensive

Introduction

7

debate on the conceptual value of assessing international law in terms of regime theory.29 In particular Riphagen and Simma elaborated in the 1980s on this idea.30 However, their ideas did not find their way into mainstream legal discourse. Being considered either too abstract or too theoretical, the regime approach in international law has met with unwarranted scepticism. Method and Structure The relationship between self-help and consensual dispute settlement is by and large ignored in both legal as well as international relations literature. Individually, these concepts have been the subject of considerable mono-disciplinary research. In order to understand the relationship, it is necessary to draw on the insights from both legal as well as political science. Being inspired by and making use of both, the author, however, in no way pretends that this is the multi-disciplinary study he ultimately would like it to be. It is foremost a normative, legal assessment of the link between the two phenomena. However, the assumption that the concept of dispute settlement takes precedence over self-help or vice versa as a matter of normative consideration, or that these concepts inherently conflict and could be solved by the “simple” application of conflict rules, must be rejected. Any study concerning the link between both institutions and the restrictions, which existing obligation to settle disputes by “peaceful means” may or may not put on the faculty of states to resort to self-help mechanisms, should, accordingly, take full account of the independent conceptual features of both instruments. Furthermore, the apparent conflict between the right to self-help and the obligation to settle disputes by consensual means is not one which can be solved by exclusive reference to legal rules and principles. The question is very much determined by international legal as well as political processes and structures. Except for analysing legal developments, in order to assess the lawfulness of self-help in respect of existing obligations to settle disputes by consensual means, one also needs to consider the effectiveness of both mechanisms as law enforcement and foreign policy tools. This means that any study concerning the “lawfulness” of self-help in relation to the obligation to settle disputes by consensual means has to take due account of the fact that both mechanisms – with their own inherent possibilities and limitations – function within the specifics of the international legal and political system. From a legal perspective, one cannot ignore the fact that the international legal order lacks a centralized enforcement mechanism and that the ultimate remedy for the “injured” state lies in the concept of self-help. On the other hand, it must be admitted that the faculty to resort to self-help is no longer an unbridled one and that the obligation to settle disputes by peaceful means as formulated in various legal and political documents is gaining more and more substance. Moreover, given the economic and political interdependency in international relations, consensual dispute settlement mechanisms can be as effective or perhaps more effective then unilateral measures of self-help. Economic studies have time and again demonstrated that economic measures of self-help are only effective under specific requirements. The author does not intend to find or formulate a legal rule. In the academic quest for clarification and understanding, every argument or source should be taken into

8


account without a preset understanding of hierarchy. Treaty obligations, which require states to resort to the settlement procedures agreed upon, prior to any resort to self-help, are as relevant as the (legal) opinions and practice of states as well as the more general principles of law, writings and judicial decisions. Due to these circumstances, the analysis encounters a considerable limitation. Therefore, this study does not pretend to provide the interested reader with a clear-cut rule nor does the author intend to provide an exhaustive overview of everything that has been said or done in this respect. The major findings are based on an analysis of scholarly work. For the purpose of clarification, examples from five different case studies have been incorporated in the text. These case studies are: 1. 2. 3. 4. 5.

the India–Pakistan hijacking incident (1971)31 the Air Services Agreement dispute between France and the US (1978)32 the Tehran Hostages crisis33 the Nicaragua–US conflict (1981–90)34 the destruction of Korean Airlines flight 007 (1983).35

This study must be considered as a clarification of the various aspects that play a role in the assessment of the lawfulness and appropriateness of a particular type of self-help within the context of a particular dispute settlement procedure. At this point it should be clarified that the term “self-help” refers to any unilateral measures taken by individual states in response to a perceived international wrongful or undesirable act. These unilateral actions may be coordinated or unified. However, they do not constitute measures based upon a binding decision by an international organization. For example, the lawfulness of measures ordered or sanctioned by the Security Council of the United Nations – generally referred to as “sanctions” – fall outside the scope of this study. The present study consists of three parts, each of which will be preceded by an introductory chapter and followed by a concluding chapter. Part 1 focuses on the institution of self-help. It analyses three different aspects of self-help: the objectives, which states seek by resorting to unilateral measures of self-help (Chapter 2), the mechanisms (Chapter 3) and the normative modalities (Chapter 4). In Part 2, I seek to interpret the content and limits of dispute settlement mechanisms as specific forms of self-constraint. First, the notion of self-constraint, as reflected in “the principle to settle disputes by peaceful means” and alternative dispute settlement mechanisms, will be discussed with respect to the perceived right to resort to self-help (Chapter 5). Secondly, the (possible) limitations that institutionalized dispute settlement mechanisms exercise upon the right to resort to self-help will be addressed (Chapter 6). Thirdly, an analysis of the implementation of “consented” outcomes will be undertaken in order to assess the effectiveness of institutionalized methods of dispute settlement (Chapter 7). Finally, in Part 3, I seek to demonstrate that self-help and selfconstraint merge in normative orders, which can be characterized as self-contained regimes. Regime theory will be conceptualized in terms of international law in order to set an analytical framework for specific legal regimes (Chapter 8). The European Union (EU) and the World Trade Organization (WTO) will be analysed as two outstanding examples of self-contained regimes (Chapters 9 and 10 respectively). The dispute settlement instruments and enforcement mechanisms in these respective legal regimes will also be analysed.

Introduction

9

Notes 1 2 3 4 5 6

7

8

9

10

11

12 13 14 15

Case concerning the Air Services Agreement of 27 March 1946 (US/France) (9 December 1978) reprinted in Int’l Arb Awards, 18: 417; Memorial of the United States (18 September 1978), 41. Appeal relating to the Jurisdiction of the ICAO Council (India/Pakistan), 1972 ICJ Pleadings 89, 384. Thayer, B.A., Darwin and International Relations; On the Evolutionary Origins of War and Ethnic Conflict, (Lexington, KY: University Press of Kentucky, 2004). Yongping, L., Origins of Chinese Law; Penal and Administrative Law in its Early Development (Oxford: Oxford University Press, 1998). See e.g., Viotti P. R., & M.V. Kaupi, International Relations Theory; Realism, Pluralism, Globalism, ed. Robert Miller and Bruce Nichols (New York: Macmillan, 2nd rev. edn., 1993). Gowlland-Debbas, V., Collective Responses to Illegal Acts in International Law; United Nations Action in the Question of Southern Rhodesia (Dordrecht: Martinus Nijhoff Publishers, 1990); Van Genugten W.J.M., and G.A. de Groot (eds), United Nations Sanctions; Effectiveness and Effects in the Field of Human Rights, A Multi-Disciplinary Approach (Antwerpen: Insertia, 1999). See e.g., Preeg, E.H., Feeling Good or Doing Good with Sanctions; Unilateral Economic Sanctions and the U.S. National Interest (Washington, DC: CSIS Press, 1999) [hereinafter Preeg, Feeding Good or Doing Good]; and Zoller, E., Peacetime Unilateral Remedies; An Analysis of Countermeasures (Dobbs Ferry, NY: Transnational Publishers Inc., 1984) [hereinafter Zoller, Peacetime Unilateral Remedies]. Notable exceptions in this respect are: Zoller, Peacetime Unilateral Remedies, O.Y. Elagab, The Legality of Non-Forcible Counter-measures in International Law (1988) [hereinafter Elagab, The Legality of Non-Forcible Counter-measures], and the work of the International Law Commission on state responsibility, Yearbooks 1976–96. See case concerning Air Services Agreement of 27 March 1946 (US/France) (9 December 1978), Rep Int. Arb Awards, 18: 417 and Int. L Rep, 54 (1979): 337 [hereinafter Air Services Agreement case, page numbers refer to the Int. L Rep]. For an analysis of the case see Chapter 5. The International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts were adopted in second reading by the Commission in 2001. The UN General Assembly adopted a resolution to which the Draft Articles were attached. Throughout this study the articles will be referred to as the Draft or Articles on State Responsibility. The Air Services Agreement case did not cause an overwhelming scholarly response. The main reason for the attention for the subject of this study is to be found in the renewed attention for the concept of countermeasures as triggered by the International Law Commission’s work on state responsibility. See, e.g., Malanczuk, P., ‘Zur Repressalie im Entwurf der International Law Commission zur Staatenverantwortlichkeit, in ZAÖRV, 45: 304 (1985) [hereinafter Malanczuk, “Zur Repressalie”]. See YB Int. L Comm’n 2 (2) (1979): 115. See Report of the International Law Commission to the UN General Assembly, 47 GAOR Supp No. 10, UN Doc A/47/10 (1992) [hereinafter 1992 ILC Rep.] [emphasis added]. Report of the International Law Commission on the Work of its forty-sixth session, 6 May–26 Jul. 1996, UN Doc A/51/10, 159 [hereinafter referred to as 1996 ILC report]. Article 48 of the Draft Articles on State Responsibility provisionally adopted by the Commission on first reading reads:

10

Enforcing International Law 1.

16 17 18 19 20 21 22

23 24 25 26 27 28 29 30

Prior to taking countermeasures, an injured State shall fulfil its obligation to negotiate provided for in Article 54. This obligation is without prejudice to the taking by that State of interim measures of protection which are necessary to preserve its rights and which otherwise comply with the requirements of this Chapter. 2. An injured State taking countermeasures shall fulfil the obligations in relation to the dispute settlement arising under Part Three or any other binding dispute settlement procedure in force between the injured State and the State which has committed the internationally wrongful act. 3. Provided that an internationally wrongful act has ceased, the injured State shall suspend when and to the extent that the dispute settlement procedure referred to in paragraph 2 is being implemented in good faith by the State which has committed the internationally wrongful act and the dispute is submitted to a tribunal which has the authority to issue orders binding on the parties. 4. The obligation to suspend countermeasures ends in case of failure by the State which has committed the internationally wrongful act to honour a request or order emanating from the dispute settlement procedure. Crawford, J., The International Law Commission’s Articles on State Responsibility; Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002), 16 [hereinafter Crawford, International Law Commission’s Articles]. Idem, 288 and 297. See Patchen, Resolving Disputes between Nations: Coercion or Conciliation? (Durham: Duke University Press, 1988). See O’Sullivan M.L. Shrewd Sanctions: Statecraft and State Sponsors of Terrorism, (Washington DC: Brookings Institution Press, 2003) 24–32 [hereinafter O’Sullivan, Shrewd Sanctions]. See Preeg E.H., Feeling Good or Doing Good, 213– 20. Princen T., Intermediaries in International Conflict, Princeton: Princeton University Press, (1992) 18 [hereinafter Princen, Intermediaries]. See e.g. Keohane R.O., A Moravcsik and A-M Slaughter, “Legalized Dispute Resolution: Interstate and Transnational”, in International Dispute Settlement edited by M.E. O’Connell. Dartmouth: Ashgate 469 [hereinafter Keohane “Legalized Dispute Resolution”]. Romano, quoted in Keohane “Legalized Dispute Resolution” 470. See e.g. O’Sullivan, N., “Power, authority and legitimacy: a critique of postmodern thought”, in Political Theory in Transition, edited by N. O’Sullivan, Routledge, London (2000). Keohane R. O., After Hegemony; Cooperation and Discord in the World Political Economy, (Princeton: Princeton University Press, 1984) [hereinafter Keohane, After Hegemony]. Idem, 14, 124. Idem, 123. Idem, 125. See case concerning United States Diplomatic and Consular Staff in Tehran (US/Iran), Merits, Judgement ICJ Rep. 1980, p. 27 at 38. See, Riphagen, W., 1983. “Fourth Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles on State Responsibility)”, Yearbook of the International Law Commission 1983 Vol. II, p. 1; Riphagen, W., “State Responsibility: New Theories of Obligations in Interstate Relations” in The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory, eds Macdonald and Johnston (Dordrecht: Martinus Nijhoff Publishers, 1989); hereinafter Simma B., “Self-Contained Regimes” in Netherlands Yearbook of International Law 16

Introduction

31

32

33

34

11

(1985): 120; Simma, B., ‘The Antarctic Treaty as a Treaty Providing for an “Objective Regime”’ in Cornell International Law Journal 19 (1986): 189–98. On 30 January 1971, members of the Kashmir National Liberation Front hijacked a Fokker Friendship of Indian Airlines and forcibly redirected it to West Pakistan. After landing at Lahore International Airport, Pakistan authorities negotiated the release of crew and passengers. The aircraft was subsequently destroyed by the hijackers. The delay in returning passengers and crew to India and the granting of political asylum to the hijackers resulted in a dispute. The Government of India suspended the over-flight by Pakistan civil and military aircraft of the territory of India. The dispute was submitted to the UN Security Council and the Council of the International Civil Aviation Organization by Pakistan and to the International Court of Justice by India. The dispute was finally settled in 1972 when India and Pakistan signed an Agreement on Bilateral Relations, which formalized the end of the war between both states. The agreement provides in Article 3 (1) that, “[s]teps shall be taken to resume communications … and air links including over-flight.” [Agreement on Bilateral Relations, Simla (3 July 1972]. The International Court of Justice decided that the Council of the International Aviation Organization was competent in the matter between the two states. In accordance with the consent of the parties to defer the dispute several times, the dispute finally disappeared from the ICAO agenda. In 1978, France and the US differed in opinion on the question of whether the 1960 Air Services Agreement allowed for the transfer of Paris-bound passengers and cargo from a Boeing 747 to a smaller Boeing 727 in London. Negotiations between US and French aeronautical officials could not solve this technical dispute known as a “change of gauge”. The US proposed to resort to arbitration as provided for in the Agreement. As the French did not react immediately to this proposal, the US Civil Aeronautics Board started to draft legislation which would frustrate Air France’s transatlantic schedules. The US’s “countermeasures” were clearly linked to the French (un)willingness to arbitrate. The Arbitral Tribunal, which was ultimately established, decided both on the “change of gauge” question and on the legality of the measures undertaken by the US. On 4 November 1979, Iranian students seized the US Embassy in Tehran. Diplomatic and consular personnel as well as some civilians were taken hostage. A statement by Ayatollah Khomeini made it very clear that the Iranian Government supported the students. The US Government pursued a “two-track strategy” of unilateral and “consensual” means. The unilateral means included: (1) the suspension of delivery of military equipment, (2) increased identification procedures for Iranian students, (3) the discontinuation of all imports of crude oil and oil products, (4) the blocking of Iranian assets owned by US banks, (5) an embargo on trade of all goods except food and medicine and (6) the expulsion of Iranian diplomats from the United States. In addition allies were requested to take appropriate measures against Iran. The consensual means included: negotiation, mediation, good offices by the UN Secretary General, the UN Security Council and the International Court of Justice. On 5 November 1980 both governments agreed to conduct further negotiations through Algerian diplomats, who would function as intermediaries. The start of the war between Iran and Iraq seems to have influenced this result only indirectly. On 19 January 1981, these negotiations lead to the signing of the Algiers agreement, which secured the release of the hostages and the settlement of the financial issues concerning the frozen assets and existing claims. In the beginning of 1981 political relations between Nicaragua and the US had deteriorated to the extent that the US Government decided to suspend the Economic Support Fund (ESF) for Nicaragua. This was the first in a series of economic, political and military measures taken by the US against Nicaragua. In addition to the suspension of the ESF, the US (1) reduced diplomatic staff, (2) reduced the sugar import quota, (3)

12

35

Enforcing International Law terminated the 1965 FCN treaty, (4) ordered a total trade embargo and (5) supported paramilitary action against Nicaragua. On the diplomatic and dispute settlement level a variety of initiatives were taken, which involved mediators, the UN General Assembly, the UN Security Council, the GATT, the Organization of American States and the International Court of Justice. The conflict was settled in 1990 after a regime change in Nicaragua. Unilateral measures were stopped, mediation stopped and court proceedings were removed from the list. On 31 August 1983, a Boeing 747 of Korean Airlines, flight number 007, was shot down by a Soviet SU-15 fighter. The Soviet Union denied responsibility for the incident, claiming that it acted in the protection of its sovereign airspace. Thereupon states whose nationals were killed in the incident requested a meeting of the UN Security Council. In the course of the UN Security Council and ICAO Council meetings, unilateral measures were taken by several – both victim and non-victim – states. These measures included (1) suspension of negotiations, (2) suspension of landing and over-flight rights and (3) suspension of air traffic-related services. In April 1984, the ICAO Council decided to put the case to the files. It was not until 1990, when the internal order of the Soviet Union started to change, that the incident came back on the international agenda. In 1992, the ICAO Council decided to instruct the Secretary General to “complete the investigation relating to the flight and destruction of Korean Airlines (KE) flight 007.” The Secretary General of the ICAO presented his Report of the Completion of the ICAO Fact Finding Investigation’ to the Council on 1993, which officially ended the case.

PART 1 THE INSTITUTION OF SELF-HELP A nation that is boycotted is a nation that is in sight of surrender. Apply this economic, peaceful, silent, deadly remedy and there will be no need for force. It is a terrible remedy. It does not cost a life, outside the nation boycotted, but it brings pressure upon the nation, which in my judgment, no modern nation could resist. S. Padover ed., Wilson’s Ideals (Washington: American Council on Public Affairs, 1942) cited in Carter 1988, 9.


Introduction Could anybody be more wrong about the character and effectiveness of sanctions? Ever since Woodrow Wilson spoke these appealing words, the failure and ineffectiveness of the sanctioning tool has been demonstrated over and over again. Where collective sanctions have failed to achieve the objectives sought by alliances of states under League of Nations’ or United Nations’ mandates, the success of unilateral measures of self-help seems rather remote. The “international sanctions discourse” has three intrinsic focus points: effectiveness, foreign policy instruments and normative modalities. Again it must be observed that these elements are discussed in different disciplinary settings: economics, international relations and international legal studies, respectively. While the first two elements of self-help are interrelated through international political economic studies, studies with respect to the normative modalities are void of any political or economic considerations. Neither mainstream economic nor traditional international relations approaches seem to take normative elements into consideration. The only common feature is the growing questioning of the use of measures of self-help and their validity in a given economic, political or legal framework. “The ultimate mission” for foreign policymakers is, according to O’Sullivan, not “making sanctions more effective, but making foreign policy tools more successful – through greater or lesser use of sanctions”.1 In the perspective of O’Sullivan “The lesser use of sanctions” does not necessarily involve cooperative tools, including understandings, to settle outstanding disputes by agreed means. Consensual dispute settlement is not viewed as a strategic instrument in foreign policy options. The difficulties and uncertainties in the “effectiveness” discourse are well reflected in van Bergeijk’s assessment of “the academic debate on economic sanctions against South Africa”. Van Bergeijk points out that (1) economic data are not necessarily reliable, (2) the general anti-sanctions mood amongst economists began to change in the early 1990s, (3) one has to distinguish between “effectiveness” and “success” of sanctions and (4) indirect costs may affect the target state as much as intended costs.2 However, the qualification of the oil embargo as “successful” after the white minority regime in South Africa handed over power, has little explanatory quality. Legal scholars have equally struggled with the concept of self-help. They readily admit that the whole concept of self-help is subject to a great deal of normative confusion and vagueness.3 The recent discourse is characterized by a conceptual proliferation and a lack of a generally accepted and distinctive terminology. The variety of existing terms has created a perfect legal Babel concerning the regime of self-help.4 The mono-disciplinary approaches have not contributed to a better understanding. Within a more interdisciplinary framework, three interrelated aspects of self-help need to be clarified: (1) the objective(s) of the targeting states or the

16


purpose of the measures of self-help, (2) the terminology and (3) the normative modalities. For the sake of clarity, it must be noted at this point that, for the purpose of this study, the term “self-help” is used in a neutral and most encompassing sense. It covers all unilateral measures of response which infringe upon a right or an interest of the target state and which are taken in reaction to a previous wrongful or undesirable act. Neither the means, nor the objectives or legal conditions attached to that particular response, are explicit and distinctive features.5 Within the context of Chapters 2 and 3, I will indicate where consensual dispute settlement may be of any relevance. However, the possible existence of an explicit obligation that requires the exhaustion of or prior resort to dispute settlement procedures will be the subject of a separate analysis in Chapter 4. Chapters 2 and 3 only analyse those elements of self-help which are relevant to the central question. The thesis question is based on the presupposition that an obligation to settle the dispute with respect to self-help only becomes operational in situations where states are in principle free to resort to self-help. Therefore, the various prohibitions which exist concerning self-help – i.e. self-help violating human rights or self-help involving the use of force – will not be analysed separately. Notes 1 2 3

4 5

O’Sullivan M.L., Shrewd Sanctions: Statecraft and State Sponsors of Terrorism. Washington D.C.: Brookings Institute Press, 2003 [hereinafter, O’Sullivan, Shrewd Sanctions]. Van Bergeijk P.J., “The Oil Embargo and the Intellectual: The Academic Debate on Economic Sanctions against South Africa”, in Embargo; Apartheid’s Oil Secrets Revealed (Amsterdam: Amsterdam University Press, 1995), 338–47. See, e.g., P. Reuter, “Summary Records of the 1771st meeting”, YB Int. L Comm’n 1 (1983): 102; American Law Institute, Restatement of the Law (Third). Restatement of the foreign relations law of the United States 384 (1987); Zoller, Peacetime Unilateral Remedies, supra note 2, XV; Riphagen, “Preliminary Report on the Content, Forms and Degrees of International Responsibility”, YB Int. L Comm’n 2 (I) (1980): 128 [hereinafter Riphagen I]; Malanczuk, “Zur Repressalie”, supra note 2, 304; Reisman, “Sanctions and Enforcement”, in M.S. McDougal and M.W. Reisman (eds), International Law Essays (Mineola: Foundation Press, 1981), 381 [hereinafter Reisman, “Sanctions”]; N.G. Onuf, Reprisals, Rituals, Rules, Rationales (Princeton: Center of International Studies, Princeton University, 1974). In addition to the terms analysed in this paragraph, one could add terms like self-help and retaliation etc. However, for the purpose of this study it suffices to analyse only the most common ones that are related to the new term self-help. This approach intends to facilitate the possibility of adopting a more precise terminology with respect to the specific economic, political or legal character of self-help and its means of implementation.

Chapter 2

The Objectives of Self-help Introduction States resort to self-help in order to achieve one or more specific objectives: self-help is by definition goal-oriented. However, the purpose of specific measures of self-help is not always precisely articulated or defined in terms of expected outcomes. This is especially so in the case of symbolic measures. The objectives of self-help are relevant for several reasons. First of all, an articulated objective facilitates the assessment of its effectiveness. Secondly, a clear objective makes the decision to resort to self-help more transparent vis-à-vis other possible alternatives such as resort to consensual means of dispute settlement. Last but not least, international law is not indifferent to the objectives which states seek to achieve by employing specific measures of self-help. In legal terms, the objective of a measure of self-help constitutes a first criterion to determine whether that specific measure is a lawful one with respect to the seriousness and consequences of the underlying wrongful or undesirable act.1 Only after it is established that the purpose of the self-help measure was lawful do subsequent legal conditions become applicable. In other words, it matters, for example, for the determination of the condition of proportionality whether the measure of self-help resorted to aimed at protection, coercion, redress or punishment or whether it was mere symbolism. The condition that the purpose of self-help must be lawful requires states to explicate their objective.2 Only under such a condition can the effectiveness, lawfulness and appropriateness of the measure itself be determined. The fact that contemporary international law does not require states to state the objective of a measure of self-help and the practical difficulties of establishing the objective of self-help has not deterred scholars who have studied the concept of selfhelp from indicating possible objectives and arranging them into categories and subcategories. With respect to the stated purpose of measures of self-help, it must be taken into account, however, that “no single objective is designed to be exclusive”.3 A specific measure may serve more objectives or objectives may overlap. In some cases, objectives are absorbed by other objectives, so that the purpose of self-help “will not cross the threshold of distinct legal [or political] relevance”.4 However, these considerations do not hamper the determining of the predominant objective for the purpose of establishing its lawfulness and effectiveness.5 Methodologically, self-help measures can, on the basis of their objectives, be characterized as: (1) symbolic, (2) protective, (3) remedial, (4) manipulative and (5)

18


punitive.6 Other objectives indicated can be subsumed under these main categories, either because they are mere synonyms or because they are to be viewed as specific objectives falling within one of the more general categories. It will now be considered whether these objectives are permissible and hence whether a measure of self-help in pursuing such an objective will be legal or illegal. To what extent the objectives determine the applicability of accepted or proposed conditions will be considered in the paragraph dealing with the conditions. Symbolism A “demonstration of resolve” is, according to Hufbauer and Schott, a “driving force behind the imposition of sanctions”.7 According to these authors, “even when the likelihood of changing behaviour in the target-country seems remote”, states are inclined to resort to self-help. The psychological factor, which plays a dominant role in “a demonstration of moral outrage”, is difficult to document.8 Where the international wrongful act has not caused and will not cause any material harm and at the same time has ceased to constitute an infringement of a right or an interest, self-help cannot be employed for protective, remedial or manipulative purposes, since there is nothing to protect or remedy, or there is no necessity for behavioural change. In such a situation, self-help may have a symbolic or punitive character.9 Resort to measures of self-help for mere symbolic purposes has not received substantial attention in legal literature, notwithstanding their actual relevance in interstate relations. Policy reasons or simple economic realities may exclude coercion to induce compliance or punishment or protective self-help as alternative responses. Still, a state may be compelled to show its disapproval of the “offence” of the other state. In the conflict between the US and Iran concerning the seizure of the US embassy in Tehran a number of measures were taken which have to be labelled as symbolic. First, the US Government halted a shipment of $300 million worth of military equipment and spare parts designated for Iran.10 The delivery of these goods was part of a contract between the US and Iran. According to the US, it “had not officially suspended export of spare parts to Iran, but that none would be shipped until the impasse at the Embassy in Tehran had been resolved.”11 A White House official justified the suspension of the shipment by arguing, “the action was in no way intended to bring pressure on the Iranian Government … [but neither could you be expected] to continue to send military supplies to a country that is holding your people. Clearly no country can do otherwise.”12 After that, President Carter instructed the US Attorney General to start procedures for the identification of Iranian students who were not complying with the terms of their visas or students who were in violation of applicable immigration laws and regulations. These categories of students had to face additional deportation proceedings.13 One week after the hostage taking, the President of the US ordered the discontinuation of all imports of crude oil and oil products purchases from Iran in response to an announcement by the Government of Iran that it was going to cut petroleum shipments to the US.14 Carswell and Davis have characterized the

The Objectives of Self-help

19

discontinuation of oil imports as “largely cosmetic” and “symbolic”.15 In their opinion, the measure intended to constitute a “clear public statement” that the US position could not be influenced by complementary threats; its objectives were of a domestic rather than an international character.16 The previous measures must be assessed in the same terms. Symbolic measures are often intended either to demonstrate internationally disapproval of policies of the target state or disagreement with its practices, or to satisfy domestic opinions concerning a matter of international relations. The necessity to react may also be induced by the idea that silence might be viewed as political approval. In legal terms silence could be interpreted as “acquiescence”, which would prevent a state from making future claims. For these reasons, a demonstration of disapproval, including resort to self-help, has a political as well as a legal function. Most symbolic measures do not cross the legal threshold. There are various measures available to states within the field of diplomatic, cultural and economic relations, such as recalling ambassadors for “consultation”, suspending or terminating diplomatic relations, terminating economic aid, travel and visa restrictions, sports boycotts and many others, which are a priori lawful. This is not to say that all symbolic measures by definition fall into the category of retorsion or that every measure of retorsion is merely symbolic.17 Symbolic measures may indeed constitute international wrongful acts if and to the extent that the measure constitutes a breach of an existing legal obligation. Symbolic measures may also serve the specific purpose of indicating that the threat of more significant measures is real. The reduction of the US embassy staff in Managua, for example, served as an “appropriate adjustment that might be necessary should such a decision to terminate aid be called for”.18 Symbolic measures are not necessarily harmless or “symbolic” in their effect. They are called symbolic because they do not achieve a clear, measurable result. To the extent that they seek to send a signal to the larger international community, symbolic measures contain punitive elements. Where the effects and impact of symbolic measures cross the threshold of “symbolism”, normative constraints apply. Protection Protective self-help has received considerable attention in the literature on self-help, including the various proposals discussed in the International Law Commission, because it serves a fundamental need in any legal system.19 Because of the general acceptance of the need for protective measures, this form of self-help is considered to be “more” lawful then other forms of self-help. The application of the legal conditions for resort to self-help is applied less strictly with respect to protective selfhelp, and reference to “protection” seems to have more validity then any other political justification for measures of self-help. In a very general and broad sense, it can be said that any measure of self-help aims at the protection of the interest and/or rights of the author state. Such a broad understanding, however, would not serve the objective of distinction. When self-help is labelled “protective self-help” or “measures of protection”, the term “protection”

20


should be accorded a more restrictive meaning. Protective or conservatory measures of self-help are characterized by the fact that they aim at and actually result in counterbalancing, marginalizing, limiting or avoiding the harmful consequences of a wrongful act of the target state.20 Protective self-help presupposes that the actual measure is capable of securing the aim pursued. In this respect, the conception of protection is very concrete and relates to an apparent harm or to the protection of specific but measurable national interests. The protective function of self-help is generally accepted in literature.21 Some authors even consider measures which predominantly aim at the protection of the rights of the wronged state more legally acceptable than measures of a purely coercive nature.22 Protective self-help is generally more acceptable because there is a presumption of features and conditions which make them less suitable to misuse. Protective measures of self-help are inherently reversible and proportional.23 For example, a state may freeze specific assets of the offending state in order to secure compensation, but it may not attach or seize these assets in order to compensate. In the latter case the wronged state would be in the process of remedying or correcting the wrongful act. In the same sense, a protective countermeasure can only be proportional in a quantitative sense. The right to protect oneself is so widely recognized because it matches a basic need. This need is not only reflected in the lucid right of self-defence, which exists in international as well as national law, but also in the exceptio non adempleti contractus. The contract party confronted with a breach of the contract is not bound to fulfil its part of the contract. In some cases the wronged party is even entitled to suspend another obligation vis-à-vis the party in breach of the contract. Due to the basic role of protective self-help in international legal affairs, most authors accept that self-help should be treated as an exceptional case, with respect to the applicable legal requirements. Protective self-help is, for example, not considered to be subjected to a possible duty to exhaust procedures for the peaceful settlement of disputes. In the ILC’s Draft on State Responsibility, protective self-help has at one time been termed “interim measures of protection”. However, it is unclear whether the adjective is added to stress the non-final character of protective measures as compared to punitive and corrective measures, or whether it relates to the time span. The latter clarification is incorrect in the opinion of the author. Protective measures may be upheld and continued as long as the necessity for protection exists. Such a necessity may exist as long as the offending state refuses to settle the matter and to provide full compensation or reparation. The suspension of over-flights by Pakistan aircraft, over the territory of India after a hijacking incident was justified as a measure “in the interests of our national security and to protect the safety of aircraft operations”.24 It is difficult to see, however, how a state would be able to protect its own aircraft on internal flights from being hijacked, by prohibiting the over-flight by aircraft of another country. In this case, the term “protection” serves more general political purposes and should not be taken as the objective of the unilateral measures. During the hostage crisis, the US froze Iranian assets after it had received information that that Iran intended to withdraw its assets from American-owned banks.25 The initially stated purpose of the freeze was “to insure that claims by the United States and its citizens are provided for in an orderly manner”.26 Before the International Court of Justice, US Counsel Owen


21

also stated that the freeze was taken “in response to Iranian efforts to harm the US economy and the dollar”.27 On other occasions, however, it became clear that the “freeze” was also an indirect result of the hostage taking.28 In the latter case it would be a coercive rather then a protective measure. Remedies Remedial measures of self-help are the prototype legal consequence of an international wrongful act. It is well accepted that a state which has committed a wrongful act is under an obligation to redress the wrong done. It must: (1) acknowledge and cease the wrongful behaviour, (2) provide for adequate reparation (restitutio in integrum or compensation) and/or (3) give satisfaction. Insofar as these remedies are not forthcoming the wronged state may either take measures which in themselves provide an adequate remedy, such as seizing assets for compensation, or it may take coercive measures in order to force the wrongful state to remedy the wrong done. In the latter case, the author state aims at inducing a change in the wrongful state’s behaviour rather then remedying the wrong done. Since truly remedial measures are difficult to apply, measures coercing states to redress the wrong done are commonly accepted as being remedial in purpose.29 Both types of measures are related. From a normative point of view states should not force states to remedy the wrong done if they are technically able to do so themselves or secure the means which may provide for a proper remedy. The objectives subsumed under the heading remedial self-help are taken from the traditional terminology of international law: performance or cessation, reparation and satisfaction. Performance and Cessation30 The International Law Commission held that one of the purposes of self-help is “to secure performance” which had to be differentiated from “reparation” and “punishment”.31 Special Rapporteur Arangio-Ruiz prefers to speak of “cessation”, but he equally acknowledges that cessation “performs a different remedial function”.32 The right of states to demand performance of the obligation or cessation of the wrongful act is widely recognized in literature and jurisprudence.33 Cessation and performance aim at the re-establishment of the original legal relationship and are related to an ongoing international wrongful act. Therefore, pursuing performance is excluded by definition insofar as the wrongful act was confined in time. Performance and cessation are in principle not involved with the consequences of the wrongful act in terms of indemnification. However, in practice, re-establishment of the original legal relationship may involve proper restitution, i.e. it may involve a material act which brings the wronged state materially to a position which reflects the status quo ante. As such, performance may absorb restitutio in integrum or vice versa. However, it should not be assumed that a legal link exists between cessation and restitutio in integrum per se. Restitutio-like compensation is a form of reparation or indemnification. This brings us to the position of performance in respect to the reparation.

22


The presupposition that compliance is the primary objective of self-help may be caused by the focus upon restitutio in integrum as the primary duty of a wronged state. Emphasizing restitutio in integrum as the primary duty of states, which results from an international wrongful act, has provided reasons to presuppose that the reestablishment of the situation as it existed before the wrongful act is the paramount purpose of self-help.34 Against the primacy of the applicability of restitutio in integrum in international law one can raise practical as well as legal arguments.35 Moreover, the mere fact that returning to the status quo ante is possible cannot be considered to foreclose a priori the discretion of states to pursue other possible objectives. Insofar as cessation constitutes an independent remedy, it may be assumed that this is also reflected in the countermeasure aiming at cessation. Special Rapporteur Arangio-Ruiz has indeed indicated that “[t]he relevance of non-compliance with a claim for cessation, or with an injunction to that effect from a competent international body, would present itself as a justification for resort to immediate – individual or institutional – measures against the wrongdoing State”.36 Reparation Special Rapporteur Arangio-Ruiz clearly recognized reparation as a major objective of self-help.37 In respect of Article 30 of Part One of the Draft on State Responsibility, the Commission adopted, in the opinion of the author, a rather ambivalent position. In its 1979 report to the General Assembly of the United Nations it stated that self-help which aims at performance or punishment is to be distinguished from the “mere exercise of the right to obtain reparation for damage”.38 In its 1980 report, the Commission characterized self-help as “sanctions or enforcement measures”, holding that “sanctions” might inter alia constitute a means of exerting pressure in order to obtain compensation for the harm suffered.39 First of all, it has to be noted that the term “reparation” is generally used in a very extensive meaning, covering cessation, restitutio in integrum, pecuniary compensation, punitive damages,40 and various forms of satisfaction.41 However, a concept of reparation covering all possible remedies is too broad to accord it with a specific legal function. If the term reparation should be purposeful it should be limited to restitution and the various forms of pecuniary compensation for material and non-material (moral) injury. Like cessation, the right to obtain reparation by means of self-help is the corollary of the duty to provide reparation by the wrongful state. The recognition of the duty to repair the wrong done as such raises little problems; the duty to repair and the consequential right to obtain reparation has been confirmed in various awards and decisions.42 The debate concerns the various forms: (1) restitutio in integrum or in kind, (2) compensation and (3) punitive damages. However, with respect to the lawfulness of unilateral measures of self-help a clear distinction should be made between those measures which induce a state to repair the harm done, and those which are actually repairing the harm done. Satisfaction Satisfaction is generally classified under the heading reparation.43 Like performance and reparation stricto sensu, satisfaction assumes the wrongful state to act. In this


23

respect self-help aiming at satisfaction must be distinguished from symbolic and punitive self-help and should be considered as an independent remedy. A claim for satisfaction is based on its own consideration, which goes beyond the existence of material harm or accessible loss. Satisfaction is recognized as an autonomous remedy, which may be pursued instead of performance or reparation or in addition to these remedies.44 The question of whether performance and/or reparation is still available is immaterial in this respect. Like performance and reparation, satisfaction may constitute an independent reason for resort to self-help. However – notwithstanding the characterization of satisfaction as a remedy – it must be questioned in this respect: whether the nature of satisfaction is predominantly punitive or remedial. An analysis of literature and jurisprudence is inconclusive in this respect.45 If the possibility of obtaining punitive damages as a form of (pecuniary) satisfaction constitutes a criterion, one cannot but conclude that the position of arbitrators and scholars is at least ambivalent. Notwithstanding some clear examples of awarding punitive damages,46 most authors are unwilling to deduce from these arbitral awards the existence of punitive damages as a judicial remedy or the punitive nature of satisfaction. Gray, for example, concludes that “policy considerations will be crucial” with regard to the acceptance or non-acceptance of punitive damages as a judicial remedy.47 This restraint resembles the position of arbitrators, who have circumvented this thorny question by characterizing it as a matter of competence or jurisdiction.48 Authors are equally divided with regard to the status of state practice in this respect. According to Special Rapporteur Arangio-Ruiz, “the predominantly afflictive and not compensatory role of satisfaction is nevertheless widely recognized and is indisputably emphasized by a long-standing diplomatic practice”.49 He argues that satisfaction must at least be accorded a dual function, that of reparation and that of punishment. Which function will be the predominant one will depend on the specific circumstances of the case. Arangio-Ruiz recognizes in his fourth report that: The harm inflicted by the countermeasure aimed at obtaining satisfaction seems to be pretty close to a penalty inflicted by the injured state. There is also the hypothesis of a countermeasure taken by a State against another in a situation where, no cessation or reparation being sought or possible, the only conceivable function of the reaction is chastisement.50

With regard to the link between arbitration or adjudication and satisfaction, it is interesting that, on some occasions, awards or decisions have been designated as appropriate forms of satisfaction. The most significant example in this respect is the decision of the International Court of Justice in the Corfu Channel case. The Court stated that “this declaration [that the United Kingdom violated the sovereignty of Albania] by the Court constitutes in itself appropriate satisfaction.”51 Whether a declaratory judgment to that effect constitutes an appropriate remedy depends on the scope of that declaration and its status in state practice. If such a declaration provides the wronged state with full satisfaction (stricto sensu) a state could in the opinion of the author be required to seek this remedy and lose its right to employ harmful selfhelp for the purpose of obtaining satisfaction, to the extent that such remedy is available without the necessary cooperation of the wrongful party.

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Thus where a state is seeking or is required to seek the satisfaction of a declaratory judgment, it seems that it is hence required to start a dispute settlement procedure to the extent possible prior to resort to self-help to obtain satisfaction. Manipulation Most unilateral measures of self-help seek to change the behaviour of the target state. Behaviour of states can be perceived by any other state as being undesirable, harmful, unacceptable or wrongful. Depending on the qualification of the practice of the target state, the author state may design a range of unilateral responses, which again can be qualified in legal, political and economic terms as unlawful, unfriendly and harmful. Especially if states are seeking to change policies and actions of other states, the relationship between causes, specific objectives and means becomes relevant in terms of normative requirements and possible alternatives. In this paragraph I will address a specific question, which is relevant within the framework of self-constraint, namely whether a non-consenting state may be forced to accept a procedure for the peaceful settlement of the dispute. A state which violates its dispute settlement obligation by intentionally not cooperating, may be induced to comply with its obligation and to cease its non cooperative behaviour. Self-help may be employed to coerce a state to cooperate, if and when this is necessary. Where a violation of a dispute settlement obligation exists, a classic case of a demand for performance and cessation exists and the legal regime of self-help comes into force. However, in the absence of an obligation to resort to peaceful means of dispute settlement, the permissibility of self-help, which violates the other state’s rights, even if the measure aims at the other party’s acceptance of a dispute settlement procedure, is open to question and in the opinion of the author debatable. Special Rapporteur Riphagen expressed himself very clearly when he stated that: neither the alleged author State nor the alleged injured State can force the other State to accept a third party settlement procedure unless there is a basis of pre-existing consent for such a procedure. In other words, the parties to the dispute must, before the dispute arises, have agreed in principle that disputes shall be settled this way.52

The Arbitral Tribunal in the Air Services Agreement case, which stated that the selfhelp employed by the US constituted “pressure aiming at achieving a quicker procedure of settlement”, obviously assumed the existence of a prior obligation between the US and France.53 Riphagen and the Tribunal seem to be in agreement that a state may resort to self-help only after a prior breach of a dispute settlement obligation. However, there is also an opposite opinion. There is a tendency among authors to accept that self-help which is taken in order to coerce the other party to submit to judicial settlement or to come to the negotiating table is per se legitimate. For example, Elagab holds that “an aggrieved State may, with justifications, take counter-measures to nudge a recalcitrant State towards accepting a procedure of third-party settlement”.54 If a dispute settlement obligation is absent, this argument cannot be based upon the prior existence of a wrongful act. The justification for selfhelp in such a case must be based upon other legal considerations.


25

It can be argued that coercing another state to submit a dispute to a tribunal or court or to participate in a procedure for the settlement of the dispute may be accepted because a state is required to resort to less drastic measures first. A state which is authorized to force a state to cease the wrongful act, repair the harm done and, in addition, induce satisfaction would in that reasoning be equally authorized to present that very question to a third party settlement procedure and force the wrongful state to accept that objectively established outcome. It goes without saying that such reasoning is not in accordance with the principle of consent, which is well established in the regime of the peaceful settlement of disputes. It must be questioned whether in disputes over an (alleged) wrongful act, self-help as a means for inducing the peaceful settlement may be accepted in accordance with the general principle in eo, quod plus sit, semper inest et minus.55 A general obligation to settle disputes by peaceful means can, in the opinion of the writer not be invoked to force a state to participate in a very specific binding dispute settlement procedure. Neither can a state be forced to accept a dispute settlement procedure which goes beyond the obligation previously agreed upon. Punishment As early as 1973, the International Law Commission emphasized that “the term ‘sanction’ … is characterized – at least in part – by the fact that its purpose is to inflict punishment. That is not the same as coercion to secure the fulfilment of the obligation, or the restoration of the right infringed, or reparation or compensation.”56 This position has been adopted by the International Law Commission throughout its work on the Draft on State Responsibility. When drafting Article 30 of Part One the Commission reconfirmed its position and stated that “self-help … are measures the object of which is, by definition, to inflict punishment or to secure performance”.57 Special Rapporteur Ago emphasized the exclusiveness of this objective when he stated that “the object may be purely punitive (sanctions properly so-called)”.58 The Commission was even of opinion that “[t]he peculiarity of a sanction is that its object is essentially punitive; this punitive purpose may be exclusive and as such represent an objective per se”.59 The International Law Commission thereby addressed an extremely controversial subject in international law, namely the conception of punishment of one state by another state. However, the position of the International Law Commission is not as surprising as it may seem.60 The notion that self-help has a punitive purpose is already to be found in the award in the Air Services Agreement case. The Tribunal took the possibility into consideration that the US countermeasure had “an exemplary character directed at other countries” and as such it had “to some degree the character of a sanction”.61 By linking “sanction” and “exemplary character”, the Tribunal implicitly recognized punishment as a potential purpose of self-help. Before we set out the various positions and arguments for and against the acceptance of punishment as an objective of self-help, it is necessary to define more properly what we mean by punishment.62 Although it is hard to deny that punishment bears an element of quia peccatum (punishment merely because a wrong has been committed), the author disassociates himself from the view that punishment is merely retributive, i.e. that harm is done

26


exclusively to satisfy the injured moral values of the wronged party – or for that part the collective of subjects – or that punishment should be accorded such a function. Mere vengeance and retribution are neither compatible with basic principles of human dignity,63 nor can they stand the test of necessity.64 Punishment must be viewed as a purposive and an instrumental act, aiming at specific and general prevention. Inflicting or threatening harm of a nature designed to deter future recurrence of the wrongful act induces this prevention. Punitive self-help may, like symbolic self-help, also demonstrate strong disapproval, be it that the breach as well as the response is, necessarily, of a more severe character. Punitive self-help can, of course, only be accepted in response to flagrant and substantial disregard for fundamental international obligations. As already stated, there is a considerable body of opinion which denies the existence of a concept of punitive self-help. There are basically three different arguments against punishment or punitive self-help. The first argument rejects or denies the existence of or applicability of a concept of punishment in international law.65 The second argument is a more specific one. It is argued that the notion of punishment is incompatible with the principle of sovereign equality.66 The third argument is based on the view that measures of self-help are in any case and by their very nature “remedial in purpose”.67 However, those authors who are less opposed to the idea of punishment and punitive self-help have argued that the existence of a notion of punishment or punitive self-help in international law is supported by state practice,68 jurisprudence69 and/or doctrine. Other writers have argued that regional organizations or the United Nations are entitled to punish states, indicating that the concept exists in international law and that state sovereignty does not oppose the possibility of punishment.70 Although state practice and jurisprudence provide us with specific cases and examples, conclusive examples are scarce. Notwithstanding the lack of conclusive examples, the author finds it difficult to maintain that punishment or punitive selfhelp does not exist in international law. A completely different question is whether punishment and punitive self-help should be accorded a proper legal function within the law of state responsibility. Special Rapporteur Arangio-Ruiz is of the opinion that: even if it were to be found that a punitive intent is more or less frequently present behind the decision of injured States to resort to countermeasures, it would be very difficult to conceive the presence of such an intent as more than a factual characterization of the function of selfhelp. As a matter of law – whether de lege lata or de lege ferenda – it would seem inappropriate to cover such a hypothesis by any permissive rule within the framework of a project on State responsibility. [However] Equally inappropriate, in our view, would be a rule intended to lay down an express prohibition of any punitive function of countermeasures.71

It is questionable whether punitive self-help should and can be disregarded in a comprehensive codification of the law of state responsibility. Especially with regard to the development of the legal consequences of international criminal responsibility it is hard to see how the concept of punitive measures can be avoided. Obligations erga omnes indeed affirm the need for universal solidarity in dealing with the most serious assaults on international order, to the point where any State would be held to be automatically authorized to react against the breach of certain obligations


27

committed against another State and individually to take punitive measures against the State responsible for the breach.72 However, punitive self-help is not only applicable in respect of criminal acts of states, but also in specific cases of delictual responsibility. Some international wrongful acts, like an infringement of state territory, may not cause any appreciable harm. Is it perceivable that a successful kidnapping of a person from the territory of state A to the territory or diplomatic premises of state B, which does not cause any material damage to state A, cannot be countered by specific measures because enforcement and reparation are excluded by definition?73 The emphasis of Part Two of the Draft Articles on State Responsibility on wrongful acts, which can in principle be repaired, has distracted from the consequences of criminal behaviour of states and thus from self-help with a punitive character. State crimes constitute a specific form of organized crime, which should be taken seriously in an international public legal order or political system. The serious nature of international crimes entails consequences additional to those entailed by an international wrongful act. These consequences must go beyond the additional consequences enumerated in Article 41 of the ILC’s articles on international responsibility.74 Article 41 must be considered as a political compromise rather than a normative assessment of the applicable rules in the case of state crimes. The writer is well aware of the dangers of abuse of allowing or accepting punitive measures. However, these dangers are not banned from the practice of states by simply ignoring the phenomenon. On the contrary, guarantees against abuse of permissive rules are neither to be found in an accepted codification of the problem and the stipulation of strict conditions and requirements, nor by stashing away or avoiding the problem. This is precisely what Crawford did. As the ILC’s last Rapporteur on State Responsibility, he succeeded in avoiding the use of the term “international crimes” altogether. Instead, he proposed the phrase “serious breaches of obligations under peremptory norms of general international law”. The Commission subsequently failed to undo the changes. Article 41 reflects either a dominant realist perspective or a dominant positivist perspective in the ILC. The Commission is either too aware of the opposition of states to the introduction of the concept of crimes and is trying to save the draft or the Commission perceives the international legal order as a predominantly constructional and private legal order in which all parties are equal and in which punishment has no place. Notes 1

See, e.g., Reisman, “Sanctions”, 394; Bowett, “Economic Coercion and Reprisals by States”, Virginia Journal of International Law 13 (1972): 1–12 [hereinafter, Bowett, “Economic Coercion”]. 2 See Riphagen, “Seventh Report on State Responsibility”, YB Int. L Comm’n 2 (1) (1986); 1, 2. [hereinafter Riphagen VII]. The proposed Article 1 of part 3 of the draft articles reads: “ A State which wishes to invoke Article 6 of part 2 of the present articles must notify the State alleged to have committed the international wrongful act of its claim. This notification shall indicate the measures required to be taken and the reasons therefore” (emphasis added). It must be doubted whether such an obligation exists in contemporary

28

3 4 5 6

7 8 9 10 11 12 13

Enforcing International Law international law. However, within the framework of a codified regime of state responsibility, including the lawfulness of self-help, such a condition cannot be omitted. In respect to multilateral sanctions it has been asserted that “the interests of many of the participating states may be marginal (if not contradictory) to the objectives of sanctions”. See also Brown-John, Multilateral Sanctions. 47 With regard to unilateral measures it must be presumed that the interests of the sanctioning state concurs with the objective of the sanction. R. Arens and H. D. Lasswell, In Defense of Public Order: The Emerging Field of Sanction Law. New York: Columbia University Press, 1961, 202 [hereinafter, Arens and Lasswell, In Defense]. Arangio-Ruiz IV, 3. Idem. See also Bowett, “Economic Coercion”, 5. Most scholars recognize one or more of these objectives. See, e.g., Riphagen VI, 10 [(1): restoring the balance and (2) influencing behaviour]; Arens and Lasswell, In Defense, 199–200 [(1) prevention, (2) deterrence and (3) compliance]; Cooke, “The United States’ Emergency Sanctions against Libya”, Maryl J Int. L & Trade,189–200 [(1) coercion to change policies, (2) punishment for subversive policies and (3) symbolic demonstration]; Detter de Lupis, The Concept, 81 [(1) Punishment and (2) compliance]. However, there is considerable disagreement as to the precise function of self-help. The debate focuses mainly upon the question of whether self-help is predominantly remedial or retributive in character. See generally, Arangio-Ruiz III, 20 et seq. and Arangio-Ruiz IV, 2 et seq., André de Hoogh, Obligations Erga Omnes and International Crimes; A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (The Hague; Kluwer Law International,1996), 217–20 [hereinafter de Hoogh, Obligations Erga Omnes]. Gary C. Hufbauer and Jeffrey J. Schott, Economic Sanctions in Support of Foreign Policy Goals, (Washington, DC: Institute for International Economics, 1983), 10. Idem. But see Arangio-Ruiz IV, 3. Compare Department of State Bulletin [hereinafter Dep’t St. Bull]. 80 (Jan. 1980): 44 and New York Times [hereinafter NY Times], 10 Nov. 1979, A14 col. 3. NY Times, 10 Nov. 1979, A 8 col. 4. NY Times, 9 Nov. 1979, D 14 col. 6. See Dep’t St. Bull. 80 (Jan. 1980): 44. See also NY Times, 11 Nov. 1979, A1 col. 4. It has been suggested that the decision to identify and deport Iranian students had been induced by the pro-Ayatollah demonstrations organized by Iranian students. These demonstrations caused counter-demonstrations and violence could hardly be avoided. (See ibid.) On 12 November, a Department of Justice spokesperson stated that actual deportations would not start until at least December (see NY Times, 12 Nov. 1979, A1 col. 1). On 14 November, the Justice Department announced a Directive which required Iranian students to report to the Immigration and Naturalisation Service for review of their status before 14 December (See NY Times, 14 Nov. 1979, A1 col. 6). According to estimations by immigration officials, there were approximately 50,000 Iranian students holding US visas (see NY Times, 19 Nov. 1979, A1 col. 4). The lawfulness of the “deportation” Order had been challenged by Sen John H. Chafee and the American Civil Liberties Union in a proceeding for the Federal District Court of Washington. On 12 December, Judge Joyce Hens Green ruled that the Order violated rights of Iranian students under the Fifth Amendment and that immigration checks should be halted. However, on 28 December, the Appeal Court nullified the previous Decision and ruled that the Carter Administration had the right to conduct special immigration checks on Iranian students and deport those illegally staying in the US.


14 15

16 17 18 19 20 21

22 23 24

25 26 27

28 29 30 31

29

On 22 September 1980 the Immigration and Naturalisation Service reported that 12,000 Iranian students had been identified as being in the US illegally (see NY Times, 22 Sep. 1980, A11 col. 1). The number of students actually deported is unknown. See, e.g., Tehran Hostages case, 18; Dep’t St. Bull. 81 (Jan. 1980): 44 Carswell and Davis, “The Economic and Financial Pressures: Freeze and Sanctions”, in American Hostages in Iran; The Conduct of a Crisis, ed. Paul H. Kreisberg (New Haven; London: Yale University Press, 1985), 175, 176 [hereinafter Carswell & Davis, “The Economic and Financial Pressures”]. See also NY Times, 13 Nov. 1979, A8 col. 1. Idem. See page 19. See Secr. of State A. Haig, News Conference (27 Feb. 1981), reprinted in Dep’t St. Bull. 81 (Apr. 1980): 21. The right to self-defence is the best-known example of protective self-help which is known in international law as well as virtually all domestic legal systems. The question of acts of which the wrongfulness will materialize in the future involves questions concerning the existence of a prior breach and the lawfulness of anticipatory self-help. These questions will be addressed later in this chapter. See, e.g., Zemanek K., “The Unilateral Enforcement of International Obligations”, ZAÖRV 47 (1987): 35 [hereinafter, Zemanek “The Unilateral Enforcement”]; Bowett, “Economic Coercion”, 5; Arangio-Ruiz IV, 5. Arangio-Ruiz speaks, in accordance with the terminology of his predecessor, Riphagen (see Riphagen VI, 10 [art. 10]), of interim measures of protection. It must be questioned whether this term is, with regard to terminology of the International Court of Justice, the most felicitous term. Elagab, The Legality of Non-forcible Countermeasures, 45, employs the term “self-protection”. In opposition to the author, Elagab adheres to a broader conception of the idea of protection, which is likely to conflict with the far-reaching consequences of this objective. See, Bowett, “Economic Coercion”, 5. See Arangio-Ruiz IV, 5. Message of Mr N. Sahgal, Secretary to the Government of India, Ministry of Tourism and Civil Aviation to Dr W. Binaghi, President of the Council of the ICAO (10 Feb. 1971), reprinted in Appeal relating to the Jurisdiction of the ICAO Council (India v. Pakistan), 1972 ICJ Pleadings, 297. Compare NY Times, 15 Nov. 1979, A1 col. 5 and White House announcement of 14 Nov. 1979, reprinted in Dep’t. State Bull. (Dec. 1979): 50. Dep’t. State Bull. (Dec. 1979): 50. The US Counsel Owen stated in response to a question by Judge Morozov of the International Court of Justice with regard to freeze, that the freeze was taken “in response to Iranian efforts to harm the US economy and the dollar, and having in mind Iranian unlawful detention of American Hostages” (Dep’t St. Bull. (1980): 56). See, e.g., US President Carter, Message to the Congress of 14 Nov. 1979, reprinted in Dep’t St. Bull. (1980): 43 (indicating that the “recent events in Iran and the recent actions of the Government of Iran” are “circumstances necessitating” the blockade). Some authors consider remedial self-help as coercive by definition. See, e.g., R. Renwick, Economic Sanctions, Cambridge: Harvard University, Center for International Affairs (1981), 2 and Arangio-Ruiz IV, 3. According to the author, no importance is to be attached to using the term “performance” or “cessation” as both terms relate to the re-establishment of the original legal relationship. YB Int. L Comm’n 2 (2) (1979): 116. See also Ago, “Eighth Report on State Responsibility”, YB Int. L Comm’n 2 (1) (1979): 39 [hereinafter Ago VIII].

30 32

33 34 35 36 37 38 39

40

41 42 43

44 45 46 47

Enforcing International Law See, e.g., Arangio-Ruiz I, 9 et seq. Draft Article 6 as proposed by the Special Rapporteur reads: “A State whose action or omission constitutes an internationally wrongful act [having] [of] a continuing character remains, without prejudice to the responsibility it has already incurred, under the obligation to cease such action or omission” (ArangioRuiz I Add. 1 at 33) The discussion in the International Law Commission centred mainly around the nature of this obligation and its place in the draft, but there was general agreement as to the correctness of this provision. (See generally Provisional Summary Record of the 2102nd, 2105th, 2122nd and 2127th meeting of the International Law Commission, 16, 30 May, 29 Jun., 27 Jul. 1989 UN Doc A/CN.4/SR. 2102, 2105, 2122, and 2127 (1989), and Rep. Int. L. Comm’n (1989), UN Doc A/44/10 (1989). According to the author, performance and cessation denote the same action, merely the perspective differs. If the re-establishment of the violated obligation is emphasized, the act would be labelled as performance, whereas as the discontinuation of the wrongful act would be emphasized, the act would be called cessation. Both terms will be used interchangeably. See, e.g., Elagab, The Legality of Non-forcible Countermeasures, 45. See Riphagen I, 112. See C. Gray, Judicial Remedies in International Law (1986), 12 [hereinafter Gray, Judicial Remedies]. Arangio-Ruiz I, 23. Arangio-Ruiz IV, 2. YB Int. L Comm’n 2 (2) (1979): 116. YB Int. L Comm’n 2 (1980): 53. However, in 1979 the International Law Commission seems to have adopted a quite different position. The Commission held that the purpose of self-help “serves to distinguish the application of these countermeasures, sometimes referred to as “sanctions” from the mere exercise to obtain reparation for damage”. YB Int. L Comm’n 2 (2) (1979): 116. This position was based on the viewpoint of Special Rapporteur Ago who argued that reparation had to be characterized as “indemnification, which can hardly be described as a sanction”. (Ago VIII, 39). See, e.g., Riphagen II, 89; G. Schwarzenberger, International Law, Vol. I International Law as applied by International Courts and Tribunals (London: Stevens, 1957): 673; Garcia Amador, “First Report on International Responsibility”, reprinted in YB Int. L Comm’n (I) (1956): 220. But see, e.g., Shaw, Malcolm N., International Law. 2nd ed., Cambridge: Grotius (1986) 416 [hereinafter, Shaw, International Law]; I. Brownlie, Principles of Public International Law 3rd ed. (Oxford: Oxford University Press, 1979), 463 [hereinafter Brownlie, Principles]. In the view of the author, punitive damages should be excluded from the notion of reparation and be viewed as a form of punishment. See there under para. 3.2.5. See supra para. 3.3.4.1. See, e.g., Riphagen V, 3 (art. 6). See, e.g., Shaw, International Law, 416; Brownlie, Principles, 457–9; Schwarzenberger, G., A Manual of International Law. 3rd ed. London: Stevens: 1953, 78 [hereinafter, Schwarzenberger, A Manual]. Satisfaction is generally viewed to cover formal apologies, punishment of guilty minor officials, formal acknowledgement of the unlawful character of the act etc. See generally, Arangio-Ruiz II, 79–112. For a detailed overview of literature, jurisprudence and practice in support of this view see Arangio-Ruiz II, 79–122. See idem. Punitive damages have inter alia been awarded in the I am alone case, reprinted in Rep. Int. Arb. Awards 3; 1618; the Arends case, reprinted in Rep Int. Arb Awards 10: 730. Idem, 28.

The Objectives of Self-help 48

49 50

51 52 53 54

55 56 57 58 59 60 61 62 63 64 65 66 67 68

69

31

The award by Arbitrator Parker in the Lusitania case is a well-known example of judicial restraint. In the award it was stated that “as between sovereign nations the question of the right and power to impose penalties, unlimited in amount, is political rather than legal in its nature, and therefore not a subject within this Commission,” (Rep Int. Arb Awards 4 : 38, 49). See also the Portuguese Colonies case, reprinted in Rep Int. Arb Awards 3: 1618 and the Stevenson case, reprinted in Rep Int. Arb Awards 9: 506. Arangio-Ruiz II, 107. Arangio-Ruiz IV, 3 The acceptability of punishment in international law and the reasons for accepting or rejecting its concept will be dealt with hereunder. But see Tammes, “Means of Redress”, 7 (arguing that “the punitive element in the assessment of indemnity has lost much of its importance, together with the devaluation of the whole concept of ‘satisfaction’ as being a unilateral act on the part of imperialistic powers for the humiliation of the weak”). Corfu Channel case (Albania/UK) merits, 9 Apr. 1949, 12. Riphagen IV, 19. Air Services Agreement case, 337 [emphasis added]. This case is rather ambivalent in this respect. Article X of the Air Services Agreement provides for an advisory award. The US pressed France to accept a binding award. We will come to this aspect in more detail. Elagab, The Legality of Non-forcible Countermeasures, 46. This opinion is also very widespread among the members of the International Law Commission. See, e.g., Mahiou, Provisional Summary Record of the 2280th Meeting of the International Law Commission, 2 Jul. 1992, UN Doc A/CN.4/SR.2280, 8. Dig 50,17,110 pr. Paulus 6 ad ed. YB Int. L Comm’n 2 (1973): 174–5. YB Int. L Comm’n 2 (1979): 116. Ago, “Ninth Report on International Responsibility”, reprinted in YB Int. L Comm’n 2 (1) (1980): 56. YB Int. L Comm’n 2 (1) (1980): 53. See de Hoogh, Obligations Erga Omnes, 216. Air Services Agreement case, 337. It has to be noted that the terms “punishment” and “punitive measures” are used in a rather loose way in order to characterize self-help. For example, Dutch newspapers characterize all kinds of measures as “sancties” (sanctions) or “strafmaatregelen” (punitive measures). Arens and Lasswell, In Defense, 202. Third Restatement, comment F, 382. See, e.g., Riphagen II, 83. See, e.g., Zoller, Peacetime Unilateral Remedies, 59; Zemanek, “The Unilateral Enforcement”, 38. Idem, 6. See also D. Anzilotti, Teoria generale della responsabilita dello Stato nel diritto internazionale, (Florence: Lumachi, 1902), 96 cited from G. I. Tunkin, Völkerrechtstheorie 424 n. 11 (1972). See, e.g., Gray, Judicial Remedies, 27; Nossal, “International Sanction as International Punishment”, Int. Org. 43 (2) (1988): 315; L.C. Chen, An Introduction to Contemporary International Law; A Policy Oriented Perspective (New Haven: Yale University Press, 1989), 310 [hereinafter Chen, An Introduction]. For examples of self-help with a predominant punitive objective see Arangio-Ruiz IV, 4. See generally Gray, Judicial Remedies, 27. Contra, Schwarzenberger, A Manual, 78 [“in all cases of international tort, they [international tribunals] have, however, refused to award damages beyond the point of actual loss, that is to say, punitive damages.”]; Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (New Haven: Yale University Press, 1953), 234 [hereinafter, Bin Cheng, General

32


Principles]. The discussion on the existence of punitive damages illustrates the rather ambivalent position various writers have adopted towards punishment. Although these writers deny the right of States to punish, they are willing to accept “punitive damages” as a form of reparation. See, e.g., Schwarzenberger, A Manual, XLIX. 70 Zoller, Peacetime Unilateral Measures, 60. 71 Arangio-Ruiz IV, 5. 72 Ago VIII, 43. 73 The Kidnapping of Eichman from Argentina by Israel and the kidnapping of a hospitalized Chinese to the Chinese embassy in the Netherlands show that the case is not a fictitious one. 74 Article 41 stipulates that: 1. States shall co-operate to bring to an end by lawful means any serious breach within the meaning of Article 40. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor rendering aid or assistance in maintaining that situation.

Chapter 3

Self-help Terminology Introduction “Measures of self-help” connotes a range of unilateral measures which are known under a variety of terms. The terminological perplexity results from differences in usage in academic disciplines, politics and law. The most common and encompassing term is “sanctions”. “Sanctions” is indiscriminately used for all kinds of economic, political and military measures, irrespective of the underlying cause, objectives or unilateral or multilateral applications. In legal discourse, scholars increasingly differentiate between coercive measures ordered by international organizations (sanctions) and unilateral measures of self-help. The adoption of the term “countermeasures” in legal epistemic circles has added yet another term to the existing range of legal terminology; “reprisals”, “suspension and termination of treaties”, “reciprocal measures” and “retorsion”. Whether the introduction of a new term has clarified the existing terminological perplexity must be questioned. Terms are indicative of ideas and conceptual content. Specific terminological use is generally not used without reason. If self-help terminology is intended to be academically and politically purposeful, concealing and broad usage ought to be avoided.

Sanctions As stated in the introduction, “sanctions” is the most encompassing term. In political and economic sciences, politics and journalism it is the most frequently used term for all kinds of unilateral measures. For specific usage and purposes, “sanctions” has to be qualified. In economic and political science studies a variety of qualifying adjectives precedes the term “sanctions”, indicating the nature or purpose of a specific measure. With respect to the legal terminology, the International Law Commission observed: [a] trend in modern international law [is] to reserve the term “sanction” for reactive measures applied by virtue of a decision taken by an international organization following a breach of an international obligation having serious consequences for the international community as a whole, and in particular for certain measures which the United Nations is empowered to adopt, under the system established by the Charter, with a view to the maintenance of international peace and security.1

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The ILC’s concept of sanctions differed from Ago’s notion of “sanctions” as proposed in his initial report.2 In the ILC report, the term “sanction” was easily and without definitional change replaced by the term “countermeasure”.3 Malanczuk has doubted whether “there actually exists such a trend in international law”. Reserving the term “sanctions” for UN Security Council measures seems at least at odds with international practice and other academic usage. Malanczuk also concluded from the easy transformation of terms that “[t]here is … no point in attaching too much importance to terminology in this case”.4 Why not? Is it not remarkable that the change in terminology does not constitute any change with regard to the content of both expressions? Are collective and unilateral measures of self-help both aiming at punishment and compliance?5 In the final definition of “countermeasures” the punitive element has been abandoned. This could indicate that the differences between unilateral measures of self-help and sanctions ordered by the UN Security Council are of a more substantial character. Such a conclusion would be in line with Special Rapporteur Arangio-Ruiz’s notion that sanctions should be determined according to purpose and objective, rather than the process of application. Arangio-Ruiz holds in particular that: [t]he rather low degree of “verticality” of the measures taken by international bodies might not really justify the abandonment of a concept which may still serve a useful purpose to describe the function of those strictly unilateral or “horizontal” State measures upon which the effectiveness of international law still so largely depends. We feel, however, that in conformity with the Commission’s choice, the term sanction should better be reserved to designate the measure taken by international bodies. Only when we shall deal with the consequences of crimes, it might be worthwhile to see whether the term sanction could be extended to measures which, although emanating from States collectively, would not qualify as measures taken by an international body.6

The problem with the term “sanction” is that it could be a legal term of art as well as a catch-all term. In international law, the exact meaning is difficult to determine. However, it seems that in international law the term “sanctions” is used as a general term more than as a specific term. It cannot, according to the author, be said that the term in international law entails a sense of punishment per se. The term is rather used as a collective noun covering all responsive measures including retorsion and selfdefence,7 or at least as a catchword for all economic measures.8 This marks the contrast with municipal law where the term “sanction” seems to be reserved to the field of criminal law.9 From a purely legal point of view, one cannot but note a degree of terminological perplexity. At the same time, it must be considered that the position taken by the International Law Commission, Special Rapporteur Arangio-Ruiz and other scholars seems to confirm a shift towards a more specific meaning of the term “sanction(s)”.10 The tendency indicates that the term “sanction” is going to perform a function in the field of international crimes and punishment or collective reactions. However, it is, as of yet, not clear which of the functions of “sanctions” is going to be accepted. If “sanctions” should be related to international crimes and punishment, it is likely that most “sanctions” will emanate from collective decisions. On the other hand it must also be considered that not every collective decision aimed at one particular state is a (criminal) sanction. It is not inconceivable that international organizations could

Self-help Terminology

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order binding measures, which ought to be characterized as “administrative” or “civil” sanctions. Countermeasures The term “countermeasures” is the newcomer in international legal discourse. Until 1978, the term “countermeasures” was only sporadically used, without any clear intention to accord it with a specific normative meaning.11 In that year the Arbitral Tribunal in the Air Services Agreement case adopted the term. The International Law Commission and the International Court of Justice followed suit.12 These highly authoritative institutions practically catapulted the term “countermeasures” into the forefront of international law. As a result, the term became easily adopted in doctrine,13 jurisprudence14 and practice.15 However, the exact legal content of the notion of countermeasures is far from self-evident, highly ambiguous and open to confusion. Are we encountering a truly new legal concept or are we pouring old wine into new bottles? Has the introduction and adoption of that specific term contributed to a decrease rather than an increase in the above-noted terminological and conceptual confusion? The Tribunal in the Air Services Agreement case copied the term “countermeasures” from the memorial of the US, which used “countermeasures” to describe its measures against French airlines.16 Reuter, a member of the abovementioned Tribunal, held, at a meeting of the International Law Commission on Article 30 of Part One of the Commission’s Draft on State Responsibility, that the term “countermeasures” “meant nothing”. He revealed that the Tribunal was merely “seeking to avoid the words ‘reciprocal obligations’ and ‘reprisals’”.17 He did not disclose why the Tribunal was in such a need, but we may assume that “reciprocal obligations” and “reprisals” were not suitable legal terms in the given case. Judicial policy may have prevailed over conceptual precision. The indistinct legal meaning of “countermeasures” did not restrain the International Law Commission from adopting that specific term. The Commission decided in the initial phase of its work on state responsibility that “Countermeasures in respect of an internationally wrongful act” should be defined as “an act of a State not in conformity with an obligation of that State towards another State … if the act constitutes a measure legitimate under international law against that other State, in consequence of an internationally wrongful act of that other State”.18 As stated above, the Commission preferred the term “countermeasures” to the term “sanctions”. Special Rapporteur Riphagen and later Special Rapporteurs Arangio-Ruiz and Crawford, who were charged with the clarification of the content and scope of the concept of countermeasures, apparently met with difficulties in further clarification of the term. Riphagen simply avoided using it by adopting the terms “reciprocity” and “reprisals”. Arangio-Ruiz also “prefer[red], [...] to abstain, at least for the time being, from using the term ‘countermeasures’.” He stated in his preliminary report with respect to the propriety of employing the term countermeasures that, “[w]ith all respect for the title of Article 30 of Part One (the text of which, however, uses a different word, as well as for the Arbitral Tribunal and for the Court which has used the neologism) we are not quite sure that the term is the most felicitous one”.19

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In his third and fourth report, however, Arangio-Ruiz re-adopts the term “countermeasures”, but without prejudice to the “choice of terms which will appear to be the most suitable for the single draft articles” and “to any subdivisions which might be appropriate […].”20 He considered the term “as the most neutral and as such the most comprehensive of the various kinds of measures injured states may be lawfully entitled to take [...].”21 When he introduced his fourth report to the International Law Commission he forthrightly stated that “[h]e had decided to conform to fashion and speak of countermeasures instead of reprisals”.22 From that moment on, it was the concept of countermeasures, rather than the term, which was the subject of prolonged discussion in the ILC. A combination of fashion and judicial policy secured the adoption of the term “countermeasures” in Article 22 and Part Three, Chapter II, of the Draft Articles on State Responsibility in first reading.23 The work of the International Law Commission provided a basis for a relatively easy adoption of the term. Today, “countermeasures” has gained firm ground in the vocabulary of scholars and the representatives of states. However, it must be doubted whether the ILC’s conception of the legal content of “countermeasures” has been equally broadly accepted. Insofar as the meaning of the term has been given more consideration,24 it is considered as a generic term rather than a term of art.25 Does the ILC’s limitation of the term to measures intended “to induce that state to comply with its obligations under Part Two” of the Draft unnecessarily exclude other lawful objectives of self-help such as symbolic, protective, remedial and punitive measures? Zoller, who argues that the concept of countermeasures is an “autonomous legal concept”, would answer this question in the affirmative.26 She defines countermeasures as: law enforcement measures which consist of a temporary dispensation from complying with the law. In relation to the classic peacetime unilateral remedies, this term should theoretically encompass the suspension of the treaty and the reprisals; that is to say the two temporary measures which go beyond equivalence and which would in principle be unlawful if they were not resorted to as reactions to an international offence. … As a result, between the two major consequences of an international wrongful act, reparation and punishment, countermeasures definitely have to be placed within reparation and outside punishment.27

Zoller, who advocates that international law is in need of a more profound categorization of measures which can be legally employed in respect of international wrongful acts, employs the term “reparation” rather broadly. Whether “countermeasures” constitutes a functional term in such a categorization depends on the question whether it carries distinctive and specific features. There can be no doubt that its legal characterization in contemporary jurisprudence and literature constitutes a difficulty in this respect. An additional factor, which is likely to complicate the determination of the legal content of “countermeasures”, is that the term “countermeasures” is also suitable for political, technical and military purposes.28 Especially with respect to the use of force, the term “countermeasures” needs careful (re)consideration. Article 50 of the Draft on State Responsibility leaves no doubt as to the intention of the International Law Commission to simply prohibit


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countermeasures involving “the threat or use of force as embodied in the UN Charter”.29 However, by using the term “countermeasures” with respect to the use of force in its decision in the Nicaragua case, the International Court of Justice has created some unfortunate ambiguity. In the Nicaragua case the question of the lawfulness of the use of force not exercised in self-defence was raised and the International Court of Justice accepted in this context the expression “countermeasures”, without prejudging the possibility of armed countermeasures resorted to by the victim state.30 With regard to armed countermeasures, the International Court of Justice has ruled on the question, of whether states may resort to countermeasures in response to a violation of the nonintervention rule, if and to the extent that the countermeasure “would otherwise constitute an intervention in the internal affairs”.31 As to the right of both the victim state as well as third states to resort to countermeasures in cases of alleged breaches of the principle of non-intervention, the Court stipulated that: [w]hile an armed attack would give rise to an entitlement to collective self-defense, a use of force of a lesser degree of gravity cannot, as the Court has already observed (paragraph 211 above), produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused, even assuming that they have been established and imputable to the State, could only have justified proportionate countermeasures on the part of the State that has been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the United States, and in particular could not justify intervention involving the use of force.32

While the Court explicitly referred to countermeasures involving the use of force in the first sentence, it did not recall “use of force” in the two following sentences. Does this mean that, when laying down these sentences, the Court only had non-forcible countermeasures in mind? An affirmative answer would, first of all, lead to the conclusion that states which are the target of an intervention are precluded from resorting to armed countermeasures in response to an internationally wrongful act involving the use of force. Secondly, third states are not allowed to resort to countermeasures at all, even those involving the use of force in cases which are generally viewed as a threat to world peace and security. Such an interpretation of the Court’s view is too restrictive.33 The ICJ is referring to countermeasures involving the use of force and the key word in the paragraph under consideration is “collective”. The wording of paragraph 249 of the Court’s decision leaves (in the opinion of the author) room for the possibility of unilateral countermeasures involving use of force and collective countermeasures not involving the use of force. However, both forms of countermeasures are restricted to specific and serious internationally wrongful acts or international crimes, such as an in casu alleged intervention.34 In conclusion, it can be said that the increasing use of the term “countermeasures” in doctrine, jurisprudence and literature has, in the opinion of the author, not established as of yet a commonly and generally accepted definition or a better understanding of the institution of self-help. If the term is not merely a matter of trend and fashion, the least one can say is that “countermeasures” is used as a term of convenience in order to avoid the pitfalls of the use of more established, but also less flexible legal categories.

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Reprisals When the International Law Commission dealt with self-help in the context of Article 30 of Part One, it expressly indicated that reprisals “fall within the general notion of countermeasures”.35 At this point, however, the Commission failed to indicate which elements exactly constituted the difference between “countermeasures” and reprisals. As reprisals are one of the classical forms of self-help,36 any legal conceptualization of unilateral measures of self-help must, therefore, necessarily involve a qualification of “reprisals” vis-à-vis the term “countermeasures”. Without prejudice to the link between “countermeasures” and “reprisals”, one can consider three different possibilities: (1) reprisals are covered by countermeasures,37 (2) reprisals are synonymous with countermeasures38 and (3) reprisals fall outside the concept of countermeasures. Reprisals have traditionally been applied in peacetime as well as wartime situations.39 This might be the reason why international law has not substantially differentiated between belligerent reprisals and reprisals resorted to in peacetime. The basic legal conditions (such as prior breach of an international obligation, a prior demand for redress, necessity and proportionality) apply to both phenomena.40 Furthermore, peacetime reprisals can involve the use of armed force, which adds to the synchronistic approach. The difference between belligerent and peacetime reprisals is mainly to be found in their objectives. Whereas peacetime reprisals aim at immediate redress and/or compliance with the law, belligerent reprisals primarily aim at punishment.41 Due to the characteristics and objectives of belligerent reprisals, armed reprisals resorted to in peacetime also entail a sense of punishment. In contemporary international law, armed reprisals are abandoned as a means of redress. The status of non-forceful reprisals has increased and the sense of punishment, which was inherent in armed reprisals, has slightly shifted to nonforceful reprisals. The sudden shift in attention to non-forceful reprisals has also triggered a lively debate on their true purpose. Some authors emphasize redress and protection to the absolute exclusion of retribution and punishment.42 However, the variety of possible objectives of reprisals is much broader than that. Most authors identify one or more of the following objectives: protection, redress, compliance, enforcement and punishment.43 It seems that reprisals can be employed by states for a number of reasons that are not by definition mutually exclusive. From the perspective of reprisals it is hard to reveal characteristics that differentiate reprisals from countermeasures. Therefore, it is not surprising that most authors consider reprisals either to fall within the concept of countermeasures or to equal that concept.44 If reprisals and countermeasures are synonyms, “countermeasures” is no more than a semantic nicety, a face-lift for an expression with a negative connotation. Referring to the paragraph concerning sanctions, it should be mentioned that it has been argued that “the concept of reprisals has no place in the lexicon of international organizations.”45 The argument is based on the presupposition that reprisals are a form of non-collective response. The argument stresses once more the similarities between countermeasures and reprisals. The International Law Commission adopted the term “sanctions” for organized responses.


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Reciprocal Measures Special Rapporteur Riphagen introduced a sophisticated differentiation between reprisals and measures, which he termed “reciprocity of obligations”.46 The detailed and well-founded argumentation showed that his differentiation was more than an intellectual exercise intended to circumvent the terminological difficulties he encountered. Only a few members of the Commission met with “difficulties of distinguishing between measures by way of reciprocity and measures by way of reprisal”.47 In response to their questions, Riphagen explained that reciprocal measures constituted actions, consisting of non-performance by the injured state of obligations under the same rule as that breached by the internationally wrongful act, or a rule directly connected with it. Reciprocity could be invoked at any time and without limitation.48 The difference between reprisals and reciprocity was of a conceptual nature as reflected in Articles 8 (reciprocity) and 9 (reprisals) as proposed by Riphagen. While measures under Article 9 were subjected to the requirements of proportionality (Article 9) and prior exhaustion of procedures for peaceful settlement (Article 10), measures under Article 8 were not.49 It becomes immediately clear that the differentiation has a clear impact upon the obligation to resort to dispute settlement procedures. As Riphagen was not re-elected to the Commission, he was unable to continue this distinctive approach. While many authors commended Riphagen for his conceptual differentiation, only few have continued in this line. Zoller is one of the exceptions. She has adopted a similar conception of reciprocity save that she differentiates between reciprocity by identity and reciprocity by equivalence.50 She is also of opinion that a wronged state may “immediately react by way of reciprocity”.51 According to Zoller reciprocal measures are not subject to a prior duty to negotiate nor are they subject to other conditions.52 However, Zoller holds in opposition to Riphagen that measures by way of reciprocity are “no real countermeasures”.53 Notwithstanding the conceptual soundness and possibility of distinguishing in theory between measures characterized by reciprocity and measures not so characterized, it must be questioned whether the conceptualization by Riphagen and Zoller finds adequate support in practice. According to Special Rapporteur Arangio-Ruiz, the practice of states does not justify a distinction of this kind.54 Other authors have argued that “reciprocity” relates to a broader concept, which springs much less from the general international law principle of reprisals as such, and more directly from the normal requirement of reciprocity implied in the treaty relationship, and implied by law in all treaties involving reciprocal or mutually interdependent rights and obligations.55 “Reciprocity” may, according to Malanczuk, be viewed as an important principle which lies at the basis of the various forms of self-help, but which also has a more general legal application. Malanczuk denies that reciprocity constitutes an autonomous rule.56 However this may be, according to the author, characterizing and labelling a particular measure as a “reciprocal measure” does not necessarily constitute a mere statement of fact. Even though a reciprocal measure essentially indicates that the

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responsive breach relates in a formal sense to the wrongful act, legal consequences could be related to such a measure. Suspension and Termination of Treaties There is little doubt that a relationship exists between self-help, the law of state responsibility and the Vienna Convention on Law of Treaties.57 Article 73 of the Vienna Convention is very clear in this respect: “the provisions of the present convention shall not prejudice any question that may arise in regard to a treaty from … the international responsibility of a State”. Special Rapporteur Riphagen tried to prevent incompatibility or conflict with the Vienna Convention by proposing that “the provisions of the present articles shall not prejudge any question that may arise in regard to … the invalidity, termination and suspension of the operation of treaties”.58 Although evident overlaps do not seem to constitute any conceptual problems as such, Rosenne has stressed that the relationship between the law of treaties and the law of state responsibility “is a very complicated relationship, and it calls for delicate articulation of the various sets of rules that come into play in any given set of circumstances and careful qualification of the situation and of the rules applicable to it”.59 The link between the measures recognized in Article 60 of the Vienna Convention and the measures recognized in Article 22 of the Draft on State Responsibility is one of the aspects of this very complicated relationship. Can it be said that the measures contemplated in Article 60 – suspension and termination – fall, due to their particularities, outside the law of self-help? Do they constitute another autonomous form of legal reaction or can it be said that they constitute a specific application of the law of self-help with their own conditions and requirements? Special Rapporteur Arangio-Ruiz recognizes possible justifications for a conceptual differentiation.60 Finally, however, he seems to conclude that termination and suspension can be characterized as “contractual” or “conventional” self-help.61 Before we enter into an analysis of the differences and similarities, we should keep in mind that Article 60 is also subjected to controversies. These controversies relate inter alia to the status of Article 60 under customary law62 and the scope and content of Article 60. It is the latter debate that is particularly relevant in any comparison with the general law of countermeasures. Until 1969, when the Vienna Convention on the Law of Treaties entered into force, measures in response of a breach of treaty were simply dealt with and accepted under the doctrine of reprisals.63 However, as the Vienna Convention gained legal force the measures recognized in Article 60 generated their own justification for separate treatment. The law of reprisals seemingly lost its value in respect of Article 60. Now we have to consider whether due to the codification of the law of countermeasures, the interpretation of the legal regime of Article 60, must be revoked. Article 60 recognizes three different reactions against a breach of a treaty: (a) termination; (b) suspension of the operation of the treaty in part or (c) suspension of the operation of the treaty in whole. In addition to the terms under (a), (b) and (c), two other terms, which are not used in the Vienna Convention, but frequently referred to


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in the framework of the law of treaties, should be taken into account for the purpose of analysis and clarification: (d) “non-performance” and (e) “exceptio non adempleti contractus”. Kirgis is right when he holds that the rights of reciprocity and/or reprisal exist wholly apart from the law of treaties [and that] certain countermeasures have the same effect as suspension of some or all obligations on the treaty, but [they] are not technically ‘suspension’ of the operation of the treaty. That being the case, these countermeasures would not fall within Article 65 at all.64

However, can one also argue that Article 60 would not fall within Article 22 of Part One of the International Law Commission’s draft on State Responsibility? Termination65 and suspension66 may be considered to violate the general principle of pacta sunt servanda as codified in Article 26 of the Vienna Convention. Like countermeasures, however, they are justified by a prior breach of a treaty. Therefore, both measures are to be considered as falling within the definition of countermeasures as stipulated in Article 22 of the International Law Commission’s Draft on State Responsibility.67 The difference is not to be found in the general conditions, but in the translation of the law of reprisals to the specific needs of the law of treaties. In order to safeguard the very existence or continuation of a particular treaty, termination and suspension require a particular prior wrongful act, namely a material breach. Without entering into the debate on what constitutes a material breach, this requirement clearly constitutes a specific threshold, which makes it less easy for states to resort to a termination or suspension of the treaty. For the same reason, the drafters of the Vienna Convention have opted to include some procedural thresholds. It must be doubted whether these procedural requirements do provide an argument for a clear distinction between countermeasures and the measures envisaged in Article 60.68 Apart from the possibility of suspending or terminating a treaty, many authors argue that states can also “simply” refuse to perform a treaty. They argue that “suspension” and “non-performance” are conceptually different measures.69 Non-performance constitutes, according to these authors, an autonomous legal consequence of a breach and hence an action not governed by the Vienna Convention. Such an action would then be governed by the more general rules of state responsibility. The consequence would be that the draftees of the Vienna Convention have – intentionally or not – created a serious loophole in the application of the procedural requirements of Article 65. Neither the text of Vienna Convention nor its legislative history suggests in any way a substantial differentiation between “suspension” and “non-performance”. Articles 71 and 72 of the Vienna Convention indicate that non-performance is merely the factual consequence of both termination and suspension of the operation of the treaty.70 To the extent that the Vienna Convention refers to performance, the term does not, according to Rosenne, gain “any obvious positive content”.71 Finally, it must be considered whether the adagio exceptio non adempleti contractus constitutes a separate category of consequences in respect of a breach of a treaty. In municipal legal systems the rule is well known in the law of contract.72 Its counterpart in international law has been characterized by Judge Anzilotti in his well-

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known dissent in the Diversion of the Waters from the River Meuse case, as “so just, so equitable, so universally recognized that it must be applied in international relations”73 The adagio may be considered as the classical translation of the conception of reciprocity. For the purpose of international law the adagio can be applied in a general as well as in a very specific way, but in both conceptions it relates to the idea of reciprocity.74 On a treaty level, the exceptio non adempleti contractus must be applied very strictly in order to avoid marginalization of the whole idea. This means that it should only be applied to reciprocal obligations. Only then could it perform a specific function with its own specific requirements. It would then be directly related to the idea of protection, as in the law of contract. The measures contained in Article 60 of the Vienna Convention may aim at various objectives, not only at protection, but also at inducing performance or securing reparation. Article 60 of the Vienna Convention is not an application of the adagio exceptio non adempleti contractus in the restrictive meaning of the word.75 The measures envisaged in the law of treaties constitute, due to the different procedural requirements, leges speciales with regard to the measures envisaged in the more general regime of state responsibility.76 Retorsion The International Law Commission has consistently excluded retorsion from the scope of Article 22 of the Draft: measures that are normally lawful, such as simple measures of retorsion or other forms of conduct, which, while harming the interest of the subject that infringed the state’s right, yet do not conflict with an international obligation towards that other subject. In such a situation there is no need to “excuse” the measures to preclude, as an exception, their lawfulness, for in any case they are not unlawful.77

Special Rapporteur Arangio-Ruiz followed the Commission in its initial idea and agreed that the concept of retorsion “should not find a place within the framework of a codification of State responsibility”.78 Whether retorsion should be part of the legal regime of state responsibility is a controversial topic. Arangio-Ruiz himself argued that a differentiation between measures in violation of international law and measures not in violation of international law (retorsion) is not always easy.79 Moreover, in paragraph 34 of his Fourth Report he argued that situations might exist in which “the injured State … is under an obligation to refrain from any action (whether reprisals or retorsion)”.80 Notwithstanding the fact that the Special Rapporteur had not been “wholly consistent” in this respect, the majority of the Commission agreed that retorsion should be excluded from the work on state responsibility.81 Many scholars have followed the Commission in its approach.82 A considerable number, however, is less restrictive and has implicitly or explicitly accepted retorsion as a measure belonging to the regime of state responsibility and thereby recognizing retorsion as relevant for an assessment of the law on self-help.83 An analysis of literature in respect of the question of whether the legal regime on state responsibility


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includes or excludes retorsion remains inconclusive. Neither does an analysis of jurisprudence or practice contribute to a clarification in this respect. The only instance which touched upon the problem was the Tribunal in the Air Services Agreement case. In opposition to the International Law Commission, the Tribunal did not explicitly and by definition exclude retorsion from its concept of countermeasures. The Arbitral Tribunal merely held that a state could only “affirm its rights through ‘counter-measures’”.84 This formulation leaves open the question of whether a state can affirm its rights through retorsion measures. The answer to this question is not merely a matter of the definition and characterization of “countermeasures” but of the definition and characterization of retorsion as well. Ultimately, the idea of self-help is not an exclusive legal concept. It includes sociopolitical measures with legal relevance. Oppenheim’s classical treatise on disputes, war and neutrality defines retorsion as: “retaliation for discourteous, or unkind, or unfair and inequitable acts by acts of the same kind”.85 The omission of the adjective “illegal” is at least remarkable. Logically, there seems to be no compelling reason to exclude retorsion as a unilateral response to wrongful acts. Verdross has argued that Oppenheim’s enumeration cannot be considered as an exhaustive one for: Wäre diese Definition erschöpfend, dann könnte daher die Retorsion gar nicht als Unrechtsfolge betrachtet werden. In Wahrheit aber reagieren die Staaten häufig auch gegen ein völkerrechtswidriges Verhalten des Gegners mit einer zwar unfreundlichen, aber innerhalb des Rahmens des VR sich bewegenden Handlung … Daher kann die Retorsion auch als Sanktion des VR betrachtet werden.86

Verdross’s presumption, analysis and conclusion are sound and support the opinion that retorsion measures may be taken in response to both a violation of rights as well as an infringement of interests. The second question which may be raised concerns the legal character of retorsion. The International Law Commission considers measures of retorsion as “measures that are normally lawful”. Insofar as this qualification presumes that measures of retorsion may under certain circumstances become unlawful, it is not totally undisputed. For example, Malanczuk defines retorsion as “eine unfreundliche Handlung, die dem Völkerrecht nicht widerspricht, also per se rechtmäßig ist und keiner besondern rechtfertigung bedarf”. He consequently concludes that the conditions which apply to reprisals do not apply in respect of retorsion.87 It is obvious that the legal status of measures which are normally lawful and measures which are per se lawful is a fundamentally different on. Those writers who have taken a less categorical standpoint and define retorsion as a measure which is in principle lawful have inter alia argued that: (1) an otherwise legitimate retorsion may in certain circumstances be such as to endanger international peace and security or justice, in which event it would violate article 2 (3) of the UN Charter,88 (2) proportionality and equivalence also apply to retorsion,89 and that (3) retorsion might become impermissible if and to the extent that the measure pursues an “illegal objective”.90 Schachter’s position has, in the view of the writer, found support in a recent “ruling” by the Secretary General of the United Nations in the case concerning Differences Arising from the Rainbow Warrior Affair between New Zealand and

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France.91 Although the economic measures resorted to may properly be defined as retorsion,92 the Secretary General “ruled” that France should: a) not oppose continuing imports of New Zealand butter into the European Community in 1987 and 1988 at levels proposed by the Commission of the European Community in so far as these do not exceed those mentioned in document CON (83)574 of 6 October 1983, that is to say, 77,000 tons in 1987 and 75,000 tons in 1988 and b) not take measures that might impair the implementation of the Agreement between New Zealand and the European Economic Community on Trade in Mutton, Lamb and Goat Meat which entered into force on 20 October 1980 (as complemented by the exchange of letters of 12 July 1984)

The award strongly suggests that France is prohibited from taking retorsion measures. This is a far-reaching award, even if one takes into account that the arbitrator was authorized to decide in an “equitable and principled” manner. On the basis of this award, a state which has committed an international wrongful act is prohibited from resorting to retorsion measures, in order to coerce another state not to pursue its justified cause. Finally, the general nature of retorsion needs consideration. The International Law Commission characterized measures of retorsion as “simple measures”. Although it is not quite clear what the Commission meant by “simple”, it implies that retorsion needs lesser attention than other measures of self-help which violate an international obligation. The presupposition that retorsion does not fall within the ambit of international law, i.e. that it is less important and that international lawyers would consequently be excused from studying it as a legal phenomenon,93 must be rejected in my opinion. A quick glance at state practice demonstrates that retorsion is, in terms of material effects and quantity, far more important than reprisals.94 Moreover, retorsion performs an important and essential function in the law of state responsibility, as it is one of the means to prevent and react to infringements of legal rights. Furthermore, it is not easy to determine whether a specific measure violates a legal obligation in a given situation or not. Thus the International Court of Justice held in the Nicaragua case that “the cessation of economic aid, the giving of which is more of a unilateral and voluntary nature, could be regarded as such a violation [of the obligation not to defeat the object and purpose of the treaty] only in exceptional circumstances”.95 The Court, in the opinion of the author, considered it possible that measures in principle defined as retorsion are capable of destroying the purpose of a treaty. It signifies that the traditional clearcut distinction between retorsion and other unilateral measures is increasingly blurring.96 Considering the increasing sophistication of international regulation and lawmaking, the very question of whether a specific measure constitutes a violation of an international obligation or not is likely to become the very subject of the dispute. If states are required to resort to a procedure for the settlement of the dispute prior to resort to “countermeasures” – as defined by the International Law Commission – they can legally circumvent this obligation by claiming that their measure does not violate an international obligation. Can such a loophole be accepted in a codified regime of state responsibility? In the opinion of the author it cannot.


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In the contemporary framework of state responsibility the exclusion of retorsion from the notion of lawful self-help is non-relevant. Where the target state has the right to question the lawfulness of the measures resorted to by the author state and where the author state is allowed to maintain protective measures, the difference between retorsion and all other measures is practically speaking moot. Notes 1 YB Int. L Comm’n 2 (2) (1979): 121. 2 See Ushakov, “Summary Records of the 1544th Meeting of the International Law Commission, 1 Jun. 1979”, YB Int. L Comm’n 1 (1979): 55; A. Yankov, ibid., 57; Francis, “Summary Records of the 1545th Meeting of the International Law Commission, 5 Jun. 1979”, ibid., 59 and Jagota, ibid., 61. 3 See “Summary Records of the 1567th meeting of the International Law Commission, 10 Jul. 1979”, idem., 169. 4 Malanczuk, P., “Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission’s Drafts on State Responsibility”, ZAÖRV 43 (1983): 718; [hereinafter Malanczuk, “Countermeasures”]. 5 Contra Zoller, Peacetime Unilateral Measures, 106. 6 Arangio-Ruiz III, 8. 7 See, e.g., Fukatsu, “Coercion and the Theory of Sanctions in International Law”, in The Structure and Process of International Law, eds McDonald and Johnston (The Hague: Martinus Nijhoff, 1983), 1187. See also Arangio-Ruiz III, 7. 8 See, e.g., C. L. Brown-John, Multilateral Sanctions in International Law; A Comparative Analysis (New York: Praeger, 1975) [hereinafter, Brown-John, Multilateral Sanctions]; Caron, “International Sanctions, Ocean Management, and the Law of the Sea; A Study of Denial of Access to Fisheries”, in Ecol L Quarterly 16 (1989): 11 [hereinafter Caron, “International Sanctions”]; Cooke, “The United States’ 1986 Emergency Sanctions against Libya – Have they worked?”, in Maryl J Int. L & Trade 14 (1990):195 [hereinafter Cooke, “The United States”]. 9 But see R. Arens and H. D. Lasswell, In Defense of Public Order; The Emerging Field of Sanction Law 4 et seq. 1961 [hereinafter Arens and Lasswell, In Defense]. They held that in cases involving a breach of contract, the deprivations to which one of the parties may be exposed are “not labelled ‘sanctions’”. “Lawyers in our system are trained to talk of ‘damages’ or ‘specific performance’.” However, they took the position that, as “the ‘tortfeasor,’ like the ‘criminal,’ is subject to deprivations imposed by an authority of the entire community. The consequences of tort and crime may both be labelled sanctions” [emphasis added]. 10 Reisman, W.M., “Sanctions and Enforcement”, in International Law Essays, edited by McDougal and Reisman, Mineola: Foundation Press, 1981, 383 and 405; [hereinafter, Reisman, “Sanctions”]. Reisman differentiates between “sanctions” and “enforcement”. The latter term is defined as “a purposive particularisation of a public order sanctioning system: a specific assembly of sanction programs designed to realise in value terms, an identifiable authoritative prescription”. 11 See, e.g., Zoller, Peacetime Unilateral Measures, xvi n. 8 (tracing the legal use of the term countermeasures back to 1928); Elagab, The Legality of Non-Forcible Countermeasures, 2 n.1 (tracing the term back to 1916). A “Google-search” on the term countermeasure reveals that the term is popular in medical terminology, disaster studies, traffic incidents involving alcohol, anti-cancer measures, nuclear accidents and military counterintelligence.

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Enforcing International Law See United States Diplomatic and Consular Staff in Tehran (US/Iran) 1980 ICJ 27 (Judgement of [hereinafter Tehran Hostages case]. See, e.g., Zoller, Peacetime Unilateral Measures, supra note 2; Elagab, The Legality of Non-Forcible Counter-measures, supra note 3; L. Boison de Chazournes, Les Contremesures dans les relations internationales économiques, (Geneva: Institut Universitaire de Hautes Études Internationales, 1992); de Guttry, “Some Recent Cases of Unilateral Countermeasures and the Problem of their Lawfulness in International Law”, It YB Int. L 7 (1986-1987): 169, [hereinafter de Guttry, “Some Recent Cases”]; Lerner, “Sanctions and Counter-measures short of the Use of Force against Terrorism”, Israel YB Hum. Rights 19 (1989): 259 [hereinafter, Lerner, “Sanctions”]; Malanczuk, “Countermeasures” 705; Reed, “Reviving the Doctrine of Non-Forcible Countermeasures: Resolving the Effect of Third Party Injuries”, in Va J Int. L 29 (1988): 175; Herdegen, “The Abuse of Diplomatic Privileges and Countermeasures not Covered by the Vienna Convention on Diplomatic Relations”, ZAÖRV 46 (1986): 734. See case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) (merits) 1986 ICJ 110 (Judgment of 27 Jun. 1986) [hereinafter Nicaragua case]. It may be questioned whether the Decisions of the Court contributed to a clarification of the legal definition of countermeasures. See, e.g., the debate in the Sixth Committee of the General Assembly of the United Nations, UN Doc A/C.6/47/SR.20 – 30. It must be noted that the term “countermeasures” was used consistently in the Memorial of the United States of 18 September 1978 (see pp. 28 and 35–9). However, in the Reply of the United States of 6 November 1978, this matter was dealt with under the heading “B. Reprisals, retorsion and sanctions for breach of treaty.” The US Reply referred more frequently to “sanctions” and “retaliatory action” than “countermeasures” (See pp. 25–36). It has been suggested that the cooperation between the Office of Legal Affairs and the Office of Political Affairs of the US Department of State in drawing up the memorial may have caused the preference for the term countermeasures. The Office of Political Affairs preferred the term “countermeasures” for both practical as well as policy reasons. Reuter, “Summary Records of the 1717th Meeting of the International Law Commission, 31 May 1983”, YB Int. L Comm’n 1 (1983): 102. YB Int. L Comm’n 2 (2) (1979): 115. Arangio-Ruiz, Preliminary Report on State Responsibility, 25 at n. 8, UN Doc A/CN.4/416 (1988) [hereinafter Arangio-Ruiz I]. Arangio-Ruiz, Third Report on State Responsibility 13, UN Doc A/CN.4/440 (1991), [hereinafter Arangio-Ruiz III]. Idem. Arangio-Ruiz, Fourth Report on State Responsibility 3, UN Doc A/CN.4/SR.2265 (1992) [emphasis added] [hereinafter Arangio-Ruiz IV]. See ILC Commentaries 2001, Commentaries to the draft articles on Responsibility of States for internationally wrongful acts, ILC report 2001, UN Doc. A/56/10. Chap. IV.E.2, 181. It has to be noted that most authors who employ the term do not properly define its content or employ the term in a rather unorthodox sense. See, e.g., Reed, supra note 13, 29, (“An example of such a [non-forcible] countermeasure is the recently enacted Anti-Terrorism Act”); Lerner, “Sanctions” 13, 259 (Lerner defines measures directed at the terrorists themselves as countermeasures). See, e.g., Malanczuk, “Zur Repressalie”, 306; Zemanek, “The Unilateral Enforcement of International Obligations”, in ZAÖRV 47(1987): 32, 34 n. 8. [hereinafter Zemanek, ‘The Unilateral Enforcement’]; Elagab, The Legality of Non-Forcible Counter-measures, 4.


47

26 Zoller, Peacetime Unilateral Remedies, 137. 27 Idem, 75. 28 See, e.g., Roberts, ‘The Final Negotiation and Release in Algiers’, in American Hostages in Iran; The Conduct of a Crisis, ed. Paul H. Kreisberg (New Haven; London: Yale University Press, 1985), 299; Riphagen, “Preliminary Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the draft articles on State responsibility”, reprinted in YB Int. L Comm’n 2 (1) (1980): 107, 129 [hereinafter Riphagen I]; Arangio-Ruiz I , 25 n. 8. 29 Crawford, The International Law Commission’s Articles, 288. 30 Nicaragua case, 116. 31 Idem, 110. 32 Idem, 127. 33 But see T.D. Gill, Litigation Strategy at the International Court (Dordrecht; Nijhoff, 1989), 280; who is of opinion that the Court “excludes entirely any counter measure taken by a third State.” [Emphasis by Gill.] However, Gill is equally of the opinion that “this statement by the Court is an incorrect interpretation of the law, both from legally and from a policy standpoint.” Idem, 281. 34 Doehring, “Die Selbstdurchsetzung völkerrechtliche Verpflichtungen”, ZAÖRV 47 (1987): 44, 55 et seq. [hereinafter Doehring, “Die Selbstdurchsetzung”]. “The thesis that forcible reprisals are inadmissible cannot strictly be upheld in all situations. If the initial and wrongful act consists in using force similar behaviour by the injured State may be lawful as a reprisal.” 35 YB Int. L Comm’n 2 (2) (1979): 116. 36 See Steinkamm, “Repressalie”, in Lexicon des Rechts: Völkerrecht, ed. I. Seidl Hohenveldern (Neuwied: Luchterhand, 1992), 297; Hindmarsch, “Self-help in Time of Peace”, Am J Int. L 26 (1932): 315. See generally E. Colbert, Retaliation in International Law (New York: King’s Crown Press, 1948) [hereinafter Colbert, Retaliation]. 37 See, e.g. YB Int. L Comm’n 2 (2) (1979): 116; Riphagen, “Fifth Report on Content, Forms and Degrees of Responsibility”, reprinted in YB Int. L Comm’n 2 (2) (1984): 3 [hereinafter Riphagen V]. But see Reuter, “Summary records of the 1861st meeting of the ILC, 13 Jul. 1984”, in YB Int. L Comm’n 1 (1984): 279; Arangio-Ruiz III, 12; Malanczuk, “Countermeasures”, 721; Zoller, Peacetime Unilateral Measures, 75. 38 See, e.g., Elagab, The Legality of Non-Forcible Counter-measures, 4. 39 See generally Colbert, Retaliation, supra note 47. 40 See F. Kalshoven, Belligerent Reprisals (Leiden: Sijthoff, 1971), 1. But see Malanczuk, “Zur Repressallie”, 298 n. 22–4 (establishing a trend in recent literature which differentiates more substantially between “belligerent” and “peacetime” reprisals). 41 See Colbert, Retaliation, supra note 47, 58. 42 See, e.g., P.H. Kooijmans, Internationaal Publiekrecht in Vogelvlucht 133 (Groningen: Wolters-Noordhoff, 1991) [hereinafter Kooijmans, Internationaal Publiekrecht]; Zemanek, “The Unilateral Enforcement”, 37. 43 See, e.g., Malanczuk, “Zur Repressalie”, 299; Schachter, “International Law in the Hostages Crisis: Implications for Future Cases”, in American Hostages in Iran; The Conduct of a Crisis, ed. Paul H. Kreisberg (New Haven; London: Yale University Press, 1985), 325 [hereinafter Schachter, “International Law in the Hostages Crisis”); Hindmarsch, A.E., “Self-help in Time of Peace”, American Journal of International Law (1932), note 47, 316; [hereinafter Hindmarsch, “Self-help”]; Zemanek, “The Unilateral Enforcement”, 35. 44 See, e.g., Elagab, The Legality of Non-Forcible Counter-measures, 4; Arangio-Ruiz, Summary Records of the 2265th Meeting of the International Law Commission, 2 Jun. 1992, UN Doc A/CN.4/SR. 2265.

48


45 Brown-John, Multilateral Sanctions, 20. 46 Riphagen, “Fourth Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the draft articles on State responsibility)”, YB Int. L Comm’n 2 (1983): 1, 17 [hereinafter Riphagen IV]; See also Riphagen, “Sixth Report on the content, forms and degrees of responsibility (Part 2 of the draft articles on State responsibility) and ‘Implementation’ (mise on œuvre)”, YB Int. L Comm’n 2 (1985): 1, 11 [hereinafter Riphagen VI]. 47 See Reuter, “Summary Records of the 1858th Meeting of the International Law Commission, 10 Jul. 1984”, YB Int. L Comm’n 1 (1984): 103, 264 and 279; Balanda, “Summary Records of the 1867th Meeting of the International Law Commission, 20 Jul. 1984”, ibid., 315. Other members explicitly agreed with Riphagen’s differentiation. See Sir Ian Sinclair, “Summary Records of the 1865th Meeting of the International Law Commission, 18 Jul. 1984”, ibid., 303; Ni, ibid., 306; McCaffrey, “Summary Records of the 1866th Meeting of the International Law Commission, 19 Jul. 1984”, ibid., 314; Lacletta Muñoz, “Summary Records of the 1867th Meeting of the International Law Commission, 12 Jul. 1984”, ibid., 316. 48 Riphagen, ibid.,318. 49 Riphagen V, 3. Articles 8, 9 and 10 as proposed by Riphagen read as follows: Article 8 Subject to articles 11 to 13, the injured state is entitled, by way of reciprocity, to suspend the performance of its obligations towards the State which has committed an internationally wrongful act, if such obligations correspond to, or are directly connected with, the obligation breached. Article 9 1. Subject to articles 10 to 13, the injured State is entitled, by way of reprisal, to suspend the performance of its other obligations towards the State which has committed an internationally wrongful act. 2. The exercise of this right by the injured State shall not, in its effects, be manifestly disproportional to the seriousness of the internationally wrongful act committed. Article 10 1. No measure in application of article 9 may be taken by the injured State until it has exhausted the international procedures for the peaceful settlement of the dispute available to it in order to ensure the performance of the obligations mentions under article 6. 50 Zoller, Peacetime Unilateral Measures, 14 et seq. Zoller characterizes “reciprocity” as an “autonomous legal concept”, which “in conventional law finds its expression in the exceptio non adempleti contractus which constitutes a non-performance as opposed to suspension.” (On the difference between non-performance and suspension of conventional obligations see para. 2.2.5). 51 Zoller, Peacetime Unilateral Measures, 69 [emphasis added]. 52 Idem, 12 et seq. 53 Idem, 120. The exclusion of reciprocal measures which are characterized by nonperformance is in accordance with Zoller’s definition of countermeasures which comprise suspension and reprisals. 54 Compare Arangio-Ruiz III, 15. 55 Fitzmaurice, “Second Report on the Law of Treaties”, reprinted in YB Int. L Comm’n 2 (1957): 66 [hereinafter Fitzmaurice II]. It is important to notice here that Fitzmaurice referred to conceptually different treaties in this respect: those involving reciprocal obligations and those involving non-reciprocal obligations. 56 Malanczuk, “Zur Repressalie”, 315. See also Hampson, F.J., “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949”, The International & Comparative Law Quarterly 37 (1988): 819; [hereinafter Hampson, “Belligerent


57

58 59 60 61 62

63 64

65

66

67

49

Reprisals” (holding that reciprocity is “not in itself a right or an obligation; it is rather a basis for rights and obligations”.) Occasionally it is even used to characterize the whole international legal system (see G. Schwarzenberger, The Frontiers of International Law (London: Stevens, 1962), 15 et seq). or to counter the argument that international law lacks sanctions and thus is not to be regarded as law (see M.N. Shaw, International Law (Cambridge: Grotius, 1986), 8 [hereinafter Shaw, International Law]). See, inter alia, P. Reuter, Introduction to the Law of Treaties (London: Pinter, 1989), 150 [hereinafter Reuter, Introduction]; S. Rosenne, Developments in the Law of Treaties 1945–1986, (Cambridge: Cambridge University Press, 1989), 37 [hereinafter Rosenne, Developments]. It should be noted in this respect that treaties as one of the two fundamental sources of international obligations are most likely to be affected by possible breaches. Note also that most examples given by Special Rapporteur Ago, as well as the examples provided by the members of the International Law Commission with regard to countermeasures, are breaches of treaties. Riphagen V, 4 (Article 16). Rosenne, Developments, 37. Arangio-Ruiz IV, 16. Idem. 37 et seq. The debate on this point can be illustrated by the award in the BP/Libya case given by Arbitrator Lagerngren and the advisory opinion concerning the Namibia case as given by the International Court of Justice. Lagerngren decided that “the Vienna Convention on the Law of Treaties of 1969 … is viewed as a codification of the customary international law on the subject of unilateral termination or breach of a treaty” (BP Exploration Company (Libya) Ltd v. Government of the Libyan Arab Republic (10 October 1973), 53 Int. L. Rep. 296, 332 (1979). The International Court of Justice took a less absolute position, holding that “[t]he rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) [article 60] may in many respects be considered as a codification of existing Customary law on the subject” (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971 (21 Jun. 1971), 28 [emphasis added]. For an overview of authorities confirming this conclusion, see Elagab, The Legality of Non-Forcible Counter-measures, 137-139 and Fitzmaurice, “Fourth Report on the Law of Treaties”, reprinted in YB Int. L Comm’n 2 (1959): 36, 66 et seq. Kirgis, “Some Lingering Questions about Article 60 of the Vienna Convention on the Law of Treaties”, in Cornell Int. L J 22 (1989): 549, 560 [hereinafter Kirgis, “Some Lingering Questions”]. But the writer “assumes” in a footnote that goes with this quotation that “suspension is applied in proportion to the alleged treaty violation as reprisal doctrine requires” (idem. n. 55) [emphasis added]. Article 70 (1) & (2) defines termination as a measure which “releases the parties from any obligation further to perform the treaty”, which, however, “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its execution”. Suspension is defined by Article 72 of the Vienna Convention as a measure which “releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension [however, it] does not affect the legal relations between the parties established by the treaty.” Furthermore, “during the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty.” See also Elagab, The Legality of Non-Forcible Counter-measures, 164.

50 68

69

70

71 72

73 74

75 76 77 78 79 80 81 82

Enforcing International Law The various conditions will be subjected to separate analysis later in this chapter. At this point it is, however, necessary to state that in the opinion of the writer, a substantial difference between various measures of response are not caused by different procedural requirements. Measures which are basically the same can be subjected to different procedural prerequisites without a change in the nature of the measures. But see Kirgis, “Some Lingering Questions”, supra note 60, idem. Zoller, Peacetime Unilateral Measures, 15. As shown above, Zoller distinguishes also between reciprocity and suspension. Reciprocity must then be viewed as nonperformance. See, idem, 27. Compare Rosenne, Developments, 12 et seq. Rosenne argues that the Vienna Convention could not but disregard questions related to performance as it only dealt with the treaty-instrument, not with the treaty-obligation; that only within the latter framework can treaties be analysed in terms of performance and non-performance. See, e.g., Sinha, Unilateral Denunciation of Treaty Because of Prior Violations of Obligations by Other Parties (The Hague: Martinus Nijhoff, 1966), 75; Schwelb, “Termination or Suspension of the Operation of a Treaty as a Consequence of its Breach”, in Indian J Int. L 7 (1967): 309, 319. Rosenne, Developments, 59. Rosenne, furthermore, established that the term does not appear at all in the 1978 Convention on the Law of Treaties between States and International Organisations. Originally the exceptio non adempleti contractus was an exception in an action founded on contract involving mutual duties and obligations to the effect that the plaintiff is not entitled to sue because he or she had not performed his or her part of the agreement. Gradually the exceptio non adempleti contractus came to connote the right of the “wronged” party to withhold performance of their part of the contract if and to the extent that the other contract partner had failed to perform his part. See case concerning Diversion of Waters from the River Meuse, PCIJ series A/B, No. 70, 50. Compare Zoller, Peacetime Unilateral Measures, 15. In order to differentiate between a more general and a more specific conception of the adagio, Zoller refers to “inadempleti non est ademplendum” in order to denote the more general conception. According to the author, it is not a matter of different labels. If the idea of reciprocity will prevail as the basis for the application of international rules, scholars will continue to defend the idea that intervention to rescue nationals abroad “if and to the extent that the target state bears responsibility … could be excused by the exceptio non adempleti contractus rule”. Ronzitti, “The Law of the Sea and the Use of Force Against Terrorist Activities”, in Maritime Terrorism and International Law, 8 (Ronzitti ed. 1990). See, inter alia, Riphagen I, 118. See Kooijmans, International Publiekrecht, 132. YB Int. L Comm’n 2 (1980): 56 [emphasis added]. See also Arangio-Ruiz III, 13. But see Rosenne, Developments, 92 (holding that “This article [30] may be regarded as dealing with the issue of legitimate reprisals or retorsion”). Idem, Arangio-Ruiz III, 10. Idem, Arangio-Ruiz III. Arangio-Ruiz IV, 28 [emphasis added]. See General Commentary to Chapter III “Countermeasures”, 1996 ILC Report, 153 fn 251. Contra Vereschetin, Provisional Summary Record of the 2265th Meeting of the International Law Commission, 2 Jun. 1992, UN Doc A/CN.4/SR.2265, 14. See Elagab, The Legality of Non-Forcible Counter-measures, 4 (“retortive measures can never be given the status of counter-measure.”) But see idem, 44 (“[T]he term nonforcible counter-measure as such embraces a range of actions which an aggrieved State may take in retaliation for objectionable behaviour on the part of another State. According to this, it may involve the imposition of retortive measures”).

Self-help Terminology 83 84 85

86

87 88

89 90

91 92 93

51

De Guttry, “Some Recent Cases”, 170 (“Countermeasures (either reprisals or retorsion)”); Wrengler, “Public International Law – Paradoxes of a Legal Order”, in Rec. d. Cours 158 (1977 IV): 16; Rosenne, Developments, 52. Air Services Agreement case, 337. L. Oppenheim, International Law: A Treatise, Vol. 2 Disputes, War and Neutrality, ed. H. Lauterpacht, 7th ed. (London: Longmans, 1952), 134 [hereinafter Oppenheim, International Law]. Oppenheim’s definition is still approvingly quoted by a considerable number of scholars. See, inter alia, Hampson, “Belligerent Reprisals”, 820; J.G. Starke, Introduction to International Law, 8th ed. (London: Butterworth, 1977), 548 [hereinafter Starke, Introduction]. Occasionally, the whole paragraph from Oppenheim’s learned treatise is completely quoted without referring to the source. See McKinnon, “Reprisals as a Method of Enforcing International Law”, Leiden J Int. L 4(2) (1991): 228–9. A. von Verdross, Völkerrecht (Berlin: Berlin Verlag, 1937), 328. See also Schachter, “Peaceful Means of Redress: Self-help and Counter-measures”, Rec de Cours 178, no. II (1982): 167, 168 [hereinafter Schachter, “Peaceful Means of Redress”]; Shaw, International Law, 457; G. Schwarzenberger, A Manual of International Law (London: Stevens, 1953), 81 [hereinafter Schwarzenberger, A Manual]; C. Henkin, R.C. Pug, O. Schachter and H. Smit, International Law; Cases and Materials (St Paul, MN.: West Pub. Co., 1993), 548 [hereinafter Henkin et al., International Law]; Malanczuk, “Zur Repressalie”, 301; Hakenberg, Die Iran Sanktionen der USA wärend der Teheraner Geiselaffäre aus völkerrechtlicher Sicht (Frankfurt am Main: Lang, 1988), 43 [hereinafter Hakenberg, Die Iran Sanktionen]; Kooijmans, International Publiekrecht, 131. But see D.J. Harris, Cases and Materials on International Law, 3rd ed. (1983, London: Sweet & Maxwell, 1936), 10 (holding that this element in the definition of retorsion is “curiously, not clear”.) Malanczuk, “Zur Repressalie”, 301–302 [emphasis added]. See, e.g., Starke, Introduction, 549; Stone, Legal Controls of International Conflict; a Treatise on the Dynamics of Disputes and War-Law, 2nd impr. rev. ed. with suppl. 1953–8 (London: Stevens, 1954), 289 [hereinafter Stone, Legal Controls]. Stone holds for example that “in the light of the UN Charter, however, severance ought not to be resorted to, in the case of a dispute likely to endanger peace and security, until all pacific methods of settlement have been exhausted.” (idem, 288). See M. P. Doxey, Economic Sanctions and International Enforcement, 2nd ed. (London: Macmillian for the Royal Institute of International Affairs, 1980), 59 [hereinafter Doxey, Economic Sanctions]. Schachter, “International Law in the Hostages Crisis”, 355; Schachter, “Peaceful Means of Redress”, 167. Schachter mentions in particular measures “intended to deprive the target state of its basic sovereignty and political independence” as a “basic limitation on the exercise of retorsion and reprisals.” See also, Bowett, ‘Economic Coercion and Reprisals by States’ Va J Int. L 13 (1972): 5 [hereinafter Bowett, “Economic Coercion”]. Case concerning Differences Arising out of the Rainbow Warrior Affair of 6 Jul. 1986 (New-Zealand v. France) , reprinted in Int. Leg Mat (1987): 134. See Pugh, “Legal Aspects of the Rainbow Warrior Affair”, Int. & Comp L Q 36 (1987): 155 at 667. See, e.g., I. Detter de Lupis, The Concept of International Law (Stockholm: Norstedt Förlag, 1987), 82 [hereinafter Detter de Lupis, The Concept], “[I]f they [retortive measures] are of such a nature [‘lesser measures which themselves do not violate international law’] they do not need justification anyway and the whole category appears somewhat superfluous as a notion”; Kooijmans, “Actie, harde actie; Enkele opmerkingen over de volkenrechtelijke toelaatbaarheid van eenzijdige sanctiemaatregelen”, International Spectator 37 (1983): 771 [hereinafter Kooijmans, “Actie, harde actie”].

52 94


One need only to refer to the bulk of diplomatic measures; suspension of economic aid programmes; sports and cultural boycotts etc. 95 Nicaragua case, 138. 96 See, e.g., H. Weber and H. von Webel, Grundkurs Völkerrecht; das internationale Recht des Friedens und der Friedenssicherung (Frankfurt am Main: Metzner, 1977), 133; Tammes, “Means of Redress in the General International Law of Peace”, in Essays on the Development of the International Legal Order in Memory of Haro F. van Panhuys, eds F. Kalshoven, P.J. Kuyper and J.G. Lammers (Alphen aan den Rijn; Sijthoff & Noordhoff in cooperation with the T.M.C. Asser Institute, 1980), 19 [hereinafter Tammes, “Means of Redress”]; Stone, Legal Controls, 290.

Chapter 4

The Normative Modalities Introduction Self-help is not a value-free exercise of power. Self-help, according to Haas, does not perform “a key conceptual role in every problem that engenders interstate conflict”.1 Measures of self-help tend to trigger political and legal statements based on normative assessments. Specific measures of self-help may be prohibited because (1) they infringe upon the rights or interests of other states, (2) they do not meet internationally accepted criteria and modalities or (3) they violate higher standards of law and morality. The first basic requirement for resort to self-help is the existence of a prior infringement of rights or interests. The existence of a prior infringement is a necessary condition but not a sufficient one. In addition, states are (in most cases) required to communicate a prior demand for redress. This requirement constitutes a first procedural, albeit low-level, threshold with regard to the imposition of measures of self-help. A more substantive threshold may be found in the requirement to exhaust or resort to agreed mechanisms for the settlement of the dispute prior to any imposition of unilateral measures of self-help. The question of whether such a requirement exists and, if so, to what extent it is controversial will therefore be analysed in some detail. Lastly, the requirement of proportionality will be discussed as a second material requirement, which must be met. Except for the requirement related to the resort to dispute settlement procedures, the other requirements are considered to be firmly established rules of (customary) international law.2 A Prior Infringement of Rights or Interests The International Law Commission had little difficulty in accepting that “countermeasures” could be defined as “a measure legitimate under international law against that other State, in consequence of an international wrongful act of that other State.” 3 The existence of a prior breach as a condition which justifies resort to selfhelp, which is in violation of an international obligation, is so commonly accepted that the content of this condition is hardly discussed at all. The existence of a prior breach is deemed so essential that it has become part of the traditional definition of “reprisal”.4 The essential character of this requirement was recognized and confirmed by the Arbitral Tribunal in the Naulilaa case, which held in particular that: The first requirement – the sine qua non – of the right to take reprisals is a motive furnished by an earlier act contrary to the law of nations. This requirement – which the German side concedes must be satisfied – is missing, and that fact would be sufficient grounds for dismissing the claim of the Government.5

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Without prejudicing the principle that states are only authorized to violate their obligations in response to a prior violation of an international legal obligation as such, several questions may be raised in respect of the content and the consequences of this principle. Firstly, it is essential to establish who is authorized to determine whether an international wrongful act exists or not. Secondly, the legal consequences of self-help resorted to in mistake, i.e. when the belief that the target state committed an international wrongful act proved wrong, has to be dealt with. Thirdly, it has to be considered whether this requirement excludes the possibility of so-called anticipatory or pre-emptive self-help. The decision of the Tribunal in the Air Services Agreement case is frequently quoted in order to support a subjective approach with regard to the condition of a prior breach.6 The core of the Tribunal’s reasoning is, in the opinion of the author, to be found in paragraph 81 of the Award, which reads as follows: [u]nder the rules of present day international law, and unless the contrary results from special obligations arising under particular treaties, notably from mechanisms created within the framework of international organizations, each State establishes for itself its legal situation vis-à-vis other States. If a situation arises which, in one State’s view, results in a violation of an international obligation by another State, the first State is entitled, within the limits set by the general rules of international law pertaining to the use of armed force, to affirm its rights through “countermeasures”.7

The Tribunal thus indicated that a state which considers itself to be affected by an infringement of its rights is, in principle, not obliged to obtain an objective assessment of the legal character of the preceding act prior to resort to self-help. In view of the nature of the international legal system, in which the possibilities for such an objective assessment are severely limited, this position is quite understandable.8 However, the Tribunal also indicated that specific obligations could modify this general conclusion, i.e. that states under circumstances could be held to obtain such an objective assessment. This requirement flows from the possible existence of an obligation to settle disputes by consensual means and hinges upon the interpretation of its content and the scope of the procedure. Therefore, it can only be said that a state, in principle, determines for itself whether a situation has arisen which justifies resort to self-help. Many authors have argued that if the determination of the existence of a wrongful act is in principle left to the subjective perception of the wronged state the possibility of abuse of self-help increases. A subjective approach involves perception and partiality and increases the likelihood of mistakes. The majority of these authors seek to overcome this flaw by requiring an objective assessment of the prior breach through judicial procedures. De Guttry, for example, argues that: [t]he effective carrying out of this obligation [of peaceful settlement of disputes] is of considerable importance … it allows us to overcome one of the more delicate aspects of countermeasures: we refer to the fact that the evaluation of the previous conduct of the other party, against whom the action is meant to be taken, is substantially left to the other party … this circumstance could give rise to an abusive resort to countermeasures, a danger that must be overcome by stressing the importance of the obligation to carry out an attempt to solve the dispute with peaceful means.”9

The Normative Modalities

55

De Guttry reflects the traditional preoccupation of international legal scholars with the “peaceful settlement of disputes”. At least one author has more substantially questioned the “assumption that only an underlying breach can justify a retaliatory act”.10 Fisler Damrosh holds that it seems preferable to adopt a rule allowing a state to adopt a unilateral measure of self-help without the risk of later liability, when it acts upon good belief that it is the victim of a breach, even though that belief turns out to be erroneous in the light of the results of arbitration.11 It is proposed by Fisler Damrosh that the value of “good faith” could be established by considering two criteria: (a) “the seriousness of the arguments [of the ‘wronged’ state]” and (b) “the indication of a severe interest in achieving a fair and prompt solution of the issue: willingness to consult or seek third party assistance through mediation, conciliation or arbitration would count favourable in this regard.”12 However, even if it possible to establish, on the basis of these criteria, “good faith” on the part of the author state, it cannot be accepted that a state which has acted on an erroneous belief is relieved of any liability and that the burden is put upon the affected state. The discretion to take measures of self-help upon its own assessment must be accepted because of the shortcomings of the international system of enforcement. However, this discretion finds its limits in the same rules of state responsibility upon which this discretion rests, namely those which determine the existence of an international wrongful act. Erroneously acting upon good faith may affect the legal extent of a state’s responsibility, but it cannot eliminate the responsibility of the state which wrongfully resorted to measures of self-help. The effects of self-help may be too serious to disregard the condition of a prior breach completely. On the other hand, it is very well imaginable that the consequences in terms of responsibility and liability for a state which resorted to unilateral measures of self-help on an erroneous belief are modified if and to the extent that it is found that the target state contributed to this erroneous belief. The fact that states under contemporary international law are authorized to determine for themselves whether the prior act was an unlawful one or not does not, in itself, alter the legal consequences arising from unlawful measures of self-help. This is not to say that, if it is found that no prior wrongful act existed, the author state is held fully responsible for these consequences under all circumstances. The behaviour of the target state, especially its unwillingness to refer the case to a judicial instance in order to determine the lawfulness of its act, may very well be taken into account in determining the scope of the responsibility of the author state. However, these considerations can only affect the question as to the distribution of responsibility. It cannot totally exclude the responsibility of the author state and shift the burden of responsibility to the target state. Pre-emptive Measures of Self-help Due to the reasons indicated above, the idea of pre-emptive or anticipatory self-help has not received substantial attention in literature. During the discussion in the International Law Commission, the question on the availability of pre-emptive selfhelp was raised by Sir Francis Vallat. He considered the possibility of “preventive measures that might be taken by or under the authority of the Security Council and

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that would necessarily precede that illegal act in question”.13 However, Special Rapporteur Ago held in response that: Even if that hypothesis that an international organization would go so far as to undertake a measure which infringed an international subjective right of a State for purely preventive reasons (which he found difficult to accept) were admissible, it should not be implied that an individual State could take preventive measures.14

Neither opinion is expressly reflected in the report of the Commission, but there can, according to Elagab, be no doubt that the Commission “rule[s] out anticipatory counter-measures”.15 The opposite position is reflected in the opinion of the Royal Institute of International Affairs. According to the RIIA, sanctions are an “action taken by the members of the international community against an infringement, actual or threatened, of the law”.16 Whether the opinion of the International Law Commission is still in accordance with a trend in contemporary state practice or whether it is wise to adhere to a non-derogable condition of a prior breach may be questioned. In particular, international economic and financial relations have become very complex. It is indeed possible to commit an international wrongful act within hours, without involving more than an order or some electronic financial transactions. What if the international wrongful acts does not come unexpectedly? What if it is duly announced and its materialization is merely a matter of time? Can these acts be anticipated? Practice indicates that states do not hesitate to freeze the assets of other states on the assumption that the latter are likely to commit a wrongful act or to take measures which are detrimental to the national interests.17 Brown-John has argued that the “inability of the enforcement process to be anticipatory or pre-emptive” is “[p]erhaps the most significant defect in any concept of international law enforcement through sanctions … That is, a vacuum exists in the legal and enforcement process, and this vacuum poses immense difficulties for the systematic utilization of various types of sanctions.”18 It is not completely unfounded to presume that anticipatory self-help could very well perform a function in the context of enforcement, for they could limit resort to more serious measures of self-help once the wrongful act has materialized or prevent the substantial harm. Present international law, seems to exclude the possibility of lawful pre-emptive or excusable self-help. However, within the context of developing the regime of state responsibility, the matter of pre-emptive self-help should not be resolved as a matter of codification. The need for and acceptance of protective self-help must include the possibility of lawfully resorting to self-help before the wrongful act has been committed or materialized.

A Prior Demand for Redress A prior demand for redress19 is one of the classic conditions which determine the lawfulness of the imposition of reprisals.20 This condition, which has been affirmed


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in the Naulilaa case, has been generally accepted in contemporary doctrine21 and confirmed by state practice.22 Special Rapporteur Arangio-Ruiz proposed to the International Law Commission that only an injured state “whose demands [for reparation and/or cessation] have not met with adequate response” is entitled to impose measures of self-help.23 Some members of the International Law Commission considered a prior demand for redress as an “effective safeguard against unlawful and premature resort” to selfhelp.24 In this sense, this requirement constitutes a first procedural threshold against arbitrary resort to self-help. However, its function should not be overestimated. Colbert concludes that, in cases where self-help is subject to abuse, this prerequisite “could and did become a highly elastic term”.25 It is the precise content and the scope of this condition which determine the level of prevention against abusive resort to self-help. With regard to the content and scope of this condition, some members of the International Law Commission held that it could not be expected of a wronged state to formulate its claim in considerable detail before resorting to self-help.26 Special Rapporteur Arangio-Ruiz replied that it would suffice if the demand was “sufficiently precise”, i.e. a demand does not have to state all reasons of complaint exhaustively and in detail. If such a demand, according to the Special Rapporteur, has not met with an “adequate response”, the wronged state would be discharged of repeating its demands.27 The Special Rapporteur was obviously seeking to formulate a condition which is flexible enough to hold off hasty resort to measures of self-help but does not constitute an insurmountable threshold or bar. Some authors are of the opinion that a prior demand for redress involves more than a “sufficient” request and an inadequate response. They attribute more substance to this condition. They require that the wronged state actively seeks this redress. Colbert concludes that a denial of justice existed “[o]nly after a request for justice, repeated several times, had failed of its purpose”.28 Hampson goes even further. She holds that the content and scope of a prior demand for redress is determined by the rule of subsidiarity. In other words, a state “must exhaust other means of redress before resorting to reprisals as a subsidiary means”.29 Such an interpretation tends towards requiring a prior resort to dispute settlement procedures. Even though there is historical evidence that a prior demand for redress may actually develop into negotiation or other forms of dispute settlement, these cases do not substantiate the conclusion that a prior demand for redress ought to go that far. A prior demand for redress does not constitute an alternative means of obtaining redress. It is a formal requirement intended to avoid unnecessary action. It does not cover resort to procedures for the peaceful settlement of disputes. On the other hand, prior resort to procedures for the peaceful settlement of the dispute or an offer to the other party to do so must be considered to absorb any prior demand for redress. Therefore, scholars who consider a prior resort to peaceful means of dispute settlement or an attempt thereof as a prerequisite do not list a “prior demand for redress” as an additional precondition.30 The second question concerns the scope of this condition. Can it be said that all measures of self-help are subjected to a prior demand for redress, whatever their nature or objectives? In respect of Article 30 of Part One of the Draft on State Responsibility, the International Law Commission indicated that only in cases of a

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specific kind are states prohibited from resorting to self-help unless they have demanded and been unduly refused reparation.31 In addition to the nature of the case, Special Rapporteur Riphagen also differentiated between the natures of the “countermeasure” in question. According to Riphagen, measures of reciprocity could in opposition to reprisals “be invoked at any time and without any limitation”.32 Special Rapporteur Arangio-Ruiz agreed with his predecessor Riphagen that “there could be particular cases in which the protection of the injured state’s interest required such urgent remedy as to justify immediate resort – without any prior notification – to the kind of (interim) measures contemplated in Article 10”.33 He recognized, furthermore, that “contemporary practice also includes measures which do not always appear to be subject to any prior communication or intimation”.34 In the Report of the Commission it was then stated that “the requirement of a prior demand was viewed as signaling one of the differences between measures of selfhelp and interim measures of protection”.35 A prior demand for redress is closely linked to the redressive or reparative function of self-help. Elagab links a prior demand for redress to the delictual character of the wrongful act.36 Here the question may be raised whether punitive self-help is also exempted from this requirement. This position is generally advocated by Tunkin who considers that “Maßnamen mit strafrechtlichen Präventionskarakter” is not subject to a prior demand for redress.37 The answer to the question depends on the admissibility of self-help with a punitive function and on the question of whether states may impose them unilaterally and at their own discretion. In conclusion it may be held that a prior demand for redress is a flexible condition, which does not apply to all situations. In specific circumstances, states may be excused from demanding redress. Such a situation can be envisaged when one state claims that it is forced to resort to protective measures. Due to the character of these measures it cannot definitely infringe upon the right of the other party. The interim character of these measures may justify an excuse from demanding redress. Resort to Alternative Means38 Self-help is generally regarded as a means of last resort; measures of self-help are to be preceded by less drastic, less coercive and less harmful alternatives, which are capable of achieving approximately the same result. Such alternatives could be found in existing mechanisms for the settlement of the disputes. However, a general normative requirement, which obliges states to resort to or exhaust procedures for the consensual settlement of the dispute before employing measures of self-help, does not exist in contemporary international law. The idea that resort to self-help requires more than a prior infringement of rights or interests, a prior demand for redress and proportionality has been conceptualized in the requirement of necessity. The application of the requirement of necessity is well accepted in respect of selfdefence,39 humanitarian intervention40 and armed reprisals.41 Moreover, it is considered as an autonomous “circumstance precluding wrongfulness”.42 According to Anzilotti, “the plea of necessity by definition implies the impossibility of proceeding by any other way than the one contrary to law”.43 Doctrine generally


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confirms that this conception of necessity also applies to self-help. For example, paragraph 905 (1) (a) of the United States’ Third Restatement of the Law stipulates that a “State may resort to countermeasures, that might otherwise be unlawful, if such measures are necessary to terminate the violation or prevent further violation or to remedy the violation.” Some authors explicitly hold that self-help “can be permissible provided that the conditions of necessity and proportionality are met”.44 Others do not explicitly refer to necessity, but conclude that measures of self-help are only legitimate insofar as their objectives cannot be reached by other means.45 However, the idea of necessity as a prerequisite for self-help is an abstract one and needs further shaping in order to determine when this requirement has been met. Authors who require necessity as a condition for the application of measures of selfhelp are in agreement that the requirement of necessity is satisfied “only when all good faith efforts in exhausting all non-coercive means in response to a prior act of lawlessness have proved futile”.46 Prior resort to dispute settlement procedures is increasingly viewed as a legal condition to the imposition of measures of self-help. In its comment to Article 30 of Part One of the Draft on State Responsibility the International Law Commission stated in a footnote that “an additional condition is that there must not be any procedure for peaceful settlement previously agreed upon by the parties”.47 Considering the ambivalence of international law on this point, it would have been appropriate for the Commission to explain its conclusion.48 It did not, leaving the question to be answered in Part Two of the Draft on State Responsibility. Within the context of Part Two this condition was worked out in more detail by Special Rapporteur Riphagen and his successors Arangio-Ruiz and Crawford. In contrast to the work of the Commission and the bulk of literature on this subject, the whole problem is not reflected or only marginally reflected in case law and state practice. The main question is whether contemporary international law substantiates the existence or emerging of a new condition to self-help, requiring prior resort or even exhaustion of peaceful settlement procedures. If so, what then is the content and scope of such a condition? Are we witnessing the codification of (emerging) custom or the progressive development of international law? First of all, we have to conclude that contemporary conventions do not explicitly stipulate the precedence of peaceful settlement of disputes over self-help. A few examples can only be found in surveys of historical conventions. For example, Article 19 (2) of the Peace Treaty between Columbia and Peru of 1829 provides: [t]hat, whatever ground of misunderstanding may arise between the two Republics, whether on account of complaints of injuries, insults, or other grievances, it shall not be lawful for either of them to authorize acts of reprisal, nor to declare war against the other, without previously submitting their differences to the government of a power friendly to both parties.49

Another example is to be found in Article I of the Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts of 18 October 1907. This article provides that:

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Enforcing International Law The Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals. The undertaking is, however, not applicable when the debtor State refuses or neglects to reply to an offer of arbitration, or, after accepting such an offer, prevents any compromise from being agreed on, or, after the arbitration, fails to submit to the award.50

In contrast to the contemporary regime on the use of force, the use of armed force was not limited to self-defence in the nineteenth and twentieth centuries. Even though the legal regime on the use of force has been governed by its own conditions and rules, these agreements can be referred to as examples of how states have limited a recognized right upon the condition of prior resort to peaceful procedures. The existence of such an obligation may cause problems of interpretation, but its categorical character stands. It is only in the absence of such a specific conventional obligation that questions on the status of such a condition under international law will rise.

The Obligation to Settle Disputes by Consensual Means Prior to Resorting to Self-help The International Law Commission’s Regressive Approach Article 65 (3) of the Vienna Convention on the Law of Treaties requires states to “seek a solution through the measures indicated in Article 33 of the Charter of the United Nations”, in case an objection has been raised against termination or suspension in consequence of a breach by the “target” state. If this objection concerns an alleged breach of a peremptory norm and no solution under paragraph 3 of Article 65 has been reached, either of the parties may, on the basis of Article 66 (a), file a unilateral application with the International Court of Justice. If the breach does not concern a peremptory norm, no obligatory procedure is available unless the parties have ratified the Annex on Dispute Settlement to the Convention.51 Article 65 (3) thus provides for a procedural restriction upon the “wronged” state’s faculty to suspend or terminate a treaty in consequence of a material breach. However, this restriction is not an automatic one. It applies only after the “target state” has raised an objection. With this specific limitation in mind, it must be concluded that Article 65 of the Vienna Convention is the most far-reaching limitation on self-help to be found in a contemporary treaty. However, it must be questioned whether Article 65 codifies existing international law or that the law has developed since then in this direction. The basis for Article 65 is to be found in the second report of Special Rapporteur Fitzmaurice. He argued that the “dangers of abuse” and the possibility of disagreement as to the character or the existence of a breach, required to “impose a brake in the process of bringing about termination”. Therefore, he proposed that “the complaining state cannot proceed to terminate without first offering the reference of the matter to an appropriate tribunal to be agreed upon by the parties”.52


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In his fourth report, Special Rapporteur Fitzmaurice differentiated between nonperformance by way of reciprocity and reprisals. Only the latter were subjected to the condition that: prior negotiations or exchanges between the parties have not led to any solution or settlement, or if requests for negotiations or for the resumption or performance of cessation of the treaty infraction, have been rejected or not responded to.53

Unfortunately, no characterization of the legal status of this rule was given. He merely held that “no one would suggest that the right [to reprisals] arises immediately and before any attempt at settlement has been made”.54 He considered these conditions as “general safeguards … that international law normally attaches to the exercise of reprisals in any circumstances”.55 His successor, Special Rapporteur Waldock, adopted the same approach. He too stressed the necessity of banning the possibilities of abuse,56 and one of the objectives of the proposal (Article 25) was to put the good faith of the claimant state to the test.57 In the opinion of Waldock this condition became applicable only after the target state rejected the allegation of a prior breach.58 During the discussion in the Commission on Article 25 as proposed by Waldock, Rosenne, Briggs and Jimènez de Aréchaga held that the Commission was engaged in the progressive development of the law rather than codification.59 Their position was not objected to by the other members, nor did anyone suggest that Article 25 constituted a codification of existing law. A remarkable comment in this respect came from El Erian, who remarked that “[i]t would not serve any purpose to discuss at length whether the rule in Article 25 constituted an existing rule of law. … The real question was whether it was a good rule or a bad rule.”60 The Commission was almost unanimous in its conclusion that Article 25 (3) constituted a good rule. Notwithstanding possible differences on the scope and application of Article 65 (4), there can be no doubt that the members of the Vienna Convention on the Law of Treaties are bound by this article. However, there is no reason to say that this article reflected or codified existing customary international law in 1969 or gained such status afterwards. The rule has explicitly been characterized as an example of progressive development. It may be concluded that at the time of the conclusion of the Vienna Convention on the Law of Treaties no rule of customary law existed which required states to seek a peaceful settlement prior to the termination or suspension of a treaty. Mutatis mutandis, we may presume that no such rule of customary law existed in respect to self-help in general. Probably with Article 65 of the Vienna Convention and the numerous other conventional dispute settlement procedures in mind, the International Law Commission held in its first commentary on Article 30 that “[a]n additional conclusion is that there must not be any procedure for the peaceful settlement previously agreed upon by the parties”.61 Special Rapporteurs Riphagen went one step further in this progressive line of thinking. Riphagen proposed that “reprisals” should not be resorted to “by the injured state until it has exhausted the international procedures for the peaceful settlement of the dispute available to it”.62 At the same time, Riphagen excluded “interim measures of protection taken by the injured state and measures taken by the injured state if the

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state alleged to have committed the international wrongful act fails to comply with an interim measure of protection ordered by such international court or tribunal” from the obligation to exhaust peaceful settlement procedures.63 In this way Riphagen excluded a specific, but not unimportant, category of measures, namely protective measures, from the restrictions imposed by the proposed rule. Arangio-Ruiz also considered “interim measures of protection” as an exception to the general rule that measures of self-help should not be resorted to “prior to the exhaustion of all the amicable settlement procedures available under general international law, the United Nations Charter or any other dispute settlement instrument to which it is a party”.64 Arangio-Ruiz’s proposal considerably restricts the right of states to resort to self-help. If compared to the position of the International Law Commission accepted in 1979 it must be concluded that his proposal constituted a considerable tightening of the initial requirement. In his third report, Special Rapporteur Arangio-Ruiz stressed the necessity of such a condition in order to “reduc[e] … the undesirable consequences” of self-help.65 The members of the Commission aptly admitted that abuse and misuse of self-help pose the main danger to the whole regime, but not everyone agreed with the conclusion of Special Rapporteur Arangio-Ruiz and the remedy he had in mind. Article 12 (1) (a), as proposed, met with approval as well as substantial criticism and rejection. Among the few advocates of Article 12 was Calero Rodrigues who considered it as the “cornerstone” of the concept of “countermeasures”. He “welcomed” Article 12 as a step in the progressive development of international law.66 The majority of the ILC members, however, expressed serious reserves with respect to the content of the proposed article. The main criticisms concerned the implicit hierarchy and the absoluteness in the proposal. It was pointed out that any rule requiring prior resort to dispute settlement procedures should take into account the position of the wronged state and that this rule should not allow the wrongdoing state to use “delaying tactics to avoid such procedures and hold up countermeasures”.67 Bowett explicated that Article 12 could not be considered as a precondition to self-help at all; “the matter should rest on the concept that any right to take countermeasure should be suspended … when the wrongdoing state had accepted and implemented bona fide a method for the peaceful settlement of the dispute”.68 He also pointed out that the exhaustion of all available means was not only unacceptable to states but also unworkable in practice and that “[consequently] the exhaustion of all amicable settlement procedures should not be a precondition to countermeasures, but a parallel obligation”.69 The requirement to exhaust all available means was considered too rigid. Some members stressed the actual existence of specific procedures as the determining factor.70 Others held that only procedures which could effectively protect the rights of the wronged party could be considered as a precondition to self-help.71 The question of whether Article 12, as proposed by the Special Rapporteur, was a matter of codification or progressive development was not explicitly raised in the Commission. The discussion and the disagreement, however, seem to indicate that Article 12 was not mere codification of existing customary law. It should also be noted in this respect that the Commission raised relatively little objections against Article 12 (1) (b), which, according to the Commission’s report, tended to be supported by state practice and doctrine.72 Notwithstanding the serious


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disagreement within the Commission with respect to the content of Article 12, the Commission referred this article to the Drafting Committee, at the end of its fortyseventh session. At the forty-fifth session of the Commission, the Drafting Committee presented a redrafted Article 12 as it was adopted on first reading by the Drafting Committee. Due to the fact that the Drafting Committee had not submitted commentaries, the Commission decided not to consider the articles at that session. However, it was clear from the changed text of Article 12 that the Drafting Committee had adopted significant and major changes. Article 12 as adopted by the Drafting Committee on first reading read as follows: Conditions relating to resort to countermeasures. 1. An injured State may not take counter-measures unless: (a) it has recourse to a [binding/third party] dispute settlement procedure which both the injured State and the State which has committed the internationally wrongful act are bound to use under any relevant treaty to which they are parties; or (b) in the absence of such a treaty, it offers a [binding/third party] dispute settlement procedure to the State which has committed the internationally wrongful act. 2. The right of the injured State to take counter-measures is suspended when and to the extent that an agreed [binding] dispute settlement procedure is being implemented in good faith by the State which has committed the internationally wrongful act, provided that the internationally wrongful act has ceased. 3. A failure by the State that has committed the internationally wrongful act to honour a request or order emanating from the dispute settlement procedure shall terminate the suspension of the right of the injured state to take counter-measures.73

The most important changes introduced by the Drafting Committee were the elimination of (1) the phrase “the exhaustion of all the amicable settlement procedures available under general international law”, and (2) the requirement that recourse to dispute settlement should be done “prior” to the resort to self-help. The process of regression had started. The Drafting Committee gave preference to the idea of parallelism over the idea of priority. The Drafting Committee also considered that a state was only bound to resort to very specific procedures and cannot be required to go from procedure to procedure in order to find a common acceptable one. The difference between both draft articles is a fundamental one and touches upon the very question of whether states are bound to resort to or exhaust settlement procedures prior to any resort to self-help. In an attempt to save the basic idea in Article 12, Arangio-Ruiz redrafted paragraph (a) of as follows: “complying [in good faith] with its international obligations relating to the negotiated or third party settlement of international disputes”.74 He maintained the requirement that states should do so “prior to” resort to self-help. The Commission referred the changes proposed by the Special Rapporteur to the Drafting Committee, instructing them to “examine the possibility of modification”. However, the Drafting Committee was unable to modify Article 12 as adopted by the Committee at the previous session.75 The debate in the International Law Commission indicates clearly that Article 12 cannot be characterized as a codification of international law and that the scope of

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progressive development in this respect is limited by pragmatism and policy considerations and, last but not least, by the possibilities of acceptance of the proposed rule by states. The Commission clearly had difficulties in drafting and adopting a rule stipulating the peaceful settlement of the dispute as a condition to self-help. Article 12 as proposed by Special Rapporteur Arangio-Ruiz and redrafted by the Drafting Commission was not adopted by the Commission. On its forty-eighth session in 1996, the Commission completed the first reading of the Draft Articles on State Responsibility including Article 48 (former Article 12) which had undergone a dramatic change compared to Article 12 as redrafted by the Drafting Committee. Article 48 read as follows: Conditions relating to resort to countermeasures 1. Prior to taking countermeasures, an injured State shall fulfill its obligation to negotiate provided for in Article 54. This obligation is without prejudice to the taking by that State of interim measures of protection, which are necessary to preserve its rights and which otherwise complies with the requirements of this Chapter. 2. An injured State taking countermeasures shall fulfill the obligations in relation to dispute settlement arising under Part Three or any other binding dispute settlement procedure in force between the injured State and the State that has committed the internationally wrongful act. 3. Provided that the internationally wrongful act has ceased, the injured State shall suspend countermeasures when and to the extent that the dispute settlement procedure referred to in paragraph 2 is being implemented in good faith by the State which has committed the internationally wrongful act and the dispute is submitted to a tribunal which has the authority to issue orders binding on the parties. 4. The obligation to suspend the countermeasures ends in case of failure by the State that has committed the internationally wrongful act to honor a request or order emanating from the dispute settlement procedure.76

In its commentary to Article 48, the Commission explicated why this article was adopted in this formulation. First of all, the Commission decided whether dispute settlement procedures should be resorted to prior or parallel to the implementation of self-help. The Commission differentiated between forms of dispute settlement and forms of self-help. The Commission held that negotiations should be pursued before resort to self-help, except in the case of self-help aiming at the immediate protection of specific rights and interests. Even the minimal obligation to settle a dispute by negotiation should not bring the wronged state into a disadvantageous position.77 Secondly, the Commission perceived both resort to dispute settlement procedures and resort to self-help as taking place in a process of graduation. If negotiation fails, resort to other procedures for the settlement come into play as well as measures of self-help pursuing objectives beyond protection.78 Thirdly, the resort to a binding procedure for the settlement of the dispute was no longer an obligation to the wronged state resorting to measures of self-help, but a faculty to the wrongful state, who could challenge the lawfulness of the measures of self-help in question, provided that an agreement to unilateral recourse to binding dispute settlement existed between the parties or that Part Three had become an integral part of the State responsibility instrument or – if facultative – accepted by


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both parties.79 This construction is a recognition of the concept of consent of parties to a dispute settlement procedure and the idea that resort to dispute settlement procedures should be based upon the faculty of states and should not, within the framework and concept of self-help, be turned into an obligation.80 Last but not least, the Commission recognized that “protective” self-help could be maintained during binding dispute settlement procedures. Self-help aiming at redress, compliance or punishment has to be suspended during a dispute settlement procedure. However, it could be re-implemented if and to the extent that a binding decision would be disregarded.81 It is clear that the Commission has sought to strike a balance between the necessity of resorting to measures of self-help under specific circumstances in contemporary international relations and the use of peaceful means. It may be assumed that the commentaries of states in the Sixth Committee of the General Assembly of the United Nations has played a decisive role in this respect. The final step in the process of regression was set in 2001 when the International Law Commission adopted the whole draft in second reading. Special Rapporteur Crawford’s pragmatic/realistic approach “unlinked” the relationship between consensual dispute settlement and self-help. Article 52 (1) (b) of the Draft Articles on State Responsibility stipulated a rather pathetic “offer to negotiate [before taking countermeasures]” and Article 50 reminds states that they are “not relieved from fulfilling [their] obligations: … under any dispute settlement procedure applicable between it and the responding state”. The difference in wording between the ILC’s earlier and the final draft is especially significant. In its 1996 draft the International Law Commission proposed that, “prior to taking measures of self-help, an injured State shall fulfill its obligation to negotiate provided for in Article 54”.82 It seems that the ILC and especially Special Rapporteur Crawford were engaged in a effort to draft the paragraph on the conditions relating to resort to “countermeasures” as favourable to both proponents as well as opponents of a restricted right to resort to self-help.83 The possibilities to progressively develop the law on this point were pushed aside by a combination of positivistic, legal economic and judicial policy arguments. Including a more specific requirement on this point was considered to be “counterproductive” or not in line with the existing law.84 According to Crawford, “the procedural imitations [sic] have been relaxed to some degree”.85 Crawford’s wording is rather euphemistic and does not reflect the killing of Arangio-Ruiz’s Article 12. Case Law There is little jurisprudence on questions concerning self-help and there is even less jurisprudence on the question of whether the imposition of self-help requires prior resort to procedures for the peaceful settlement of the dispute.86 In the beginning of the twentieth century, the question was marginally touched upon by an Arbitral Tribunal in a case of Venezuela v. Germany, Great Britain and Italy. The Tribunal stated, first of all, that it was not “called upon to decide whether the three blockading powers had exhausted all pacific methods in their dispute with Venezuela in order to prevent the employment of force”.87 However, the Tribunal recognized incidentally:

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Enforcing International Law the fact that since 1901 the Government of Venezuela categorically refused to submit its dispute with Germany and Great Britain to arbitration, which was supposed several times and especially by the note of the Government of Germany of July 16, 1901… Whereas on the other hand the warlike operations of the great European powers against Venezuela ceased before they had received satisfaction on all their claims and on the other hand the question of preferential treatment was submitted to arbitration, the Tribunal must recognize in these facts precious evidence in favor of the great principle of arbitration in all phases of international disputes.88

Two aspects of this “obiter dictum” may be noted: firstly, the link between the spurning behaviour of Venezuela and the imposition of the blockade; secondly, the link between the establishment of the Arbitral Tribunal and the lifting of the blockade. These two arguments can also be frequently heard in the present debate on the subject. In 1978, the Arbitral Tribunal in the Air Services Agreement case was explicitly requested by the parties to give an advisory opinion on the lawfulness of the US’s ‘countermeasures’ against France The Tribunal reformulated the question submitted to it as follows: Can it be said that resort to counter-measures, which are contrary to international law but justified by a violation of international law allegedly committed by the State against which they are directed, is restricted if it is found that the Parties previously accepted a duty to negotiate or an obligation to have their dispute settled through a procedure of arbitration or of judicial settlement?89

The Tribunal held, unanimously, with regard to this question that: Question (B) would be answered in the affirmative. When a State considered that an obligation owed to it had been violated, it was entitled to affirm its rights through “countermeasures” … the existence in this case of a duty to negotiate and of an arbitral machinery did not deprive the US of its right to use counter-measures in an attempt to expedite recourse to arbitration.90

The Tribunal dismissed the French arguments, emphasizing the negotiating level of the dispute and the presumed purpose of the US’s countermeasure. namely inducing performance of the specific obligation to arbitrate. However, the Tribunal also indicated that: [i]f the proceedings form part of an institutional framework ensuring some degree of enforcement of obligations, the justification of counter-measures will undoubtedly disappear, but owing to the existence of that framework rather than solely on account of the existence of arbitral or judicial proceedings as such.91

If compared to the 1902 award there are a few remarkable similarities. Firstly, there is a recognized link between self-help and the establishment of the Arbitral Tribunal – a consideration which seems to have contributed to the acceptance of the coercive measures in both cases. Secondly, contextual circumstances appear to be taken into account in both cases in order to judge the permissibility of the measures in question.


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If compared to the European Court of Justice decision it must be noted that in the Air Services Agreement case the possibility of an entirely efficacious legal order was considered as an example of a situation in which the imposition of unilateral measures of self-help would have been impermissible. Article 65 of the Vienna Convention on the Law of Treaties has been invoked in the South West Africa case and the ICAO case. In the case concerning the Appeal Relating to the Jurisdiction of the ICAO Council, Judge Dillard clearly linked the applicability of Article 60 (1) to Article 65 (4).92 Judge de Castro held that “[T]he Vienna Convention also makes the consequences of breaches of its obligations by one party to the treaty subject to the general rules concerning the settlement as to the existence and effects of the breach.”93 Rosenne has concluded that the case law of the International Court does not lend support to the view that, as a matter of positive international law as expressed in the Vienna Convention, the substantive rules regarding the invalidity and termination and their procedural complement are inherently linked in the sense that an invocation of the rule must follow the prescribed procedure or an equivalent.94 The Tribunal in the Air Services Agreement case considered that a general duty to negotiate as such could restrict an otherwise legitimate resort to self-help.95 The Tribunal noted in this respect that: the duty to negotiate may take several forms and thus have a greater or lesser significance. There is the very general obligation to negotiate which is set forth by Article 33 of the Charter of the United Nations and the content of which can be stated in some very basic terms. But there are other more precise obligations.96

The Tribunal did not specifically elaborate upon the differences between a “very general obligation to negotiate” and “more precise obligations”. The possibility that an obligation to negotiate could affect the right to take self-help was not clearly rejected. However, when the Tribunal contextualized its finding, it only took “the existence (…) of a machinery of negotiations” into account when it decided on the lawfulness of the self-help.97 While the Tribunal concentrated upon the conventional obligation to consult as stipulated in the US/France Air Services Agreement it held that with respect to the “problem whether, on the basis of the above mentioned texts, counter-measures are prohibited. The Tribunal does not consider that either general international law or the provisions of the Agreement allowed it to go that far.”98 As stated above, the International Law Commission held in 1979 that “an additional condition [for resort to countermeasures] is that there must not be any procedure for peaceful settlement previously agreed upon by the parties”.99 Scholarly Opinion Remarkably few authors refer to the practice and/or (legal) opinions of states when they argue that international law requires resort to dispute settlement procedures prior to the imposition of measures of self-help. Occasionally, authors refer to “the most recent developments in international practice” without further clarification, but most scholars simply omit this problem.100 Elagab must without doubt be considered as an exception in this respect. Although he recognizes “a lack of unanimity”, he concludes, from an analysis of state

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practice, that it is “quite clear that the preponderant view held by states considers the exhausting of third party settlement procedures as a prerequisite of countermeasures.”101 The present author is less conclusive with respect to the cases and examples stated.102 Political Opinion States which, in the framework of the Vienna Convention on the Law of Treaties, have specifically commented upon Article 62, as proposed by the Commission, showed restraint and scepticism. Czechoslovakia pointed out that “the suggested procedure puts the party invoking some of the reasons leading to the cessation of validity of a treaty at disadvantage and is advantageous for the party which brought about the ground for the cessation of validity of a treaty”. The Czechoslovakian representative advocated the deletion of the whole article from the draft.103 The US representative held that “ [t]here is nothing in article 62 which requires the claimant party from terminating or withdrawing from the treaty while one or more procedures under article 33 of the Charter are carried out”.104 Again it was suggested that this article constituted an example of progressive development and no state claimed that it codified existing law. Article 12 as proposed by Special Rapporteur Arangio-Ruiz triggered a more lively debate in the Sixth Committee of the General Assembly of the United Nations. The statements made by various representatives demonstrate clearly that a “preponderant” opinio iuris on this subject does not exist. The positions taken by the various states resembled to a great extent the opinions of the members of the International Law Commission. Some states supported Article 12 as it stood.105 Other states accepted the content of Article 12 as such, but suggested terminological and drafting changes.106 However, most states were rather critical and expressed serious doubts, especially with regard to the content of Article 12 (1) (a).107 They asserted inter alia that Article 12 (1) (a) as it stood “could delay the attainment of some of the objectives sought by self-help, particularly a rapid solution of the dispute.”108 Other states held that “[i]t would be desirable to redraft Article 12 with a view to arriving at a consensus on the conditions governing self-help which would balance the interests of the injured state and the wrongdoing state.”109 Most states, therefore, while not asserting that prior exhaustion could never be contemplated, differed on the opinion when and under which circumstances such a precondition becomes applicable. For example, the representative of China held that Article 12 “might only be applicable to certain situations, such as international trade disputes but not to others”. He stated, furthermore, that “it may be important to adopt measures of self-help in time in order to prevent further aggravation of the injury caused. It may also be necessary to prevent the wrongdoing State from deliberately using the procedure of peaceful settlement as a delaying tactic.”110 Other states stressed the nature of the dispute settlement procedure as the determining condition.111 The representatives of Austria and Jordan stated that their countries did not consider resort to peaceful settlement procedures as a precondition but as a parallel obligation. Article 12 should, in the words of the representative of Austria, “provide for a regime in which the right to impose measures of self-help would be suspended if the wrongdoing state


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agreed to a procedure in which a legally binding determination as to the wrongfulness of the act could be reached”.112 Also, with respect to the exception applicable to Article (1) (a), some states demonstrated some reserves. For example, Austria held that Article 12 (2) (a), which has been considered by the International Law Commission as “reasonable”,113 appears “unrealistic and invited transgression”. Uruguay asserted that it could lead to subjective interpretations.114 Neither the opinion of states nor their practice can be considered to be conclusive. On the contrary, a considerable number of states oppose the existence of such a rule both in theory as well as in practice. Concluding Remarks According to the author, it is difficult to conclude that contemporary international law requires states to exhaust or resort to procedures for the peaceful settlement prior to resort to the implementation of self-help. While a considerable number of authors presume the existence of such a rule, they fail to indicate the legal basis for their conclusions. A limited analysis of jurisprudence and the opinions of states confirm that there is no support for such a conclusion. The drafters of the Vienna Convention on the Law of Treaties could only lay down a rule requiring the parties to “seek” a settlement and only if the target state had “objected” against the measures of self-help. This obligation could not be qualified as an existing rule when it was drafted. On the contrary, it was stressed by some members of the International Law Commission that it was a matter of progressive development, when they drafted the Law of Treaties. Within the framework of the codification of state responsibility, the International Law Commission is well aware that with respect to the relationship between self-help and dispute settlement, it is engaged in a process of progressive development. There can be no doubt that the International Law Commission may – and sometimes must – engage itself in the progressive developing of international law, but it has to be aware all the time of the limits of its progressiveness. The proposals of Special Rapporteur Arangio-Ruiz, in the opinion of the writer, went beyond these limits, and were neither accepted by the Commission nor by numerous states represented in the Sixth Committee of the United Nations General Assembly. Proportionality Last but not least we must consider the requirement of proportionality, which applies irrespective of the observance of all other requirements. When the International Law Commission accepted self-help as a circumstance precluding wrongfulness, it left no doubt as to the question that self-help had to meet the requirement of proportionality.115 Even though it cannot be said that this requirement is always conclusively supported by the practice of states,116 the applicability of proportionality, as a requirement for the lawfulness of self-help, as such has been firmly recognized.117 The difficulties and controversies arise in respect of the

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methods of and criteria for assessment of the proportionality of the response in a given context, not with regard to the applicability of the principle. In order to determine the proportionality of the response, three possible points of reference can be identified: (1) the moral or material damage caused, (2) the norm or principle breached and (3) the objective of the response.118 Before we consider these criteria in more detail, some general remarks have to be made in respect of the role of proportionality. A notable aspect of the rule of proportionality is its negative and/or flexible phrasing. For example, the Tribunal in the Air Services Agreement case held that “judging the ‘proportionality’ of counter-measures is not an easy task and can best be accomplished by approximation”.119 Special Rapporteur Riphagen founded the necessity of this approach of “accomplishment by approximation” on “the infinite variety of possible factual situations, of which the wrongful act constituted only a single element”.120 However, the acceptance of a flexible and contextual approach cannot not prejudice the fact that certain criteria of assessment must be identified. These criteria are, as indicated here above: the effects of the breach, the character of the principle or norm breached or the objective of the self-help. The first two criteria are based on the traditional starting-point that proportionality should be defined in respect to the wrongful act. The predominant argument for this basis is to be found in the award given in the Naulilaa case. The Arbitral Tribunal concluded that: “La plupart voient, dans une certain proportion entre offence et représaille, une condition nécessaire de la legitimité de la seconde.”121 The position of the Tribunal in the Naulilaa case may be viewed as the traditional approach. This approach defines proportionality in relation to the prior breach. Although this approach does not differentiate between the material and normative effects of the breach it is generally understood that the material consequences constituted the formal point of contact. This approach has been adopted by the International Law Commission within the framework of Part One of its Draft on State Responsibility, the Arbitral Tribunal in the Air Services Agreement case, as well as by various scholars. Special Rapporteur Ago held that “a reaction to an international offence committed by another party would cease to be a legitimate form of sanction if it should cease to be commensurate with the injury suffered as a result of the offence in question”.122 Special Rapporteur Riphagen also held the opinion that “in determining the legal consequences of the wrongful act, account must be taken of the concept of proportionality between the act and the response to it.”123 He leaves the question as to the content of the link entirely open as the Tribunal in the Naulilaa case did. The Tribunal in the Air Services Agreement case took a similar view with regard to selfhelp. It held that self-help must “in the first instance, have some degree of equivalence with the alleged breach; this is a well-known rule”.124 However, the Tribunal continued to state that: [i]n the Tribunal’s view, it is essential, in a dispute between States, to take into account not only the injuries suffered by the companies concerned but also the importance of the questions of principle arising from the alleged breach, the Tribunal thinks that it will not suffice, in the present case, to compare the losses suffered by Pan Am on account of the suspension of the projected services with the losses which the French companies would


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have suffered as a result of the counter-measures; it will also be necessary to take into account the importance of the positions of principle which were taken when the French authorities prohibited changes of gauge in third countries. If the importance of the issue is viewed within the framework of the general air transport policy adopted by the US Government and implemented by the conclusion of a large number of international agreements with countries other than France, the measures taken by the United States do not appear to be clearly disproportionate when compared to those taken by France. Neither Party has provided the Tribunal with evidence that would be sufficient to affirm or reject the existence of proportionality in these terms, and the Tribunal must be satisfied with a very approximate appreciation.125

This lengthy citation reveals that the Tribunal had mainly two criteria for judging proportionality in mind: equation between the effects of both the wrongful act and the measures of self-help and comparison of principles involved, i.e. the obligations breached. Riphagen referred to these criteria as quantitative and qualitative proportionality. He combined both indicators in the term “seriousness”.126 Notwithstanding the fact that the quantitative element of proportionality is more apparent in many cases, it may be questioned whether proportionality may be viewed as a “typically quantitative concept”.127 The notion of qualitative proportionality is, admittedly, less easy to grasp, but it should not be excluded. The Special Rapporteur, however, was of the opinion that: A manifest “quantitative disproportionality” between breach and legal consequences should be avoided, but, while this principle can appear in a set of general draft articles on State responsibility (see art. 2), a further elaboration must be left to the States, international organizations or organs for the peaceful settlement of disputes which may be called upon to apply to those articles.128

The Special Rapporteur seemed for that reason very cautious in stating “a rule which seems too rigid”.129 During the discussion with regard to Riphagen’s conception of proportionality it was pointed out that: [t]he negative form of the words … served as a useful purpose in emphasizing the relativity of the concept. As worded, however, the Article provided that the performance of the obligation and the exercise of the rights should not be disproportionate to the internationally wrongful act. It might be advisable to go somewhat further and provide that it was the obligations and rights themselves which should not be disproportionate to the seriousness of the act for in such case proportionality could be regarded as a fundamental requirement rather than a simply rule of application.130

Arangio-Ruiz also adopted the idea of a duality in the concept of proportionality. He proposed that: “[a]ny measure taken by an injured State under articles 11 and 12 shall not be out of proportion to the gravity of the international wrongful act and the effects thereof”.131 Zoller is another proponent of a clearer differentiation between qualitative and quantitative proportionality. She argues that proportionality calls not for mathematical but for relative equality, and, whereas equivalence finds its limits in the field of quantificational things, proportionality is not constrained by such limits. Proportionality may apply to quantities, but it may also apply to qualities.132

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The idea of proportionality indeed contains a notion of relative equality. As such it goes beyond equivalence, which contains a notion of absolute equality. However, equivalence may apply to qualities as well as quantities and states may be restricted by international law to respond to a prior breach of an obligation by an equivalent breach. When Special Rapporteur Riphagen linked qualitative proportionality to “‘parallel’ and ‘reciprocal’ … obligations resulting from an international regime”, he had the idea of qualitative equivalence in mind rather than qualitative proportionality, since this requirement is a priori not restricted to parallel and reciprocal obligations. Whether proportionality and equivalence are to be regarded as two distinct principles applicable to establish the lawfulness of self-help, or whether equivalence is to be viewed as a specific form of proportionality applicable in specific cases, is not of decisive importance in establishing proportionality. It is necessary to stress, however, that measures going beyond equivalence are not per se disproportional133 and that a specific measure of self-help may be required to be equivalent in a qualitative sense but may go beyond equivalence with regard to its effects or vice versa. If and to the extent that the purpose of the measure of self-help is obtaining reparation, or international law prescribes reparation as the only legal consequences, equivalence must be viewed as the applicable rule with regard to the effects, but not necessarily to the obligations breached. Whether the objective of self-help should be taken into account in determining proportionality is subject to debate. Zoller has rather absolutely argued that “if proportionality may be of any use to countermeasures, it is not in drawing a relationship between the breach and the response … The genuine role of proportionality in countermeasures could be to put into relationship the purpose aimed at ... and the devices resorted to…”134 Special Rapporteur Arangio-Ruiz considered this approach inapplicable. Even though he recognized the impact of the objectives upon the lawfulness of selfhelp, he held that this issue is different from that of proportionality. Proportionality, even if not strictly understood in a “quantitative” sense, is in all events a relation between the two evils represented by the breach and the reaction thereto. It is not to be measured, therefore, on the basis of the aptness of the reaction to attain a particular aim.135 Elagab takes the position that, “the proportionality of countermeasures may be assessed by reference to their motivations”.136 Proportionality must indeed be viewed as governing both the relationship between response and breach as well as the relationship between response and purpose. Especially in cases where the material effects of international wrongful act are not quantifiable, the proportionality with regard to the purpose could become a determining factor with regard to the lawfulness of self-help. The measure may not go beyond what is necessary to obtain the objective. A synthesis as indicated by Oppenheim as early as 1958 seems to be of more value in order to master the problem of proportionality: “Reprisals … must be proportionate to the wrong done and to the amount of compulsion necessary to get reparation.”137 Oppenheim’s conception of proportionality makes clear in the opinion of the writer that proportionality can only be determined within the overall context of the case taking into account the harm caused, the principle breached and the objectives sought, or to put it in the words of Chen:


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The requirement of proportionality must be appraised by reference to all factors relevant in a particular context, considering especially the nature of the precipitant act of lawlessness and the harm caused, the modality (military or non-military) of the responding measure and the deprivations it may cause.138

However, the function of proportionality in the regime of self-help is too predominant to circumvent the problem of confinement by referring to the various aspects which may determine the content of proportionality in a given case. There can be no doubt that a state which is legally authorized to force another state to act according to the law, repair the damage caused by a wrongful act or provide any form of satisfaction, is not bound to use means equal to those which caused the wrongful act. If states were prohibited from putting additional pressure upon the wrongful state, every wrongful act would be minimized to a calculated risk. On the other hand, a state which seeks protection from the material consequences of a wrongful act or which seeks to minimize these consequences should be required to stay with strict equivalence. This means that, whereas punitive and manipulative self-help may cause additional extraordinary harm (compared to the harm done), protective self-help cannot exceed the limits of strict equivalence. This conclusion is in accordance with the objective of protective self-help as well as with the interim character of protective self-help, which are not to prejudice the existing or future rights of the target state. Whether the requirement of equivalence or proportionality is applicable and whether these requirements have to be assessed in a qualitative or a quantitative sense cannot be determined without considering the nature and character of the prior breach and the purpose of the countermeasure. In general it may be argued that: (1) there is no need for protective and remedial measures to go beyond equivalence and (2) symbolic, manipulative and punitive measures may have effects beyond qualitative equivalence.139 With regard to the quality of international crimes, Special Rapporteur Riphagen has taken the opinion that “the principle of proportionality does not require to respond with identical breaches”.140

Conclusion According to Haas, “overall power relations form the measure of structure; as long as unrestrained self-help remains a prominent option in the armory of each major state, anarchy continues”.141 The law on “self-help” is in a state of perplexity. The haphazard use of the generic term “countermeasures” is both illustrative and concealing in that respect. Unfortunately, the introduction of the term “countermeasures” has, in the opinion of the author, contributed to the confusion rather than to a clarification of the regime of “self-help”. Any clarification of a legal concept, or for that matter of specific legal regimes, should be preceded by a clarification of terminology, by defining terms as well as objectives and legal requirements linked to legal actions. One should seriously question whether the term “countermeasures” is appropriate to cover the whole range of measures of self-help, or to replace well-known and

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widely used terms like “reprisals”. The term “countermeasures” should be employed to designate a specific category of measures, namely those aiming at the protection or conservation of well-defined interests such as the exceptio non adempleti contractus does. The term “countermeasures” would in this respect also be more in accordance with its ordinary connotation: “[a]n action that you take in order to weaken the effect of another action or situation or to make it harmless”.142 Although there seems to be general agreement on the various objectives of selfhelp, little has been done to classify different categories of self-help according to these objectives. The deficiency in classifying measures of self-help causes a lack in the differentiation of legal requirements. The concept of proportionality, for example, varies according to the objective and hence the kind of measure applied. While protective and remedial measures should be within the limits of strict equivalence, measures of self-help with a symbolic, manipulative or punitive purpose may exceed the limits of strict equivalence. The absence of a classification of self-help according to its function or objective has also determined the discussion on the requirement of peaceful settlement of disputes. Most authors presume the existence of a (conditioned) requirement that self-help should be preceded by at least a serious attempt to settle the dispute by peaceful means. A more sophisticated differentiation according to the objectives of self-help has not been undertaken. Due to the absence of a preliminary classification, the problem of “interim measures” became only relevant in the discussion concerning the peaceful settlement of disputes. While there is a general agreement that, considering the contemporary state of international law, states cannot be denied the right to protect themselves, the consequence of clarifying the concept of protective measures and equally reconsidering the requirements of a prior demand and of proportionality in this respect has been overlooked. With respect to the position of the alleged wronged state, there can be no doubt that the requirement to precede various measures of self-help with an attempt or a procedure for the settlement of the dispute is far too rigid, considering the contemporary state of general international affairs. It is clear that the wronged state would be in an unequal, disadvantageous position. On the other hand, in many cases the wronged state is unlikely to suffer more when it refrains from measures of selfhelp. For example, in a case where the international wrongful act has been discontinued, the damage done is not increasing and immediate reparation is not a matter of necessity. In such cases, prior exhaustion of procedures for the peaceful settlement of the dispute is reasonable and acceptable. Although the legal epistemic community seems to presuppose or imply the existence of a rule requiring states to resort to dispute settlement prior to resort to self-help, the debate on the Draft Articles on State Responsibility in the International Law Commission, the political discussions in the Sixth Committee of the UN General Assembly, and the final text on state responsibility make clear that a progressive legal development in that direction is unwanted. As already indicated, progressive development of the law – any law – cannot fail to respect certain realities and should, as far as possible, find some basis in existing principles. According to the author, the principle of necessity, which is well accepted within the law on self-help, in relation to the objectives sought by the wronged state could provide a sound and acceptable basis for the determination of permissible and


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impermissible self-help with respect to the specific or general obligations to settle the dispute by peaceful means. It must be doubted whether the new terminology substantially adds to a better understanding of the various measures states may take in response to an internationally wrongful act. If the term “countermeasures” would have been accorded with a specific legal meaning, a first step towards a better understanding of the various legal means of self-help would have been made. Notes 1 2

3

4 5 6

7 8 9 10 11

Haas, “Words Can Hurt You; Or, Who Said What to Whom about Regimes”, in International Regimes, ed. Krasner (London: Cornell University Press), 47 [hereinafter Haas, “Words Can Hurt You”]. But see de Saram (Sri Lanka), Summary Records of the 47th Session of the Sixth Committee of the UN General Assembly, UN Doc A/C.6/47/Sr. 27, 2 (stating that, “article 30 of Part One of the draft articles … was based on relatively scant jurisprudential or other material. The question fell undoubtedly under the heading of progressive development rather than of codification.” But see, Sir Francis Vallat, “Summary Records of the 1545th Meeting of the International Law Commission, 5 Jun. 1979”, YB Int. L Comm’n 1 (1979): 62 (expressing “some doubts about the advisability of limiting the draft to the consequences of an internationally wrongful act committed by that State.”). See, e.g., Detter de Lupis, The Concept, 82. Naulilaa case, Rep Int. Arb Awards 2 (1949): 1013, 1025. See also the Cysne case, Rep Int. Arb Awards 2: 1056 (“[A]n act contrary to international law may be justified by way of reprisal, if motivated by a like act.”). Especially the Tribunal’s reference to an “alleged” violation is highlighted in this respect (See, e.g., Fisler Damrosh, “Retaliation or Arbitration or Both? The 1978 United States–France Aviation Dispute”, Am J Int. L 74 (1980): 785, 793 [hereinafter Fisler Damrosh, “Retaliation”]. However it is not clear whether the Tribunal was stressing the subjective assessment of the preceding act or whether it was quite formally indicating that the countermeasure was taken at a time that the wrongful character of the preceding act had not been authoritatively and objectively established (cf. Elagab, The Legality of Non-Forcible Counter-measures, 49). A second argument is deduced from the following quotation: “it is also quite obvious that the lawfulness of such action must be considered regardless of the answer to the question of substance concerning the alleged violations…”(Air Services Agreement case, 337 [emphasis added]). This phrase may not, according to the author, be interpreted as stating that the question of substance concerning the alleged violations has no bearing upon the determination of the lawfulness of the countermeasure. The Tribunal was, in the opinion of the author, paraphrasing the position of the Tribunal in the Naulilaa case in the sense that even if it were to be presumed that the preceding act was indeed wrongful, other conditions had still to be taken into account to determine the lawfulness of the countermeasure. The sentence immediately following the sentence quoted above supports this interpretation. Air Services Agreement case, 337. See also Fisler Damrosh, “Retaliation”, 793–4. De Guttry, “Some Recent Cases”, 180. Fisler Damrosh, “Retaliation”, 793. Idem, 795 [emphasis added].

76 12 13 14 15 16 17

18 19

20 21 22 23 24 25 26 27 28 29 30 31

32

33 34 35 36 37 38 39

Enforcing International Law Idem. Sir Francis Vallat, supra note 170. Ago, “Summary Records of the 1546th Meeting of the International Law Commission, 6 Jun. 1979”, YB Int. L Comm’n 1 (1979): 63. Elagab, The Legality of Non Forcible Counter-measures, 52. Royal Institute of International Affairs, Sanctions: The Character of International Sanctions and their Application (1938), 6 [emphasis added]. The following cases may be referred to in order to support this conclusion: (1) the freezing of Iranian assets by the US (this case will be dealt with in more detail later); (2) the freezing of Argentine assets by the UK and (3) the freezing of Libyan assets by the US (see Letter by US Pres. Reagan of 9 Jan. 1986, reprinted in Int. Leg. Mat. 25 (1986): 181, 182. But see Elagab, The Legality of Non-Forcible Counter-measures, 55.) Brown-John, Multilateral Sanctions, 4. This requirement is also frequently referred to as prior or unsatisfied demand for reparation. In the opinion of the writer the condition would include a range of various demands which generally coincide with the remedial objectives of the countermeasures, namely performance or discontinuation , reparation strictu sensu and satisfaction. The origins of this requirement may be found in the “denial of justice” which was a requirement applicable to private as well as public reprisals. See Colbert, Retaliation, 64. See, e.g, Kooijmans, “Actie, harde actie”, 773. See Arangio-Ruiz IV, 6 et seq. Report of the International Law Commission to the UN General Assembly, UN Doc A/47/10 [1992], 55 n 42, [hereinafter Rep Int. L Comm’n (1992)]. Idem, 58. Colbert, Retaliation, 48. See Rep Int. L Comm’n (1992): 58. Idem. Colbert, Retaliation, 24 [emphasis added]. Hampson, “Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949”, in Int. & Comp L Q 37 (1988): 818, 823. See de Guttry, “Some Recent Cases”, 178; see also Riphagen V articles 1–16, 1–4. See YB Int. L Comm’n 2 (2) (1979): 216 and 221. The Commission did not elaborate on this point in detail. Except for a differentiation between countermeasures and (collective) sanctions, it is not clear in which cases the Commission considered this condition not applicable (idem, 121). Riphagen, “Summary Records of the 1867th meeting of the International Law Commission”, YB Int. L Comm’n 1 (1984): 317 [emphasis added]. See also Zoller, Peacetime Unilateral Remedies, 126 (concluding that the Commission “thus paved the way to including in the word ‘countermeasure’ both measures equivalent to the wrongful act (not subject to prior request) and measures beyond equivalence (subject to that condition)”. Arangio-Ruiz IV, 17. Idem, 15. Rep. Int. L. Comm’n (1992): 59. Elagab, The Legality of Non-Forcible Counter-measures, 66. Tunkin, G.I., Völkerrechtstheorie. Berlin: Berlin Verlag, 1972, 463. It is common to refer to this requirement as a procedural one. But see Rosenne, Developments, 351. The classic definition of necessity by US Secretary of State Webster reads: “instant, overwhelming and leaving no choice of means, and no moment of deliberation”.

The Normative Modalities 40 41

42 43

44 45 46 47 48

49 50 51

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See, e.g., Verwey, “Humanitarian Intervention”, in The Current Legal Regulation of the Use of Force, ed. A. Cassese (Dordrecht: Nijhoff,1986), 74 et seq. Myres S. McDougal, Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven: Yale University Press, 1961), 688: (holding that “the exhaustion of available alternative methods of securing redress and future abstention … The thrust of the requirement is that resort to the extraordinary remedy of reprisals must be necessary in high degree” [footnote omitted, emphasis added]. See Article 33 (State of Necessity) of Part One of the ILC Draft on State Responsibility, YB Int. L Comm’n 2 (2) (1980): 34–52. Anzilloti, Individual Opinion, Oscar Chin case, PCIJ Series A/B 63, 114. Villigran Kramer, “Provisional Summary Records of the 2267th Meeting of the International Law Commission”, 29 May 1993, UN Doc/CN.4/SR 2267 (provisional), 8 [1993] (holding that Article 33 of the UN Charter requires states to exhaust the peaceful settlement of disputes prior to any other action contrary to the law). Chen, L.C., An Introduction to Contemporary International Law; A Policy Oriented Perspective. New Haven: Yale University Press, 1989, 384 [hereinafter, Chen, An Introduction]. G. Dahm, Völkerrecht (Vol. 1) 424 (1960). Chen, An Introduction, 384. See also A.J.P. Tammes, Internationaal Publiekrecht (Amsterdam: Bohn, 1973), 325; Fukatsu, “Coercion”, 1194. YB Int. L Comm’n 2 (1979): 118 n 595. It is not clear to the writer why the Commission did not comment more elaborately on this condition at this point. Other conditions such as proportionality were considered and discussed in more detail. The failure to consider this condition can therefore not fully be explained by the fact that the Commission considered the conditions of countermeasures to fall within Part Two of the Draft. Treaty of Peace between Columbia and Peru of 22 September 1829, signed at Guayaquil, reprinted in Arbitration Treaties among American Nations (1924): 9, ed. William R. Manning. The Consolidated Treaty Series 205 (1980): 256. Articles 65 and 66 read as follows: Article 65 Procedure to be followed with respect to invalidity, termination, withdrawal from suspension of the operation of a treaty 1. A party which, under the provisions of the present convention invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefore. 2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised an objection, the party making the notification may carry out in the manner provided for in Article 67 the measure which it was proposed. 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. 4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the states with regard to the settlement of disputes. 5. Without prejudice to Article 45, the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answers to another party claiming performance of the treaty or alleging its violation.

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52 53 54 55 56 57 58 59 60 61 62 63 64

Enforcing International Law Article 66 Procedures for judicial settlement, arbitration and conciliation If, under paragraph 3 of Article 65, no solution has been reached within a period of 12 months following the date on which the objection has been raised, the following procedures shall be followed: a. any one of the parties to a dispute concerning the application or the interpretation of Article 53 or 64 may, by a written application, submit it to the International Court of Justice for a Decision unless the parties by common consent agree to submit the dispute to arbitration; b. any one of the parties to a dispute concerning the application or interpretation of the other articles of Part V of the present Convention may set in motion the procedure specified in the annex to the Convention by submitting a request to that effect to the Secretary General of the United Nations. Fitzmaurice II, 55. Idem, 45. Idem, 69. Idem. See YB Int. L Comm’n 1 (1963): 120. See Waldock, “Second Report on the Law of Treaties”, YB Int. L Comm’n 2 (1963): 73, 87 (hereinafter Waldock II). Idem. See Rosenne, YB Int. L Comm’n 1 (1963): 172; Briggs, ibid, 176; Jimènez de Aréchaga, ibid, 178. El Erian, ibid, 177. ILC Report 1979, UN Draft Articles on State Responsibility, Doc A/34/10, reprinted in Rosenne, S., The International Law Commission’s Responsibility, (Dordrecht: Martinus Nijhoff Publishers, 1991), 290 at 322. See Article 10 as proposed by Special Rapporteur Riphagen (Riphagen V, 3). Riphagen V, 3. Rep. Int. L Comm’n (1992): 61 n. 44. Article 12 as proposed by Arangio-Ruiz read as follows: Conditions of resort to countermeasures 1. Subject to the provisions set forth in paragraphs 2 and 3, no measure of the kind indicated in the preceding article shall be taken by an injured state prior to: (a) the exhaustion of all the amicable settlement procedures available under general international law, the United Nations Charter or any other dispute settlement instrument to which it is a party; and (b) appropriate and timely communication of its intention. 2. The condition set forth in subparagraph (a) of the preceding paragraph does not apply: (a) where the state which has committed the international wrongful act does not cooperate in good faith in the choice and the implementation of the available settlement procedure. (b) to interim measures of protection taken by the injured State, until the admissibility of such measures has been decided upon by an international body within the framework of a third party settlement procedure. (c) to any measure taken by the injured state if the State which has committed the international wrongful act fails to comply with an interim measure of protection of the said body. 3. The exceptions set forth in the preceding paragraph do not apply wherever the measure envisaged is not in conformity with the obligation to settle disputes in such a manner that international peace and security, and justice, are not endangered.

The Normative Modalities 65 66 67 68 69 70

71

72 73 74 75 76 77 78 79 80

81 82 83 84 85 86 87 88 89

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Arangio-Ruiz III, 27. Calero Rodrigues, “Provisional Summary Records of the 2274th Meeting of the International Law Commission”, 23 Jun. 1992, UN Doc/CN.4/SR 2274 (provisional), 5 [1992]. Bennouna, “Provisional Summary Records of the 2266th Meeting of the International Law Commission”, 10 Jun. 1992, UN Doc/CN.4/SR 2266 (provisional), 14. Bowett, ibid, 16. See also Rosenstock, “Provisional Summary Records of the 2273rd Meeting of the International Law Commission”, 16 Jun. 1992, UN Doc/CN.4/SR 2273 (provisional) 14 [1992]. Bowett, “Provisional Summary Records of the 2274th Meeting of the International Law Commission”, 29 Jun. 1992, UN Doc/CN.4/SR 2274 (provisional) 7 [1992]. See, e.g., Vereshchetin, “Provisional Summary Records of the 2265th Meeting of the International Law Commission”, 2 Jun. 1992, UN Doc/CN.4/SR 2265 (provisional),13; Villagran Kramer, “Provisional Summary Records of the 2267th Meeting of the International Law Commission”, 29 May 1992, UN Doc/CN.4/SR 2267 (provisional), 8 [1992]. See, e.g., Tomuschat, “Provisional Summary Records of the 2267th Meeting of the International Law Commission”, 29 May 1992, UN Doc/CN.4/SR 2267 (provisional), 6 [1992]. Tomuschat questioned whether resort to the International Court of Justice could provide states with this protection. Rep Int. L Comm’n (1992): 67. UN Doc A/CN.4/L.480, See also, Tomuschat, “Are Counter-measures Subject to Prior Recourse to Dispute Settlement Procedures?”, in EU J Int. L 5 (1994): 77–88. Arangio-Ruiz, G., Sixth Report on State Responsibility, UN Doc A/CN.4/SR.461/Add. 2 (1994), 3 [hereinafter Arangio-Ruiz VI/Add. 2]. Report of the International Law Commission on the Work of its forty-sixth session, 2 May – 22 Jul. 1994, UN Doc A/49/10, 365 [hereinafter referred to as Rep Int. L Comm’n (1994)]. Rep Int. L Comm’n (1996): 144. See idem, 160. See idem, 161–2. See idem, 163. As will be argued in Chapter 3, there is no indication that the concept of the peaceful settlement of disputes and the choice of a particular state to freely accept compulsory jurisdiction obliges a “wronged” state to resort to this procedure prior to or during the implementation of countermeasures. The availability of such an option, however, influences the assessment of whether it was necessary for the wronged state to implement specific countermeasures at a specific time. Rep Int. L Comm’n (1996): 163. Rep Int. L Comm’n (1996): 159 [italics added]. See Crawford, The International Law Commission’s Articles, 52. Crawford, The International Law Commission’s Articles, 53. Crawford, The International Law Commission’s Articles, 53. See YB Int. L Comm’n 1 (2) (1979): 116. The following cases dealt with the lawfulness of countermeasures without touching upon the subject matter of this study: the Naulilaa case; the Cysne case; the Hijacking Incident. Case concerning the Settlement of German Claims (Germany et al./Venezuela), Decision of the Permanent Court of Arbitration of The Hague, 22 Feb. 1904, reprinted in Am. J. Int. L. 2: 909. Idem. Air Services Agreement case, 338.

80 90 91 92 93 94 95 96 97 98 99 100 101 102

103 104 105

106 107 108 109 110 111

112 113 114 115

Enforcing International Law Idem, 304–5. [emphasis added]. Air Services Agreement case, 337. See Appeal Relating to the Jurisdiction of the ICAO Council, Separate Opinion of Judge Dialled, 1972 ICJ 42,101(Judgement). Separate Opinion of Judge de Castor, idem, 128. Rosenne, Developments, 351. See idem, 338. Idem, 339. Air Services Agreement case, 337. Idem. YB Int. L Comm’n 2 (1979): 118 n. 595. See, e.g., de Guttry, “Some Recent Cases”, 179. Elagab, The Legality of Non-Forcible Counter-measures, 172. Elagab refers to the opinions of: (1) Switzerland, Belgium, Denmark and Great Britain, as expressed at the Conference for the Codification of International Law of 1939; (2) the Netherlands as expressed at the Sixth Committee in 1970; (3) Pakistan as expressed in respect of the ICAO case; and (3) France as expressed in the Air Services Agreement case. To the extent that these legal opinions were put forward in a dispute they met with opposite opinions held by India, the US, France (!) Belgium (!) and Luxembourg. In Part 2 of this study, the practice and opinions of more then 10 states will be elaborated upon within the framework of concrete disputes. UN Doc A/6827, 14. UN Doc A/6872/Add., 2 at 11. See Calero Rodrigues (Brazil), “Summary Records of the 47th Meeting of the Sixth Committee of the UN General Assembly”, UN Doc A/C.6/47/SR.25, 10 (considering that “art. 12 is of ‘fundamental importance’. Determination of wrongful act should not be left entirely to the allegedly wronged state”.); Kraichitti (Thailand), idem, UN Doc A/C.6/47/SR.27; Postica (Romania), idem, UN Doc A/C.6/47/SR.29, 7 (asserting that Article 12 is well established principle of international law); Kazi (Pakistan), idem, UN Doc A/C.6.47/SR.29, 16; Soliman (Egypt), idem, UN Doc A/C.6/47/SR.30, 8; Stanczyk (Poland), idem, UN Doc A/C.6/47/SR.28, 18 (suggesting a change in terms and wording; “interim measures of protection is conceptually inappropriate”). See Mikulka (CSFR), idem, A/C.6/47/ SR.25, 12; Majdi (Morocco), idem, A/C.6/47/ SR.25, 20. See, e.g., Piussochet (France), idem, UN Doc A/C.6/47/SR.26, 5 (stating that this article was drafted too strictly). Flores (Uruguay), idem, UN Doc A/C.6/47/SR.27, 5. See also Willson (US), idem, UN Doc A/C.6/47/SR.27, 10. See, e.g., Al-Baharani (Bahrain), idem, UN Doc A/C.6/47/SR.26, 7. Shi Jiuyong (China), idem, UN Doc A/C.6/47/SR.25, 7 [emphasis added]. See, Lehman (Denmark on behalf of the Nordic Countries), idem, UN Doc A/C.6/47/SR.25, 8 (holding that “there was no room for countermeasures where a mandatory system of dispute settlement existed”.); Monytaz. (Iran), idem, UN Doc A/C.6/47/SR.25, 15 (holding that Article 12 should limit itself to solutions involving the compulsory jurisdiction of the International Court of Justice). Tuerk (Austria), idem, UN Doc A/C.6/47/SR.26, 12–13; Al-Kasawneh (Jordan), idem, UN Doc A/C.6/47/SR.28, 10. Rep. Int. L. Comm’n (1992): 67. See Flores (Uruguay), idem, UN Doc A/C.6/47/SR.27, 6. See also Zamora (Venezuela), idem, UN Doc A/C.6/47/SR.27, 21. See YB Int. L Comm’n 2 (1979): 116, 118 n. 595, 325 .

The Normative Modalities 116 117 118 119 120 121 122 123 124 125 126

127 128 129 130 131 132 133

134

135 136 137 138 139 140 141 142

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Schachter, “International Law in the Hostages Crisis”, 356 – “on the whole respect the limits imposed by proportionality.” But see, Ushakov, “Summary Records of the 1668th Meeting”, YB Int. L Comm’n I (1981): 134 (doubting the existence of a rule of proportionality as a rule of international law). Occasionally other criteria have been proposed. However, they do not seem to have received general acknowledgement. See. e.g., Doehring, “Die Selbstdurchsetzung”, 45. Air Services Agreement case, 338. Riphagen II, 126. Naulilaa case, 1028. Ago VIII, 40. Riphagen, “Summary Records of the 1666th Meeting of the International Law Commission, 4 Jun. 1981”, YB Int. L Comm’n 1 (1981): 126. Air Services Agreement case, 338. Idem. Riphagen V, 3. See also former draft Article 2 of Part Two which reads: “The performance of the obligation entailed for a State by its internationally wrongful act and the exercise of the rights for the other states entailed by such acts should not in their effects, be manifestly disproportional to the seriousness of the wrongful act.” Riphagen III, 46. Riphagen, “Summary Records of the 1731st Meeting of the International Law Commission, 21 Jun. 1982”, YB Int. L Comm’n 1 (1982): 201. Riphagen III, 46. Riphagen V, 202. Calero Rodriques, “Summary Records of the 1733rd Meeting of the International Law Commission, 23 Jun. 1982”, YB Int. L Comm’n I (1982): 216. Arangio-Ruiz IV add. 1, 34. Zoller, Peacetime Unilateral Measures, 13. But see Riphagen III, 43 (“If countermeasures are to be enforcement measures, they must be disproportional to the breach in terms of effect of both.”) As already indicated above, the Special Rapporteur seems to regard equivalence and proportionality as synonyms. Zoller, Peacetime Unilateral Measures, 135. See also McDougal, Law and Minimum World Public Order: The Legal Regulation of International Coercion. (New Haven: Yale University Press, 1961), 682–3; Elagab, The Legality of Non-Forcible Countermeasures, 94; Doehring, “Die Selbstdurchsetzung”, 44, 45 et seq.; Steinkamm in Lexicon des Rechts, 227; Tammes, “Means of Redress”, 16. Arangio-Ruiz IV add. 1, 4. Elagab, The Legality of Non-Forcible Counter-measures, 86. L. Oppenheim, International Law, 141. Chen, An Introduction, 384. See Barboza, “Summary Records of the 1734th Meeting”, YB Int. L Comm’n I (1982): 219. Riphagen I, 121. Haas, “Words Can Hurt You”, 47. Collins-Cobuild, English Language Dictionary (1988), 322.


PART 2 CONSENSUAL DISPUTE SETTLEMENT: A REFLECTION OF SELF-CONSTRAINT Systematic Disarmament within a short period is only possible with the guarantee of all nations for the security of the individual one, based on a permanent court of arbitration independent of governments … Unconditional obligation of all countries not merely to accept the decisions of the court of arbitration but also to carry them out … Separate Courts of Arbitration for Europe with Africa, America and Asia (Australia apportioned to one of these). A joint court of arbitration for questions involving issues that cannot be settled within the limits of any of these three regions. Albert Einstein, in Mein Weltbild, 1934, reprinted in Ideas and Opinions (Wings/Bonanza Books, New York, 1954), 103.


Introduction Einstein’s idea on arbitration is probably one of the many appeals which were formulated by intellectuals in the inter bellum. Consensual dispute settlement methods were considered the foremost method to achieve appeasement. However, consensual dispute settlement methods can only function as mechanisms for the enforcement of international law if and to the extent that – as Einstein puts it – “states are willing to accept the decisions … and to carry them out”. To agree and resort to consensual dispute settlement mechanisms, to accept the consequences and to implement that outcome rather then resorting to self-help is a form of self-constraint. A state in question first of all refrains from resorting to selfhelp and in addition consents to having the dispute settled by an accepted method of consensual dispute settlement. In weighting the strategic pros and cons for a possible cause of action, self-help and self-constraint are intrinsically linked. Normative arguments are likely to carry more influence if self-constraint is considered to be obligatory. In Part 2, the “enforcement problem” is analysed from the perspective of the obligation to settle disputes by consensual means. The predominant question raised in this part is: can it be said that the existence of an obligation to settle disputes by consensual means constitutes a limitation in itself upon the faculty of states to resort to measures of self-help? For analytical purposes, one has to differentiate between (1) the general principle to settle disputes by peaceful means, as reflected in Article 2 (3) of the UN Charter and more specific (treaty) obligations to resort to one or more expressly named procedures and (2) between arbitration and adjudication on the one hand and alternative dispute resolution means on the other.


Chapter 5

Self-constraint as Reflected in the Principle of Settling Disputes by “Peaceful Means” and Alternative Dispute Resolution Article 2 (3) of the UN Charter as an Expression of Self-constraint Article 2 (3) of the UN Charter is the most prominent and explicit reflection of commitment of the UN member states to show self-constraint. It reflects the general principle that disputes should be settled by consensual means. It stipulates in particular that: All Members shall settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

The principle is globally recognized and accepted and has been incorporated into many international agreements,1 (draft) declarations of the General Assembly2 and other internationally relevant documents.3 However, it is equally evident that Article 2 (3) suffers from a wide, rather vague and ambiguous formulation4 and it may be questioned whether it adequately reflects customary international law5 and, if it does, how it should be put into operation. Considering the uncertainties in respect of the operative content of this principle, it is not surprising that the General Assembly of the United Nations has undertaken several more or less successful attempts to clarify the content and scope of this principle.6 The most important clarification attempts resulted in: (1) the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, and (2) the Manila Declaration on the Peaceful Settlement of Disputes. In order to assess the link between this legal principle and the right of states to resort to self-help three specific questions need to be raised: 1.

2.

What is meant by “peaceful means”? Are measures of self-help to be considered as “peaceful means” within the meaning of Article 2 (3) of the UN Charter? In other words, is self-help another way of self-constraint if compared to resort to the use of force? Does a general obligation for states to settle disputes by “peaceful means” as formulated in Article 2 (3) of the UN Charter require states to refrain from resorting to self-help before an attempt to settle the dispute by such means is made?

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3.


Assuming that Article 2 (3) constitutes an independent, autonomous obligation and that it can be put into operation though various mechanisms of settling disputes, can it be said then that it at least requires states to negotiate (prior to resort to self-help)?

The Meaning of “Peaceful Means” Those who study measures of self-help have frequently characterized this phenomenon as “peaceful”. Does this mean that measures of self-help fall within the category of “peaceful means” as envisaged in Article 2(3)? If the term “peaceful” is taken to the letter, in which case it is the common antonym of “forceful”, one may agree with Blix that “any method not involving the threat or the use of force referred to in that provision [Article 2 (4) of the UN Charter] will constitute a peaceful means”.7 But was that what the drafters of the UN Charter had in mind when they agreed on the text of Article 2 (3) in San Francisco? Moreover, the meaning of the terminology may have changed over the years and may have developed towards excluding all coercive means. According to Elagab, “[t]he tenor of this provision [Article 2 (3)] clearly suggests that international disputes should be settled by peaceful methods rather than coercive means”.8 De Guttry even holds that: [a]s far as the obligation to settle disputes by peaceful means is concerned, it should be noted, first of all, that such an obligation cannot be considered to be fulfilled when a simple invitation-request is made to the other party to put an end to the unlawful conduct. The most recent developments in international practice lead, in fact, to the conclusion that the presupposition for resort to reprisal measures adopted on a reciprocal basis is no longer limited to the exercise of a “summary invitation with no avail” but now consists in a real obligation to carry out an attempt to solve the dispute with one of the means exemplified in Art. 33 of the UN Charter.9

According to the author, neither interpretation is self-evident as far as the text of Article 2 (3) is concerned. The fact that the term “peaceful means” can been connoted with a more extensive as well as a more restrictive meaning cannot simply be ignored. Until 1945 when Article 2 (4) of the UN Charter explicitly prohibited the use of force, the term peaceful means could properly include all measures short of war, whether they involved the use of military force or not.10 According to the prevailing concept of that time, the state of international affairs was understood in a simple peace/war dichotomy. This – from a contemporary perspective – somewhat distorted world view left little room for an intermediate state of affairs. The conception that legal doctrine should more properly differentiate between peaceful means, i.e. diplomatic means and arbitration or adjudication, and coercive measures including inter alia retorsion, (armed) reprisal and pacific blockade, was a remarkable exception.11 Increasing normative restrictions on the use of force and the general prohibition on settling disputes by military means, resulted in a more narrow conception of “peaceful means”. The term peaceful means became increasingly used as a collective noun for all kinds of recognized diplomatic, arbitral and adjudicative procedures for

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the settlement of disputes.12 Only those dispute settlement mechanisms of a consensual character came to be denominated as “peaceful”. In the literature of the period preceding World War II, one can therefore reveal two different conceptions of the term peaceful means. This process, by which the rather formalized division between a state of peace and a state of war is not quite properly reflected in the antagonism between “amicable” means and means of war or forceful means, began to dominate the conception of the principle of settle disputes by peaceful means. The post-World War II principle of settling disputes by peaceful means is not the result of an extensive discourse on the question of whether the conception of peaceful means includes coercive measures short of force. The problem as to the meaning of “peaceful means” does not seem to have troubled the minds of the drafters of the Charter of the United Nations. The travaux préparatoires are virtually silent on this subject. What did the drafters of the Charter have in mind when they accepted the wording of Articles 2 (3) and 33 (1) as they did? Is it correct to conclude that Article 2 (3) of the UN Charter identifies peaceful means with consensual means?13 Neither the travaux préparatoires nor related documents support this conclusion. A possible clarification of the meaning of the term “peaceful means” as used in Article 2 (3) of the Charter may be found in subsequent elaboration of the principle of settling disputes by peaceful means such as the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations and the Manila Declaration on the Peaceful Settlement of Disputes. First of all it has to be noted that Article 2 (3) of the Charter was copied without any change in wording.14 However, in both declarations this principle was linked to the means enumerated in Article 33 (1) of the Charter without explicating that it only applied to disputes, “the continuance of which is likely to endanger international peace and security”. This remarkable omission tends to indicate that the principle should be accorded a more independent meaning. The relation to the use of force becomes less obvious. However, the Special Committee held in its report that: the principle of peaceful settlement appeared as the logical corollary of the injunction to refrain from the threat or the use of force … The history of international law and international relations showed that the two principles had developed side by side.15

Thus the link with the prohibition on using force is still, albeit less predominantly, present. The Declaration on Friendly Relations stipulates that: States parties to an international dispute, as well as other States, shall refrain from any action which might aggravate the situation so as to endanger the maintenance of international peace and security.

Moreover, the Manila declaration adds that: State parties to an international dispute, as well as other states, shall refrain from any action that may aggravate the situation so as to endanger the maintenance of international peace and security and make more difficult or impede the peaceful settlement of the dispute and shall act in accordance with the principles of the United Nations.

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It must be concluded that the lawfulness of self-help is neither explicitly dealt with in the Charter of the United Nations, nor in the Declaration on Friendly Relations, nor the Manila Declaration. There is no indication that self-help is explicitly falling under the heading of “peaceful means” nor is there evidence that it does not fall within this term. On the contrary, the preoccupation of the world community with the prohibition of the use of force has led to a narrower focusing on the means envisaged in Article 33 (1) of the Charter. Self-help as a “peaceful unilateral means” seems to be excluded from the conceptual framework of peaceful means which seems to encompass only consensual means. Furthermore, it must be concluded that the principle focuses upon those disputes endangering peace and security and is not concerned with disputes not thus characterized. Therefore, the majority of disputes are not envisaged by the principle. Indeed, “as long as the State does not resort to force, there has been no disposition to find a violation in the failure to settle the dispute as by leaving them unsettled.”16 This conclusion, however, answers not at all the question as to the right to resort to selfhelp from the perspective of dispute settlement. Despite the absence of clear-cut evidence as to the status of self-help within the framework of the principle to settle disputes, one may at least conclude that self-help is not prohibited as a rule under this principle; a principle which does not encompass all disputes and which furthermore concentrates on providing alternatives for the use of force. One may conclude, a contrario, that both declarations do not exclude action which does not aggravate the situation so as to endanger international peace and security and leaves thus room for the conclusion that the legal position of self-help is not touched upon by this declaration; at least not in a prohibiting sense. Attention should also be drawn to the fact that the principle is to a large extent preoccupied with means, which are agreed upon by the parties. Therefore it seems to be more correct to conclude that the notion of unilateral measures was simply not encountered by the drafters of this resolution. The classic concern with the abandonment of war and use of force seem to have placed unilateral peaceful measures way beyond the horizon of the drafters. Self-help does not by definition endanger international peace and security or hamper consensual settlement. On the contrary, self-help may under certain circumstances contribute to an expeditious settlement of disputes through consensual means. It is clear that literature is not in harmony with regard to the interpretation of Article 2 (3). In opposition to those writers who hold that the principle to settle disputes by “peaceful” means should be interpreted within the light of the prohibition of the use of force, it has been argued that “[t]he Charter does not state the obligations of Members under Article 2 (3) […] as merely a particular facet of their obligation to refrain from the threat or use of force – as merely a corollary to their obligation under Article 2 (4)”.17 According to the report of the David Davies Study Group on the Peaceful Settlement of Disputes, Article 2 (3) “cannot be considered as a passive [obligation]. Article 2 (3), as its language clearly indicates, requires the Members actively and in good faith to seek the settlement of the dispute by peaceful means etc.”18 Another report by a study group of the same institute stated that in order to render Article 2 (3) effective, it “requires content and machinery”.19


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The obligation to exercise self-constraint in disputes is formally put in operation through Article 33 of the UN Charter, which contains a non-exhaustive list of classic means of consensual dispute settlement. The conventional obligation to resort to one or more of these mechanisms or the actual utilization of one of the means listed in Article 33 might under certain circumstances affect the freedom of states to employ measures of self-help. Here, the right to self-help is not restricted by a presumed requirement to resort to consensual dispute mechanisms prior to resort to self-help as discussed in Chapter 3, but by a restriction following from the decision of the state itself to explicitly opt for consensual settlement. It may be assumed that selfconstraint as to the available options to settle disputes affects a state’s faculty to resort to self-help. On the basis of the arguments of states, however, it might be concluded that the principle of settling dispute by peaceful means has evolved into an independent obligation, which is no longer the corollary of Article 2 (4) and should be given an independent meaning in conjunction with Article 33. As states do not generally elaborate on the impact of this principle on their faculty to resort to self-help in legal terms, reference to a general notion of “peaceful” settlement becomes significant. In the Tehran Hostages dispute, the US Government referred on three different occasions to a “peaceful” solution as opposed to self-help. The US Counsel, Mr Owen, stated orally before the Court that “under the United Nations Charter, all States … have an obligation to seek to resolve disputes by peaceful means, including of course negotiation”.20 In the first weeks after the seizure, the US Government made clear that “a peaceful solution [was] preferable to the other remedies available to the United States”.21 At the same time, however, they stated that “[w]hile we are pursuing all avenues of diplomatic resolution, we’re also acting unilaterally as appropriate – with restraint, yes, but without hesitation”.22 Finally then, implying military action, President Carter stated in response to a question put to him that, “[o]ther actions which I might decide to take would come in the future after those peaceful means have been exhausted.”23 The preference for a “peaceful” solution which is placed in conjunction with “acting unilaterally”, “other remedies” and “other actions” is evident. However, whether this preference is induced by normative constraint or cost/benefit analysis is difficult to determine. If a general obligation to settle disputes by peaceful means constitutes a normative constraint as to the unilateral resort to peaceful means of selfhelp, such constraint is very limited indeed. Self-help in the Context of Alternative Dispute Resolution The most basic method of consensual dispute settlement is negotiation. Lacking the involvement of a third party it is probably the most consensual one of all the “alternative” means of dispute settlement. “Negotiation” is not without reason considered to be the simplest and most utilized form of all procedures to solve differences.24 States have stressed the importance of negotiations as a dispute settlement method in the Manila Declaration on the Peaceful Settlement of Disputes, in the following words:

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Enforcing International Law States should, without prejudice to the right of freedom of means, bear in mind that direct negotiations are a flexible and effective means of peaceful settlement of their disputes. When they choose to resort to direct negotiations, States should negotiate meaningfully, in order to arrive at an early settlement acceptable to the parties.

The role of negotiations in the process of international dispute settlement is so well recognized and accepted that, in the North Sea Continental Shelf case, the International Court of Justice felt “no need to insist upon the fundamental character of this method of settlement” when it directed Denmark and the Netherlands to start “fresh negotiations” with the Federal Republic of Germany, because previous negotiations had “not satisfied [specific] conditions”.25 The judgment confirms Albin’s opinion that realists’ paradigms like “[t]he exploitation of power advantages and constant striving to maximize self-interest do not imply that international negotiation is necessarily considered amoral or unprincipled”.26 According to Albin, realist-inspired studies on international negotiation have been dominated by a focus on the coercive and power element in international bargaining.27 In the theoretical framework of realists and game theorists, unilateral measures of self-help, which “impose costs” or “demonstrate […] determination to prevail”, are considered to be another tactical element in a broader bargaining context. Albin argues that negotiations are undertaken in a framework of “conditions and constraints”. Notions of “fairness and justice” are conditional elements and constraints in the negotiation process, which serve to achieve a “balanced settlement of claims”.28 While Albin accepts that negotiation processes include coercive strategies and tactics and thus unilateral measures of self-help, she concludes that “negotiations taking place in a coercive […] contexts are unacceptable”.29 Her argument that “stronger parties clearly need to refrain from pressurizing”, however, begs the question as to how we (1) define “stronger party” in a given dispute between relatively equally powerful states like the US and France or India and Pakistan, and (2) whether all “pressurizing” should be refrained from. Albin’s rather absolute conclusions seem to be based on her analyses of specific conflicts and bargaining arenas. While her research framework is exceedingly broad, her notion of “fairness and justice” is, in the opinion of the author, equally applicable in “negotiation” as a means of settling more narrowly defined legal disputes. The question is how broadly or how narrowly we define “negotiation” or “negotiation process”. From the perspective of dispute settlement, “negotiation” should be defined as a specific, rather clear-cut process, which is defined in terms of time and content. In a given dispute, conflict and bargaining arena, one could identify one or more specific negotiation processes. It is within a specific definition of “negotiation” that resort to self-help has to be evaluated. In order to determine how measures of self-help relate to negotiation from a normative point of view, it is necessary to determine the content and scope of the obligations of the negotiating parties more specifically. A frequently quoted definition of negotiation is provided by the Permanent Court of International Justice (PCIJ) in the Mavromatis case. The Court held that “negotiations do not of necessity presuppose a more or less lengthy series of notes or dispatches; it may suffice that a discussion should have been commenced and this discussion may have been very short.”30 The key word in the definition of the PCIJ indicates that negotiations are indeed a “reconsideration [of the dispute] in open


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debate”,31 rather than endless “circulating statements of complaint and contention.”32 To the extent that the term “negotiations” is defined or explained, its conciliatory nature is highlighted as well as the aspect of discussion.33 On the basis of these characteristics, negotiation must be differentiated from so-called “diplomatic correspondence”. The latter act is more likely to constitute “a more or less lengthy series of notes and dispatches” rather than a substantial discussion on the merits of the dispute. Examples of diplomatic correspondence, which in the opinion of the author do not constitute negotiations, are inter alia to be found in the dispute between the UK and Albania concerning the Corfu Channel incidents;34 the numerous aerial incident disputes which have been referred to the International Court of Justice in the period 1950 through 1955;35 and the Asylum case.36 The letters transmitted to the respective governments by the “wronged” states must be characterized as a demand for redress rather than a demand for negotiation or an attempt thereof. Such a demand may subsequently lead to negotiation, but it cannot be considered to be its basic goal. According to the Permanent Court of International Justice in its Advisory Opinion in the case concerning Railway Traffic between Lithuania and Poland, states are “not only under an obligation to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements.”37 The opinion of the PCIJ seems to leave little room for doubt. Its opinion is, rather approvingly, quoted by the advocates of a general obligation to negotiate. Almost 40 years later, the PCIJ’s opinion is recalled by the International Court of Justice in the North Sea Continental Shelf case. In almost exactly the same wording, the ICJ decided then that “the parties are under an obligation to enter into negotiations with a view at arriving at an agreement, and not merely go through a formal process of negotiation.”38 If both opinions are compared a slight but significant detail comes to mind. Whereas the PCIJ clearly formulated an additional criterion to the obligation to negotiate, the ICJ seems to have formulated a qualifying criterion; if states enter into negotiations, they should do so with a view to reaching an agreement. That states are under a general obligation to negotiate was not indicated. On the contrary! The sentences preceding the above quoted passage makes clear that the parties were under a duty to negotiate in the given circumstances. The idea that an obligation to negotiate existed only in welldefined circumstances was later to be upheld in the Fisheries Jurisdiction case. An obligation to negotiate is only conceivable, according to the Court, if the “very nature of the respective rights of the parties” is taken into account. To direct parties to negotiate could, so the Court concluded, only be a “proper exercise of its judicial function” in specific circumstances; the fisheries case being such a circumstance.39 In the Lac Lanoux case the link between measures of self-help and the obligations of the parties was formulated as follows: the reality of the obligation [to negotiate] thus undertaken is incontestable and sanctions can be applied in the event, for example, of an unjustified breaking off the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interest, and more generally, in case of violation of the rule of good faith.40

While the Tribunal recognized the obligation to negotiate as a relatively flexible engagement, the content and form of which cannot be defined beforehand, it made

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clear that “in order for negotiations to proceed in a favourable climate, the Parties must consent to suspend the full exercise of their rights during negotiations”.41 While there seems to be general agreement that a (conventional) obligation to negotiate does not restrict the right of the injured state to resort to measures of selfhelp,42 the contention that all measures of self-help should be suspended during negotiations is contestable from a legal point of view. According to Lachs, “military, political and economic coercion should not be used [in the process of negotiation]”.43 The term “should” leaves little doubt as to the legal relationship between self-help and negotiation. Refraining from coercion in the process of negotiation is merely a matter of strategical consideration or political appropriateness. In the Third Restatement of the Law a legal confinement on selfhelp is introduced in the sense that “[c]ountermeasures are to be avoided, as long as genuine negotiation […] is available and offers some promise of resolving the matter”. It qualifies the negotiation process in terms of “genuine” and “promise”, but leaves the question as to when these conditions are satisfied wide open – there is clearly a margin of appreciation for the negotiation parties. The same margin of appreciation which is applicable in the decision as to whether negotiation efforts have been exhausted. The Tribunal in the Air Services Agreement case took a completely different stand as it concluded that measures of self-help play an essential function in the process of negotiation as these “encourage them [the parties to the dispute] to continue negotiations with mutual desire to reach an acceptable solution”.44 The Tribunal’s decision, however, is more likely to be triggered by the facts of the case then by a theoretical perspective on the process of negotiation. In the France/US Air Services dispute, the respective governments, after recognizing the existence of a disagreement, agreed to have a meeting in order to solve the differences of opinion. After two rounds of negotiation, the French and US representatives were unable to achieve a common understanding on the issue.45 In a following phase the US and French governments reaffirmed their respective positions in an exchange of diplomatic notes.46 It was only after a third unsuccessful meeting between French and US delegates that a decision was taken by the US authorities to change towards a more confronting policy. The French authorities were informed that the US considered the change of gauge consistent with the Air Services Agreement and that Pan Am would commence its service as planned with the approval of the US.47 In reaction the French authorities stressed that they had not changed their position and that they intended to take the appropriate enforcement measures if Pan Am flew to Paris in violation of the Direction Generale de l’Aviation Civil directives.48 At this point, more than a month after the first exchange of diplomatic notes and after three rounds of negotiations, the basic legal position of both states had not changed. The unauthorized service of Pan Am from London to Paris and the French “countermeasure” introduced a new element in the dispute. The determination of the French authorities induced the US Civil Aeronautics Board to advise Pan Am to suspend the operation of its service in order to create a favourable setting for renewed negotiations.49 However, it was not a new round of negotiations the US Government proposed to the French Government on 4 May, but recourse to binding arbitration with a view to settling the dispute with regard to the permissibility of a change of gauge. In addition, the US Government proposed to allow the


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operation of the service as planned, pending the outcome of the arbitration. The US expected the French Government to respond to their proposal within five days. It was stated by Atwood in the Washington Post that day that: it is very likely that the CAB will ask Air France to submit its schedules of flights into the US to the CAB which then might cut the numbers of flights in retaliation.50

This unequivocal threat was obviously connected to the proposal made to the French Government and intended to back up this proposal with a little pressure. As the answer of the French Government had not been received within the “ultimatum” posed by the US Government, the measures indicated by Atwood were partly effectuated on 9 May, when the CAB issued order 78-5-45; the so-called Phase 1 Schedule-Filing Order. The air services dispute can be taken as an example of where a coercive measure was resorted to only after one of the parties had concluded that negotiations had ended without result and the other party had not changed its initial position. The conflict between the US and Iran in 1979 is another well-documented example of a (partly) bilateral negotiation process aiming at the settlement of a dispute. The objectives of the US Government at the outset of the crisis have been stated in terms of (1) pressurizing Iran by unilateral measures, and at the same time (2) securing the possibilities for a negotiated solution.51 The effectiveness of this “two-track strategy” of pressure and settlement versus Iran hinged according to Saunders “on the timing of specific steps on one track as they related to actions on the other. For instance, economic sanctions were imposed before and after but not during negotiations.”52 The first track pursued by the US Government was the negotiating track. The option of cutting Iran off from international telecommunication access to satellites and technically isolating it from the rest of the world as a coercive measure was immediately discarded in this context, since it would undermine the possibility of establishing open and direct communication lines with the Iranian Government. The first round of negotiations to obtain the release of the hostages involved at least two different efforts, which varied in degree of secrecy, intensity and structure. On the premises of the UN Headquarters in New York, Iranian and US representatives could meet on a flexible and a regular basis, without the formal diplomatic niceties and formalities. The talks and negotiations between both parties were carefully hidden from public attention. At the same time, the US Government proposed to the Iranian government that it (the US) should send a delegation to discuss the possible terms for the release of the hostages. Special envoys travelled to Istanbul where they waited several days in vain for formal authorization to enter Iran. In order not to hamper the possibilities of a negotiated release, the US Government emphatically emphasized that it would not resort to any form of self-help whatsoever. Ayatollah Khomeini’s public refusal to meet with Clark and Miller signalled the failure of the Clark–Miller mission and marked the end of a five-day period of intensive diplomatic efforts. It was the failure of direct negotiation which caused the US Government to switch more prominently to the “pressure track”.53 The informal talks at the UN Headquarters came to an end when the Iranian UN delegation was ordered home by its Government and it was not replaced. The crisis team in

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Washington concluded “that the momentum they had hoped was building through […] the New York exchange would be lost.”54 The momentum came back with the election of Abolhasan Bani-Sadr as President of Iran, on 26 January. As a token of his goodwill, he announced soon after his election that he would allow US journalists to return to Iran.55 On 4 February, he indicated that the release of the hostages was not an unsolvable problem, without, however, indicating the contingencies of a possible solution.56 Furthermore, on 7 February, Bani-Sadr felt strong enough to openly criticize the students occupying the US Embassy.57 All of these statements and actions obviously convinced the Carter Administration and in particular those within the Task Force that Bani-Sadr was a serious negotiating partner. In order to seize this momentum and to avoid frustrating new developments, the US Government announced on 7 February that it would delay the imposition of economic sanctions.58 Parallel to the involvement of the UN Security Council in the Tehran Hostages dispute, the US Government (1) halted a shipment of $300 million worth of military equipment and spare parts designated for Iran,59 (2) initiated proceedings for the deportation of illegal Iranian students and (3) discontinued the imports of crude oil and oil products from Iran. In the US–Nicaragua conflict, the US reduced Nicaragua’s sugar import quota while the Security Council was “adjourned”. In the Korean Airlines 007 incident, the Australian Minister of Aviation announced unilateral measures against the Soviet Union, because of the “continued unsatisfactory responses by the USSR”.60 In the practice of states, a variety of negotiation patterns can be identified. In most disputes offers to negotiate have been made by at least one of the parties involved. If the various interpretations of the general obligation to negotiate are analysed and the content of this obligation is properly assessed, can it then be said that it stipulates a separate condition upon resort to self-help? The Tribunal in the Air Services Agreement case did not find any reason in “general international law” or in the Air Services Treaty to hold the US responsible for resorting to self-help in violation of this treaty. The International Law Commission considered it necessary to lay down minimal requirement to negotiate in Part Three of the Draft on State Responsibility with respect to the right to resort to self-help. Whether codification or progressive development, it must be concluded that any obligation to negotiate constitutes only a formal threshold which – considering the interpretations of the content of this obligation – in practice does not seem to limit the right to resort to self-help. It cannot preclude resort to protective self-help and it only limits resort to remedial and punitive self-help in time, leaving the decision as to the appropriateness of resort to self-help with regard to an obligation to negotiate to the author state. In addition to negotiation, Article 33 of the UN Charter lists other consensual methods of (alternative) dispute settlement: inquiry, mediation and conciliation. In legal literature and reality “good offices” is accepted as a fourth “consensual” method to settle disputes. The involvement of a third party constitutes the essential difference with negotiation. The differences between the methods mentioned above is only one of degree and in many cases the involvement of a third party cannot easily be characterized. Classification of these methods is a matter of convenience rather than substance and is likely to blur rather then to clarify the impact of the third party on the


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procedure. The main differences are to be found in (1) the position of the third party as being more facilitative to the process of dispute settlement or being more passive or active in the formulation of a settlement proposal, and (2) the level of “regulation” of the respective mechanisms,61 Both elements have a different impact on the faculty to resort to self-help. While the involvement of a third party increases the level of constraint, the level of regulation affects the “legality” of unilateral measures. Like negotiation, these “diplomatic” procedures “produce” non-binding outcomes. The disputing parties not only have to consent to the dispute settlement process but also to the result. In other words, a double consent is required for a successful conclusion of the process of dispute settlement. The notion of “double consent” differs from the concept of “real consent” as developed by Gill, which applies to dispute procedures that lead to a binding decision such as arbitration, adjudication and the WTO panel procedures.62 The international library on “diplomatic” means of settling international disputes is less developed than its match in the settlement of disputes under national laws. The traditional lawyer with his focus on arbitration and adjudication has neglected to study those methods, which are labelled as “political” or “alternative”, notwithstanding the widespread use of these methods and their effectiveness as dispute settlement mechanisms; or as Princen has formulated it: “intermediaries are ubiquitous in the management of modern international conflict”.63 The latter author established that the number of disputes in which mediators are involved has increased from over 50% to nearly 80%.64 Other scholars and international institutions have probably made the same observation, which explains the recent reconsideration and upgrading of these methods. As to the impact of any of these methods on the faculty of states to resort to self-help, very few studies have been made. In the Beagle Channel dispute, the Pope reminded the parties “of their commitment not to resort to force during the course of the mediation”.65 In the Tehran hostages dispute, a number of intermediaries were involved for different purposes and with various successes. The PLO stated, in an early stadium of the conflict, that it intended to send a delegation to Tehran in order to seek the release of the hostages.66 After the failure of the Clark–Miller mission, the PLO became the only direct link to the Iranian government.67 Clark and Miller were authorized by the US Government to meet with PLO officials to the extent that it would contribute to the release of the hostages.68 Actual moves by US delegates to seek economic sanctions were delayed because of a request by UN Secretary General Waldheim, who was engaged in “intensive discussions” with the newly appointed Iranian representative to the UN, Mansour Farhang, and the Iranian Minister of Foreign Affairs.69 Ultimately however, the UN Secretary General could not but conclude that “his expectations towards an early and peaceful settlement had not been fulfilled.”70 On the basis of the Secretary General’s conclusions, the Iranian rejection of the interim measures ordered by the International Court of Justice, as well as Iran’s failure to honour requests by the Presidents of the Security Council and the General Assembly of the UN, the US Government decided to request another urgent meeting of the UN Security Council.71 However, the US Government did not seek economic sanctions, but proposed another settlement effort instead.72 After three days of

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deliberation, the Security Council adopted, on 31 December, resolution 461 which reads as follows:73 The Security Council Reiterates its request to the Secretary General to lend his good offices and to intensify his efforts with a view to assisting the Security Council in achieving the objectives called for in the present resolution, and in this connection takes note of his readiness to go personally to Iran; Requests the Secretary General to report to the Security Council on his good offices efforts before the Security Council meets again; Decides to meet on 7 January 1980 in order to review the situation and, in the event of noncompliance with the present resolution, to adopt effective measures under Articles 39 and 41 of the Charter of the United Nations.74

UN Secretary General Waldheim accepted the request under the condition that his trip to Iran should enable him to hold “meaningful” talks with Khomeini.75 Statements by Khomeini and government officials indicated that Waldheim would not be successful in his effort to talk to Khomeini.76 Notwithstanding these negative prospects, Waldheim left for Tehran. He stayed in Tehran for two days without being able to arrange a meeting with Ayatollah Khomeini or obtaining the release of the hostages.77 On 6 January, the Secretary General presented his report to the Security Council.78 It is likely that the failure to organize a collective response induced the US Government to concentrate more clearly on the unilateral track. On 18 January, the US Government announced that it would order a formal ban on commerce with Iran within the next days, except for sales of food and medicine.79 The next day, Iranian Foreign Minister Ghobtzadeh stated that a UN investigation of the Iranian charges against the disposed Shah was a prerequisite for the release of the hostages. UN officials report that Secretary General Waldheim was working towards a compromise between the US and Iran on the formation of such a commission.80 The apparent opening in the deadlock did not induce the US Government to considering a delay in the imposition of unilateral measures against Iran.81 The failure of the previous efforts of the Secretary General and the lack of substantive international support induced the US Government to rely more emphatically upon its own economic power. In the meantime, Secretary General Waldheim was increasing his efforts to establish a UN Commission to investigate Iranian grievances.82 On 9 February, he stated that he was making progress and that the growing political strength of BaniSadr might contribute to the release of the hostages; possibly within weeks.83 A breakthrough appeared to be at hand, when, on 14 February, Prime Minister Bani-Sadr announced that Ayatollah Khomeini had approved plans for the release of the hostages and the Iranian representative to the UN, Mansour Farhang, indicated that UN Secretary General Waldheim’s diplomatic efforts would lead to the release of the hostages.84 When the US Government agreed with the establishment of a UN Commission, which would examine the grievances of Iran, UN Secretary General Waldheim started to draft guidelines and to recommend members who were acceptable to both states. On 18 February, guidelines and members were approved by


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Bani-Sadr in an official letter to the Secretary General, which cleared the way for the Commission to start its task.85 Expectations that the Commission would be able to secure the release of the hostages while it was visiting Iran were reduced by Ayatollah Khomeini who stated that the new Iranian parliament, which was to be elected in March or April, would decide upon the release of the hostages.86 The Commission, which stayed in Iran for more than two weeks, left Iran without having been able to meet with Ayatollah Khomeini or obtain concrete promises as to an early release of the hostages. Notwithstanding the failure to achieve the release of the hostages as the US Government had hoped, the contemplated sanctions, which were delayed on 21 February, were not re-initiated – on the contrary. A spokesperson of the State Department indicated that the US Government did not consider all peaceful efforts to be exhausted. It was stated that the obvious inability of the UN Commission to secure the release of the hostages required a “period of careful watching” before deciding what to do next.87 The US Government obviously still had some confidence in the goodwill of the Bani-Sadr Government and blamed Khomeini and his associates, who were still in control of many parts of the Iranian Government. The UN Commission was in this stage of the conflict characterized by Secretary of State Vance as the “principle device to free the hostages.”88 In the dispute concerning the destruction of the Korean airliner 007, inquiry was the predominant dispute settlement mechanism. It was Japan and Canada who called upon the UN Security Council to initiate a fact-finding mission, either through the Secretary General of the UN or through the International Civil Aviation Organization.89 It was the Council of the International Civil Aviation Organization (ICAO) which met in an extraordinary session upon request by South Korea and Canada.90 Except for the French proposal to investigate the ICAO rules on interception and a consequent amendment of the Chicago Convention, the meeting did not bring forth any new facts, claims, or responses. In response to the requests for an ICAO investigation the representative of the Soviet Union stated that: [u]ntil the [Soviet] Commission of inquiry has completed its work and presented its report to ICAO there is no foundation for continuing to examine this matter in ICAO and there is certainly no foundation for any Council action.91

In respect of the unilateral measures of self-help directed against the Soviet Union, the Alternate Representative of the USSR, Mr Sajine, stated that: In the Soviet Union and in many other countries there is indignation at the discriminatory measures being directed against Aeroflot by a number of countries. On a wave of antiSoviet hysteria, Aeroflot flights are being cancelled, the airline’s commercial rights are being restricted and its representatives are being subjected to provocation. There is no foundation for this. All of this is incompatible with the goals and the principles of the Convention on International Civil Aviation and merits the strongest condemnation.92

The extraordinary session of the ICAO Council ended with the adoption of three resolutions. The most important one called upon the Secretary General to start an investigation of the incident and to report to the Council.93

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On 13 October, the Secretary General of the ICAO presented an Interim Report on the Progress of Investigation to the ICAO Council.94 Introducing the Interim Report, the Secretary- General of the ICAO stated that: no reply had been received from the Soviet Union [in respect of the urge for full cooperation with the Investigation Team] … [that] the Soviet representative had indicated that an investigation was being conducted by the State Commission of the USSR ... [and that] he had received an official invitation of the Minister of Civil Aviation of the USSR to visit the Soviet Union which he had accepted.95

The South Korean representative stated that the Soviet Union had still not met with the demands as stated at the Security Council meeting of 2 September.96 Other states, however, noted that the invitation to the Secretary General by the Soviet Government revealed a first sign of a willingness to cooperate on the part of the Soviet Government.97 Responding to questions concerning the content of the investigations undertaken by the Soviet Union and the measures to be taken in respect of the visit of the Secretary General, the Soviet representative stated that the Government of the Soviet Union was: willing to allow the participation of observers from interested states in [their] investigation. [T]hat the letter [requesting co-operation] addressed to his Government ... has been received in his office on 22 September 1983 but the fact that sanctions had been taken against Aeroflot proved to be an obstacle in the flow of communications between Montreal and Moscow. [However] it would not be possible for the ICAO investigation team to participate in the USSR investigation but he reiterated his Government’s willingness to allow observers from all interested states.98

The Secretary General of the ICAO and the chairman of the ICAO investigation team visited Moscow from 11 to 17 November. The Soviet Minister of Civil Aviation remitted information on the progress of the Soviet investigation commission. However, it was stated that the Government of the Soviet Union could not accept a visit from the investigation team because such visit would not be in accordance with national Soviet legislation.99 On 2 December, the Secretary General of the ICAO presented the Final Report of Investigation to the ICAO Council.100 The Council’s debate on the Final Report did not reveal new standpoints or insights. The injured states restated their position with regard to the responsibility of the Soviet Union and concluded that the Soviet Union had still not complied with their obligation to apologize and to pay compensation.101 In April 1984, the case was put to the files. It was not until 1990, when the internal order of the Soviet Union started to change, that the incident came back on the international agenda. President Yeltsin of the Russian Federation officially presented the “Black Box” with the essential flight recordings to the President of South Korea. However, the relevant recordings were missing or had been altered. Later, Russian authorities stated that crucial data could only be handed over to an impartial investigating commission and called for representation of four countries (Japan, US, South Korea and the Russian Federation) as well as experts from the ICAO to attend a meeting in Moscow. This meeting constructed the basis for further ICAO involvement. On 18 December 1992, the ICAO Council decided to instruct the


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Secretary General to “complete the investigation relating to the flight and destruction of Korean Air Lines (KE) flight 007”.102 The Secretary General of the ICAO presented his Report of the Completion of the ICAO Fact Finding Investigation to the Council in 1993. The Report was completed in June 1993 and reviewed by the Council on 14 June. Notes 1 2

3 4 5

6

See, e.g., (1) Article 1 of the North Atlantic Treaty of 4 Apr. 1949, (2) the Preamble of the Vienna Convention on the Law of Treaties of 23 May 1969 and (3) the Charter of the League of Arab States. See, e.g., (1) Article 8 of the Draft Declaration on the Rights and Duties of States; (2) the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation amongst States, GA resolution 2625 (XXV) of 24 October 1974; (3) the Manila Declaration on the Peaceful Settlement of International Disputes, GA resolution 36/103 of 9 December 1982; (4) the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or the Use of Force in International Relations, GA Resolution 42/22 of 18 November 1987; (5) the Definition on Aggression, GA Resolution 3314 (XXIX) of 14 December 1974. See, e.g., The Helsinki Conference on Security and Cooperation in Europe of 1 August 1975. See, e.g., L.M. Goodrich, E. Hambro and A.P. Simons, The Charter of the United Nations (New York: Columbia University Press, 1969), 42. But see, e.g., Murphy, “The Obligation to Settle Disputes by Peaceful Means”, Va J Int. L 14 :57; David Davies Institute, International Disputes: The Legal Aspects, 9; Blix, “The Principle of Peaceful Settlement of Disputes” in The Legal Principles Governing Friendly Relations and Co-operation among States (Leiden; Sijthoff, 1966), 45, 47 [hereinafter, Blix, “The Principle of Peaceful Settlement of Disputes”]. However, the qualification of this principle as a rule of customary law was by no means evident when it was incorporated into the UN Charter. In 1948, several states (inter alia the United Kingdom) proposed that the International Law Commission, within the context of a Draft Declaration on the Rights and Duties of States, should consider the status of the principle under customary international law since UN member states were already bound by the principle. (See Preparatory Study concerning a Draft Declaration on the Rights and Duties of States, Memorandum submitted by the Secretary-General. UN Doc A/CN.4/2 (1948), 189). Due to the ever increasing membership of the UN, there seems to be little practical relevance in an analysis of the status of the principle under general international law. But see S. Rosenne and L.B. Sohn, United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. V (Dordrecht: Nijhoff, 1991), 18 (holding that the insertion of the principle into the 1982 United Nations Convention on the Law of the Sea, “extends the principle to state parties to the convention which are not UN Members”); see also G. Clark and L.B. Sohn, World Peace through World Law (Cambridge, MA: Harvard University Press, 1960) (holding that Article 2(3) should be amended in the sense that “All members” should be replaced by “all States” in order to indicate that it has global application) [hereinafter Clark and Sohn, World Peace]. In 1947, the General Assembly instructed the International Law Commission to prepare a draft Declaration on the rights and duties of states (see resolutions 175 (III) and 178 (III) of 21 November 1947). The General Assembly suggested adopting a Panamanian draft Declaration as a basis for further study. Article 15 of this draft Declaration reads as follows:

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Enforcing International Law It is the duty of every state to settle its international disputes by peaceful means in such a way that international peace and security and justice are not endangered (UN Doc A/285).

7 8 9 10 11 12 13 14

15 16 17 18 19

The International Law Commission considered the Panamanian draft at its first session in 1949. The principle did not meet with any substantial disapproval whatsoever. The slight modification of the wording of the principle – ultimately recognized in Article 8 of the ILC Draft Declaration on the Rights and Duties of States – was merely “to keep [the principle] as closely as possible to the text of the Charter” (YB Int. L Comm’n (1949): 106). However, the general debate was – due to the insufficient number of states that had transmitted their comments – postponed in 1951 (see, UNGA Res. 596 (VI) of 7 December 1951). Out of 16 states that submitted observations with respect to the Panamanian draft, only five addressed this specific article. See the comments by New Zealand, reprinted in Preparatory Study concerning a Draft Declaration on the Rights and Duties of States, Memorandum submitted by the Secretary-General. UN Doc A/CN.4/2 (1948), 179 (“What is of course needed is not vague clauses like this one, but compulsory jurisdiction of the International Court of Justice in legal disputes, and development of United Nations organs with legislative functions to settle non-legal disputes. In other words, it is developed peacemaking institutions, not general principles of peaceful settlement, that we need.”); India, idem, 178 (suggesting a redraft; “It is the duty of every State to settle its international disputes by peaceful means”); Mexico, idem, 174 (“no comment for the moment”); and the UK and the US, idem, 189 and 204 respectively (favouring the drafting of Article 2 (3) of the UN Charter). The principle was left without clarification at this particular time. Blix, “The Principle of Peaceful Settlement of Disputes”, 50. Elagab, The Legality of Non-forcible Countermeasures 165 [emphasis added]. De Guttry, “Some Recent Cases”, 180. See, e.g., Arangio-Ruiz IV, 21; Brownlie, Principles, 84–8. The term “pacific blockade” may be recalled as an example of this ancient use. For a notable example see J. de Louter, Het stellig volkenrecht (’s-Gravenhage: Nijhoff, 1910), 26. See, e.g. Manley O. Hudson, By Pacific Means; The Implementation of Article Two of the Pact of Paris (London; H. Milford, Oxford University Press, 1935); Shaw, International Law, 496 et seq. See, e.g., Clark and Sohn, World Peace, 57. See Declaration on Friendly Relations: Principle II; Manila Declaration: Principle II. It must be noted, however, that the Manila Declaration stipulates that “Every State shall settle its international disputes exclusively by peaceful means etc.”[emphasis added]. However, it must be questioned whether this addition substantially affects the content of the principle, since its impact still depends upon the interpretation of “peaceful means”. One could even argue that it intends to emphasize the prohibition on resorting to the use of force. Report of the Special Committee of the Principles, UN Doc A/5746, 148. Henkin et al., International Law; 677. See also Brownlie, Principles, 705; Shaw, International Law, 497. David Davies Institute of International Studies, The Peaceful Settlement of International Disputes (London: [s.n.], 1966), 7 [emphasis added]. Idem, 9. David Davies Institute of International Studies, International Disputes; the Legal Aspects (London: Europa Publications, 1975), 7 [hereinafter, David Davies Institute, International Disputes].

Self-constraint in Dispute Settlement 20 21 22 23 24

25 26 27 28 29 30 31 32 33 34

35

36 37 38 39 40 41 42 43 44

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ICJ Pleading, 261 [emphasis added]. Dep’t of State Bull. (Jan. 1980): 1. See also White House statement 20 November 1979. Address by Pres. Carter on 15 November 1979. News Conference on Iran, reprinted in ICJ pleading, United States Diplomatic and Consular Staff in Tehran, 61. See, e.g., Shaw, International Law, 499; Akehurst, M., A Modern Introduction to International Law. 6th ed. 3rd impr., London: Harper Collins Academic, 1991, 275 [hereinafter, Akehurst, A Modern Introduction]; Harris, Cases and Materials, 705; Kooijmans, Internationaal Publiekrecht, 111; Chen, An Introduction, 379. However, Chen also argues that “negotiations are seldom duly recognised”, Fombad, C. M., “Consultation and Negotiation in the Pacific Settlement of Disputes”, in African Journal of International and Comparative Law, 1. Pp. 347–67 at 708. North Sea Continental Shelf case, (Denmark v. F.R.G.; The Netherlands v. F.R.G.) 1969 ICJ Reports 48. Albin C., Justice and Fairness in International Negotiation (Cambridge: Cambridge University Press 2001), 5 [hereinafter Albin, Justice and Fairness in International Negotiation]. Albin, Justice and Fairness in International Negotiation, 4–7. Albin, Justice and Fairness in International Negotiation, 32–8. Albin, Justice and Fairness in International Negotiation, 47. Mavromatis case, PCIJ, series A No.2, 13 [emphasis added]. Definition of “discussion” in Webster’s English College Dictionary, 1988. Judge Sir G. Fitzmaurice, Dissenting Opinion in the Case concerning Northern Cameroons, 216. See, e.g., Shaw, International Law, 499. See diplomatic correspondence between the UK and Albania, reprinted in ICJ Pleadings Corfu Channel case, Vol. I, 66–75. The UK explicitly differentiated between “direct negotiation, after making the finding of fact [by the SC] without which such direct negotiation cannot succeed” and “diplomatic correspondence [which] has unfortunately failed”. ICJ Pleadings, Corfu Channel case vol. I, 219 see also the British draft resolution, idem, 309 [emphasis added]. See diplomatic correspondence related to the Aerial Incident cases involving Hungary and the Soviet Union of 17 March 1953, reprinted in ICJ Pleadings; case concerning Treatment in Hungary of Crew and Aircraft of the United States of America (US v. Hungary; US v. Soviet Union) 11, 39 and 45, 59; see also the Israeli note of 28 Jul. 1955, the US Aide-Memoir of 2 August 1955 and the British note of 30 Jul. 1955, in ICJ Pleadings, case concerning the Aerial Incident of 27 Jul. 1955 (Israel v. Bulgaria; US v. Bulgaria; UK v. Bulgaria) at respectively p.11, 25 and 38. Diplomatic note of 4 Jan. 1949, reprinted in ICJ pleadings, Asylum case, (Columbia v. Peru), 45 Diplomatic note of 22 Feb. 1949, idem, 52; Diplomatic note of 4 March 1949, idem, 60; Diplomatic note of 28 March 1949, idem, 72. PCIJ, Series A/B, No. 42 1931, 116. North Sea Continental Shelf case, 1969 ICJ Reports 4. Fisheries Jurisdiction case, 1974 ICJ Report, 74. Lac Lanoux case, reprinted in 24 Int’ L Rep 101, 128 (1974). Idem, 132 [emphasis added]. See idem, 161. Lachs, M., “International Law, Mediation and Negotiation”, in Arthur S. Lall (ed.), Multilateral Negotiation and Mediation: Instruments and Methods (New York ; Oxford: Pergamon Press, 1985), 185. Idem.

104 45 46 47 48 49 50 51

52 53 54 55 56 57 58 59 60 61

62 63 64 65

66 67

68 69 70

Enforcing International Law The meeting is dated on 24 and 28 March in the chronology of facts as presented in the US memorial. See US memorial at 74. The French statement of facts does not list these meetings. US diplomatic note of 11 Apr. 1978, quoted from the French memorial, 5. French diplomatic note of 14 Apr. 1978, reprinted in French memorial, annex III/8. Idem. See also French memorial, 8. See idem. NY Times, 5 May 1978, D8 col. 4. Washington Post, 4 May 1978. See Saunders, “Diplomacy and Pressure, November 1979–May 1980”, in American Hostages in Iran; The Conduct of a Crisis, ed. Paul H. Kreisberg, 32, 35 (New Haven; London: Yale University Press, 1985) [hereinafter Saunders, “Diplomacy and Pressure”]. See Saunders, “Diplomacy and Pressure”, 72. Saunders, “Diplomacy and Pressure”, 60. Ramsey Clark returned to the US on 15 November. Until then he had been engaged in efforts to obtain permission to visit Tehran. (See NY Times, 15 Nov. 1979, A18 col. 1.) Saunders, “Diplomacy and Pressure”, 86. See NY Times, 29 Jan. 1980, A3 col. 1. See NY Times, 4 Feb. 1980, A6 col. 4. See NY Times, 7 Feb. 1980, A12 col. 1. See Dep’t St. Bull 80 (April 1980): 47. Compare Dep’t St. Bull 80 (Jan. 1980): 44 and NY Times, 10 Nov. 1979, A14 col. 3. Reply of Australia’s Minister of Foreign Affairs to question raised in Australian Parliament, 1 December 1983; Reprinted in Austr. Foreign Aff. Rec 54 (Dec. 1983); 789. For an overview of the general similarities and differences between these methods, and differences in classification, see Collier J. and V. Lowe, The Settlement of Disputes in International Law; Institutions and Procedures (Oxford: Oxford University Press, 2000), 24–31 [hereinafter Collier and Lowe, The Settlement of Disputes]; O’Connell, ed., “Introduction”, in International Dispute Settlement, Aldershot: Ashgate/ Dartmouth, 2003), xvi [O’Connell “Introduction”]. Gill, T.D., Litigation Strategy at the International Court; A Case Study of the Nicaragua v. United States Dispute (Dordrecht: Nijhoff, 1989), 62–8. Princen T., Intermediaries. Princen, Intermediaries in International Conflict, 5. Quoted from “International Mediation – The View from the Vatican; Lessons from Mediating the Beagle Channel Dispute”, in Negotiation Journal 3 (Oct. 1987) reprinted in International Dispute Settlement, edited by M.E. O’Connell, (Dartmouth: Ashgate) 84. See NY Times, 7 Nov. 1979, A14 col. 1. The PLO stated the same day that Abu Jihad and Abu Walid had arrived in Tehran and were engaged in an effort to secure the release of the hostages. (See NY Times, 8 Nov. 1979, A10 col. 1.) A State Department spokesperson doubted whether a PLO mission had actually arrived in Tehran. (idem.) See NY Times, 9 Nov. 1979, A1 col. 4. See NY Times, 20 Dec. 1979, A1 col. 3. But see, idem, A21 col. 5 (reporting that UN Secretary General Waldheim denied that he requested the US Government to withhold its efforts in respect of his talks. See Implementation of Security Council resolution 457, Report of the Secretary General of 4 December 1979, UN SCOR Supp 34 (Oct.–Dec. 1979): 139, UN Doc S/13704 (1979).

Self-constraint in Dispute Settlement 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90

91 92

93

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See Letter of 22 December 1979 from the US to the President of the Security Council, UN SCOR Supp 34 (Oct.–Dec. 1979), 140; UN Doc S/13705 (1979). But see NY Times, 28 Dec. 1979, A8 col. 5. The Security Council met on 29–31 December (See SC Meetings 2182–4). SC Res. 461 (1979) reprinted in UNYB 33 (1979): 312 (adopted by 11 votes to 0 by 4 abstentions (USSR, Czechoslovakia, Kuwait and Bangladesh). See NY Times, 30 Dec. 1979, A3 col. 1. See NY Times, 31 Dec. 1979, A5 col. 4. On Waldheim’s visit to Tehran, see generally NY Times, 2 Jan. 1980, A1 col. 3; NY Times, 3 Jan. 1980, A1 col. 3 and NY Times, 4 Jan. 1980, A1 col. 3. See UN Doc S/13730. See Statement by Dep. Secr. of State Christopher, NY Times, 18 Jan. 1980, A1 col. 6. See NY Times, 19 Jan. 1980, A6 col. 6. See Statement by US President Carter, NBC TV interview, 21 Jan. 1980, excerpts published in NY Times, 21 Jan. 1980, A4 col. 4. See NY Times, 26 Jan. 1980, A4 col. 3 and NY Times, 29 1980, A3 col. 1. See NY Times, 9 Feb. 1980, A3 col. 1. See NY Times, 14 Feb. 1980, A1 col. 3. See, Dep’t St. Bull. 80 (April 1980): 48. The Commission was composed of five members, namely: Adib Daoudi (Syria), Louis-Edmond Pettiti (France), Mohammed Bedjaoui (Algeria), Andres Aguilar Mawdsley (Venezuela) and Harry W. Jayewardene (Sri Lanka). See NY Times, 24 Feb. 1980, A1 col. 6. The statement is confirmed by the Iranian representative to the UN, Mansour Farhang, who declares that there exists no link between the visit of the Commission and the release of the hostages (idem, A7 col. 1). See NY Times, 12 Mar. 1980, A1 col. 1. See NY Times, 13 Mar. 1980, A15 col. 1. Security Council meeting 2470 of 2 September 1983. UN Doc S/PV.2470, 41. See Extraordinary Session of the ICAO Council, Montreal, 15 and 16 September 1983, ICAO Doc No. 9416-C/1077 C-Min. Extraordinary (1983) 1–4 [hereinafter ICAO Council Session I]. Canada was seeking “to assign responsibility to the Soviet Union” (Statement of 12 September by MacEachen, 553). Statement by Mr I.C. Orlovets, representative of the USSR in ICAO Council Session I, 40. Mr Orlovets stressed, furthermore, “that the USSR Commission would admit observers”, idem, 45. ICAO Council Session I, 42. This was the first time that the Soviet Union responded to the various countermeasures taken. The charges by the Soviet representative were not countered or even touched upon by the states to which they, implicitly, had been addressed. The resolution was sponsored by Canada, Australia, Denmark, France, Federal Republic of Germany, Italy, Japan, the Netherlands, UK and US. (See draft resolution, ICAO Doc No. C-WP/7696.) It was adopted by 26 states in favour, 2 against (USSR and CSFR) and 3 abstentions (India, Algeria and China). The resolution read in its operative part as follows: (1) DIRECTS the Secretary General to institute an investigation to determine the facts and technical aspects of the flight and destruction of the aircraft and to provide an interim report to the Council within thirty days of the adoption of this resolution and a complete report during the 110th session of the Council. (2) URGES all parties to co-operate fully in the investigation. (3) FURTHER DIRECTS the Secretary General to urgently report to the Council on the statute of adherence to, and implementation of the provisions of the Chicago convention, its Annexes and other related documents as they bear upon this incident.

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94 95 96 97 98 99 100 101

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Enforcing International Law (4) DIRECTS the Air Navigation Commission urgently: (a) to review the provisions of the Convention, its Annexes and other related documents and consider possible amendments to prevent a recurrence of such a tragic incident.; (b) to examine ways to improve the co-ordination of communication systems between military and civil aircraft and air traffic control services and to improve procedures in cases involving the identification and interception of civil aircraft; (5) INSTRUCTS the President of the Council to report this Decision to the 24th Session of the Assembly of the Organisation for the Assembly to take the appropriate action (see ICAO Council Session I, appendix A, 59). Interim Report on Progress of Investigation as required in the Council resolution of 16 September 1983. ICAO Doc No. C-WP/7710 (restricted), 13/10/83, reprinted in Int. Leg. Mat. 23 (1984): 864. Statement of Secretary General of the ICAO at the 2nd session of the 110th Meeting of the ICAO Council on 20 October 1983, ICAO Doc no. C-Min. 110/2 (closed), 14-15 [hereinafter ICAO Council Session II]. Idem, 16. See, e.g., Japan (idem, 17); Canada (idem, 18); the UK (idem, 21). Idem, 25. The South Korean and the US representatives stated thereupon that their respective request for an observer status had been denied (idem). See Final report of Investigation as required in the Council resolution of 16 September 1983, 2. ICAO Doc No. C-WP/7764 (restricted) 2/12/83. Idem. The report was discussed at the 16th, 17th and 18th session of the 110th Meeting of the ICAO Council (12, 13 and 14 December 1983 respectively), ICAO Doc No. 9427C/1078, C-Min. 110/16–18 [hereafter ICAO Council Session III]. See e.g., the statement of the representative of the US, ICAO Doc no. C-Min 110/17 (Closed), 154. Decision of the Council of the ICAO of 18 December 1992, ICAO Doc No. C-Dec. 137/15.

Chapter 6

Institutionalized Dispute Settlement Introduction One of the questions underlying this study is whether and to what extent the existence of specific obligations to settle disputes by consensual means previously agreed upon by the parties prohibits or restricts the right to resort to self-help. Many bilateral as well as multilateral contemporary treaties provide for specific procedures for the settlement of disputes arising out of these treaties. In addition to dispute settlement clauses, optional protocols and annexes to treaties, states have entered into special treaties and issued declarations under Article 36 (2) of the Statute of the International Court of Justice, accepting the compulsory jurisdiction of the Court, in order to cover other less specific disputes not otherwise covered. These provisions and instruments “present a rich and wondrous mosaic” indeed.1 They differ in formulations, instances, and procedures and, last but not least, effectiveness. These provisions have generally been all analysed in the literature.2 However, the question as to their effect upon the lawfulness of self-help has been neglected. Merely with regard to the enforcement of decisions and awards, unilateral measures of selfhelp have been given more substantial attention by some authors.3 Every single aspect of a specific obligation to settle disputes by peaceful means contributes to the effect the obligation may have upon the right to take measures of self-help. However, these elements do not lend themselves to easy categorization for the purpose of our study due to their great diversity. In order to determine the duties of states arising out of these obligations in respect of self-help, one has to distinguish more substantially between three different phases. The author assumes that the permissibility of self-help in general varies with the various phases of the settlement process entered into by the parties and the specific obligations attached to these phases. The first phase, which could be called the pre-initiation phase, is characterized by the fact that none of the parties has invoked or initiated a specific procedure previously agreed upon. The specific obligation to settle the dispute by peaceful means is non-operational. The duties which are presumed to exist in this phase arise solely from the mere existence of the obligation to refer or submit a dispute to a specific procedure. In respect of the mere existence of such an obligation it may inter alia be questioned whether (1) a state is under a duty to initiate the procedure envisaged and (2) a state has refrained from initiating other procedures or resorting to other instances. The second phase – the procedural phase – is characterized by the fact that one of the parties has actually invoked an existing dispute settlement provision, i.e. it has summoned the other party to submit the dispute to the procedure envisaged or it has unilaterally initiated the procedure.

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Within this phase, a differentiation must be made between the negotiation phase and the litigation phase, because some procedures necessarily require cooperation while others can be set in motion unilaterally. It is submitted that this differentiation justifies a distinction between the permissibility of self-help ante lite and self-help pendente lite. Insofar as a dispute is sub judice, it must be considered whether specific powers of the tribunal, such as the authority to order interim measures of protection, or the respect for judicial process restrict the right to self-help. The third and final phase – the implementation phase – is characterized by the conclusion of the procedure. To the extent that the outcome requires implementation, questions concerning compliance, execution and enforcement may arise. In cases of non-compliance the right to resort to measures of self-help is likely to revive in its initial latitude due to a lack of effective international enforcement mechanisms In the implementation phase of dispute settlement procedures, we have come full circle. At least in this phase, an unsuccessful dispute settlement procedure (in the sense that the wrongful state continues to act wrongfully) makes the right of self-help fully operational again to the extent that it might have been limited by an ongoing procedure. In this respect, it should also be asked whether the lack of effective and institutionalized enforcement instruments in international law ultimately determines the lawfulness of self-help with regard to existing dispute settlement instruments. The Pre-initiation Phase The International Law Commission held in respect of Article 30 of Part One of the Draft on State Responsibility that “[a]n additional condition [to the lawfulness of self-help] is that there must not be any procedures for the peaceful settlement previously agreed upon by the parties.”4 This rather categorical opinion is not an exceptional one. Well-known and highly respected scholars have also argued that the mere existence of a specific procedure for the settlement of disputes – previously agreed upon by the parties – prohibits the right of states to resort to self-help. Neither the content nor the scope of the procedures or the objectives of self-help or the circumstances seem to have been taken into account. Bowett may be quoted at length as an example of this position: [w]here an economic dispute arises within the context of a treaty providing specific procedures for the settlement of disputes, no unilateral resort to reprisals is permissible prior to the use of the pacific procedures. Thus, whether it be an arbitration clause in a commercial treaty or the procedure before Commissions established under treaties regulating fisheries or rivers, or the complaints procedures under GATT or EFTA or the various Commodity Agreements, or the judicial procedures before the Court of the European Communities, the prior exhaustion of these procedures must be regarded as a condition precedent to any right of reprisals.5

Many authors have accepted the notion that states have limited their right to resort to measures of self-help by simply accepting an obligation to settle their disputes by “peaceful means”.6 Some have demonstrated some reserve. Elagab, for instance, concludes that “it is conceivable that in certain circumstances resort to unilateral measures of self-help could be justified, notwithstanding a prior commitment to

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amicable settlement.”7 However, he clearly suggests that this possibility is the exception rather than the rule. His basic assumption to which the exception applies is also that “[b]y implication therefore, the commitment to peaceful settlement of disputes will be deemed to prevail over the right to take reprisals under customary law.”8 From a normative perspective, the promotion of and preference for the peaceful settlement of disputes over self-help is a laudable undertaking. However, it must be questioned whether the mere acceptance of a commitment to peaceful settlement inherently limits the right of states to resort to measures of self-help. If this were the case, states which want to preserve their right to employ measures of self-help are well advised to accept as few dispute settlement clauses as possible. The rule is obviously susceptible to defeating its own object. Advocates of the subordination of the right of self-help to the specific duty to settle disputes by peaceful means have generally failed to support their position by legal arguments. Occasionally, mere reference is made to general principles of international law or state practice without further clarification.9 Without going into the controversies as to what constitutes a general principle of law or state practice, still less to pronounce on the quality of these sources of international law, it is beyond doubt that mere reference to these formal sources is not a conclusive argument. Moreover, such a position ignores inherent and important limitations appertaining to every specific duty to settle the dispute by peaceful means. These limitations emanate from the very conception of consent as it applies to the settlement of disputes in international law. The principle of consent is reflected in the absence of an obligation to initiate the procedure envisaged and the free choice of means. Furthermore, the principle of consent in itself requires that all other obligations, which emanate from the basic obligation, must necessarily be in accordance with this basic prerequisite for the settlement of disputes. The most important argument, however, against the position taken by the above mentioned authors, is to be found in the decisions by the Tribunal in the Air Services Agreement case and the International Court of Justice in the Tehran Hostages case. The latter instances have ruled, authoritatively, against such conclusions. The Tribunal in the Air Services Agreement case was the first tribunal which seriously questioned the opinion that the mere existence of a specific peaceful settlement obligation limited the right to take self-help per se. The Tribunal rephrased the question on the relationship between self-help and existing dispute settlement obligations as follows: Can it be said that resort to such countermeasures, which are contrary to international law but justified by a violation of international law allegedly committed by the State against which they are directed, is restricted if it is found that the Parties previously accepted a duty to negotiate or an obligation to have their dispute settled through a procedure of arbitration or judicial settlement.10

“The problem”, according to the Tribunal, was whether, on the basis of the “texts [of the provisions in the Air Services Agreement], countermeasures are prohibited.”11 The Tribunal held that it did “not consider that either general international law or the

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provisions of the agreement allow it to go that far”.12 More generally, the Tribunal concluded that: [i]f the proceedings form part of an institutional framework ensuring some degree of enforcement of obligations, the justifications of counter-measures will undoubtedly disappear, but owing to that framework rather than solely on the account of the existence of arbitral or judicial proceedings as such.13

The Tribunal held that, even though “the Parties in principle did agree to resort to arbitration or judicial settlement, […] it must be conceded that under present-day international law States have not renounced their right to take counter-measures”.14 The Tribunal held in other words that the mere existence of procedures for the settlement of disputes previously agreed upon by the parties cannot be considered to prohibit the right of states to resort to self-help. Support for this conclusion may also be found in the opinion of the International Court of Justice in the Tehran Hostages case. While the Court condemned the use of force by the US, it did not address the unilateral measures of self-help not involving the use of force. It is this silence that is significant. The Court took due notice of the fact that the US approached the Security Council and employed measures of self-help “prior to the institution of the present proceedings”.15 The Court enumerated the various measures in detail without any comment with regard to their lawfulness in respect of existing settlement obligations under the conventions in force between the US and Iran. True, the Court was not formally asked to do so, but neither was it asked in respect of the rescue action, and yet it did. Therefore there seems to be no reason to assume that the Court would, by way of an obiter dictum, have elaborated upon these measures of self-help if it thought it necessary. It may reasonably be assumed, that the lawfulness of the measures of self-help in this specific respect had been raised during the Court’s closed deliberations. In his dissenting opinion, Judge Morozov criticized the reasoning of the Court, inter alia because he reproached the Court for considering these “actions of the United States as some kind of normal counter-measures”.16 According to Judge Morozov, the Court overlooked the fact that this self-help was incompatible with the Treaty of Amity between the US and Iran.17 Insofar as Judge Morozov’s dissent reflects his position during the deliberations of the Court, it stresses the silence of the Court and it may rightly be presupposed that the Court indeed considered these measures of self-help as “normal”.18 From the decisions of the Arbitral Tribunal and the International Court of Justice it can be inferred that they did not consider the mere existence of an obligation, previously agreed upon, as a sufficient requirement to restrict the right to resort to self-help. The reasons for these opinions may be found in the inherent limitations of these “obligations”. It is well accepted in traditional international law that the peaceful settlement of disputes requires the consent of the parties to the dispute. Insofar as states have undertaken a specific commitment to settle future disputes by peaceful means, the principle of consent, providing for its constitutive bases, determines both the content and the scope of this commitment. This principle has been well recognized by the International Court of Justice in the Anglo-Iranian Oil Company case (AIOC). The Court held that the content of the obligation should be determined with “due regard to


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the intention of the Government [of Iran] at the time when it accepted the compulsory jurisdiction of the Court”.19 Irrespective of the concrete forms and content of consent, it is obvious that the theory of consent applies both to the respondent as well as to the (potential) applicant state; the former being free to invoke its reservations and file preliminary objections, the latter being free to initiate a procedure or not, or to pursue other procedures for the settlement of disputes. In accordance with the requirement of consent, states cannot be considered to (1) be under a duty to initiate a dispute settlement procedure, or (2) to continue procedures, unless that dispute constitutes a threat to the international peace or security.20 Obligations to settle disputes by peaceful means are, as one author puts it, “given effect solely by operation of the … consensual autonomy of the parties”.21 In absence of an obligation to initiate, it is within the discretion of states to submit a dispute to a specific procedure for the settlement of the dispute or not. This basic premise was also recognized by Judge Tarazi, who dissented from the Court’s decision in the Tehran Hostages case. Judge Tarazi held in particular that “any State is free to ignore the possibility of the judicial solution of a dispute, either by omitting to refer to the International Court of Justice, or by refusing to submit to the Court’s jurisdiction”.22 Even if states have accepted the compulsory jurisdiction of the International Court of Justice under Article 36 (2) of its Statute, which makes it relatively easy for a state to initiate a procedure, there exists no such obligation. Acceptance of compulsory jurisdiction is, according to Rosenne, “at most, an engagement, in extremely vague terms, between the state making the declaration and the United Nations … A general intention to recognize the existence of the Court and its jurisdiction.”23 Such obligations are, according to Hakenberg, “eine bloße Option und schützen die Rechte des verlezten Staates keineswegs. Selbsthilfemaßnahmen sind daher grundsätzlich weiterhin erlaubt”.24 Moreover, state practice provides ample evidence of unsettled disputes, notwithstanding the existence of a dispute settlement provision. It is equally beyond doubt that states are – on the basis of an agreement to resort to a specific procedure – neither obliged to refrain from pursuing other judicial procedures, nor from referring the dispute to political organs like the Security Council of the United Nations in order to obtain a decision, whether the outcome is binding or not. Fox concluded with respect to an obligation to arbitrate that this obligation did not constitute a commitment to settle the dispute exclusively by arbitration. The International Court of Justice, anxious to encourage parties to settle their disputes by whatever means they choose, has held the parties to be free, whilst engaging in proceedings before the Court […] to [pursue] bilateral solutions as an alternative to arbitration. But [she concludes furthermore] international law also countenances unilateral acts, however unfriendly, to persuade another State to yield in a dispute, always provided they do not amount to threat or use of force or illegal reprisals.25

It must be concluded that states confronted with an international wrongful act have not restricted their right to resort to self-help merely by previously committing themselves to peaceful settlement. The latter obligation is neither an exclusive nor an absolute commitment to pursue the procedure agreed upon. Whatever laudable arguments are presented to put a restraint on the employment of measures of self-

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help, such a restriction cannot be deduced from an existing obligation to settle disputes by peaceful means. The Litigation Phase It has been concluded in the previous paragraph that it is a matter of policy whether a state will initiate a specific procedure previously agreed upon or not and that states are not obliged to do so prior to the employment of measures of self-help on the basis of an existing dispute settlement obligation. However, as soon as one of the parties to the dispute chooses to actually initiate a dispute settlement procedure previously agreed upon, the situation changes. Without prejudicing the legal effect of initiating a procedure, the least that can be said is that one party has demonstrated a prima facie willingness to settle the dispute in procedural manner, which is mutually accepted. It must be considered now whether this act has an effect on the right to initiate or maintain measures of self-help and if so under what conditions and to what extent. The Tribunal in the Air Services Agreement case differentiated between two different situations: “the situation during the period that the case is not yet before a tribunal and the situation during the period in which the case is sub judice.”26 The Tribunal thus implicitly differentiated between the permissibility of self-help “ante lite” and self-help “pendente lite”. The differentiation assumes, furthermore, a basic difference in nature between the negotiation phase and the litigation phase at least in respect to the permissibility of self-help. This differentiation is not totally without reason. Whereas the first situation assumes the cooperation and willingness of the other party to put the procedure contemplated into operation, the second situation is characterized by the fact that recalcitrant behaviour cannot preclude the reference of a dispute to a court or tribunal. The Negotiation Phase – Self-help Ante Lite Many procedures require additional agreement by the parties. Whether a special agreement is needed to refer the dispute to an existing judicial instance or to establish a tribunal, it is clear that without such an agreement the procedure cannot be put into operation. Many compromissory clauses envisage procedures which explicitly require the cooperation and thus the consent and willingness of the other party. This consent is required in addition to the consent contained in the obligation. Not only negotiation and consultation must be considered to come under these procedures but also the many instances where the ad hoc consent of another party is necessary to confer jurisdiction upon an arbitral tribunal or an international court. Such an obligation does not substantially differ from an obligation to negotiate. As one author concluded from an analysis of post-World War II compromissory clauses, the “obligation contained in treaties of obligatory arbitration was only a ‘consent to negotiate’”.27 This conclusion has been upheld in the Air Services Agreement case, where it was stated that “so long as the dispute has not been brought before a tribunal, in particular because an agreement between the Parties is needed to set the procedure in motion, the period of negotiation is not over and the rules [in respect of negotiation] remain applicable”.28 Explicating the duties incumbent upon states in


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respect of negotiation, the tribunal recognized that “it is tempting to assert that when parties enter into negotiation, they are under a general duty not to aggravate the dispute, this general duty being a kind of emanation of the principle of good faith”.29 However, the tribunal did “not believe that it is possible, in the present state of international relations, to lay down a rule prohibiting the use of counter-measures during negotiations, especially were such counter-measures accompanied by an offer for a procedure affording the possibility of accelerating the solution of the dispute”.30 Finally the Tribunal concluded that: the situation is quite simple. Even if arbitration under Article X of the Agreement is set in motion unilaterally, implementation may take time, and during this period countermeasures are not excluded; a State resorting to such measures, however, must do everything in its power to expedite the arbitration.31

The reasoning and the conclusion of the Tribunal raise two questions. The Tribunal conclusion is, on the one hand, rather categorical, rejecting the assumption that measures of self-help are “prohibited” or “excluded”, on the other hand the Tribunal requires behaviour favourable to the expedition of the arbitration. Here the Tribunal re-introduces, in the opinion of the author, notions of good faith and the duty not to aggravate the dispute, be it that it is stated in a positive manner. Secondly, it is open to question whether arbitration requiring cooperation stands at the same level as arbitration, which can be set in motion by a unilateral application. In the latter case the element of negotiation is less obviously present. The Tribunal seemed to conclude that neither the “duty not to aggravate the dispute”, nor the “principle of good faith” affected the limitation of self-help in this phase of the settlement process. However, it might be recalled that the International Court of Justice held in the North Sea Continental Shelf case that “the parties are under an obligation to enter into negotiations with a view at arriving at an agreement”.32 Whatever this means in terms of concrete positive behaviour, it is evident that parties entering into negotiation are obliged to refrain from actions rendering whatever settlement impossible, i.e. actions which run absolutely counter to the very idea of negotiation. Also in respect of arbitration and judicial settlement it has been argued that states are under an obligation “to exercise the right to judicial or arbitral settlement in good faith”.33 Although such a duty cannot lead to the complete abolition of self-help during negotiation, for it cannot be said that measures of self-help are evidencing bad faith per se or aggravate the dispute by definition, it introduces a threshold in the discretion of the initiating state. The Tribunal held also that measures of self-help may be considered as inducements to continue negotiations or they may even be initiated with respect to the possibility of forthcoming negotiations. Yet, it is open to question whether ongoing and prosperous negotiations should be impeded by self-help. This was exactly what was indicated in the comment to Article 905 of the US Restatement of the Law where it was stated that “countermeasures are to be avoided as long as genuine negotiation … is available and offers some promise of resolving the matter”.34 One may submit that as a matter of judicial propriety states should indeed refrain from taking measures of self-help in these circumstances or, as the Tribunal literally puts it, “[c]ounter-measures [in such a situation] should be a wager on the wisdom, not on the

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weakness of the other party”.35 While it cannot be concluded that measures of selfhelp are precluded on the basis of good faith, neither can it be upheld that the right to resort to self-help is not affected at all by an ongoing procedure. Self-help Pendente Lite According to the Tribunal in the Air Services Agreement case, “[t]he situation changes once the tribunal is in a position to act”.36 It is, indeed, generally felt that measures of self-help are “more questionable” once the dispute is sub judice.37 However, there is considerable disagreement as to the exact scope as well as the basis for the restriction of self-help while the dispute is pending. The most extreme position is taken by Judge Lachs who held that “the Applicant, having instituted proceedings, is precluded from taking unilateral action, military or otherwise as if no case is pending”.38 Most authors do not seem to consider the mere pending of a case as a sufficient reason to preclude self-help. Two distinct approaches can be established in respect of the requirements these authors hold to be applicable in order to preclude or limit self-help: (1) measures of self-help are precluded insofar as the tribunal possesses the power to grant interim measures of protection, and (2) measures of self-help are precluded to the extent that they violate basic principles of judicial process. Protective Self-help It was the Tribunal in the Air Services Agreement case, which established this requirement. The Tribunal held in particular that: [t]o the extent that the tribunal has the necessary means to achieve the objectives justifying the countermeasures, it must be admitted that the right of the parties to initiate such measures disappears. In other words, the power of a tribunal to decide on interim measures of protection […] leads to the disappearance of the power to initiate countermeasures and may lead to an elimination of existing countermeasures to the extent that the tribunal so provides as an interim measure of protection. As the object and scope of the power of the tribunal to decide on interim measures of protection may be defined quite narrowly the power of the parties to initiate or maintain countermeasures, too, may not disappear completely.39

The opinion of the Tribunal has found considerable support in literature and doctrine. However, it must seriously be doubted whether “necessity disappears once the case has been submitted to an international tribunal, and the tribunal is in a position to decide upon interim measures of protection”.40 First of all, it must be questioned whether interim measures of protection may be defined as “the necessary means to achieve the objectives justifying the measures of self-help”. Zoller has correctly concluded that the distinction between “cases where the tribunal has the necessary means to achieve the objectives justifying the measures of self-help and those where it has not […], does not exactly match the situation where a tribunal may or may not decide on interim measures of protection”.41 Secondly, it is clear that the Tribunal differentiated between the initiation of self-help and the maintenance of existing selfhelp, the latter being only precluded on the basis of a Court order to undo the measures in question. Thirdly, it seems that the Tribunal took notice of the


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ambivalence in respect of the status of interim measures of protection, causing the Tribunal to express some reserves. To rely upon the availability of interim measures of protection as a requirement for the limitation of self-help is indeed a rather delicate choice. It is not so much the unwillingness of courts and tribunals to grant states the protection they are seeking. It is the legal status and the enforceability, and thus the effectiveness of provisional measures, which raise substantial doubts with regard to restrictive impact upon selfhelp which is here presupposed. Irrespective of the discussion on the binding character of interim measures of protection, there is general agreement that “Court orders indicating provisional measures are in themselves neither legally nor practically enforceable by the Security Council”.42 According to Rosenne: [p]rovisional measures indicated by the Court are interlocutory orders, which are formally not to be identified with a judgment from the point of view of the Security Council powers under article 94 of the Charter. On the other hand it is a decision and, so long as it is in force, is comprehended with the conventional and customary obligations to comply with the decisions of the Court, incumbent upon every litigant State. This alone furnishes the State in whose favor such an order has been made with sufficient justification for taking such measures as are necessary to protect its own interests, including measures of self-help … and also more general political and diplomatic steps.43

And thus, where interim measures of protection, in the opinion of many, presupposedly restrict resort to self-help, their effectiveness in fact depends upon the availability of measures of self-help. The bulk of authors, who supported the opinion of the Tribunal, argue, therefore, that the right to take measures of self-help revives in consequence of a disobeyed order for interim measures of protection.44 The decision of the International Court of Justice in the Tehran Hostages case is illustrative in respect of measures of self-help initiated while a case is pending. While the dispute was pending the US not only launched an armed action in an (abortive) attempt to rescue the hostages but also initiated and extended some measures of selfhelp.45 The Court merely considered the rescue action, which it could not let “pass without comment”. Although the Court obviously understood the US Government’s “preoccupation with respect to the well-being of its nationals held hostage” and the “feelings of frustration at Iran’s long-continued detention of the hostages”, it could not “fail to express concern in regard to the United States’ incursion into Iran”.46 The Court took several points into account in this respect: (1) the US’s request to have an early judgment at 11 April 1980, (2) the Court’s willingness to comply with this request (hearings were held on 18, 19 and 20 March), and the fact that “the Court was in course of preparing the judgment adjudicating upon the claims of the United States against Iran when the operation of 24 April 1980 took place”.47 Furthermore, the Court recalled “that in paragraph 47, 1 B, of its Order of 15 December 1979 the Court had indicated that no action was to be taken by either party which might aggravate the tension between the two countries”.48 The Court therefore concluded that “an operation undertaken in those circumstances, from whatever motive, is of a kind calculated to undermine respect for the judicial process in international relations”.49 The silence of the Court with regard to the non-forceful measures of selfhelp initiated by the US while the case was pending, has led authors to the conclusion that the Court did not consider these measures unjustified. One cannot but conclude

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that the simple fact that a dispute is sub judice does not prohibit the wronged state resorting to measures of self-help. Self-help in Violation of Principles of Judicial Process As will be recalled from the previous paragraph, the International Court of Justice considered that the US “[rescue] operation, undertaken in those circumstances, from whatever motive, is of a kind calculated to undermine respect for the judicial process in international relations”. From this quotation it can indeed be concluded that “the notion of respect for judicial process constitutes an independent perspective from which to criticize the conduct of the litigants”.50 It goes without saying that this conduct includes resort to self-help pendente lite. However, in order to establish what measures of self-help constitute disrespect for judicial process in a given case, we, first of all, have to clarify the content of the principle of respect for judicial process. According to Stein, respect for judicial process involves above all the concept of contempt of court, which is defined as “any conduct that tends to bring the authority and administration of the law into disrespect and disregard”.51 More concretely, this means that the litigants are obliged to “refrain from any action that prejudices the merits of the case or prevents execution of the decision of the Tribunal”.52 In addition to these obligations, which in different wordings, have been duly recognized in literature and jurisprudence,53 states are under a general duty “not to allow any step of any kind which might aggravate or extend the dispute”.54 Both obligations have become a standard phrase in orders indicating interim measures of protection. The extent of the limitation posed by these obligations upon the right to employ measures of self-help may be determined by the practice of the International Court of Justice. The Tehran Hostages case was the first instance where the Court linked the behaviour of one of the litigants and the order not to aggravate the dispute. From the decision of the Court it becomes clear that it was not the armed action as such which constituted a measure in violation of the order but the overall behaviour of the US, including their initial request for speedy proceedings; the request to hold the proceedings in respect of ongoing negotiations; and their subsequent request in consequence of the failure of these negotiations to continue. In both the Fisheries Jurisdiction case and the AIOC case one of the parties employed military means after interim measures of protection were ordered. As in the hostages case, they were employed as it became clear that the respondent was unwilling to abide by the provisional measures order. The Court did not pronounce upon the lawfulness of these measures, which lends support for the conclusion that they do not as such violate any duty. Without arguing that the concept of contempt of court and the duty not to aggravate the dispute do not exist in international law, it must be concluded that these concepts can neither preclude the initiation nor the maintenance of measures of selfhelp in principle.


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Notes 1 2

3

4 5 6

7 8 9 10 11

Sohn, ‘Settlement of Disputes Relating to the Interpretation and Application of Treaties’, Rec des Cours 136 (1976 II): 205, 259. See, recently, United Nations Handbook on the Peaceful Settlement of Disputes Between States, in Report of the Special Committee on the Charter of the United Nations and on the Strengthening and on the Role of the Organisation 23 (UN Doc no. A/46/33). See also Dag Hammarskjöld Library, Peaceful Settlement of Disputes; A Selective Bibliography (New York: United Nations, 1991) [UN Sales No. E.91.I.49]; J.C. Merrills, The Peaceful Settlement of Disputes (1992). See, e.g., C.W. Jenks, The Prospects of International Adjudication (London: Stevens & sons, 1964), 690 [hereinafter Jenks, The Prospects]; J.L. Simpson and Hazel Fox, International Arbitration: Law and Practice (London: Stevens, 1959), 266 [hereinafter Simpson & Fox, International Arbitration]. YB Int. L Comm’n 2 (1979): 116 n. 595 [emphasis added]. Bowett, “Economic Coercion”, 11 [emphasis added]. Edward Dumbault, Interim Measures in International Controversies (The Hague: Nijhoff, 1932), 182; Fitzmaurice II, 29; Caron, “International Sanctions”, 327; De Guttry, “Some Recent Cases”, 178; Pasquale Fiore, International Law Codified and its Legal Sanction or the Legal Organisation of the Society of States, trans. by Edwin M. Borchard, (New York: s.n., 1918), para. 1400 et seq; Bin Cheng, General Principles, 99. Elagab, The Legality of Non-Forcible Counter-measures, 189 [emphasis added]. Elagab, The Legality of Non-Forcible Counter-measures, 165. See also Hakenberg, Die Iran Sanktionen, 245 (“Je ausgeprägter diese Pflicht [of dispute settlement], desto weniger is Selbsthilfe zulässig”). See, e.g., Dumbault, Interim Measures, 183. As already stated in Chapter 2, Elagab must be considered as a notable exception in this respect. However, the author disagrees, with respect, with regard to Elagab’s conclusive interpretation of state practice. Air Services Agreement case, 338. Air Services Agreement case, 339. The provisions of the Air Services Agreement the Tribunal was referring to read as follows: Article VIII In a spirit of close collaboration, the aeronautical authorities of the two Contracting Parties will consult regularly with a view at assuring the observance of the principles and the implementation of the provisions outlined in the present Agreement and its Annex. Article X Except as otherwise provided for in this Agreement or its Annex, any dispute between the Contracting Parties relative to the interpretation or application of this Agreement or its Annex which cannot be settled through consultation shall be submitted for an advisory report to a tribunal of three arbitrators, one to be named by each Contracting Party, and a third to be agreed upon by the two arbitrators chosen, provided that such arbitrator shall not be the national of either Contracting Party. Each of the Contracting Parties shall designate an arbitrator within two months of the date of delivery of either Party to the other Party of a diplomatic note requesting arbitration of the dispute; and the third arbitrator shall be agreed upon within one month after such period of two months. If either of the Contracting Parties fails to designate its own arbitrator within two months, or if the third arbitrator is not agreed upon within the time limit indicated, the President of the International Court of Justice shall be requested to make the necessary

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12 13 14 15 16 17 18 19 20

21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

39 40 41 42

Enforcing International Law appointments by choosing the arbitrator or arbitrators, after consulting the president of the Council of the International Civil Aviation Organisation. The Contracting Parties will use their best efforts under the powers available to them to put into effect the opinion expressed in any such advisory report. A moiety of the expenses of the arbitral tribunal shall be born by each Party. Air Services Agreement case, 339. Air Services Agreement case, 340 [emphasis added]. Idem. Tehran Hostages case, para. 30, 16 [emphasis added]. Idem, 52 (Dissenting Opinion Judge Morozov). See idem. See, e.g., Hakenberg, Die Iran Sanktionen, 257 n. 897. Anglo-Iranian Oil Company case, 104. See, e.g., Hakenberg, Die Iran Sanktionen, 253; Zoller, Peacetime Unilateral Measures, 120, D. Ciobanu, Preliminary Objections Related to the Jurisdiction of the United Nations Political Organs. The Hague: Nijhoff, 1975, T.L. Stein, “Contempt, Crisis, and the Court: The World Court and the Hostage Rescue Attempt”, in Am J Int. L 76 (1982): 199, 512 [hereinafter Stein, “Contempt, Crisis, and the Court”]. Fox, “States and the Undertaking to Arbitrate”, Int. & Comp L Q 37 (1988): 1, 29 [hereinafter Fox, “The Undertaking to Arbitrate”]. Tehran Hostages case, 64 (Dissenting Opinion Judge Tarazi). S. Rosenne, The International Court of Justice: An Essay in Political and Legal Theory (Leyden: A.W. Sijthoff, 1957), 317 and 319 [emphasis added] [hereinafter Rosenne, The ICJ]. Hakenberg, Die Iran Sanktionen, 253. Fox, “States and the Undertaking to Arbitrate”, 8 [emphasis added]. Air Services Agreement case, 340. H. M. Cory, Compulsory Arbitration of International Disputes (New York: Kraus Reprint, 1972), 110. Air Services Agreement case, 340. Idem, 339. Idem, 340. Idem, 341. North Sea Continental Shelf case, 1969 ICJ Reports 4. Stein, “Contempt, Crisis, and the Court”, 509. American Law Institute, Third Restatement of the Law: Foreign Relations of the United States, 381. Air Services Agreement case, 340. Idem, 341. Zoller, Peacetime Unilateral Measures, 122. See also Schachter, “International Law in the Hostages Crisis”, 340; Hakenberg, Die Iran Sanktionen, 255; Elagab, The Legality of Non-Forcible Counter-measures, 189. Tehran Hostages case, 48 (Separate Opinion Judge Lachs). This extreme position is certainly not unique for Judge Lachs who held in the Nuclear Tests cases that the statements by the Australian Prime Minister in respect of the expected Decision “exceeded what is legally admissible in relation to a case sub judice”. Nuclear Test cases, ICJ Reports 1974: 273 [Judge Lachs, Dissenting Opinion]. Air Services Agreement case, 341. Second Restatement, 387. See also Hakenberg, Die Iran Sanktionen, 255. Zoller, Peacetime Unilateral Measures, 123. Gill, Litigation Strategy.

Institutionalized Dispute Settlement 43 44 45 46 47 48 49 50 51 52 53 54

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Rosenne, The ICJ, 96–7. See, e.g. Hakenberg, Die Iran Sanktionen, 257; Schachter, “International Law in the Hostages Crisis”, 341; T.L.Stein, “Contempt, Crisis, and the Court”, 517. For details and facts see the case study in Chapter 6. Tehran Hostages case, 43. Idem. Idem. Idem [emphasis added]. Stein, “Contempt, Crisis, and the Court”, 504. J. Oswald, Contempt of Court (3rd edn 1910), 6. Quoted by Stein, “Contempt, Crisis, and the Court”, 505 [emphasis added]. Stein, “Contempt, Crisis, and the Court”, 510. See, e.g., Rosenne, The ICJ, 370 (the parties are under a duty to maintain equality). Electricity Company of Sofia and Bulgaria, [1939] PCIJ, ser. A/B, No.71, 199.


Chapter 7

Implementing “Consented” Outcomes Introduction Instances of disputes which are settled simply by rendering an award or a decision are rare. The majority of disputes require the implementation of the award in order to settle the matter finally. The duty to comply with the award, and or to take the measures necessary to implement it, is insofar as it is not explicated in relevant conventions not considered to exist under customary law.1 The post-adjudicative process of compliance and implementation is a complex one. It is still part of the general process of settlement and the dispute might continue or revive insofar as the conflict has been dormant pendente lite.2 Even if the judgment debtor is under an obligation to comply with the decision, compliance might be partially or fully refused for practical, legal or policy reasons, without formally challenging the obligation of compliance as such. Insofar as non-compliance bears upon questions of interpretation concerning execution or upon the discovery of new facts, a request for interpretation or revision might satisfy the parties to the dispute. A categorical refusal to comply, however, is unlikely to be remedied by a reopening of the case and involves questions of enforcement rather than interpretation and revision. The purpose of this paragraph is to consider the availability and effectiveness of mechanisms for the enforcement of judicial decisions. “A fundamental question that arises in evaluation dispute settlement systems at the international level is,” according to Jackson et al., “whether the systems should be primarily designed to adjudicate or to mediate.”3 The difference is relevant for the regime in question. If mediation is the objective, the ultimate solution is to be found by the parties through negotiation. If adjudication is the purpose, it is the “system” that is responsible for implementation. Jackson et al. have submitted that the “the GATT dispute settlement system has become more and more adjudicative over the years”.4 The same can be argued with respect to the function of the International Court of Justice in general international legal disputes. In the latter case, however, an implementing system or regime seems to be absent. Prior to considering these questions and submissions, I will consider whether noncompliance is a real problem or likely to become a real problem and the possible consequences of non-compliance. Then we will discuss the powers of courts and tribunals with regard to the execution of its decisions. Finally, I will consider enforcement mechanisms available. Compliance and Non-compliance It must be admitted that questions of compliance and non-compliance with judicial decisions have not substantially troubled the minds of scholars. It is generally felt that

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decisions and awards are – on the whole – complied with and/or that non-compliance does not pose a threat to the system of arbitral and judicial dispute settlement. Compliance, and thus execution and enforcement, were not considered to be problems of immediate concern.5 This belief was greatly induced by the record of the Permanent Court of International Justice and the tradition and practice of international arbitration, which was generally based upon ad hoc consent between the parties; a feature which was generally considered to extend to the implementation of the award.6 However, the assumption that consensual resort to a settlement procedure will necessarily involve consent to comply with the decision did not stand the test in all cases. The Wimbledon case; the Société Commercial de Belgique case and the Brazilian Loans case are among those cited by various authors as examples of instances in which the decision was not “fully carried out”.7 In addition to cases decided upon by the Permanent Court of International Justice, Nantwi has – over a period of nearly fifty years – established at least 18 cases of non-compliance with arbitral awards.8 In respect of arbitral awards, Anand furthermore concluded that “[i]n numerous cases no information is available about compliance or non-compliance with international awards, and no effort thus far has been made to fill this void [and that] [t]here is nothing to substantiate the general assumption that most of these decisions have been executed and accepted”.9 The Corfu Channel case, notably the first case decided by the International Court of Justice, proved how erroneous the belief in automatic compliance was. Neither the respect for a standing International Court nor initial consent provided for enough safeguards to induce Albania to compliance.10 After the Corfu Channel case, a number of significant cases of non-compliance are to be found on the records of the International Court of Justice.11 The most important reason for non-compliance indicated is the absence of “real consent”. For example Rosenne argues that: [i]t is important to distinguish between the problems of compliance faced by States who have been brought unwillingly before the Court on the basis of an unilateral application and that of compliance with decisions in cases where the parties are in agreement that the case should be resolved by the Court.”12

In 1960, Schachter (clearly in line with this citation) underlined the possible consequences of Rosenne’s conclusion: [s]hould there be a wider acceptance of compulsory jurisdiction – as through compromissory clauses in treaties or declarations under article 36, paragraph 2, of the Statute- the changes of non-performance would almost certainly increase; for it is evident that a state would not then be as prepared to accept an adverse decision where it had agreed to the submission of a particular dispute.13

Finally, it could be argued that non-compliance with decisions of courts and tribunals is intrinsically not different from non-compliance with ordinary binding rules of international law and that hence the inducement of compliance poses the same problems in both circumstances. Although this argument is not totally void of reason, some particular point of difference should be pointed out. First, violations of

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“ordinary” obligations, which are inherent in every legal system: do not threaten the proper administration of justice within legal systems: violations of court and tribunal decisions, however, are of a character which are likely to undermine the very foundations of a legal system. Furthermore, whereas the bulk of ordinary wrongful acts are not of community concern, disregard of court decisions are. From that perspective it is not surprising that for example the UN Charter has in Article 94 provided a procedure in respect of a violation of a decision of the International Court of Justice. The problem of non-compliance should, however, not be exaggerated, but neither can it be ignored. Even though it may be concluded that “[g]enerally speaking […] decisions, like international law in general, have been complied with, despite the lack of effective means of execution”,14 the possible effects of non-compliance should not be underestimated, especially where non-compliance is not countered by effective enforcement procedures. As already indicated, non-compliance is not always caused by bad faith or an intention to non-compliance per se. However, the possible effectiveness of non-compliance gains its own momentum, inducing states to increase their efforts to achieve the desired outcome by unilateral coercion. Enforcement of Judicial Decisions The Tribunal in the Air Services Agreement case held that “[i]f the proceedings form part of an institutional framework ensuring some degree of enforcement of obligations, the justification for self-help will undoubtedly disappear” and that [t]o the extent that the Tribunal has the necessary means to achieve the objectives justifying the measures of self-help, it must be admitted that the right of the Parties to initiate such measures disappears”.15 Although many authors have adopted the Tribunal’s position, the author submits that both situations are not identical. There is a substantial difference between enforcement mechanisms existing within an institutional framework and the presupposed power of a tribunal to induce compliance with its decision, which must be considered to be non-existing in international law. It has been well accepted in literature and jurisprudence that execution and enforcement are not among the functions of international courts and tribunals. After the Court has rendered its judgment, it becomes formally functus officio. The International Court of Justice as well as its predecessor upheld this position in several cases. However, it may be questioned whether the post-adjudicative phase, i.e., implementation and execution, is totally beyond the concern of judicial institutions. International courts and tribunals cannot be totally ignorant in respect of compliance and non-compliance. On the contrary, it may be presumed that international courts and tribunals anticipate the implementation phase by construing their decision beneficial to compliance. It has even been suggested that the International Court of Justice, anticipating non-compliance, goes so far as to deny jurisdiction16 or refuses to grant an order for interim measures of protection.17 If these contentions – which are in the opinion of the writer difficult to prove – are correct, one cannot but regret this position, and it might be considered as one more reason for substantial attention to executing and enforcement mechanisms.

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However well recognized the fact that the International Court of Justice pays due regard to the possibilities of compliance, such an attitude cannot in itself constitute a reason for limiting self-help. The question indeed is whether international courts have the necessary means to induce compliance. The lack of such means is evident. Many constitutive instruments of international organizations provide for procedures concerning the compliance with decisions of a court or tribunal constituted within the framework of that organization. These procedures may be classified as notification procedures, monitoring procedures or enforcement procedures. Only the latter procedure authorizes the competent organ to decide on measures designed to induce compliance with the judgment. For example, Article 94 (2) of the UN Charter reads: If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other Party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the Judgment.18

Article 94 (2) clearly provides that it is within the discretionary power of states to submit a case of non-compliance to the Security Council and that it is within the competence of the Security Council to take a decision or not. On the basis of this provision, it cannot be maintained that there is an obligation to resort to the Security Council in case of non-compliance. The right to resort to self-help has become fully operative again. Even if a state chooses to involve the Security Council it cannot be considered that it again has restricted its right to resort to self-help. This conclusion may also be held in respect of the practice of the Security Council with regard to requests to enforce decisions and judgments of the International Court of Justice. The requests by the UK to enforce the interim measures against Iraq; the request by Nicaragua to enforce the judgment against the US; and the request by the US to enforce the interim measures of protection against Iran, have proven that the enforcement of Court decisions is a political matter. The global political environment has as of yet precluded the Security Council from taking effective action against noncompliance. Can it then be said that the wronged state has to show restraint and as a rule abstain from self-help, even though effective protection or compliance is not forthcoming? Such reasoning would, in the opinion of the author, disregard the realities of the international system. And it is the inability to secure compliance which constitutes a profound reason not to prohibit self-help on the basis of an obligation to settle disputes by peaceful means. Conclusions An obligation stipulating that the parties “shall refer” the dispute to a specific settlement procedure, as can be found in many compromissory clauses, is no absolute and irrevocable undertaking incumbent upon the parties. Many preliminary decisions are left at the discretion of the parties. The provision may explicitly require mutual consent in order to refer the dispute to the means envisaged, leaving room for deliberate frustration by disagreement. Compromissory clauses can furthermore not be considered as requiring states to initiate a specific procedure. It is at their

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discretion to do so. Even if the other party to the dispute had accepted compulsory jurisdiction and is thus unable to frustrate the procedure by non-cooperation, this discretion stands. An additional element, namely the subjective qualification of the dispute, has furthermore an impact on the active duty of the state to refer the dispute to a specific procedure since “the classification of a dispute in [inter alia] legal or political terms is not so much depending on the nature of the dispute as well as on the attitude of the Government”.19 From an analysis of the content and purpose of the principle to settle disputes by peaceful means or more concrete treaty obligations, it cannot be concluded that neither the principle nor specific treaty obligations seriously restrict the right of states to resort to self-help. Obligations to settle disputes by peaceful means did not and do not address the possibility of self-help. Measures of self-help existing or initiated parallel to a dispute settlement procedure may become illegal because the initiating state is ordered by the Court to terminate or freeze the measures of self-help, or the measures of self-help constitute a clear contempt of Court. Except for these clear cases, states remain free to safeguard their rights even during proceedings. Notes 1 2 3 4 5

6

7

8 9 10

See, e.g., Article 171 of the EC Treaty, Article 94 (1) of the UN Charter; Article 53 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Some authors consider the depoliticization and freezing of the dispute as one of the significant consequences of litigation. Jackson, J.H., Davey W.J. and Sykes Jr. A.O., Legal Problems of International Economic Relations; Cases, Materials and Text (St. Paul, MN: West Publishing Co., 1995), 328. Jackson et al, Legal Problems of International Economic Relations, 328. See, C. W. Jenks, The Prospects, 9. For examples of these positions see, e.g., Edwin Borchard, “Limitations on the Functions of the International Court”, Am J of Pol & Soc Sci 96 (1921): 135, quoted in R.P. Anand, Studies in International Adjudication (New York: Oceana, 1969), 251; Phillip C. Jessup, “The International Court of Justice and Legal Matters”, Ill L Rev 42 (1974): 273–4. See, S. Rosenne, The World Court; What it is and How it Works (Dordrecht: Nijhoff, 1989), 41, “The problem of execution and enforcement of the Decisions of the Permanent Court did not appear to be a serious one. Since the jurisdiction of the Court was based upon the consent of the parties, it may be assumed that they consented in advance to carry out the judgement” [hereinafter Rosenne, The World Court]. See, e.g, Schachter, ‘The Enforcement of International and Arbitral Awards’, Am J Int. L 54 (1960): 1. See also Anand, Studies, 253, Jenks, Prospects, 664. These authors refer to: the Wimbledon case, PCIJ Series A, No. 1; Sociètè Commerciale de Belgique case, PCIJ Series, A/B, No. 78, 1939, and the Brazilian Loans case, PCIJ, Series A, No. 21, 1929. But see, E.K. Nantwi, The Enforcement of International Judicial Decisions and Arbitral Awards in Public International Law (Leyden: A.W. Sijthoff, 1966), 103. See, Nantwi, The Enforcement, 85–103. See also, Edvard Hambro, L’execution des Sentences Internationales (Liège: Vaillant-Carmanne, 1936), 14–29. Anand, Studies, 253. The facts of the Corfu Channel case are well known. However, it may be enlightening to recall in this context that Albania accepted the jurisdiction of the International Court of

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Justice on the basis of a Forum Prorogatum; concluded a special agreement in respect of the second (merits) phase; and rejected the jurisdiction of the Court in respect of the third (determination of the reparation) phase. Only recently, the UK and Albania reached an agreement with respect to the payment of £843,947 sterling for damages. 11 Among the other Decisions not complied with are those rendered by the Court in the Anglo-Iranian Oil Company case (interim measures of protection); the Right of Passage case (one year after the final Decision, India simply annexed the territories in question); the Fisheries Jurisdiction cases; the Tehran Hostages case; the Nicaragua case; the Nuclear Test case (interim measures of protection). The author is aware of the controversy that exists on the binding nature of interim measures of protection. However, it seems that within the framework of actual compliance it is not so much the legal nature of interim measures of protection which is at stake but respect for the Court’s Decision and the political willingness to defuse the conflict. 12 Rosenne, The World Court, 44. 13 Schachter, ‘Enforcement’, 5. 14 Rosenne, The World Court, 46. 15 Air Services Agreement case, 340. 16 See, Reisman, ‘The Enforcement of International Judgements’, Am J Int. L 63 (1969): 4. 17 See, Gray, Judicial Remedies, 73. 18 Although the Charter of the League of Nations contained a similar provision in Article 13 (4), save that it envisaged awards and made Council action obligatory, Article 94 (2) of the UN Charter was not envisaged in the original Dumbarton Oaks proposals [emphasis added]. 19 David Davies Institute, International Disputes 9.

PART 3 SELF-CONTAINED REGIMES One could say: “The boundary condition of the universe is that it has no boundary.” The universe would be completely self-contained and not affected by anything outside itself. It would neither be created nor destroyed. It would just BE. Stephen W. Hawking, A Brief History of Time, http://www.generationterrorists.com/quotes/abhotswh.html


Introduction Hawking’s idea of “self-contained” is not just one of many. His understanding of the term in its most basic form as “complete in itself,”1 raises the fundamental question whether such a “self-contained” entity can be created in the first place. It cannot be affected by “anything outside itself” because it has “no boundary”. The existence of boundaries then implies that an entity can be affected by “anything outside itself;” it cannot be “hermeneutically sealed against bad weather”.2 If “self-contained regimes” are understood as either having “no boundary” or having a “hermeneutically sealed” boundary, one has to agree then with Crawford that “there cannot be, at the international level, any truly self-contained regime.”3 Such a regime would in Hawking’s perception simply exist … no more … no less. It would be irrelevant in a larger social context. Regime theorists have not adhered to either one of the narrow definitions. For analysing normative and political processes within a given framework, there is no need to “hermeneutically seal [our object of research] against bad weather”. Regimes, including self-contained ones, do function in a larger system where they interact with other regimes. As social constructs, regimes can only be analysed within and in comparison to that larger setting. Regime theory seeks to explain international relations in systemic, institutional and cooperative relationships as an alternative concept to both power politics and normative approaches. “Regimes” are analytical tools in the assessment of the relationship between “basic causal factors [such as] power, interest and values” and “related outcomes and behaviour”. Regimes have been “conceptualized as the intervening variables” in this relationship.4 Embedded in institutionalism, regime theorists differ in methods and assumptions along the lines of the larger theoretical framework. From an international law perspective, modern and postmodern sociological institutionalism offer more common starting points. According to Keohane: Sociological Institutionalism[’s] understanding [of] how people think about international norms and rules and the discourse they engage in, is as important in evaluating the significance of these as measuring the behaviour that changes in response to their invocation.5

“Self-contained regimes” entered the international legal discourse through the decision of the International Court of Justice in the Tehran Hostages case in the early 1980s, when the ICJ labelled the Law on Diplomatic Immunities and in particular the Vienna Convention on Diplomatic Relations as “self-contained”. The Court erroneously perceived the embedded self-help mechanism of declaring diplomatic staff as “persona non grata” as “entirely efficacious”.

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The subsequent attempt to conceptualize the notion of ‘self-contained regimes’ in legal terms did not last very long. Riphagen’s structuralist approach was too abstract and theoretical for his fellow ILC members and the larger legal epistemic community to understand. Riphagen’s scholarly contribution to the subject ended abruptly when he was not re-elected to the International Law Commission. Simma’s more practical and positivistic approach proved counterproductive, as he had to conclude that from an international law point of view no regime deserved the label “self-contained”. The “regime discourse” in international relations theory and its counterpart in international legal theory are rather self-contained in the sense that the two discourses do not seem to affect each other directly. This is remarkable for two different reasons. First of all, as Hurrell correctly stated: “[t]he modern discussion of regimes theory and older ideas about international society have to come to terms with the same essential problematic” – what is the relationship between law and norms on the one hand and power and interests on the other”.6 Secondly, both discourses refer to the GATT/WTO and the EC regimes as potentially self-contained. The (distinctive) features of these regimes as compared to others are: (1) the level of integration, (2) the compulsory and binding dispute settlement mechanism and (3) the explicit exclusion or inclusion of self-help as part of the larger enforcement system of the regime. Notes 1 See, The Penguin Concise English Dictionary (London: Penguin Books, 2001). 2 Crawford, The International Law Commission’s Articles, 18. 3 Idem. 4 Krasner, S.D., “Structural Causes and Regime Consequences: Regimes as Intervening Variables”, in International Regimes, edited by S.D. Krasner, 1–21. London: Cornell University Press, 1983 [hereinafter, Krasner, “Structural Causes and Regime Consequences”]. 5 Keohane, R.O., “International Institutions: Two Approaches”, International Studies Quarterly 32 (1988): pp. 379–96, reprinted in International Rules; Approaches from International Law and International Relations, edited by R.J. Beck, A. Clark Arend and R. Vander Lugt, 187–205, New York: Oxford University Press, 1996 [hereinafter, Keohane, “International Institutions”]. 6 Hurrell, A., “International Society and the Study of Regimes: A Refective Approach”, in International Rules; Approaches from International Law and International Relations, edited by R.J. Beck, A. Clark Arend and R. Vander Lugt, 206–24. New York: Oxford University Press, 1996 [hereinafter, Hurrell, “International Society and the Study of Regimes”]. Hurrell concludes that the “regime discourse” is essentially “US-dominated” whereas the “international law discourse” is “a distinctively European one.” Idem, 206.

Chapter 8

The Concept of Self-contained Regimes Introduction The discourses on “regimes” and “self-contained regimes” seem to take place in two different academic communities. Notwithstanding clear conceptional links, the “regimes” discourse is an exclusively international relations discourse, whereas the self-contained regimes discourse has only attracted the attention of international legal scholars. Hasenclever, Mayer and Rittberger’s exclusion of a law-based approach in their categorization of theoretical approaches to regime analyses is exemplary in this respect.1 The rather artificial separation cannot be explained by reference to disciplinary ignorance only. According to Hurrell, the separation must be explained by the significant difference of opinion on the ultimate source of norm obedience within both disciplines.2 The lack of an interdisciplinary outlook is in Hurrell’s opinion reinforced by the essential realist character of regime theory. Hurrell concludes that “regime theory’s most distinctive contribution is to have developed the idea of self-interest and reciprocal benefits, and, in general, to have downplayed the traditional emphasis placed on the role of community and justice”.3 Would that mean regime theory’s possible bridge function between realist and idealist conceptions of international relations has failed? Keohane, one of the leading regime theorists is clearly in two minds about the legal/political nature of regimes. In his opinion, regimes, on the one hand, “can make agreement easier if they provide frameworks for establishing legal liability”, but on the other hand they “do not establish binding and enforceable legal liabilities in any strict or ultimate reliable sense”.4 The latter notion, however, could be considered to denote “self-contained regimes” as sub-species of “regimes”. A regime exists according to Stein when “the interaction between the parties is not unconstrained or is not based on independent decision-making”.5 Legal obligations may constitute a particular form of constraint as we have seen in Part 2. However, as to the scope of constraint determined by the participation in a given regime, opinions might differ. Young, for example, does not consider the United Nations constitute a regime, because “mere membership [of the UN] in no way constrains independent decisionmaking”.6 The point of debate is not whether the conceptualization of regimes includes notions of “constraint” and “dependent decision-making”, but what the origins, scope and impact of these regime characteristics are. In terms of origins, Stein concludes that: The existence of regimes is fully consistent with a realist view of international politics, in which states are seen as sovereign and self-reliant. Yet it is the very autonomy of states and their self-interest that lead them to create regimes when confronting dilemmas.7

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If “sovereignty”, “autonomy” and “self-interest” equally determine the actual functioning of the regime, assuming that the establishment of a regime has no autonomous impact upon the participants, there seems to be little reason to analyse international politics and law in terms of regimes. Regime Theory Regime theory is difficult to position in the international relations discourse. Depending on their dominant assumptions and paradigms, regime theorists can be situated in different theoretical discourses.8 One of the pioneers of regime theory, Robert Keohane, has been labelled as a “bridge-builder”.9 Keohane’s way of “understand[ing] order in world politics” is taken as the starting point for assessing the relevance of regime theory for the development of the twin concepts of “selfhelp” and “self-constraint” in international relations. In “The Demand for International Regimes”, Keohane seeks to “improve … understanding of international order, and international co-operation, through the interpretation of international regime-formation, that relies heavily on rational choice analysis in the utilitarian contract tradition”.10 The modification of the traditional rational choice analysis is found in Keohane’s model of “constraint choice”, which in his view does “not necessarily sacrifice realism”. Keohane’s sense of “realism” explains his rejection of “public choice theory” as a possible alternative to traditional rational choice analysis. International regimes function in a classical realist context: “the actors operate within […] a ‘self-help system’ in which they cannot call on higher authority to resolve difficulties or to provide protection.”11 It is in that context that regimes are considered to be beneficial by the actors, which are “rational utility maximizers”.12 Regimes are agreement-facilitating arrangements rather then independent intuitional structures. A “demand for regimes” requires a “demand for principles and norms” in the opinion of Keohane, which then “raises the question of why, in interactions (such as those of world politics) characterized by conflict arising out from self-interest, norms and principles should play any role at all.”13 The rather normative question is answered simply and empirically from a “constraint choice” perspective: Governments subscribe either to the principle of generalized commitment (that regimesupporting behaviour will yield better results than self-help in the long run) or to the corresponding norm in a given regime (that they should act in a regime-supporting fashion) [because] Within the context of a regime, help can be extended by those in a position to do so, on the assumption that regime-supporting behaviour will be reciprocated in the future. States may demand that others will follow the norm of generalized commitment even if they are thereby required to supply it themselves, because the result will facilitate agreements that in the long run can be expected to be beneficial for all concerned.14

In After Hegemony Keohanes refines his concept of regimes, especially the “constraint choice concept”, by modifying and elaborating some of the basic assumptions. While Keohane still understands regimes as “largely based on selfinterest”, he moves away from the classical realist and functional understanding of “self-interest”, seeking to solve “the puzzle of compliance”. The solution is found in

The Concept of Self-contained Regimes

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the assumed absence of “myopic self-interest”.15 A reconceptualization of “selfinterest” is conditional to the understanding of the emerging of regimes as well as the maintenance of regimes. Keohane’s idea of self-interest is closely associated with “theories of bounded rationality”, which assume that the actors’ choices depend on external conditions and constraints.16 Relaxing the classical understanding of state behaviour in terms of egoistic self-interest brings Keohane to discuss ideas of altruism, empathy and morality. Explaining these rather problematic choice rationales as reflections of pure self-interest “is probably too cynical” according to Keohane.17 In “International Institutions”, Keohane addresses another regime-related problem; that of “compliance or non-compliance with commitments. For international regimes to be effective, their injunctions must be obeyed; yet sovereignty precludes hierarchical enforcement.”18 Linking “enforcement” and “compliance” is problematic according to Keohane because game-theorists’ assumption of a “reputational basis for enforcement of agreements” has not been empirically verified. Concluding that the larger bulk of international commitments is complied with without traditional law enforcement mechanisms is empirically sound but lacks methodological and theoretical reference. Keohane’s constraint choice theory may be extended beyond regime maintenance to the broader international legal order. In his work on “regimes” and “international institutions” Keohane seeks to develop a “synthesis between rationalistic and reflective approaches” or “realism” and “liberalism”. The study of regimes leaves little room for mono-disciplinary research. The comprehension of increased cooperation and internationalization in international affairs cannot be based on a single set of methodological and theoretical assumptions and paradigms. From a regime theoretical perspective, one must question both the world view of the realist, which is dominated by national state units,19 acting as unitary, rational and self-interested actors in a quest for ultimate power,20 and that of the idealist, with the focus on empathy and moral constraints. Keohane’s modification and adaptation of the conjectures of classic realism and his resistance towards accepting normative approaches to state behaviour and global community processes have been subject to criticism from classical realists as well as more normative-oriented scholars. The assessment of Keohane’s regime theoretical approach indicates that regime theory is not a single, unified study of international relations. Beyond the overall agreement that, in the most basic form, regimes are “norm-based convergence of expectations that leads to the production of explicit rules,”21 there seems to be little that regime theorists have in common.22 Explicit rules are not necessarily the same as written rules and a “basic regime” can therefore be based on a coherent set of practices and the authoritative opinion that these practices are in accordance with normative expectations. If the dominant set of rules (written or customary) can be characterized as legal, then the regime should logically be defined as a legal regime. The question whether “regimes matter”23 should only be answered in the affirmative to the extent that we are able to differentiate between different kinds of regimes as far as the modus operandi of each is concerned. In both legal and international relations approaches to (self-contained) regimes, the embedded position of self-help and consensual dispute settlement seems essential to the normative functioning and effectiveness of a particular regime. In this sense, “self-contained regimes” will be

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assessed as an interdisciplinary concept, which carries both dominant political and legal features. The use of the term “regime” in a merely technical sense or in a Grotian perspective, contributes relatively little to our understanding of the normative behaviour of international actors and process developments in international relations. Understood as “social institutions”, regimes can evolve as “spontaneous orders”, “negotiated orders” or “imposed orders”.24 Krasner concludes that both the appearance and the development of regimes can be explained as a result of a “wide variety of basic causal factors [including] egoistic self-interest, political power, and norms and principles”.25 In this respect most regime theorists stay within the conventional paradigms of the realists’ school. At this point they are likely to fail to comprehend the role of judicial norms (in particular norms of international law) in the development and maintenance of international regimes, which are to be characterized as public orders rather than collective undertakings based on purely private interests. From a Keohanian perspective, egoistic self-interest, cooperation and regime building are not mutually exclusive.26 Hegemonic and other state actors are presumed to pursue cooperation out of rational self-interest. Within the realists’ paradigm states do not invest in the well being of the system as a whole.27 “Regimes” is an elastic concept, connoting both informal existences of specific international order as well as more formally defined institutions or governmental organizations. Both conceptions are not necessarily mutual exclusive. According to Claes, “international regimes” and “international organizations”, are both subclasses of international institutions. Regimes and organizations only differ in that an international organization is a “more formalized and bureaucratic sub-class.”28 Not every legal regime, however, is formalized and/or bureaucratic. A Treaty can be understood as a formalized legal regime and an international organization as a formalized and bureaucratic legal regime. Due to the existence of customary international rules, which develop and operate beyond treaty and organizational regimes, many legal regimes are not identical with treaties or organizations. Keohane’s definition of regimes, for example, includes “arrangements … which can monitor behaviour and provide procedures through which … sanctions can be coordinated.”29 Haas defines regimes as: arrangements peculiar to substantive issue-areas in international relations that are characterized by the condition of complex interdependence: neither hierarchy nor anarchy prevails and state rarely practice self-help. Regimes are all arrangements reflecting “policy contingency”, the situation in which actors carefully consider the opportunity costs of disrupting the relationship before practicing self-help.30

Reference to “sanctions” and “self-help” raises questions as to the compliance, enforcement and effectiveness of regimes. Puchala and Hopkins argue that: Effectiveness in terms of compliance with rules and procedures of any given regime depends largely upon the consensus or acquiescence of participants. Formal enforcement is extraordinary and coercive enforcement rare … usually it is self-interest, broadly perceived, that motivates compliance.31


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Regime theory problems can indeed be summarized in terms “effectiveness” and “compliance”. The emergence of regimes can easily be explained by increased interdependency and the need for cooperation and self-interest. Maintenance, however, can (according to Keohane) only be understood in terms of “constraint choice analysis”,32 rather than “public choice theories” or “rational choice theories”.33 If regimes are the result, either in emerging or developing, of “constraint choice” behaviour of states, the question arises as to how this constraint choice behaviour is reflected or facilitated within regimes. It is here that one of the basic characteristics of regimes, namely the norms and rules embedded in regimes, deserves more attention. Regime Theory and International Law A convenient starting-point to discus the link between regime theory and international law are the definitions of “regimes” given by Krasner and Keohane. Krasner defines “regime” as a set of “implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations.”34 Keohane then narrows the idea of regimes to “institutions with explicit rules, agreed upon by governments, which pertain to a particular set of issues in international relations”.35 Comparing both definitions, Hurrell observes “the apparently growing stress on explicit, persistent, and connected sets of rules [which] brings regime theory and international law much closer together.”36 However, one should not overlook the importance of Krasner’s differentiation between “principles and norms” and “rules and procedures”. In his opinion, “principles and norms provide the critical defining characteristics of any regime […] changes in rules and decision-making procedures are changes within the regime [whereas] changes in principles and norms are changes of the regime itself”.37 “Changes of the regime itself” are subject to what Krasner calls a “fundamental political argument”.38 Keohane agrees with Krasner in a different manner: “In international politics, binding through highly institutionalized, rule oriented processes, are relatively rare and unimportant, and such decisions do not constitute the essence of international regimes.”39 Thereby a fundamental dichotomy is constructed between “principles and norms”, which are of a political character, and “rules and procedures”, which seem to be of a legal nature. The lack of substantial attention for “rules and procedures” and the focus on political normativity is symptomatic and characterizes this part of the “regimes” debate as an essential realist discourse. Keohane puts it as follows: “Regimes do not establish binding and enforceable legal liabilities in any strict or reliable sense, although the lack of a hierarchical structure does not prevent the development of bits and pieces of law.”40 The exclusive focus on the “political” aspects and the absence of a legal dimension of regimes has been identified as one of “the weaknesses of Regime Theory”. According to Hurrell, “regime theory’s most distinctive contribution is to have developed the idea of self-interest and reciprocal benefits and in general to have downplayed the traditional emphasis placed on the role of the community and a sense

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of justice.”41 The role of law in regime building and maintenance is not limited to narrowly defined material and institutional aspects. He sees four roles for international law in international regimes: 1. 2. 3. 4.

as “provider of the legal underpinnings […] in terms of fundamental assumption”, as provider of “basic legal principles” which are required for “community building and value sharing” within regimes, as the reflection of a set of “international norms that derive their compliance pull from a shared sense of justice [and] which are not the result of direct interplay of state interest” and as provider of the link between the domestic and the transnational, which is necessary to transform the domestic constituency of the international regime as the domestic enforcer for that same regime.42

Koskenniemi is equally critical and definitely more cynical than Hurrell in his opinion: In more recent years, Realism in international relations departments has been challenged by a “fundamentally non-idealist” branch of liberal internationalism. Realist insights have been used to project an interdependent world of co-operation beyond the nation state. As a consequence, an intellectual alliance has been proposed between international lawyers and international relations scholars advocating regime theory […] It is no wonder that such approaches have become popular in the United States. The language of “governance” (in contrast to government), of the management of “regimes”, of ensuring “compliance”, is the language of a powerful and a confident actor with an enviable amount of resources to back up its policies.43

Differentiating between “principles and norms” as belonging to the political normative component of regimes on the one side and “rules and procedures” as belonging to the legal normative component on the other side is a result of social construction rather than analysis. A strict Marxist political/legal dichotomy, in which law merely sanctions reality, cannot explain the existence and functioning of regimes. International law is not only a set of “rules and procedures”, it also reflects “principles and norms”.44 Only on the basis of an instrumental and rather legalistic perception of “rules” can one conclude that principles and norms are to be found in the “evidence of participants’ perceptions” and rules are found in “charters, treaties and codes.”45 However, the law/politics dichotomy is so embedded in international legal and political science discourse that Hurrell must conclude that: At one end of the spectrum there is a constant and unstable balance between raw powerpolitical behaviour and law-governed behaviour. At the other, there is an equal unstable relationship between legal rules as reflected in the actual political interest of states and legal rules as embodying evolving notions of how the international community should be organized.46

The discourse on norms and rules reflects an understanding of regimes as being built on several normative layers. “Norms and principles” is one normative subset; “rules


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and procedures” is another.47 The distinction between “principles and norms” and “rules and procedures” is relevant to the understanding of the functioning of a regime. At this point Krasner’s opinion may be recalled: “Changes in rules and decision-making are changes within regimes. … Changes in principles and norms are changes of the regime itself.”48 Keohane acknowledges “[r]ules of international regimes are frequently changed, bent or broken to meet the exigencies of the moment. They are rarely enforced automatically, and they are not self-executing”,49 but without significant impact on the functioning of the regime as such. Also from a legal perspective a distinction has been made between “the failure of performance of an obligation [and] the total failure of the regime as such”.50 According to Churchill and Ulfstein, the increase in multilateral environmental treaties has established “a common pattern of institutional arrangements [the purpose of which is] to develop the normative content of the regulatory regime established by each agreement … as in comparison to traditional IGOs, it marks a distinct and different approach to institutionalized collaboration between states, being both more flexible and often more innovative in norm creation and compliance”.51 These institutional arrangements are qualified as “autonomous” since law-making and enforcement powers are exercised beyond the control of every single participating state. In line with the concept of “regimes” as elaborated in the international relations discourse, Churchill and Ulfstein also consider that the “normative content of the regime is […] more than simply the provisions of the agreement concerned”.52 The “more” however is defined in technical and quantitative terms. “More” in their opinion is not a set of beliefs, principles and norms as distinguished from rules and decision-making procedures.53 If regime theory is to be understood – as by Koskenniemi – as “a theory about the effects of informal norms in constructing collaborative regimes”,54 legal academics cannot but address the underlying normative processes and policies. While the actual content of a regime may be defined in “rules and procedures”, including rules on selfhelp and consensual settlement of disputes, the regime itself is built on a normative foundation which may or may not be reflected in the rules or the procedures of the regime and which is not necessarily of a strictly legal nature. This rather undefined, normative basis is known as ‘the acquis’ in the WTO regime and the European Community regime.55 Palmeter and Mavroidis’ example of the WTO’s Appellate Body concerning the nature of its decisions is illustrative: It [the Appellate Body] did not say affirmatively what adopted reports are if they are not “decisions”, other than to say that they ‘are an important part of the GATT acquis. This is somewhat confusing, both because the legal source of the acquis is not specified …”56

The same “confusion” is found amongst scholars of European law. To Ward, “the idol” of the acquis communautaire has lost its “sense … a sense of harmony and common purpose, of everyone treading the same route together, even if they had no clear idea of where it was leading.”57 “Regimes” are not the same as treaty-based international organizations or arrangements. From a legal perspective, “ there is a link between a breach [of a legal] obligation and response, which may be defined in the instrument creating the obligation itself, or be otherwise established (a self-contained regime)”.58 Within

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regimes, “(legal) rules and procedures” co-exist with “norms and principles” which are not necessarily of a legal nature, but which are essential for the maintenance and development of the regime. The “norms and principles” determine the “rules and procedures” as much as the “rules and procedures” are likely to influence the “principles and norms” of the regime. International lawyers cannot be indifferent to changes in both normative subsets if they are interested in understanding regime maintenance. Trying to save a regime through over-regulation could adversely affect underlying principles and norms. Objective Regimes The concept of “objective regimes” must be distinguished from the idea of “selfcontained regimes” as discussed hereunder. Riphagen who extensively dealt with the notion of regimes in his approach to state responsibility admitted that “the concept of ‘objective regimes’ is somewhat nebulous”.59 Whereas “objective regimes” intend to limit the “rights” of third parties as well as regime members, “self-contained regimes” only limit the rights of the regime participants. “Objective regimes” are generally considered to entail erga omnes effects both in terms of rights and obligations. Riphagen identifies a number of “objective regimes” on the basis of what I what call “an obligation to self-constraint” and the absence of the possibility to resort to self-help. Riphagen observes, first of all, “not all objective regimes provide for a machinery for … collective decisions”. The prohibition on breaching the rules of an objective regime can therefore not be based on an effective alternative mechanism. An “objective regime” must be distinguished from other regimes by its “normative character”: – in contradiction to both the quid pro quo character and the ‘co-operative procedure’ character – of the rule of international law, which determines its objectivity, … The parties to the regime create the collective interest, which requires that each of them fulfill its obligation irrespective of the fulfillment of the obligation by another party. In this sense the objective regime is the opposite of a si omnes clause. Perhaps the simplest way to describe such regimes would be to refer to the “objective and purpose” of a treaty requiring just that.60

On the basis of his concept of “objective regimes” Riphagen differentiates between three different types:61 1. 2. 3.

objective regimes of a peremptory nature, objective regimes providing for “parallel obligations … for the protection of collective interests of the group of states involved” and “a combination of types 1 and 2 with a machinery for the collective management of the interests concerned.

Breaches of the values underlying or embedded in objective regimes cannot be adequately addressed in the bilateral sphere by mechanisms traditionally available to


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the regime members such as self-help, because it would undermine and destroy the very purpose of the regime. According to Simma, there are three different theoretical bases for the recognition of a regime as being “objective” vis-à-vis a third state: (1) treaty law, (2) “public law theories” and (3) the “subsequent practice” approach.62 First, under the law of treaties as reflected in the Vienna Convention, three different questions have to be answered: 1. 2. 3.

did the parties to the treaty intend to create an “objective” right or obligation for third parties, and did the third party “expressly accept that obligation in writing or assent[s]” to the right thus accorded or did “a rule set forth in a treaty […] become binding upon a third state as a customary rule of international law”?63

If parties to a treaty intend to create an objective right or – more likely – an obligation for third parties, the third party has to explicitly respond to that intention. While, on the one hand, absence of “assent” or “consent” through silence may preclude the actual coming into being of the intended obligation as Simma correctly asserts,64 silence, on the other hand, might be interpreted as an acquiescence under customary international law. A claim towards other states, made public in a convention to which those states are not a party, may turn into a rule of customary international law if not explicitly challenged by other states. To prevent unilateral or bilateral claims from turning into a rule of customary law, opposing states have to become “persistent objectors”. Second, the “public law theory” hinges on the assessment of a “public interest” rather then the consent of states. McNair’s individual opinion in the South West Africa case is referred to as the “classical expression” of that theory: From time to time it happens that a group of great Powers, or a large number of States both great and small, assume a power to create by a multipartite treaty some new international regime or status, which soon acquires a degree of acceptance and durability extending beyond the limits of the actual contracting parties, and giving it an objective existence. This power is used if some public interest is involved.65

The public law theory is, according to Simma, based on a contestable presumption that “the overpowering legitimacy of the claim” creates consent through silence.66 This is exactly the characteristic of a public legal order. Individual subjects do not expressly consent to that order, as is the case in a conventional or private legal order. Consent is – as in Rousseau’s social contract theory – presumed … rejection should be stated. Third, the subsequent practice approach amounts to a process recognized in Article 38 of the Vienna Convention on the Law of Treaties, which according to Simma is likely to change the existing paradigms.67 The basis for objective regimes is more likely to be found in a set of “collective norms and principles” underlying the regime as such than a set of “rules and procedures” stipulating that the regime is an objective one. If objective regimes

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emerge because of the protection of a transnational version of self-interests, the participants will be constrained from violating regime rules even if another state has done exactly that. If regimes are assessed on the basis of the level of inherent constraint rather then its third party effects, human rights regimes can be characterized as truly objective. States exercise a high level of self-constraint with respect to the possibility of violating human rights as a reciprocal measure against the violation of human rights by another regime member. Other regimes like diplomatic immunities can only be qualified as partly objective. In the Tehran Hostages dispute, the US Government refused to take Iranian diplomats hostage as a reciprocal measure of self-help. The immunity of diplomats is an objective peremptory norm, absolute observance of which is more valuable to most states than the availability of violating diplomatic immunity as a unilateral measure of self-help Self-contained Regimes The concept of self-contained regimes has entered international legal vocabulary through the work of the International Court of Justice. In the Tehran Hostages case, the Court decided that: diplomatic law in itself provides the necessary means of defense against, and sanction for, illicit activities by members of diplomatic and consular missions. … The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving state to counter any such abuse. The means are by their nature entirely efficacious.68

Whether “the rules of diplomatic law … constitute a self-contained regime” and the means envisaged in the legal regime are “entirely efficacious” has been questioned by various scholars.69 According to Simma, the Court’s concept of a self-contained regime was based on a “statement of the law [of diplomatic immunities, that did] not present a clear and complete picture of the issue at stake.”70 Reuter even characterized the Court’s reference to self-contained regimes in relation to the rules of diplomatic law as “unwise”.71 The law on diplomatic immunities is not self-contained for three different reasons. First of all, the “means” the Court had in mind can only satisfy the receiving state in cases of abuse of privileges or immunities or misconduct by diplomatic and consular personnel. The receiving state may indeed request those staff members to leave. From the perspective of the sending state, however, the law on diplomatic immunities provides little redress in case of the violation of the rights of its diplomatic and consular staff by the receiving state, as the Tehran hostages affair made clear. As a retaliatory violation of the rights of Iranian diplomats in New York and Washington DC was excluded as a legitimate means of self-help; resorting to measures of selfhelp outside the legal framework on diplomatic immunities was the only legitimate option. Secondly, as pointed out by Simma, “the alleged self-containment” ratione temporis of diplomatic privileges and immunities is not very far reaching”, as in cases of self-defence and diplomats caught in the act, “a fallback into another


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subsystem” is permitted.72 Thirdly, it is doubtful whether the law on diplomatic immunities does not permit violation of specific rules within this regime. For example, specific diplomatic rights such as the freedom of movement and communication of the diplomats of the other state could be restricted. Whether or not the Court was right in its characterization of the law on diplomatic immunities or not, it did provoke some interesting thoughts on the idea of selfcontained regimes in international law. Riphagen was the first to further conceptualize the Court’s idea. In order to differentiate between various consequences of the violation of primary legal rules, Riphagen attempted to identify “systems” and “subsystems”. The International Law Commission understood “regimes” in its systemic approach to state responsibility as an “ordered set of conduct rules, procedural rules and status provisions, which formed a closed legal regime for a particular field of factual relationship. A subsystem, then, [is] the same as a system, but not closed in as much as it had an interrelationship with other subsystems.”73 Riphagen’s own notion of “systems”, “subsystems” and “self-contained regimes” is best reflected in the following citation: In short, a treaty may create a subsystem of international law with its own, express or implied, secondary rules, tailored to its primary rules. This does not necessarily mean that the existence excludes permanently the application of any general rules of customary international law relating to the legal consequences of wrongful acts. As already remarked, the subsystem self as a whole may fail, in which case a fallback on another subsystem may be unavoidable. On the other hand, such a subsystem is, in principle, self-contained in the sense that it cannot be overruled by situations and considerations belonging to another subsystem. This might be in contradiction with what has just been said. As a matter of fact, the interrelationship between the subsystems may be complicated by the fact that a particular set of actual circumstances may be relevant for more then one subsystem. Here the measure of organization of the relationship becomes particularly important; if it is not possible to allocate the situation to one or the other system, the more organized system prevails until it fails as such.74

At this point the question must be put forward whether specific treaty regimes exist which exclude the operation of general international law with respect to the breaches of that treaty, in other words, whether special treaty regimes can be considered as “special legal subsystems” or “self-contained regimes.”75 Legal scholars have discussed various regimes, which could possibly be qualified as “self-contained”. An overview provides the following list: 1. 2. 3. 4. 5. 6. 7. 8.

diplomatic immunities, human rights treaties,76 the European Economic Community/European Union,77 the General Agreement on Tariffs and Trade/WTO,78 environmental treaties, the Non-Proliferation Treaty, dispute settlement mechanisms and constituent instruments of international organizations providing for suspension and termination of membership.79

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None of these treaty regimes pass Homsi’s test of self-containment, because they do not explicitly prohibit resort to self-help nor do they offer effective collective procedures and means to guarantee redress. In Homsi’s “restricted view”, legal regimes, whether conventional or not, can only be accepted as “self-contained regimes” if these regimes “intend to embrace a full set of comprehensive and distinct secondary rules, thereby excluding almost completely the application of general international law to a wrongful act.”80 Homsi’s definition seconds Simma’s earlier definition of self-contained regimes. In the opinion of the latter author: the concept of a “self-contained regime” should not be used as a synonym of “subsystem” [as proposed by Riphagen], but be reserved to designate a certain category of subsystems, namely those embracing, in principle, a certain set of secondary rules. A “self-contained regime” would then be a subsystem which is intended to exclude more or less totally the application of the general legal consequences of wrongful acts, in particular the application of countermeasures normally at the disposal of an injured party.81

Whereas Simma and Homsi seem to be equally restrictive, the authors differ as to the application of a “fall-back” mechanism. Simma raises the question: “Under what circumstances, if any, can there be a fall-back on the general legal consequences of internationally wrongful acts?”82 Homsi answers the question: whenever it is necessary for the ultimate protection of interests and rights, a “fall-back” on the rules of general international law is permitted.83 As no specific regime prohibits states to ultimately “fall-back” to a more general regime, no regime meets Homsi’s interpretation of “self-contained”. He therefore questions the value of the concept of self-contained regimes: “does it constitute a bold but delusive attempt to introduce a new concept of international law […] which ultimately lacks persuasion?”84 Simma is equally critical but less restrictive. His general position towards “selfcontained regimes” can be summarized as follows: Self-contained regimes are exceptions to the rule of the applicability of general legal consequences […, which] should not be easily presumed […and only accepted if these] increase the effectiveness of the primary rules concerned and introduce orderly procedures and collective decision […, based on the consent of the states to] contract out of the general rules on the consequences of treaty violations on the expectation that these regimes will work to their mutual benefit.85

For a moment Crawford considered the possibility of characterizing a “special lex specialis” as a “genuinely self-contained regime”.86 However, he immediately counters this possibility by presuming that “all self-contained regimes are subject to this limitation [that they may not violate peremptory norms of international law] (in which they are not self-contained)”.87 One of the characteristic features of a self-contained regime is the disposition or application of general mechanisms of self-help; either because the regime provides for effective alternatives or because the regime prohibits self-help. Even in the absence of effective and institutionalized alternatives, it is conceivable that states consent to giving up their faculty to resort to self-help if the benefits – of discarding this right – outweigh the costs of maintaining an unbridled right of self-help. Three different situations in which self-help might be applied in inter-state within the context of a specific regime can be identified.88


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First of all, states might resort to measures of self-help against other states within the regime, which directly affects the systemic relationship between those states. For example, in the Korean airliner incident, the majority of measures taken affected the international civil aviation regime: especially when landing rights were suspended. The incident was discussed with reference to the legal framework of the Chicago and Montreal conventions on civil aviation and within the political setting of the International Civil Aviation Organization. Secondly, measures of self-help may be taken against states for reasons intrinsically within the regime which, however, do not directly affect the normative order or the relationship between the states within the regime. In the Tehran hostage incident, most measures of self-help were taken by the US outside the regime of diplomatic relations. When the decision was taken to break off diplomatic relations with Iran, the measures taken against Iranian diplomats were in line with the rules in the regime off diplomatic relations and as such did not adversely affect the normative aspects of the regime.89 The “expulsion” of diplomats, however, clearly affects the operation of the regime as direct communications – the foremost important rationale in the regime of diplomatic relations – are precluded. At various moments during the crisis, the US Government seems to have been criticized for not retaliating by taking 52 Iranian diplomats hostage.90 The Carter Administration had obviously discarded that option. The reasons were both normative as well as practical. Thirdly, it must be considered whether and to what extent regimes allow non-regime linked disputes and conflicts to be brought into the regime. Whether the purpose of a specific measure of self-help falls within the objectives of a regime depends of course on both an interpretation of the objectives of the regime and an interpretation of the goal of the measure of self-help. Exemplary for this problem is the GATT/WTO discourse on the inclusive treatment of environmental and human rights issues. Notes 1 2 3 4 5 6 7 8 9

Hasenclever, A., P. Mayer and V. Rittenberger, Theories of International Regimes. Cambridge: Cambridge University Press, 1997, 137 [hereinafter, Hasenclever et al., Theories of International Regimes]. See Hurrell, “International Society and the Study of Regimes”, 207. Hurrell, “International Society and the Study of Regimes”, 210. Keohane, R.O., “The Demand for International Regimes”, in International Regimes, edited by S.D. Krasner, 140–71. London: Cornell University Press, 1983 [hereinafter, Keohane, “The Demand for International Regimes”]. Stein, A.A., “Coordination and Collaboration: Regimes in an Anarchic World”, in International Regimes, edited by S.D. Krasner, 115–40. London: Cornell University Press, 1983 [hereinafter, Stein, “Coordination and Collaboration”]. Young, O.R., “Regime dynamics: the rise and fall of international regimes”, in International Regimes, edited by S.D. Krasner, 93–113. London: Cornell University Press, 1983 [hereinafter, Young, “Regime Dynamics”]. Stein, “Cooperation and Collaboration” 140. Viotti, P.R., and M.V. Kaupi, International Relations Theory; Realism, Pluralism, Globalism. 2nd ed., Needham Heights: Macmillan, 1993 [hereinafter, Viotti and Kaupi, International Relations Theory]. Griffiths, M., Fifty Key Thinkers in International Relations. London: Routledge, 1999.

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11 12 13 14 15 16 17 18 19 20 21

22 23 24 25 26 27 28 29 30 31 32 33 34 35

36 37

38 39 40 41

Enforcing International Law Keohane, “The Demand for International Regimes”, 141. Keohane’s theoretical model as presented in this paragraph is based on the following publications: (1) “The Demand for International Regimes”, (2) “International Institutions: Two Approaches” and (3) After Hegemony. Idem, 148. Idem, 150–151. Idem, 158. For a more substantial discussion of the function of “norms and principles” in international regimes see the next paragraph. Idem, 159. Keohane, After Hegemony, 98–100. Keohane, After Hegemony, 11. Keohane, After Hegemony, 127. Keohane, “International Institutions”, 197. Shaw, M., Theory of the Global State; Globalization as an Unfinished Revolution. Cambridge: Cambridge University Press, 2000, 90. See, Stein “Coordination and Collaboration”, 140. Claes, D.H., “What Do Theories of International Regimes Contribute to the Explanation of Cooperation (and Failure of Cooperation) among Oil Producing Countries”, Arena Working Papers Series, 1999. (www.arena.uio.no/publications/wp99_12.htm) [hereinafter, Claes, “What Do Theories of International Regimes Contribute”]. A comprehensive overview of the different approaches and perspectives is to be found in Keohane’s “The Demand for International Regimes”. See, Krasner, “Structural Causes and Regime Consequences”, 5. Young, “Regime Dynamics”, 98 cf. The UN Law of the Sea Convention is referred to as an example of a comprehensive negotiated order. Krasner, “Structural Causes and Regime Consequences”, 11. Keohane, After Hegemony, 49–64. See, Krasner, “Structural Causes and Regime Consequences”, 15. Claes, “What Do Theories of International Regimes Contribute?”, 2. Keohane, After Hegemony. Haas, “Words can Hurt You”, 27. Puchala, D.J., and R.F. Hopkins, “International Regimes: Lessons from Inductive Analysis”, in International Regimes, edited by S.D. Krasner, 61–92. London: Cornell University Press, 1983 (hereinafter Puchala and Hopkins, “International Regimes”]. Keohane, “The Demand for International Regimes”, 147. Keohane, “The Demand for International Regimes”, 147. Krasner, “Structural Causes and Regime Consequences”, 1. Keohane, R.O., “Neo-liberal Institutionalism: A Perspective on World Politics”, in International Institutions and State Power: Essays in International Relations Theory, edited by R.O. Keohane. Boulder, CO: Westview, 1989, 4. It should be noted that Keohane is not always consistent in his definitions of “regimes” and “institutions”. Hurrell, “International Society and the Study of Regimes”, 209. Krasner, “Structural Causes and Regime Consequences”, 3. In his definition, “[p]rinciples are beliefs of fact, causation and rectitude. Norms are standards of behaviour defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision making procedures are prevailing practices for making and implementing specific choice.” Krasner, “Structural Causes and Regime Consequences”, 4. Keohane, “The Demand for International Regimes”, 147. Keohane, “The Demand for International Regimes”, 154. Hurrell, “International Society and the Study of Regimes”, 210.

The Concept of Self-contained Regimes 42 43 44 45 46 47 48 49 50 51

52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79

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Hurrell, “International Society and the Study of Regimes”, 212–21. Koskenniemi, M., The Gentle Civilizer of Nations; The Rise and Fall of International Law 1870–1960. Cambridge: Cambridge University Press, 2004, 480 [hereinafter, Koskenniemi, The Gentle Civilizer]. Puchala and Hopkins, ‘International Regimes’, 88. Puchala and Hopkins, “International Regimes”, 64. Hurrell, “International Society and the Study of Regimes”, 219. But see Ruggie, J.G., “International Regimes, Transactions, and Change: Embedded Liberalism in the Post-War Liberal Order”, in International Regimes, edited by S.D. Krasner, 195–233. London: Cornell University Press, 1983. Krasner, “Structural Causes and Regime Consequences”, 4. Keohane, After Hegemony, 147. Riphagen IV, 18. Churchill, R. and Geir Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-noticed Phenomenon in International Law”, American Journal of International Law, 94, 4 (2000): 623–60 [hereinafter, Churchill and Ulfstein, “Autonomous Institutional Arrangements”]. Churchill and Ulfstein, “Autonomous Institutional Arrangements”, 623 footnote 1. Churchill and Ulfstein, “Autonomous Institutional Arrangements”, 636–43. Koskenniemi, The Gentle Civilizer, 479. See Chapters 9 and 10. Palmeter, D., and P.C. Mavroidis, Dispute Settlement in the World Trade Organization; Practice and Procedure. The Hague: Kluwer Law International, 1999, 39 [hereinafter and Mavroidis, Dispute Settlement in the WTO]. Ward, I., A Critical Introduction to European Law. 2nd ed. London: Reed Elsevier, 2003, 58. Riphagen, “State Responsibility: New Theories”, 597. Riphagen IV, 16. Riphagen IV, 18. Riphagen IV, 21–4. Simma, ‘The Antarctic Treaty’, 198. See, Articles 34, 35 and 38 of the Vienna Convention on the Law of Treaties. Simma, “The Antarctic Treaty”, 197. Quoted from Simma, “The Antarctic Treaty”, 198. Simma, “The Antarctic Treaty”, 199. Simma, “The Antarctic Treaty”, 202. ICJ Report (1980), 38. See inter alia Simma, “Self-Contained Regimes”. Simma, “Self-Contained Regimes”, 120. Reuter, ILC YB I (1984): 264. Simma, “The Antarctic Treaty”, 120. Riphagen III, 202. Riphagen III, 30. Malanczuk, P., Akenhurst’s Modern Introduction to International Law. London: Routledge, 1997, 221. See Simma, “The Antarctic Treaty”, 129–35. See Chapter 9. See Chapter 10. See, Homsi, Sano, “Self-Contained Regimes – No Cop-out for North Korea”, Suffolk Transnational Law Review 24 (2000): 89–123 [hereinafter, Homsi, “Self-Contained Regimes”]. Simma, “The Antarctic Treaty”; Riphagen W., “State Responsibility: New Theories”, 603–605.

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80 Homsi, “Self-Contained Regimes”, 97. 81 Simma, “The Antarctic Treaty”, 117. 82 Simma, “The Antarctic Treaty”, 118. 83 Homsi, “Self-Contained Regimes”, 103. 84 Homsi, “Self-Contained Regimes”, 98. 85 Simma, “The Antarctic Treaty”, 135–6. 86 Crawford, The International Law Commission’s Articles, 880. 87 Simma, “The Antarctic Treaty”, 23 88 Simma lists a fourth possible scenario, namely states taking measures of self-help against non-state actors who participate within the regime. (See Simma, “Selfcontained Regimes”, 124.) In organization-based regimes, parts of the organization are possible targets of measures of self-help taken by states. As an example the boycott of UN Security Council meetings by the Soviet Union in the 1950s may be recalled. 89 See NY Times, 8 Apr.1980, A1 col. 6. and D5 col. 4. Ayatollah Khomeini characterized the termination of diplomatic relations as a “good omen” and called upon the Iranians to celebrate this day ( NY Times 9 Apr. 1980, A12 col. 1). 90 See Schachter who refers to “some editorial writers”, in Schachter, O., “International Law in the Hostages Crisis: Implications for Future Cases”, in American Hostages in Iran; The Conduct of a Crisis, edited by Paul H. Kreisberg, 325–73. New Haven: Yale University Press, 1985. Also Owen who refers to “some Americans” including an “irritated member of the Washington bar” in Owen, R.B., “The Final Negotiation and Release in Algiers”, in American Hostages in Iran; The Conduct of a Crisis, edited by Paul H. Kreisberg, 300. New Haven: Yale University Press, 1985.

Chapter 9

The European Community Introduction The European integration process is a rewarding subject for a variety of monodisciplinary studies. Ultimately, however, it can only be understood as concurring (European and global) political and economic developments cumulating in a predesigned institutional framework with strong normative features. From a legal perspective, it has been concluded that the “European legal system” has progressed from a typical international legal regime “with many of the limitations and weaknesses of most international legal system. [in which] violations of … law persisted […] disputes were resolved out of court […] principles were not respected [and] member states were not held accountable [to] the most effective international legal system in existence”.1 Opinions differ as to why the European legal system transformed from this international status nascendi into a regime, which in terms of governance, administration of the law and enforcement, resembles the political, economic and legal processes so well known in nation states. The material and institutional transformation of the European legal system has advanced beyond expectation. During the first three decades of the EC’s existence, economic integration, political integration and legal integration could easily be separated, and explained as being intended, anticipated and reluctantly accepted. In the past two decades, economics, politics and law are the ingredients of a holistic integration process beyond apparent control. At five successive stages (Paris, Maastricht, Amsterdam, Nice and Rome) the European political elite recommitted themselves to modify the institutional design of the European regime to meet with the challenges of an ever-growing community and globalization. The institutional makeover included a complete normative and organizational overhaul. Before the Single European Act, scholars in public international law perceived the European Economic Community as an advanced “constitutive instrument of an international organization [which] provides, in case of its breach, for remedies in the form of compulsory dispute settlement procedures leading to binding decision,” which raised the question: does this definitely exclude measures of self-help and claims for reparations for injuries suffered, or may there under exceptional circumstances be a fallback on general international law?2 After Rome the “constitutive instrument” has become a “constitutional instrument”; the “international organization” has acquired quasi-federal state features; and “remedies” are not to be found in a “compulsory dispute settlement procedure” but in enforcement powers of the Commission and sanctioning powers of the Court of Justice. The question on the availability of self-help and the possibility for member states to “fall back on general international law” seems more remote then ever. However, as self-help and systemic fall-back are intrinsic possibilities in any regime, the question

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is not whether but under what circumstances these phenomena can be accepted and where they should be situated in the normative layer of the European legal system. To put it in Krasnerian terms: is self-help a “principle and norm” challenging phenomenon or does it merely affect the “rules and procedures” of the system? Regime theory is generally not listed as one of the major theories which explain the European integration process. (Neo-)functionalism and (neo-)realism have been identified as the competing approaches in the initial theoretical discourse on European integration, to be succeeded by “multi-level network governance” approaches.3 An assessment of self-help and self-constraint within the European Community is by definition an assessment of its normative character. However, to analyse the whole of the “principles and norms”, and “rules and procedures” would take this study too far. Two important notions should however be briefly addressed; the acquis communautaire and “the supremacy of Community law’. The Acquis Communautaire The acquis communautaire has been understood by Delcourt as “the method for or approach to integration”: as such it “will represent in some way the ‘genetic code’ of the EU.”4 The question whether the acquis communautaire is part of the “principles and norms” or the “rules and procedures” of the regime is answered by Delcourt in the following terms: What may be termed the legislative acquis is not apt, a priori, to constitute an acquis of a superior rank. A good number of elements of the legislative acquis are liable to change, even to disappear, although they will have to be accepted at a certain point in time by the candidate countries. […] what is called the acquis communautaire covers a plurality of elements, of varying nature and origin, which are assembled and combined to form a number of “acquis”, which are more or less “communautaires, more or less encompassing, or more or less specific; a number of “acquis which are more or less essential”.5

The lengthy citation makes clear that the acquis communautaire is a fundamental notion; nebulous but not tenuous. Primarily used to indicate the total package states have to accept in the “accession deal”. According to Delcourt, the acquis communautaire includes such divergent elements as “ the content, principles and political objectives of the Treaties”, “technical foundational elements including institutional and procedural rules”, “principles and rules governing the relationship between the Community institutions and State Authorities” and “accession to nonCommunity treaties.”6 While Delcourt values the notion and favours its continued application, she also observes a trend towards the de-communautarization of the aquis; the acquis communautaire has become “‘the UK acquis’ or the ‘Irish acquis’, ‘the Italian acquis’ etc.”7 Ward criticizes this trend and is far less optimistic than Delcourt.8 He perceives the introduction of the idea of flexibility in the integration process, which reflects the notion of “closer cooperation” as a “rather less obvious snub to the very idea of an acquis communautaire.” In order to move towards “an ever closer Union”, member states are, in his opinion, “free to pick and choose which bits of European integration they would like to support, at what speed they like to integrate and to what extent.” His final conclusion leaves no doubt: “The price of the Union would be the end of the acquis communautaire … [the end of] a sense of

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harmony and common purpose, of everyone treading the same route together, even if they did have no clear idea of where it was leading.” The Prohibition of Self-help In 1963, the European Court of Justice decided in Commission of the EEC v. Grand Duchy of Luxembourg and Commission of the EEC v. Kingdom of Belgium that: The [EEC] treaty not only creates reciprocal obligations between different persons to whom it applies but establishes a new legal order which regulates the powers rights and duties of such persons as well as the necessary procedure for determining and adjudicating upon any possible violation thereof. Consequently, in addition to the cases expressly covered by the Treaty, its concept involves the prohibition on the part of member states from taking justice into their own hands. The failure of the Council to carry out its obligations could not therefore excuse the Defendants from carrying out their obligations on their part.9

The European Court of Justice has recited its 1963 decision in several comparable cases. In the Mutton and Lamb case, for example, the Court reconfirmed that “a state cannot under any circumstances unilaterally adopt, on its own authority, corrective measures or measures to protect trade designed to prevent any failure on the part of another member state.”10 The margin between teleological interpretation and reconstruction is hardly identifiable in the Court’s position. The Court did what the International Law Commission and most international law scholars refused to, namely to understand obligations to settle disputes by consensual means as a self-imposed constraint on the faculty to resort to self-help. There can be no doubt that the Court went beyond its authority to resort to methods of teleological interpretation to further the rule of law in the European Community. In this case, the Court sought to progressively develop the law through a legal construction which linked the notion of a “new legal order”, perceived self-constraint on the part of the member states and an idea of taking “justice” rather then taking a “problem” into their own hands. The same considerations concerning the special characteristics of the legal order of the European Community has led scholars to characterize the EC regime as “the most important instance of an allegedly ‘self-contained’ regime”.11 However, one may question whether on the basis of the specific legal features of the pre-1992 European Community, that regime could be labelled as “self-contained”. While it is not uncommon for international courts to employ interpretative techniques to read new elements into constitutive treaties of international organizations shortly after these have been adopted, the legal technique of teleological or functional interpretations should be embedded in a judicial policy perspective.12 Implying “powers” or “selfconstrained” is what it is … implied. Simma both supported as well as challenged the Court’s interpretation. On the one hand he concluded that violations of the EEC treaty could be “countered in an effective and constructive manner … based on a comprehensive and mutually reinforcing set of procedural, political and legislative mechanisms as well as the direct effect of Community law”.13 On the other hand, however, he referred to

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paragraph 3 of Article 88 of the ECSC Treaty as evidence that the European Communities system incorporated an element of self-help and as such accepted a “fallback clause” and the superiority of general international law.14 Simma, analysing the EEC system in term of “self-contained regimes” concluded that: [T]he EEC treaty certainly constitutes as far as possible a self-contained regime. This implies that the general legal consequences of treaty violations are completely superseded by special procedures and remedies. Therefore, the general regime of State responsibility can only be again called to the foreground after all remedies provided in the “subsystem” have been exhausted without any positive result and with further tolerance of the imbalance of costs and benefits caused by non-performance can no longer bona fide be expected from an injured party. Thus not even in the case of the EEC do we find the total and final “decoupling of a self-contained regime” from the general rules.

Simma’s conclusions are based on a combination of perceived subordination, the EEC being a subsystem compared to general international law, and a preferred Hawkingian “completeness”. However if we leave perception and preferences aside, Simma’s argument contains an interesting point of reference for analysing “selfcontained regimes” from the expectations of the regime-members as well as their behaviour. He starts with juxtapositioning and analysing the dominant view that “EEC law constitutes an autonomous legal order” with the opinion that a fallback on the countermeasures provided for in general international law as an ultimo ratio after all the legal and political means within the EEC system have been exhausted would be to no avail. The dominant scholarly position, according to Simma, is based on “Berührungsangst” rather then “a convincing dogmatic foundation”. The “international law process of auto determination and self-help” is considered to be “primitive” compared to the “highly integrated EEC legal order” by EC lawyers.15 At the same time, Simma concludes that “[t]here certainly existed (and still exists) a consensus on the part of both member states and Community organs to keep the EEC Regime as ‘self-contained’ as possible. One should, therefore, not conclude too easily that the closed conflict resolution and sanctioning system has collapsed.”16 The consensus Simma observed may be considered as one of the corner stones of the European Union and as such a major part of the acquis communautaire. A complete breakdown of the acquis is indeed not to easily be assumed. While “the burden of proving the ‘self-contained’ character of a subsystem lies with those who allege such a detachment of primary rules from the normal regime”,17 in the case of an accepted existence of a “self-contained regime” the “burden of proof” might be reversed. In the opinion of Homsi, the EC case law comes from a judicial body that is part of the alleged self-contained regime […] [f]urthermore, EEC laws seems to condone some retaliatory conduct because the element of reciprocity still applies, and, in addition, the EEC treaties do not substantially differ from any other treaties so that they remain subject to the law of treaties.”18

There can be no doubt that the Court’s opinion is authoritative in the EC system. As such its legal construction might have become part of an early acquis communautaire. The constraint of EC member states in this respect seems to point in


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that direction. If this would be the case, the prohibition of self-help would be part of the fundamental “norms and principles” of the Community regime. An infringement could then pose a serious challenge to the whole system. If however the prohibition to resort to self-help is a result of self-constraint based on alternative and effective means to settle and adjust disputes, such a rule of constraint would belong to a normative layer in the system, an infringement of which would not necessarily jeopardize the existence of the regime. Dispute Settlement or Administration of Justice? The equivalent of Article 2 (3) of the UN Charter is missing from the Treaty of the European Community. Reference to a general principle stipulating an obligation for states to settle disputes by peaceful means is an obvious anomaly in a judicial system designed to administer justice. From a public international law perspective, the EC court system is sometimes erroneously characterized as a “regional trade dispute settlement system”.19 It would be more proper to refer to the EC judicial system as a system for the administration of justice rather then a dispute settlement system even though the Court of Justice can be called upon to act as a traditional international court. With respect to cases involving states, the ECJ has jurisdiction over (1) Commission v. state cases [Art. 226], (2) state v. state cases [Art. 227 and art 239], (3) state v. EC institution(s) cases [Art. 230 and 232], (4) private parties v. state cases [Art. 234] and (5) state v. private party cases [Art. 234]. Cases brought under Articles 226 and 227 are infringement cases; Article 230 is concerned with the review of legality of Community “legislation”, Article 232 procedures concern the failure of European Institutions to act; Article 234 provides for the possibility to give preliminary rulings on questions raised by national courts, and last but not least, Article 293 creates the possibility for states to confer jurisdiction on the Court “in any dispute between member states which relates to the subject matter of this Treaty if the dispute is submitted to it under a special agreement between the parties”. Except for remnants of public international law, all other procedures are compulsory. Cases involving private parties can be submitted to the Court by national courts or under specific circumstances be brought directly by individuals and companies. It is this phenomenon that gives the EU system its special judicial character. Remarkable in the EC’s “administration of justice system” is the position of the Commission. Article 226 provides that: If the Commission considers that a member state has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the state concerned the opportunity to submit its observations.

Article 227 requires states to bring a complaint against another member state before the Commission before it brings the matter before the Court of Justice. The Commission shall then again: Deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both.

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The role of the Commission in combination with the operations of the procedures has been criticized and hailed. The barter element and the lack of transparency in the “pre-litigation phase”20 of the procedure, the “elite co-operation” character of the settlement reached and, last but not least, the discretionary power of the Commission have been the main points of criticism. A combination of the Commission’s lack of resources and time and the Commission’s pragmatism and political agenda does not, according to Craig and De Búrca, make it the “most effective system”.21 In these infringement procedures, the Commission is not a “neutral and objective” administrator of justice but a stakeholder on a multi-level playing field. From an objective point of view, the member state allegedly infringes Community law: from a subjective point of view, the member state has a dispute with the Commission. From that perspective, the “pre-litigation phase” is essentially a negotiation phase. According to Snyder, one must not: think of negotiation and adjudication as two alternative forms of dispute settlement. It may be suggested, however, that the daily practice and working ideology, the two are not alternatives but complementary. The main form of dispute settlement used by the Commission is negotiation, and litigation is simply a part, sometimes inevitable but nevertheless generally a minor part, of this process.22

Schepel and Blankenberg understand infringement procedures as being “by their very nature intensely political.” They therefore identify with the Court’s argument “to maintain the Commission’s much criticized discretion, … to resist juridification of the procedure and to give the Commission leeway in negotiations”.23 Referring to the fact that EC member states have used Article 227 only four times supports, according to Schepel and Blankenberg, the argument that the Commission “makes every effort to avoid bringing States to the Court”. What we should not forget, however, is that it was states in the first place which developed these procedures and formulated their terms. Completely in accordance with the general distrust of states for international judicial procedures, they agreed in the European framework upon a compulsory judicial system regime with an obligatory negotiation element which is so well-known in international dispute settlement. The “dispute settlement”, except for being compulsory, does not intrinsically differ in its practical application from the traditional international dispute settlement procedures. International courts are not states’ favourite institutions for the settlement of inter-state disputes. The European Court of Justice is no exception. Neither under Article 227 nor under Article 239 have states involved the European Court of Justice in their disputes. The acceptance of a compulsory element in interstate disputes may be a leap forward in terms of public international law, it is not a truly innovative mechanism if assessed in terms of effectiveness. On the basis of this obligation alone, the EC regime can hardly be characterized as “self-contained”. If the judicial system of the EC is not self-contained on the basis of its dispute settlement mechanism, its system for the administration of justice has to be assessed as a different source for constraining the traditional right of states to resort to self-help. The “administration of justice” is to be found in the possibility for private parties to invoke EC law directly before national courts and the European Court of Justice and indirectly before the European Court of Justice through the preliminary rulings procedure envisaged in Article 234. In one of its hallmark cases, the van Gend en


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Loos case, the European Court of Justice characterized the Community as a “community of interests”, which implied that the EC Treaty is “more than an agreement which merely creates mutual obligations between the contracting states”. The Treaty not only affects the citizens of the member states, but also endows “the Community [with] an authority that can be invoked by their nationals before court and tribunals [of the member states]”. The conclusion to be drawn from this is that the community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only Member States but also their nationals. Independently of the legislation of member states, Community law therefore can not only impose obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. … the argument based on Articles 169 [226] and 170 [227] of the Treaty put forward by three governments which have submitted observations to the Court in their statements of the case is misconceived. The fact that these articles of the Treaty enable the Commission and the member states to bring before the Court a state which has not fulfilled its obligation does not mean that individuals cannot plead these obligations, should the occasion arise before a national court, any more than the fact that the Treaty places at the disposal of the Commission ways of ensuring that obligations imposed on those subject to the Treaty are observed, precludes the possibility in actions between individuals before a national court of pleading infringements of these obligations.24

The lengthy quotation demonstrates that the judicial system to secure rights of citizens constitutes a separate and autonomous procedure. Alter is correct in assuming that “a legal process has its own dynamics that often lead to interpretations beyond what political actors imagine when they draft legal text”.25 However, it also raises questions as to why states did not “undo” what Alter perceives as the Court’s “judicial revolution that transferred away national sovereignty.”26 The question brings us squarely into a paradigmatic discourse between traditional realists and regime theorists on the self-interest of states. Is it likely that “maybe national governments simply did not understand what was happening”?27 Or does it reflect the intention of the original members states to ultimately integrate the European Community law completely in their municipal orders?28 Alter explains it as a rather unintentional (legal) process, which gradually increased the status of the law of the Community and ultimately falsified the Marxist paradigm that law reflects politics. Through the development of a notion of the supremacy of community law, politics became a reflection of the law.29 However, neither can we disregard in this scenario the fact that the original six members created a possibility for Community law to have direct effect. Assuming that states do understand that they cannot fully control regime dynamics and that they know how to limit regime dynamics,30 the original members of the Communities could have designed a regime that would not infringe upon their sovereignty. The original European Community members introduced a judical system, which at the same time had all the characteristics of a traditional public international law system and the novelty of “private” or “privatized” enforcement of rules of Community law through the concept of direct effect.31

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(Non-)compliance and Enforcement The pre-1992 version of Article 228 [171] of the EC Treaty required states to “take the necessary measures to comply with the judgment of the Court of Justice”. Former Article 171 is not unique; neither if compared to similar international obligations, nor as an exception to the conclusion, do these obligations in themselves promote or secure compliance. Whether (non-)compliance is going to be a “real” problem is a debated issue in political and academic discourses concerning the present and future EU regime. There is however enough concern to substantiate a “compliance and enforcement” discourse. Non-compliance with Court of Justice decisions takes a special place in the “compliance discourse”. This special concern has increased the attention and (perceived) need for enforcement mechanisms, resulting in the 1992 amendment of article 171. Non-compliance – A Non-issue? The position of EC law scholars on compliance can be characterized as moderately positive but prudent.32 Concern is based on both a noted as well as an expected increase in non-compliance. First of all, compliance analyses have to overcome some persistent methodological problems. 1. 2.

Non-compliance is generally assessed in quantitative terms in the sense of counting (a) the infringement procedures started by a competent organ or (b) the cases listed on the docket of the Court. The establishment of the authoritative record for the collection of the data determines the outcome.

Hartley acknowledges that there is a major difference between non-compliance cases as derived from the Commission’s report on its law enforcement activities and those which are brought to national courts and the EC Court by individuals, companies and other private non-state actors.33 Secondly, it remains to a considerable extent unclear what induces states as such to generally comply with EC law. Scholars like Alter have questioned whether compliance can be fully explained by legalist, neo-realist and neo-functionalist arguments. Neither “legal logic” nor “rational choice”, “self-interest” or “mutual empowerment” can individually account for the legal integration process and the gradual establishment of “the supremacy of European law”.34 Legal analyses have identified specific procedural rules and administrative competences, which induce states to comply rather then to violate Community law. Among these complianceinducing features are the Commission’s task to “monitor Member state compliance and to respond to non-compliance” on the basis of Article 211 EC.35 Thirdly, cases of non-compliance always raise concern as they might affect the existence or development of the regime. Flouting court decisions raises special concern in this respect. According to Alter this concern is “greatly exaggerated … a few cases of non-compliance would hardly undermine the legitimacy of the judiciary.”36 Concerns about increasing non-compliance have coupled the discourses


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on compliance (mechanisms) and enforcement (mechanisms).37 The latter discourse resulted in the amendment of Article 171. Ever since its first Annual Report to the European Parliament on Commission Monitoring of the Application of Community Law in 1984, The Commission of the European Communities has stressed noncompliance with decisions of the European Court of Justice.38 Whereas the Commission in respect of general compliance relied on the procedure of Article 169 of the EC Treaty and public opinion,39 it indicated in respect of non-compliance with European Court of Justice decisions that it would take “political steps at the appropriate level.”40 Enforcing the Myth of Enforcement In the mid-1980s the concern for non-compliance gradually brought the EC’s inadequate enforcement mechanism into the compliance discourse. In the preMaastricht European legal system non-compliance with Court decisions could only be brought again before the Court by the Commission on the basis of Article 171, which stipulates that an EC member is bound to comply with the Court’s decisions. The Court could merely uphold the Commission’s view and decide that the state in question had violated its obligation under Article 171. The EC’s legal system was not only “of little help”, but also “actually be counterproductive” according to Alter.41 Successful Article 171 procedures not only exposed the state in question but “would also reveal that the emperor (the EC’s nascent legal system) was without clothes.”42 In the 1980s, the Commission’s initial non-confrontational strategy towards noncomplying states started to change. In literature a variety of developments have been identified, which might have caused the Commission to push for a stronger enforcement mechanism. The question of which factors caused the Commission’s policy change is interesting, because as Alter concludes: “the weaknesses of the European legal system fed upon itself”.43 The nascent European legal system constituted in her opinion the typical “vicious circle of international law”.44 To Alter, the answer is to be found in the growing authority and boldness of the European Court of Justice, which – although facing a lack of infringement cases referred to it by the Commission – was able to develop its position and contribute to the development of the legal order of the EC through cases brought by private actors and national courts under Articles 173, 175 and 177.45 The enhancement of the role of law through the promotional efforts of the European Court of Justice ultimately “changed the nature of the political process”.46 From an international relations theory approach, however, the changes are explained as an internal political response to global threats to EC competitiveness rather then autonomous internal legal processes.47 Perceived external threats are likely to influence organizational power structures and create shifts in political power centres. By the end of the 1980s – in the midst of the European Union discourse – the European Commission was in a position to propose an amendment to Article 171. The intention of the Commission’s proposal to the Intergovernmental Conference on the Political Union was twofold: (1) to formally establish itself as a law-enforcement agency compared to its pre-1992 function as a compliance monitoring body and (2) to bring the EC Court of Justice into a position to impose a “penalty payment” in cases of non-compliance. The Conference adopted the Commission’s proposal. The

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Commission’s proposal now stands as paragraph 2 of Article 228 which reads as follows: If the Commission considers that a Member State concerned has not taken such measures it shall, after giving that State the opportunity to submit its observations, issue a reasoned opinion specifying the points on which the Member State concerned has not complied with the judgment of the Court of Justice. If the Member State concerned fails to take the necessary measures to comply with the judgment of the Court’s judgment within the timelimit laid down by the Commission, the latter may bring the case before the Court of Justice. In doing so it shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned, which it considers appropriate in the circumstances. If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. This procedure shall be without prejudice to Article 227.

Legal scholars are by and large ambivalent. Scepticism as to the effectiveness and practicalities of this enforcement mechanism go hand in hand with qualified optimism. Hartley’s opinion is illustrative: This system … could be of value. Nevertheless there is a problem. If the member state is sufficient defiant to disobey the original judgment, it may also refuse to pay the fine. There is no way in which it could be forced to pay, except perhaps by deducting the sum in question from money owned to it by the community. An unseemly game of tit for tat could result, in which the ultimate result may depend on whether or not the state was a net contributor to the community’s budget.48

Equally skeptical and critical are Wyatt and Dashwood, who submit that this power has to be exercised by the Court with “considerable tact”.49 Rather traditional positivistic critisism came from Advocate General Tesauro who excludes the possibility of pecuniary sanctions against state administrations.50 From a more conceptional point of view, Bonnie has raised questions on the discretionary power under Article 228. Concerns on the discretion of the Commission have already been raised with respect to the pre-1992 “compliance procedure” of Article 171. According to Bonnie, the article 228 (2) problematic is of a different nature.51 She rejects all of the arguments in favour of maintaining a broad discretion. She concludes that the rationale of Article 228 has changed: the old Article 171 was a compliance procedure; the new Article 228 is an enforcement procedure. Bonny differentiates between the discretion to bring a case before the Court and the discretion of the Commission to “specify the amount of lump sum or penalty payment”.52 A strictly textual interpretation (“may” v. “shall”) point indeed in the direction of Bonnie’s conclusion. In response to the questions raised with respect to the new enforcement procedure, Craig and De Búrca, have concluded that the Commission “has made active use of the procedure for proposing pecuniary penalties.”53 The power of the new enforcement procedure is according to the latter authors not so much to be found in the enhanced power of the Court, as in the more elaborated “enforcement strategy” of the Commission.54 Craig and De Búrca’s opinion on the new enforcement mechanism coincides with the Commission’s assessment of the new power tool.55 From an assessment of the cases against Greece and Spain, which have had the dubious honour of being the first states which were ordered by the Court to pay to the


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Commission “a penalty payment”, Theodossiou is a little bit more sceptical.56 She concludes that: The new regime is likely to be most effective in the most common form of non-compliance: internal legislative difficulties, local resistance, or inadvertence. In these cases, Article 228 (2) will be a valuable addition.

Notes 1 Alter, Establishing the Supremacy of European Law, 208. 2 Simma, “Self-Contained Regimes”, 123. 3 Craig and De Búrca, EU Law, 5. 4 Delcourt, C., “The Acquis Communautaire: Has the Concept had its Day?” Common Market Law Review 38 (2001): 840 [hereinafter, Delcourt, “Acquis Communautaire”]. 5 Delcourt, “Acquis Communautaire”, 842, 869. 6 Delcourt, “Acquis Communautaire”, 832, 844, 847. 7 Delcourt, “Acquis Communautaire”, 865. 8 Ward, A Critical Introduction, 56–9. 9 Commission of the EEC v. Grand Duchy of Luxembourg and Commission of the EEC v. Kingdom of Belgium, Cases 90 and 91/63, Eur Court Rep (1964): 1217, 1232. Belgium and Luxembourg introduced a levy on the issue of import licences for certain milk products. The Commission took the view that these measures, which applied to the importing of products originating in Member States, were contrary to Article 12 of the EC Treaty. Belgium and Luxembourg did not deny the allegation that they acted in violation of EC law, they rather defended their measure by pointing out that it was a mere response to the failure of the Community to fulfil its obligations. Idem, 627 et seq. 10 Commission of the EEC v. French Republic, case 232/78, Eur Court Rep (1979): 2732. 11 Arangio-Ruiz IV, add. 2, 2. 12 The Reparation for Injuries case can be referred to as an example at the international level. The International Court constructed legal personality for the UN on the basis of the objectives and functions of the organization only 4 years after the organization had been established. 13 Simma, “Self-contained Regimes”, 125. 14 Simma, “Self-contained Regimes”, 125. 15 Simma “Self-contained Regimes” 126, 127. 16 Simma, “Self-Contained Regimes”, 127. 17 Simma, “Self-Contained Regimes”, 135. 18 Homsi, “Self-Contained Regimes”, 104. 19 Collier and Lowe, The Settlement of Disputes, 104–107. But see Shaw, International Law, 936, 1179, who does not describe the ECJ under “the settlement of disputes by peaceful means” but within the context of the European Union. 20 In order to label this phase in the procedure a variety of terms is introduced. “Prelitigation” [Schepel and Blankenburg, “Mobilizing the European Court of Justice”, 17; see also the Court’s jurisprudence e.g. case C-387/97]; “pre-contentious phase” [Craig and De Búrca, EU Law, 411] and “administrative phase” [Wyatt and Dashwood, European Community Law, 111]. The latter term conceals the essentially diplomatic and political character of this phase. “Pre-litigation” and “pre-contentious” indicates the stage in the procedure before the decision to initiate a court procedure is taken. The first term corresponds with the terminology used in Chapter 4.

158 21 22 23 24 25 26 27 28 29 30

31

32

33 34 35 36 37 38

39 40 41

Enforcing International Law Craig, P. and G. De Búrca, EU Law; Text, Cases and Materials. 3rd ed., Oxford: Oxford University Press, 2003, 401 [hereinafter, Craig and De Búrca, EU Law]. Snyder, F., “Preconditions for the Effectiveness of EU Law: Reflections on Constitutionalism and EMU”, in Compliance and Enforcement of European Community Law, edited by J.A.E. Verveale et al., 3–26. The Hague: Kluwer Law International, 1999. Schepel, H., and E. Blankenburg, “Mobilizing the European Court of Justice”, in The European Court of Justice, edited by G. De Búrca and J.H.H. Weiler, 9–42. Oxford: Oxford University Press 2001. Van Gend en Loos case. Alter, K.J., Establishing the Supremacy of the European Law; The Making of an International Rule of Law in Europe. Oxford: Oxford University Press, 2002, 184 [hereinafter, Alter, Establishing the Supremacy of the European Law]. Alter, Establishing the Supremacy of European Law, 184. Idem. Collier and Low, The Settlement of Disputes, 107. Alter, Establishing the Supremacy of European Law. If institutionalized regimes for regional integration are compared, the differences between NAFTA and the EC on the one hand and ASEAN on the other can be explained in terms of the willingness of the participating states to allow for and accept autonomous regime dynamics and the intentional exclusion regime dynamics. The term “private law enforcement” is used in various settings such as self-regulatory frameworks (see Berg “Shifting Boundaries”, 148). The terms “public” and “private” in the context of international law are confusing. Public international law is a legal system based in the Roman concept of Ius Gentium, which was the dominant legal frame of reference in the 17th century when Grotius and others constructed a legal system for interstate relations. Nowadays, this system is known as public international law. However, it still has all the characteristics of Roman civil law system based on contractual obligations of private parties. Contemporary states are the private parties in an international law system. “Public” refers to the status of these “private” parties, not to the character of the legal system. The involvement of private actors in the enforcement of international can paradoxically be characterized as a process of “deprivatization” of international law. The deprivatization of the contemporary international legal order is neccesaary to transform this order into a transnational public legal order. Wyatt, D., and A. Dashwood, European Community Law. 3rd ed. London: Sweet & Maxwell, 1993, 118 [hereinafter, Wyatt and Dashwood, European Community Law]; Hartley, T.C., European Union Law in a Global Context: Texts, Cases and Materials. Cambridge: Cambridge University Press, 2004, 100 [hereinafter, Hartley, European Union Law]. Hartley, European Union Law, 112. Alter, Establishing the Supremacy of European Law, 39. Craig and De Búrca, EU Law, 397. Alter, Establishing the Supremacy of European Law, 40. See Vervaele, Compliance and Enforcement of European Community Law, (The Hague: Kluwer Law International, 1999). See, First Annual Report, EC Doc No. COM (84): 181 Final at 7; Second Annual Report, EC Doc No. COM (85): 149 Final at 4, Third Annual Report, 29 OJEC (1986) C/220/1 at 4; Fourth Annual Report, 30 OJEC (1987) C/338/1 at 4; Fifth Annual Report, 31 OJEC (1988) C/310/1; Sixth Annual Report, 32 OJEC (1989) C/330/1 at 5; Eighth Annual Report, 34 OJEC (1991) C338/1 at 8. See Third Annual Report, idem. Idem. Alter, Establishing the Supremacy of European Law, 212.

The European Community 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56

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Idem. Alter, Establishing the Supremacy of European Law, 215. Alter, Establishing the Supremacy of European Law, 211. Alter, Establishing the Supremacy of European Law, 117–20. Alter, Establishing the Supremacy of European Law, 229. Viotti and Kaupi, International Relations Theory, 243. Hartley, European Union Law, 112. Wyatt and Dashwood, European Community Law, 120. The authors refer to Article 88 of the ECSC Treaty, which provided for a comparable enforcement power, but which has never been invoked. Bonnie, A., “Commission Discretion under Article 171 (2) E.C.”, European Law Review 23 (1998): 537–51. Bonnie, “Commission Discretion”. Bonnie, “Commission Discretion”, 544. Craig and De Búrca, EU Law, 402. Idem, 430. Idem, note 28. See Commission v. Greece, case 387/97, 2000 and Commission v. Spain, case 278/01, 2001.


Chapter 10

The World Trade Organization Introduction The GATT and the WTO have been the subject of extensive analyses from the perspective of various disciplines. The dispute settlement systems in the respective regimes have either been included in more general analysis or subjected to more specific research. In many of the major studies empirical and normative approaches are combined. Regime theorists, for example, are remarkably focused on GATT’s normative character including the function of its dispute settlement mechanism, whereas legal scholars seem to be preoccupied with the question of whether the GATT/WTO dispute settlement system is an “adjudicative rule, based system” or a “negotiation, power based system”.1 As stated in Chapter 7, Jackson et al. have argued that the GATT/WTO system ultimately tends to develop into an adjudicative, rulebased system, which, according to these authors, is a logical development considering the “evolution of GATT procedures”.2 Regime theorists have observed a similar development. These developments have been heavily influenced by the tension between politicization and legalism tendencies amongst the contracting parties. The General Agreement on Tariffs and Trade is now embedded in the larger WTO regime established in 1992. This WTO regime is characterized by a “thickening” of the trade rules, an enhanced institutional framework, a completely overhauled dispute settlement system and an enforcement mechanism. The WTO is constructed on the fundamental principles of the GATT such as the Most-Favoured Nation Clause and the Non-Discrimination principle. Also the WTO dispute settlement mechanism can be characterized as the “the legacy of the GATT”,3 which implies that the WTO dispute settlement system is not a complete novelty in the world’s trade regime. The observed tension and assumed dualism between “politicization” and “legalism” has also spilled over from the GATT into the WTO regime. From a Third World perspective, the dichotomy signals the “developed”/“developing” dichotomy,4 although not in the sense that one or more countries represent one approach and other countries represent the other approach. It is more that “legalism” and “politicization” are opposite strategies, which are used at different times by different actors, triggering an opposite strategy by other actors. Constructing, Deconstructing and Reconstructing the GATT Dispute Settlement Mechanism The General Agreement on Tariffs and Trade did not provide for a panel mechanism. Instead it provided for the most basic system for the settlement of dispute settlement between the contracting members one can think of. An explanation for the minimalist

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approach is to be found in the misapprehension that the International Trade Organization (ITO), which included a more elaborate system for the settlement of disputes, would soon replace the GATT. GATT’s dispute settlement provision is to be found in Articles XXII and XIII. Article XXII provides the following: Each contracting party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as may be made by another contracting party with respect to any matter affecting the operation of this agreement. The Contracting Parties may, at the request of a contracting party, consult with any contracting party or parties in respect of any matter for which it has not been possible to find a satisfactory solution through consultation under paragraph 1.

Article XXII merely constitutes a bilateral consultation mechanism, with a multilateral safe-guarding clause. Article XXIII, however, provides for a more significant involvement of the contracting parties as it provides that: If any contracting party should consider that any benefit accruing to it … being nullified or or impaired, or the attainment of an objective impeded … The contracting parties shall … investigate … make appropriate recommendations …, or give a ruling on the matter.

While Articles XXII (2) and XXIII provided the basis for the development of the contemporary WTO system, that development was not a linear or a gradual one. A combination of practical needs, pragmatic solutions and political motives gave input to the development of the dispute settlement with varying results. In the early days of the GATT, the disputes settlement took place on an ad hoc basis, first by rulings of the chairman and later by so-called working parties. This practice already complemented the involvement of the contracting parties as a whole. Based on Articles XXII and XXIII the “working parties” developed a method and routine which could be situated somewhere between facilitating negotiation and conciliatory pressure. “Early dispute settlement in GATT reflected its diplomatic roots” according to Palmeter and Mavroidis.5 The introduction of panel procedures in the early 1950s constituted the fundament of a paradigmatic shift in these early practices of the GATT: disputing parties were excluded from deliberations, major trading interests were not necessarily included and procedures were formalized. It signalled a first trend from “facilitating negotiation towards a greater emphasis on third-party adjudication” according to Trebilcock and Howse.6 However, the construction of the panel system was not successful in every respect. On the contrary, in the 1960s, the whole panel procedure fell into disarray. It reflected according to Palmeter and Mavroidis “GATT’s diplomatic heritage and its indifference, if not hostility, towards legalism”.7 Lipson, who extensively draws upon the expertise and legal analysis of Robert Hudec, also concludes that GATT’s “early success [in the legal arena] faded rapidly after the Kennedy Round (1964-67)”. He summarizes the development of GATT in the 1960s and 1970s as follows: Antilegalism became more prominent; compliance with GATT rules fell. Whether one concentrates on dispute settlement, the fashioning of new rules, or the rule guideness of the contracting parties, it is clear that the GATT legal structure weakened considerably. …

The World Trade Organization

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Non-compliance has now [1983] become a serious problem and has raised doubts about the entire legal framework …The lack of reliable dispute settlement procedures makes these violations all the more dangerous to the rule system … GATT’s dispute settlement mechanisms … were virtually abandoned after 1958. The Tokyo Round Agreement aims to revive them, but the undertaking is ambitious and the outcome certain.8

Lipson’s observations and analysis call for two comments. First of all, it is remarkable to note the author’s preoccupation with the effectiveness of the dispute settlement system as a precondition for the functioning of the entire regime. Secondly, the “decline in GATT’s legal capacities could not only be attributed to external factors such as Japan’s accession to the GATT, the establishment of the European Economic Community and the increasing membership of less developed countries.”9 Internal opposition to the panel procedures had its own deconstructive dynamics. Internal opposition has been explained on several grounds. First of all, the establishment of the panel “procedure” was regarded by some states as orchestrated by the GATT’s Secretariat in an effort to increase its influence.10 The policy move to introduce more objective and neutral third-party adjudication might also have caused a reaction. Also the quality of the panellists and the working party recommendations are often listed as one of the early defects of the GATT system. Palmeter and Mavroidis characterize the qualitative defect as follows: Most of the advocates before panels and most of the panelists themselves – the “judges” – were diplomats not lawyers … legal rulings were drafted with an elusive diplomatic vagueness. The goal was more to reach a solution mutually agreeable to the parties than to render a decision in a legal dispute.11

Palmeter and Mavroidis perceive and assess the early panel process from the lawyer’s perspective. One could argue that, notwithstanding the quasi-legal character of the panel proceedings, the whole procedure was essentially conciliatory. With the introduction of panels and some procedural rules, the basic characteristics of the GATT dispute settlement procedure was still that it was not binding. As concluded in Chapter 5, the consent of parties to a conciliatory process is a double one: once for entering into conciliation and once for accepting the outcome. Early panellists have understood this phenomenon better than contemporary lawyers. Jackson, however, concludes that role of panellist was one of the reasons that the GATT “moved rather strikingly towards the ‘judicial’ approach”.12 Recognizing that panellists understood their conciliatory task, Jackson also assumes that the perception of neutrality and objectivity of the panel procedure and the panellists induced the latter to move away from their governments’ policies and adopt a judicial approach which from a positivistic perspective after all represents “neutrality and objectivity”. The deconstruction of legalism and “rule-orientation” was not merely a change affecting “rules and procedures” of the GATT regime. In terms of regime change, the “legal disintegration” of the GATT regime reflected, according to Lipson, “the collapse of the substantive consensus underlying the early GATT”.13 The lack of consensus to develop and implement a modern dispute settlement system was symptomatic of the problems of the GATT. Hudec’s study of the “blocking-system”, however, demonstrated that in the first 45 years of its existence 90% of all panel reports were adopted. The “losing” party did

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not object to the adoption of the report by the panel, the establishment of which it had already consented to in an earlier phase. The “blocking-problem” was in fact a problem of the establishment of the panels rather then a problem concerning “afterlitigation compliance”. This problem increased in the 1980s according to some analysts.14 With respect to this development, it should be noted that the 1970s witnessed a revival of the use of panel procedures and legalism. According to Trebilcock and Howse, the legalism in the 1950s and its revival in the 1970s can be equally explained by aggressive US interference.15 Keohane would probably call it the return of the hegemon.16 The revival of legalism resulted in the adoption of three major documents in the field of dispute settlement: 1.

the 1979 Understanding on Notification, Consultation, Dispute Settlement and Surveillance and the attached Agreed Description of the Customary Practices of the GATT in the field of Dispute Settlement,17 2. the 1982 Ministerial Declaration on Dispute Settlement18 and 3. the 1984 Action on Dispute Settlement Procedures.19 Together with the continuing procedural practice of the panels, these documents formed the basis for the reconstruction of the panel procedure and law-enforcement within the GATT, which was finalized at the Marrakesh Conference in 1992 and resulted in the Dispute Settlement Understanding, which now shapes the WTO dispute settlement system and in particular the contemporary panel procedures. “Rule Orientation” v. “Power Orientation” At different periods in the GATT history we can observe the pendulum of politics and policy swing between “legalism” and “politicization” normative terms: “rule orientation” and “power orientation”. The concern for destructive politicization of the GATT/WTO regime may explain swings towards more legalism, whereas threats to the idea of sovereignty swing the pendulum back. If there were not an external push or pull factor once in a while, the pendulum would ultimately come to a standstill somewhere in the middle of law and politics. Politicization is likely to be caused by non-inclusive reasons of solidarity or self-interest.20 To the extent that regimes are always subject to the infiltration of non-regime-related interest – a regime can never be self-contained in this respect – disputes over this infiltration can be canalized through formalized procedures. The WTO regime is especially vulnerable to the infiltration of non-regime-related interest, because the predominant mechanism to achieve individual objectives is the use of unilateral trade measures. Moreover, as the real reasons behind unilateral trade measures could be protectionist in nature and thus affecting the system in a different manner, politicization of the system cannot be precluded. The “security exception” as “the right to decide unilaterally” when and how to act unilaterally within the WTO regime could be considered as an example of the infiltration of politicization.21 Perez argues that on the basis of interpretations of the national security interest exceptions the WTO legal order can be characterized as


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either a conventional regime, based on the interest of the sovereign state, or a “quasiconstitutional” regime based on a public interest.22 Perez’ “third mode” of interpretation, which is based on the “choice of law principle” is considered to “mediate” between the other two competing conceptions. The conventional– constitutional discourse is according to the latter author, based on the traditional dichotomy between practitioners and academics and/or trade realists and trade legalists.23 The controversy between the “rule-oriented” approach and the “poweroriented” or “diplomacy” approach towards dispute settlement might be interpreted in the same light. Jackson, who is one of the leading promoters of the “rule-oriented” approach, argues that: The rule-oriented approach, particularly as to international economic affairs, has much policy advantage. It is this approach that focuses the disputing parties’ attention on the rule, and on prediction of what an impartial tribunal is likely to conclude regarding whether the rule has been fulfilled. This in turn will lead parties to pay closer attention to the rules of the treaty system and this can lead to greater certainty and predictability which is essential in international affairs, particularly economic affairs driven by market-oriented principles of decentralized decision-making, with participation by millions of entrepreneurs. Such entrepreneurs need a certain amount of predictability and guidance so that they can make the appropriate efficient investments and market development decisions.24

While Jackson admits that there still exists some tension between the two approaches in the post-Marrakesh regime, he generally concludes that the “rule-oriented” approach has won. But what are the rules of the regime? WTO rules are, according to Palmeter and Mavroidis, “not concerned with actual trade, but rather with competitive opportunities. … It is not necessary that a member has a ‘legal’ or trade interest as a prerequisite [for establishing a panel]”.25 As indicated in the previous paragraph, the dispute settlement procedure of the GATT has no legal basis in the treaty. Articles XXII and XXIII of the GATT did not provide for any procedural rules. Nothing indicates that a formal legal breach of the GATT is a procedural prerequisite for bringing a “complaint”. The basis for the development of the GATT panel procedure could not even be called quasi-legal in the opinion of the writer. It is the more remarkable then that Jackson concludes that: One of the striking features of the GATT’s forty-five-year history, however is that it has evolved a rather elaborate dispute settlement procedure that has in recent years taken a fairly rigorous approach to the legal obligations of the GATT. … At the outset of GATT’s history, one would have been hard pressed to … particularly predict the degree to which dispute settlement has become so central to the GATT process.26

In Trebilcock and Howse’s “perspectives on dispute settlement”, the contemporary panel procedure is not so much the triumph of “rule” over “power”, but reflects “a modification of of the neo-liberal view of the multi trading order as a regime whose basis is a mutually self-interested bargain among states.”27 On the basis of Shell’s “regime management” model of dispute settlement, they argue as follows:

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Sustaining such a bargain requires institutions that are capable of identifying and sanctioning (or at least authorizing sanctions) cheating on the cooperative equilibrium which this bargain represents. Diplomatic, power-based solutions to disputes are unlikely to generate the normative benchmarks necessary to distinguish conduct consistent with the bargain from cheating, and are therefore unlikely to sustain a co-operative equilibrium over time.

This process of distinguishing between cheating and non-cheating behaviour is increasingly important according to the latter authors because of the increasing acceptance of non-trade values in disputes concerning traditional trade issues.

The Dispute Settlement Process: Proliferation or Unification? The WTO’s Dispute Settlement Understanding should, according to Jackson, eliminate the practice of “forum shopping”, which developed after the Tokyo Round.28 Forum shopping is a well-known phenomenon in a judicial environment which offers multiple dispute settlement mechanisms. The proliferation of dispute settlement procedures and mechanisms facilitates forum shopping. International law itself is indeed the archetypal system in this respect. This is the result of (1) the policy freedom that states have built into the global legal system as reflected in Articles 2 (3) and 33 of the UN Charter, (2) a misunderstood notion of functionality, which argues that specific disputes require specific mechanisms and procedures and (3) noninclusive interests such as these of practitioners. A rather low level of proliferation was built into Articles XXII and XXIII. Contracting parties could opt for either bilateral or multilateral consultation as provided for in Article XXII or the Article XXIII procedure. A more serious form of proliferation was introduced with the 1966 Decision on Procedures under Article XXIII 29 regarding the application of the article XXIII dispute procedure to developing countries. Through Article 3.12 of the Dispute Settlement Understanding, the 1966 Decision has been made part of the WTO dispute settlement acquis.30 Another form of proliferation is to be found in the introduction of special procedures within the various WTO agreements.31 The most serious proliferation however is apparently to be found in the development of multiple procedures in the GATT. While Jackson assumes a unifying role for the WTO’s Dispute Settlement Understanding, the multiplicity of the procedures envisaged by the Understand tends to indicate that the WTO dispute settlement regime is in this respect also the “legacy” of its predecessor. The Understanding on Rules and Procedures Governing the Settlement of Disputes [hereinafter DSU] that is attached to the WTO Agreement as Annex II lists a variety of procedures. With only three mouse-clicks, the experienced web-surfer gets from “WTO.org” to a scheme of “[t] he various stages a dispute can go through in the WTO”.32 A variety of dispute settlement methods appear at first glance. A quick reading of the DSU reveals that these methods are either of a voluntary or compulsory nature depending on the stages of the conflict. The WTO dispute settlement procedure is indeed based on a variety of (1) compulsory and voluntary methods and a variety of (2) diplomatic and ‘adjudicative’ methods. Assuming a


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trade-off between a rule-oriented approach and a diplomacy-oriented approach is obvious. The DSU mechanisms reflects the whole colourful palette of Article 33 UN Charter mechanisms, with the exception of “adjudication” which has been replaced by the panel procedure. Consultation (Article 4 DSU) According to the WTO website, member states in dispute are “at all stages, … in [the] dispute … encouraged to consult each other in order to settle ‘out of court’”.33 Article 4 of the DSU obliges the disputing parties to “undertake to accord sympathetic considerations” towards consultation. However, paragraph 3 makes clear that member states do not have to respond to a request for consultation. Notwithstanding its form, if an obligation to negotiate exists under the DSU, such an obligation is of a political rather then a legal character. However once states have decided to offer or accept an offer to enter into consultations, the consultation process will be subjected to specific legal requirements concerning time limits, good faith and confidentiality. The WTO consultation process within the framework of the DSU does not substantially differ from other negotiation and consultation processes. While it is clear that consultation provides an ever-present opportunity for states to seek settlement, it is difficult to see that barter and diplomatic initiatives are at odds with the multilateral character of the GATT regime.34 Negotiation as a dispute settlement mechanism does not deviate from the idea of multilateralism. As stated in Chapter 5, negotiation is one of the principle means of settling disputes, both legal as well as political. It is difficult to see that even the most rule-oriented dispute settlement system could exclude the parties’ desire to negotiate. Good Offices, Conciliation and Mediation (Article 5 DSU) Paragraph 1 clarifies that these methods are of a voluntary character. Requests from other member states or an offer from the Director-General in this direction may be rejected. On the basis of Articles 3 and 5 these procedures are not limited in time and can continue during an ongoing panel process. Whether there is little room for these diplomatic procedures after consultations are formally exhausted, as Palmeter and Mavroidis assume, must be questioned.35 Consultations may very well result in the establishment of a conciliation or mediation process. Due to the required confidentiality, such procedures will be difficult to document. Another reason for assuming that mediation and conciliation could be functional is the relation between these mechanisms and disputes involving “developing” countries. The 1966 Decision Procedures under Article XXIII provides in Article 1 that the “good offices” of the Director-General may be requested unilaterally by a developing country. The Panel Procedure (Articles 6–19 DSU) 36 The panel procedure was the characteristic procedure in the GATT and is the characteristic procedure in the WTO. Notwithstanding the conclusion that its contemporary procedural rules are basically the same as the procedure under GATT,

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several significant changes have turned the procedure under the WTO into a modern dispute settlement procedure. First of all, the panel procedure has been made compulsory in the sense that the consent of the member state which is the target of the complaint,is no longer needed for the establishment of the panel. A member state can unilaterally request the establishment of a panel. Article 6 of the DSU stipulates that: If the complaining party so request, a panel shall be established at the latest at the DSB [Dispute Settlement Body] meeting following that at which the request first appears as an item on the DSB’s agenda, unless at that meeting the DSB decides by consensus not to establish a panel.

Panels are established rather automatically. A consensus not to establish a panel would necessarily require the consent of the requesting party, which is highly unlikely unless another procedure has been successful. The same negative consensus is required for the adoption of the report, which also seems to be an automatic process, with the exception that reports will not be adopted immediately if one of the disputing parties announces its intention to appeal (Article 16 DSU). Due to the compulsory character of the panel procedure as reflected in Articles 6 and 16 of the DSU, the other settlement procedures should be qualified as means of Alternative Dispute Resolution as these procedures are always conducted in the “shadow of the panel procedure”. This feature seriously qualifies the diplomatic character of the whole WTO dispute settlement process. The involvement of the Dispute Settlement Body (DSB), which is the administrative organ of the DSU and which consists of representatives of the member states, however reintroduces the question as to the diplomatic character of the WTO dispute settlement system. The adoption of panel and Appellate Body reports by the DSB reports is in its nature a political decision. It signifies to the author that the member states of the WTO could not agree on a construction in which the “final” settlement of disputes would be entrusted to an embedded but independent body. On the basis of the negative consensus rule, however, one should not be too formalistic in this. Both the rationale behind the WTO’s dispute settlement mechanism as well as the operation of the panel procedure also show elements of a “diplomatic mechanism”. First of all, Article 7 stipulates that “the aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred.” Secondly, Article 15 (1) and (2) entitles the parties to the dispute: (1) to submit written comments on the “descriptive (factual and argument) sections of the draft report” and (2) to submit a written request to review the DSB’s interim report and to “hold a further meeting with the parties on the issues identified in the written comment”. The question is whether and to what extent these written comments and “further meeting(s)” amounts to a process of consultation/mediation. To the extent that the comments and meetings would facilitate a settlement of the dispute without issuing a report, this part of the procedure would not be in violation of the general aim of the dispute settlement mechanism. On the contrary, such process would be a logical result from the consultation and mediation possibilities offered.


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Arbitration (Article 25 DSU) The fourth and final dispute settlement procedure listed in the DSU is arbitration, which is considered to constitute “an alternative means of dispute settlement [that] can facilitate the solution of certain disputes that concern issues that are clearly defined by the parties” (Article 25 (1) DSU). In principle, the agreement to arbitrate requires the consent of both parties. In exceptional circumstances, however, parties can unilaterally request arbitration.37 One of these exceptional circumstances might occur within the context of “compensation” and “suspension”.38 The idea of mandatory arbitration was already foreseen in the International Trade Organization.39 Arbitral tribunals have been frequently established since 1996 but mainly on the basis of Article 22 (6). Overviewing both the quantity and the quality of the various procedures in the WTO dispute settlement system, it is difficult to answer the question raised in the heading of this paragraph. One cannot deny that the possibilities for states to “shop” for a specific procedure are increased. However taking into account the compulsory nature of the panel procedure one could argue that all procedures are linked to the panel procedure and unified within one institutional framework; the Dispute Settlement Understanding. Mandated Self-help: Constrainment or Containment? On the basis of Article 22 (1) and (2) of the DSU the “wronged” state is entitled to “request authorization of the DSB to suspend the application to the member concerned of concessions or other obligations under the covered agreements” if “the recommendations and rulings are not (fully) implemented within a reasonable period of time”. Full implementation means at least “to bring a measure into conformity with the covered agreements”.40 According to Palmeter and Mavroidis, the panel’s suggestion as to the nature of the implementation are the only available remedies for compliance. Compensation and suspension are “potential default remedies”.41 Article XXIII of the GATT already provided the possibility for the contracting parties to allow suspension of concessions of one contracting party vis-à-vis another contracting party. However this possibility has been, in GATT’s entire existence, used only once. This observation is not remarkable if one takes the consensual basis of the original GATT dispute settlement system into account. Both the need for the introduction of “mandated self-help” as well as the rationale behind it have been the subject of intensive debate. From a positivistic legal perspective, the WTO system depends on the possibility of enforcement through suspension of concessions. From a more power-political point of view the WTO enforcement system is perceived as a threat to the autonomy and sovereignty of the member states. “Both views are likely exaggerated”, according to Palmeter and Mavroidis.42 On the basis of available data, it is difficult to establish whether such need existed or whether it was a constructed need. Many authors refer to a major study by Hudec on the compliance with and the enforcement of international trade law. The study indicates that 90% of all GATT disputes were eventually fully or partially settled.43

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The remaining 10% must have had such a potentially undermining effect that the construction of an enforcement system was warranted. The “judicious combination of detailed rules and flexible procedures”44 might have been the basis for GATT’s effectiveness and success in the early years of the regimes existence, but could they equally deal with the new WTO regime? The approximately 100 reports adopted by the contracting parties of the GATT in its 45-year history is in absolute terms outweighed by the 324 cases brought under the WTO’s DSU. To Jackson this might be an indication that the procedures are enhancing and inducing settlement and that these settlements are consistent with the “rule-orientation principles” of the procedures.45 Regime theorists as well as legal scientists have observed that the WTO (regime) constitutes more than a set of norms, principles and rules. The “set of procedures adapted to the subject matter and designed to resolve disputes that cannot be foreseen at the moment when these procedures are established” have been considered as an essential element within the GATT.46 However, this element, even if it would result in absolute compliance with the rule, would be based on self-constraint on the part of the member states. This type of constraint is qualitatively different from the notion that “enforcement of trade norms no longer leave national (and subnational) polities, as well as supranational non-trade regimes, unconstrained in their policy autonomy.”47 The WTO dispute settlement system reflects a level of self-constraint on the part of the member-states. The opportunity to bring a unilateral request for the establishment of a panel, which due to the rules of the WTO is likely to result in a panel case, affects the states’ desire and needs to jeopardize the system by resorting to unilateral trade measures. The possibility of unilateral law enforcement measures and the selfconstraint are complemented by an embedded enforcement mechanism which contains member states in the system. Notes 1

See e.g., Lipson, C., “The Transformation of Trade: The Sources and Effects of Regime Change”, in International Regimes, edited by S.D. Krasner, 233–71. London: Cornell University Press, 1983; Jackson et al. Legal Problems of International Economic Relations, 328. 2 Jackson et al., ibid., 339. 3 Trebilcock, M.J., and Howse, R., The Regulation of International Trade. 2nd ed, London: Routledge, 1999, 51 [hereinafter, Trebilcock and Howse, The Regulation of International Trade]. 4 Lal Das, B., The WTO and the Multilateral Trading System; Past, Present and Future. London: Zed Books Ltd, 2003, 29 [hereinafter, Lal Das, The WTO and the Multilateral Trading System]. 5 Palmeter and Mavroidis, Dispute Settlement in the World Trade Organization, 7. 6 Trebilcock and Howse, The Regulation of International Trade, 32. 7 Palmeter and Mavroidis, Dispute Settlement in the WTO, 61. 8 Lipson, “The Transformation of Trade”, 251 . 9 See idem. See also Trebilcock and Howse, The Regulation of International Trade, 53. 10 See Trebilcock and Howse, The Regulation of International Trade, 42.

The World Trade Organization 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47

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See Palmeter and Mavroidis, Dispute Settlement in the WTO 7; Trebilcock and Howse, The Regulation of International Trade, 55. Jackson, J.H. The Jurisprudence of the GATT & the WTO; Insights on Treaty Law and Economic Relations. Cambridge: Cambridge University Press, 2002, 121 [hereinafter, Jackson, Jurisprudence]. Lipson, “The Transformation of Trade”, 253. Palmeter and Mavroidis, Dispute Settlement in the WTO, 11. Trebilcock and Howse, The Regulation of International Trade, 53. See Keohane, After Hegemony. 26th Suppl. Basic Instruments and Selected Documents (BISD) 210, 1980. 29th Suppl. BISD 13, 1983. 31st Suppl. BISD 9, 1985. See Lal Das, The WTO and the Multilateral Trading System, 29. A.F. Perez “WTO and U.N. Law: Institutional Comity in National Security”, in Yale Journal of International Law, 23 (Summer 1998), 301, 302. Perez, ibid., 305. Perez, ibid., 307. Jackson, Jurisprudence, 121. Palmeter and Mavroidis, Dispute Settlement in the WTO, 23. Jackson, Jurisprudence, 120. Trebilcock and Howse, The Regulation of International Trade, 54. Jackson et al., Legal Problems, 340. See also J.H. Jackson, “GATT Measures and the Tokyo Round Agreements”, in Trade Policy in the 1980s, edited by W. Cline. Cambridge MA: MIT Press, 1983. Decision of 5 April 1966 on Procedures under Article XXIII, reprinted in Palmeter and Mavroidis, Dispute Settlement in the WTO, 297–9, 103. See Palmeter and Mavroidis, Dispute Settlement in the WTO, 99–103. Idem, 103, 134. http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp2_e.htm. http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp2_e.htm. Lal Das, The WTO and the Multilateral Trading System, 28. Palmeter and Mavroidis, Dispute Settlement in the WTO, 99–103. The term “panel procedure” is used in a more limited sense then the term “panel process”, which includes the above described methods. See e.g., Article 8 (5) of the Subsidies and Countervailing Measures Agreement, Article XXI of the General Agreement on Trade in Services. See Article 22 (6) and (7) of the Dispute Settlement Understanding. See Jackson, Jurisprudence, 170. See also Article 19 (1) of the DSU. Palmeter and Mavroidis, Dispute Settlement in the WTO, 164. Palmeter and Mavroidis, Dispute Settlement in the WTO, 99–103, 179. Data taken from Jackson et al., Legal Problems, 339. Lipson, “The Transformation of Trade”, 249. Jackson, Jurisprudence, 179. Dam, K.W., The GATT: Law and International Economic Organization, Chicago, Chicago University Press 1970; Lipson, “The Transformation of Trade”, 249. Trebilcock and Howse, The Regulation of International Trade, 55.


Chapter 11

Final Conclusions Reisman’s normative conclusion that the institution of self-help is still considered as “the essential base and the essential defect of international law” is still valid.1 Political science and legal discourses equally stress both the validity of the concept of self-help equally in an international legal system, which is characterized by the imperfections with regard to compulsory dispute settlement and centralized enforcement, and the necessity to confine the faculty to take unilateral measures of self-help to acceptable proportions. Stricter legal constraints on the right to resort to self-help are considered to diminish the possibilities of abuse. In the absence of conventional obligations that explicitly establish the predominance of resort to diplomatic and judicial procedures over the unilateral resort to self-help, it is (as yet) difficult to conclude that resort to self-help is subjected to a prior attempt to settle the dispute by resort to consensual procedures as a rule of customary international law or as a general principle of international law. One of the first instances which dealt with the question concerning the relationship between self-help and dispute settlement more substantially was the Tribunal in the Air Services Agreement case. The Tribunal held that the right of states to resort to selfhelp would only be restricted in very specific cases. The “present state of international relations” did not allow the Tribunal to “lay down a rule prohibiting the use of countermeasures during negotiations”, nor could it conclude that an explicit obligation to arbitrate constituted such a prohibition. The Tribunal was obviously concerned with safeguarding the right and discretion of states to resort to self-help. Furthermore, the Tribunal emphasized that one of the specific objectives of self-help was to bring about a settlement by consensual means. The Tribunal recalled “general international law” but not a general state practice accompanied by supporting opinio iuris. In opposition to the permissive approach of the Tribunal, scholars, the International Law Commission and the European Court of Justice have been more restrictive. Also within the WTO, self-help has been embedded in the regimes’ settlement of dispute system. The preference to confine the right of resort to self-help is grounded in both normative as well as (neo)functional and regime theoretical approaches. From a legal point of view, the outstanding question is whether, in addition to the classic requirements, such as the existence of a prior breach or a prior demand for redress and proportionality, a new rule of customary international law has emerged which generally requires states to resort to dispute settlement procedures prior to resort to self-help. This raises serious problems. First of all, it is not easy to reveal supporting relevant practice and, especially, legal opinion. This observation is not sensational if it is taken into account that the problem only arises after specific conditions have been met. Disputes concerning resort to self-

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help arise only in relation to disputes concerning infringements of rights or interests within a specific (legal) regime. Moreover, the legal character of the unilateral measure of self-help is not always easy to assess. The classic legal distinction between retorsion and reprisal is blurring. Secondly, disputes are almost by definition characterized by the fact that states hold opposite positions. The controversy necessarily includes the legality of unilateral measures of self-help. Thus to the extent that opinio iuris and state practice with regard to this very specific question can be revealed, it must be concluded that it does not present a clear answer; that the positions are diametrically opposed. The Air Services Agreement case and the ICAO case are adequate examples of cases where the question has been the subject of explicit dispute. These case studies have demonstrated that even if it is possible to reveal a specific trend in the practice of states, this trend cannot be interpreted in terms of customary law, because the necessary opinio iuris is lacking. The reasons why states refrain from resorting to self-help in any stage of the dispute may be manifold. Political and economic constraints are as relevant as legal constraints. Although one cannot exclude the possibility that states feel legally obliged to seek an agreed settlement first, there is no evidence that this is actually the case. Generally, states do not justify or object to self-help in terms of law, but in terms of policy or economical expediency. For example, very few states have stated that the unilateral measures of self-help taken by the US against Nicaragua were in violation of international law and even fewer states have taken the position that these measures were in particular in violation of the general obligation to settle disputes by peaceful means. Lastly, it is clear from the debate in the Sixth Committee of the United Nations that the (legal) opinions of states are diametrically opposed with regard to the existence of a rule of customary international law that would require states to exhaust or resort to procedures for the settlement of disputes prior to any initiation of unilateral measures of self-help. In addition to this opposition, states have also showed considerable reserves as to the introduction of an explicit rule of general international law as a matter of progressive development. The International Law Commission has taken a qualified pragmatic approach to the problem. The ultimate rule laid down in the Draft on State Responsibility holds the middle between Arangio-Ruiz’s normative stand and the reservations and position expressed by states. Whether this “normative-realism” is appropriate from an intellectual point of view or effective from a functional point of view must be questioned. Before we draw some conclusions as to the relationship between the institution of self-help and normative self-constraint, it is necessary to address the perception that the faculty to resort to self-help is subject to the possibility of abuse and misuse. The notion that powerful states are able to coerce less powerful states to adopt their preferences is a predominant argument in the debate on the confinement of the right to self-help. The “mandated self-help system” of the WTO system has been questioned as being detrimental to the interest of the economically weaker states, that do not possess means for economic retaliation. According to the author the idea of successful coercion of one state by another state must be questioned. First of all, most examples that substantiate this argument are taken from a period when gunboat diplomacy and military coercion was legally valid and a generally accepted tool of

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policy. Not only has the use of force for these purposes definitely been abandoned since 1945, but also international economic and political realities have changed. Hardly any state is capable of coercing or punishing another state without resort to military force. Political alliances preclude in most cases one state being left at the mercy of another state. Economic studies have demonstrated that economic measures of self-help cannot in themselves achieve the coercive objectives of self-help. Moreover, impulsive resort to self-help is highly unlikely, because political as well as economic measures have as many internal as external effects. Of course, the possibility of abuse of rights should always be taken into account when a specific right is granted. However, the possibility of abuse should not be emphasized to such an extent that the legal conditions attached to that right are of such a kind that the right is not an effective one anymore. States do not easily resort to self-help. Internal bureaucratic and political mechanisms consitute inherent limitations. In the initial phase of disputes, a clear trend to refrain from self-help exists. Cost/benefit analyses are likely to induce states to settle the matter by less costly means. Disputes revealing an absolute unwillingness – on the part of the states involved – to settle the matter through negotiations or a third party decision are very rare. In Part 1 we have analysed the institution of self-help to asses its character and normative limitations. Part 2 addressed the notion that consensual dispute settlement is a reflection of self-constraint on the part of states. While specific elements in the concepts of self-help and self-constraint are increasingly linked, it cannot be said the one concept dominates the other. Only within the notion of (self-contained) regimes can a subordination of self-help to consensual settlement be observed. Traditionally that subordination has a functional basis, but it is increasingly justified in normative terms. In Part 1, I have considered the various elements of the concept of self-help and indicated in which way they affect or would be affected by a notion of self-constraint as reflected in the obligation to settle disputes by consensual means. In this context we have also considered whether a rule has emerged which obliges states to resort to procedures for the peaceful settlement of disputes prior to the initiation of self-help. Such a rule would complement the classic legal requirements. Unilateral measures of self-help pursue specific objectives through specific means. To the extent that international law prohibits the pursuit of specific objectives or employment of specific means such as armed force, it is obvious that states have to resort to alternatives, mechanisms for the consensual settlement of the dispute being one of them. In their ultimate decision to take one or more unilateral measures of self-help in order to obtain a specific objective, states are bound to take different decisions, each of which involves questions concerning consensual settlement as an (obligatory) alternative. From a legal perspective the “wronged” state must, first of all, decide whether the act of the other state was a wrongful one or not. It is here that the first difficulties arise. States are most likely to disagree on the wrongfulness of the prior act. The subjective estimation of a state that a specific act of the other state infringed a legal right or, as in the WTO case, a “benefit” is almost always subject to challenge. It has been argued that at this point, at which the wrongfulness of the underlying “breach” is contested, the states involved should seek to clarify this point of

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discussion by referring their dispute to a third party or clarify the issue by negotiation. The decision as to whether a specific act is wrongful or not should not be left to the affected state but should be determined by objective and neutral means. Within the framework of established regimes like the European Community and the WTO this seems to be the norm. However, it may be disputed whether this circumstance equally suspends the right of the wronged state to resort to self-help for protective purposes. It is not unlikely that the “wronged” state, by suspending its “right” to self-help pending the objective determination of the prior act, will bring itself into a detrimental position. Such a situation could arise for example if the “wrongful” state started to withdraw assets, which could provide for a means of compensation if the claim proved to be justified, while procedure was on its way. The first procedures that come to mind in this respect are all forms of diplomacy and arbitration, because they may be protracted for some time, during which the wrongful state would be deprived of an “effective” means of protection. As long as the international community has no means to immediately attach a claim to the assets of a wrongful state, wronged states cannot be denied the right to protect themselves through the adoption of certain countermeasures. It seems, in any case, that the “wronged” state may adopt such measures, which are of a protective nature and which are not irreversible or which permanently affect the position of the other state. This right of protective measures of self-help is not subjected to the dispute settlement procedures mentioned above. Also in respect of the existence of a compulsory jurisdiction, i.e., in cases where the wronged state would have the possibility of applying to the Court, this right would survive. The right to take protective measures is the most basic form of the exceptio non adempleti contractus. Only if a regime provides effective means to immediately protect states from harm arising out of acts by other states could the right to resort to protective measures of self-help be limited and/or prohibited. The proposal of Special Rapporteur Arangio-Ruiz that measures of self-help should in principle be preceded by the exhausting of diplomatic or judicial procedures has, as stated, met with substantial opposition. In order to balance the right of the author state and the right of the target state, it has been suggested that states be required to seek dispute settlement parallel to the resort to measures of selfhelp. Thereby the affected state would not be hampered in resorting to self-help, but it would equally be obliged to pursue a consensual track. Such a requirement would at least constitute an additional threshold against arbitrary resort to self-help. The next problem that arises is the question concerning the normative character of the self-help. The author state may claim that the specific measure is not in violation of whatever international obligations apply, i.e., that its measure falls within the classical definition of retorsion and that as such no self-constraint is required. An example of such a situation is found in the dispute between Nicaragua and the US where the latter held that the GATT Panel was not competent to decide upon the lawfulness of the measures or the dispute underlying the controversies because the US was not in violation of GATT rules. In Part 2 the impact of an obligation to resort to consensual settlement procedures prior to the initiation of self-help as a reflection of self-constraint was assessed. The legal concept of “peaceful settlement of disputes” has been analysed with a view to identifying an obligation that would constrain states from resorting to self-help.

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Arguing that a state which intends to resort to self-help is under an obligation to resort to a procedure to settle the dispute by peaceful means previously consented to, leads in effect to a serious restriction upon states’ willingness to consent to the jurisdiction of a Court or tribunal. The classic notion of peaceful settlement of disputes under international law is based on the concept of consent. Compulsory jurisdiction is not the prevailing form of jurisdiction in the international system. And where it is, the effectiveness of the procedure can be questioned. The principle of settling disputes by peaceful means does not oblige states to settle all and every dispute neither does a more concrete conventional provision. A state is free to make use of every possible means that is not in violation of specific rules of general international law or regimes. There exists in general no obligation to submit the dispute to a court or tribunal. A state may be forced to do so in a particular situation, because it has no other legal alternative, but the necessity of turning to a court should not be confused with an obligation to submit a dispute to a court. The idea that resort to self-help should be subjected to a prior attempt to settle the dispute by diplomatic or judicial procedures is very much induced by the perception that the right to take self-help is subject to abuse. Even if this perception is correct, which may be questioned, it must be asked whether an obligation to submit the dispute to a settlement procedure can take away the possibilities of abuse. Neither the flawed enforcement component in the various international settlement procedures nor the idea that self-help is a means of last resort can be ignored in the assessment of the scope of self-constraint. The question of which means are to be considered as an acceptable alternative is not only solved by the kind of available dispute settlement procedures but also by the circumstances of the case. It is very well conceivable that in one situation an attempt to negotiate may be an acceptable alternative while in another case it is clear that resort to the International Court of Justice will be of no avail. Whether a specific procedure provides an acceptable or obligatory alternative depends inter alia on the purpose of the measures contemplated, the position of the wrongful state, and the effectiveness of diplomatic or judicial means, within the context in which self-help is resorted to. In Part 3, I have sought to contextualize the relationship between “self-help” and “self-constraint” in the concept of “self-contained regimes”. Drawing upon general regime theoretical insights and especially Keohane’s “constraint choice” concept, I have analysed the European Community and the World Trade Organization as possible examples of “self-contained regimes”. These regimes are characterized by exceptional compliance and enforcement mechanisms. These mechanisms are not only institutionally embedded in these regimes but are also normative. Selfconstraint is not limited to a general conventional obligation to settle disputes by consensual means but covers a “prohibition” of regime-related measures of self-help. This prohibition is part of the “norms and principles” of the regime and as such of the fundamental acquis of both regimes. Keohane’s neo-functional notion of constraint choice is facilitated by regime-based compliance and enforcement procedures. Where self-help in more general international normative regimes is considered to belong to the very part and parcel of that regime, in more specific regimes (in particular, self-contained regimes), self-help is constrained to the extent that a revival of self-help as a unilateral enforcement mechanism would jeopardize the existence of the regime.

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In the introduction I implied a development in international law and international relations in the sense that the institution of self-help is no longer the primary tool to safeguard the rights and interests of states. Mechanisms for the consensual settlement of disputes have matured and may under specific circumstances provide a more or less effective alternative to self-help. “Self-help”, “self-constraint” and “selfcontained regimes” are reflections of the evolution of the international society. These phenomena reflect stages, which do not necessarily emerge after another stage has passed. In practice, these phenomena exist side by side. Note 1

Reisman, Michael M.W., Nullity and Revision; the Review of Enforcement of International Judgments and Awards. New Haven and London: Yale University Press, 1970, 836.

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Verwey, W., “Humanitarian Intervention”, in The Current Legal Regulation of the Use of Force, edited by A. Cassese, 57–78. Dordrecht: Nijhoff, 1986. Wallensteen, P., “The Characteristics of Economic Sanctions”, Journal of Peace Research 5, 3 (1967): 248. Wrengler, W., “Public International Law – Paradoxes of a Legal Order”, Rec. de Cours 158 (1977 IV): 9–86. Young, O.R., “Regime dynamics: The Rise and Fall of International Regimes”, in International Regimes, edited by S.D. Krasner, 93–113. London: Cornell University Press, 1983 Zemanek, Karl, “The Unilateral Enforcement of International Obligations”, ZAÖRV 47 (1987): 32. Reports Ago, R., Second Report on State Responsibility, U.N. Doc. A/CN.4/233, 1970. Ago, R., “Eighth Report on State Responsibility”, Yearbook of the International Law Commission 1979, Vol. II, Part One, pp. 3–66. Ago, R., “Addendum to the Eighth Report on State Responsibility”, Yearbook of the International Law Commission 1980, Vol. II, Part One, pp. 13–86. Ninth report daar opzoeken. Arangio-Ruiz, G., Preliminary Report on State Responsibility, U.N. Doc. A/CN.4/ 416, 1988. Arangio-Ruiz, G., Third Report on State Responsibility, U.N. Doc. A/CN.4/440, 1991. Arangio-Ruiz, G., Fourth Report on State Responsibility, U.N. Doc. A/CN.4/ SR.444, 1992. Arangio-Ruiz, G., Fifth Report on State Responsibility, U.N. Doc. A/CN.4/SR.453, 1993. Arangio-Ruiz, G., Sixth Report on State Responsibility, U.N. Doc. A/CN.4/SR.461, 1994. Arangio-Ruiz, G., Seventh Report on State Responsibility, U.N. Doc. A/CN.4/ SR.469, 1995. Arangio-Ruiz, G., Eighth Report on State Responsibility, U.N. Doc. A/CN.4/SR.476, 1996. Fitzmaurice, G., “Second Report on the Law of Treaties”, in Yearbook of the International Law Commission 1957, Vol. II, pp. 16–70. Fitzmaurice, G., “Fourth Report on the Law of Treaties”, in Yearbook of the International Law Commission 1959 Vol. II, p. 36. Garcia Amador, F.V., “First Report on International Responsibility”, in Yearbook of the International Law Commission 1956, Vol. I, p. 220. Riphagen, W., “Preliminary Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles on State Responsibility)”, Yearbook of the International Law Commission 1980, Vol. II, Part One, pp. 107–29. Riphagen, W., “Third Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles on State Responsibility)”, Yearbook of the International Law Commission 1982, Vol. II, p. 1.

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Index abuse 60 acquis 137, 166 acquis communautaire 137, 148, 150 acquiescence 139 Aeroflot 99 Ago, R. 25, 56, 70 Anglo-Iranian Oil Company (AIOC) case 110 Air France 4 Air Service Agreement case 4, 24, 35, 43, 54, 66, 94, 109 Albania 23, 93 Alter, K. 153, 154 alternative dispute resolution 96, 168 Amsterdam 142 anticipatory self-help, see pre-emptive selfhelp Arangio-Ruiz, G. 5, 21, 34, 42 , 57, 62 arbitration 85, 169 armed reprisals 58 Asylum case 93 Atwood, M. 94 Australia 96 Austria 68 Bani-Sadr, A. 96 ban on commerce 98 Beagle Channel dispute 97 Bergeijk, P. van 15 Blankenburg, E. 152 blockade 66, 88 Bonnie, A. 156 Bowett, D. 62, 108 Brazilian Loans case 122 Briggs, H. 61 Brown-John, C. 56 Calero Rodrigues, 62 Canada 99 Carter, J. (US President) 18, 91 case concerning Differences Arising from the Rainbow Warrior Affair 43

case concerning Railway Traffic between Lithuania and Poland 93 case concerning the Appeal Relating to the Jurisdiction of the ICAO Council 67 cessation 21 change of gauge 94 Chen, Lung-Chu 72 Chicago Convention 99 China, Peoples Republic of, 68 Churchill, R. 137 Cleas, D. 134 Clark-Miller mission 95 coercion 95 Colbert, E. 57 constraint 170 Commission of the European Communities; see European Commission compensation 169 compliance 116, 123, 133, 169 monitoring 155 compulsory jurisdiction 111 consensual dispute settlement 133 conciliation 167 consent 65, 109, 111, 112, 163 constraint choice theory 131 consultation 167 contempt of court 116 Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts (1907) 59 Corfu Channel case 23, 93, 122 countermeasures 35-7, 74 non-forcible 37 Craig, P. 152, 156 Crawford, J. 5, 27, 65, 129, 142 customary international law 139 Czechoslovakia 68 Darwin, C. 2 Dashwood, A. 156 David Davies Study Group 90 De Búrca, G. 152, 156

192


De Castro, P. 67 De Guttry, A. 54, 88 Delcourt, C. 148 Denmark 92 Dillard, H. 67 Dispute Settlement Understanding 166 diplomatic correspondence 92 diplomatic immunities 129, 140 diplomatic procedures 97 diplomatic relations 143 (Vienna Convention on) 129 Direction General de l’Aviation 94 Diversion of the Waters from the River Meuse case 42 Elagab, O. 24, 56, 68, 108 El Erian, A. 61 enforcement 123, 169 Einstein, A. 85 European Commission, 155 European integration 147 European Court of Justice (ECJ) 151 European [Economic] Community (E[E]C) 147, 149 European Union 155 evolutionism 2 exceptio non adempleti contractus 20, 41 fact finding mission 99 Farhang, M. 97 Fisheries Jurisdiction case 93 Fisler Damrosh, L. 54 Fitzmaurice, G. 60 forum shopping 166 France 94 General Agreement on Tarifs and Trade (GATT) 121, 161 good faith 55, 113 Germany 65, 92 Ghobtzadeh, S. 98 Gill, T. 97 good offices 167 Gray, C. 23 Great Britain, see United Kingdom Greece 157 Haas, E. 73, 134 Hakenberg, M. 111 Hampson, F. 57 Hartley, T. 154, 156

Hawking, S. 129 hijacking 11, 20, 79 Homsi, S. 142 hostages 95, 143 Hopkins, R. 134 Howse, R. 162 humanitarian intervention 58 Hudec, R. 162 Hurrel, A. 130 I am alone case 30 ICAO case 67 implementation 121 India 20 Intergovernmental Conference on the Political Union 155 interim measures of protection 114, 124 International Civil Aviation Organization (ICAO) 99 International Court of Justice 23, 35, 37, 44, 60, 92, 93, 97, 109, 111, 115, 124, 140, 140, 177 International Law Commission 5, 25, 35, 37 Drafting Committee of the 63 international trade disputes 68 International Trade Organisation (ITO) 162, 169 international wrongful act 54 interpretation teleological 149 Italy 65 Iran 95 Jackson, J. 121, 161, 163 Japan 100 Jiménez de Arechaga, 61 Jordan 68 judicial process 116 KAL 007 99 Kennedy Round 162 Keohane, R. 5, 129, 131, 135 Khomeini, Ayatollah 95 Kirgis, F. 41 Koskenniemi, M. 136, 137 Krasner, S. 134, 135 Lachs, M. 94. 114 Lac Lanoux case 93 law/politics dichotomy 136 League of Nations 15

Index legalism 164 legitimacy 5 Lipson, C. 162 Lusitiana case 30 Maastricht 147, 155 Malanczuk, P. 34, 39 mandated self-help 169 Marrakesh 165 McNair, A. 139 Managua 19 Manila Declaration on the Peaceful Settlement of Disputes 89, 91 material breach 41 Marxist theory 153 Mavroidis, P. 137, 162 Mavromatis case 92 mediation 167 morality 133 Moscow 100 Most-Favoured Nation Clause 161 Morozov, J. 110 Mutton and Lamb case 149 Nantwi, E. 122 Naulilaa case 53, 70 necessity 59 negotiation(s) 91, 95, 113, 152. 162, 267 and self-help 113 content and scope of 93 definition of 94 neo-functionalism 148 Netherlands the 92 New York 96 Nicaragua case 37 Nice 147 non-discrimination principle 161 non-performance 41 non-compliance 122, 154 normativism 109, 133 North Sea Continental Shelf case 92, 113 objective regimes 138 obligations erga omnes 26, 138 oil 18 Oppenheim, L. 72 O’Sullivan, M. 15 Owen, D. 20, 91 pacta sunt servanda 41 Pakistan 20

193

Palestinian Liberation Organization (PLO) 97 Palmeter, D. 137, 162 Pan American Airlines 4, 94 panel; see WTO Paris 94, 147 Peace Treaty (Columbia/Peru 1829) 62 peaceful means 88 Perez, A. 164 performance 21 Permanent Court of International Justice 122 persistent objector 139 persona non grata 129 politicization 164 post-adjudicative process 121, 123 Preeg, E. 6 pre-emptive self-help 54, 56 pre-initiation phase 107 Princen, T. 6, 97 prior breach 53 prior demand for redress 56-8 prior resort to dispute settlement procedures 59 private parties 152 procedural phase 107 proliferation 166 proportionality 20, 70-3 protectionism 164 function of 73 quantitative 71 qualitative 71 public law theory 139 public interest 139 Puchala, D. 134 punishment 34; 38 see also self-help punitive damages 23 rational choice (theory) 154 realism 6, 133 neo- 147 reciprocal measures 39 reciprocity 39, 131 regime(s) 131 regime theory 129, 132-4, 170 and international law 135-8 Reisman, M. 173 reparation 22 reprisals 38 restitutio in integrum 22 retorsion 19, 42-5 legal character of 43

194


Reuter, P. 35, 140 revision 121 Riphagen, W. 7, 24, 39, 58, 61, 70, 138, 141 Rome 147 Rosenne, R. 40, 61, 67, 111, 115, 122 Rousseau, J.J. 139 rule-oriented approach 165 Russian Federation 100 sanctions 3, 33 economic 96 satisfaction 22 Saunders, H. 95 Schachter, O. 122 Schepel, H. 152 Security Council; see United nations self-constraint 87 self-contained regime(s) 6, 129, 140 self-defence 20, 58, 60 self-help 2, 17, 64, 90, 142 ante lite 112 objectives of 17-27 protective 19, 114 punitive 25-27 remedial 21 manipulation 24 pedente lite 114 self-interest 6, 131, 154 rational 134 settlement of disputes 64 Simma, B. 7, 130, 139, 142, 149 Single European Act 147 Snyder, F. 152 social contract theory 139 Société Commercial de Belgique case 122 sources of international law 109 South-Africa 15 South-Korea 99 South West-Africa case 67, 139 Soviet Union 99 Spain 156 Stein, T. 116, 131 sub judice 112 subsystem 141 suspension and termination (of treaties) 41 symbolism 18 system 141 Tarazi, J. 111 Tehran 18 Tehran Hostages case 110, 115, 140

Tesauro, G. 156 Theodosios, M, 157 Thucydides 1 Treaty of Amity (United States/Iran) 110 Trebilcock, M. 162 Tokyo Round 166 Tunkin, G. 58 Ulfstein, G. 137 United Kingdom 23, 93 United Nations 26 Security Council 34, 111 Charter, 62 article 2(3) 87 article 2(4) 88 article 33 4 article 94 123 legislative history 89 General Assembly Sixth Committee 68 United States 18, 68, 91, 95 Civil Aeronautics Board 4, 94 use of force 37, 60 Vallat, F. Sir, 55 Van Gend en Loos case 152 Vienna Convention on Law of Treaties 40, 139 article 60, 40 article 65, 60 article 66, 60 article 73, 40 Venezuela 66 Waltheim, K. 97 Waldock, H. 61 Ward, I. 137 Washington DC 96 Wilson, W. 15 Wimbledon case 122 World Trade Organization (WTO) 161 Appelate Body of the 137, 168 Dispute Settlement Body of the 168 Panel (procedure) 97, 162, 167 World War II 88 Wyatt, D. 156 Yeltsin, B. 100 Zoller, E. 36, 39, 70, 114

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