International Responsibility Today: Essays in Memory of Oscar Schachter

International Responsibility Today

OSCAR SCHACHTER 1915-2003

International Responsibility Today Essays in Memory of Oscar Schachter edited by Maurizio Ragazzi

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

Library of Congress Cataloging-in-Publication Data International responsibility today : essays in memory of Oscar Schachter / edited by Maurizio Ragazzi. p. cm. Includes bibliographical references and index. ISBN 90-04-14434-X (hardback : alk. paper) 1. Government liability (International law) I. Schachter, Oscar, 1915- II. Ragazzi, Maurizio. III. Title. KZ4080.I58 2005 342.08'8--dc22 2005042083

Printed on acid-free paper.

ISBN 90 04 14434 X © 2005 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl 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, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

CONTENTS

Editor’s Dedication .................................................................................. Editor’s Preface ........................................................................................ Oscar Schachter’s Summary Biography ................................................ Oscar Schachter’s Select Bibliography .................................................. List of Contributors ................................................................................ Table of Cases ........................................................................................ Table of Documents ................................................................................ List of Abbreviations ..............................................................................

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Part One State Responsibility (General Issues) Chapter One The Essence of the Structure of International Responsibility ........................................................................................ Chittharanjan Felix Amerasinghe Chapter Two Legal Injury: The Tip of the Iceberg in the Law of State Responsibility? ............................................................................ Julio Barboza Chapter Three State Crime: Looking at Municipal Experience with Organizational Crime .......................................................................... David D. Caron Chapter Four Do States Have a Duty to Ensure Compliance with Obligations Erga Omnes by Other States? .......................................... Giorgio Gaja Chapter Five Diplomacy and State Responsibility ............................ Kazuhiro Nakatani Chapter Six Controlling Countermeasures .......................................... Mary Ellen O’Connell Chapter Seven International Crimes and State Responsibility ........ Pemmaraju Sreenivasa Rao Chapter Eight International Responsibility and the Principle of Causality .............................................................................................. François Rigaux Chapter Nine A Plea for ‘Reconstruction’ of International Responsibility Based on the Notion of Legal Injury ........................ Brigitte Stern Chapter Ten The Art of Apology ...................................................... Sir Arthur Watts

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vi contents Chapter Eleven Revisiting the International Law Commission’s Draft Articles on State Responsibility .............................................................. Chusei Yamada Chapter Twelve Does the Prospect of Incurring Responsibility Improve the Observance of International Law? .................................. Karl Zemanek

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Part Two State Responsibility (Particular Concerns) Chapter Thirteen War Against Terrorism Extra Moenia, Self-defence and Responsibility: A Pure Juridical Approach .................................... Giovanni Battaglini Chapter Fourteen International Responsibility of the State and Individual Criminal Responsibility in the International Protection of Human Rights .................................................................................... Héctor Gros Espiell Chapter Fifteen The Protection of Shareholders under International Law: Making State Responsibility more Accessible .............................. Francisco Orrego Vicuña Chapter Sixteen The Limits of International Responsibility in the Protection of Foreign Investments .......................................................... Vratislav Pechota Chapter Seventeen International Responsibility and Cooperation for Development ............................................................................................ Jorge Peirano Chapter Eighteen Italy’s Non-belligerency during the Iraqi War ........ Natalino Ronzitti Chapter Nineteen Some Remarks on International Responsibility in the Field of Environmental Protection .................................................. Tullio Scovazzi Chapter Twenty The International Law Commission’s Articles on State Responsibility and the Settlement of Disputes ............................ Tullio Treves Chapter Twenty-One Humanitarian Intervention and International Responsibility .......................................................................................... Budislav Vukas

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Part Three State Responsibility and the Courts Chapter Twenty-Two Just Satisfaction under the European Convention on Human Rights .............................................................. Rudolf Bernhardt Chapter Twenty-Three Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited .................................................. Antônio Augusto Cançado Trindade Chapter Twenty-Four The International Court of Justice: Selected Issues of State Responsibility .................................................................. Dame Rosalyn Higgins Chapter Twenty-Five Registration of Foreign Judgments under the European Convention of Human Rights and the Law of International Responsibility .................................................................... Laura Picchio Forlati Chapter Twenty-Six Decisions of the International Court of Justice and the New Law of State Responsibility ............................................ Shabtai Rosenne Chapter Twenty-Seven Injured and Non-injured States before the International Court of Justice ................................................................ Hugh Thirlway Chapter Twenty-Eight The Oil Platforms Case before the International Court of Justice: A Non-case of International Responsibility ............ Prosper Weil and Daphné Richemond

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Part Four Responsibility of International Organizations and other Non-State Entities Chapter Twenty-Nine Objective Meaning of Constituent Instruments and Responsibility of International Organizations ................................ Robert John Araujo SJ Chapter Thirty The Responsibility of States for the Acts of International Organizations .................................................................... Ian Brownlie

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Chapter Thirty-One The International Responsibility of the United Nations for Injuries Resulting from Non-Military Enforcement Measures .................................................................................................. Christian Dominicé Chapter Thirty-Two The Definition of ‘International Organization’ in the International Law Commission’s Current Project on the Responsibility of International Organizations ...................................... Maurice Mendelson Chapter Thirty-Three Non-State Actors: Areas of International Responsibility in Need of Further Exploration .................................... Emmanuel Roucounas Chapter Thirty-Four Responsibility of International Organizations: Does the European Community Require Special Treatment? ............ Stefan Talmon Chapter Thirty-Five State Responsibility for Private Actors: An Old Problem of Renewed Relevance ............................................................ Rüdiger Wolfrum Chapter Thirty-Six The Responsibility of States Members of an International Organization for its Conduct as a Result of Membership or their Normal Conduct Associated with Membership................................................................................................ Sienho Yee Bibliography ................................................................................................ Index ............................................................................................................ Memorial List ..............................................................................................

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EDITOR’S DEDICATION

Nec vocemini Magistri . . . (Evangelium secundum Matthaeum 23,10)

In memory of Oscar Schachter guide, mentor and friend.

Oscar Schachter with Maurizio Ragazzi Columbia Law School—Commencement ’85

EDITOR’S PREFACE

Ducit autem magister discipulum ex praecognitis in cognitionem ignotorum, dupliciter. Primo quidem, proponendo ei aliqua auxilia vel instrumenta, quibus intellectus eius utatur ad scientiam acquirendam . . . Alio modo, cum confortat intellectum addiscentis . . . inquantum proponit discipulo ordinem principiorum ad conclusionem . . . (S. Thomae Aquinatis Summa Theologiae, I, q. 117, a. 1.)

A. A Debt of Gratitude Oscar Schachter was to me, as to so many others, a guide, a mentor and a friend. With his typical generosity towards all students, he received me (without an appointment) for what was our first meeting in January 1984. I was immediately drawn to him, and it became evident to me that the prospect of studying under his direction would be the decisive factor in my choosing Columbia over any other option among American law schools. With the passage of time, this academic relationship (‘academic’ in the sense of being based on the spontaneous joy of conversing on intellectual subjects of mutual interest) developed into what I am not shy to call true friendship, which involved our respective wives, Muriel and Grace. Physical distance was not a problem, as we succeeded in spending time together in England, France, Italy and The Netherlands, in addition to our meetings in the United States, mainly in New York and sometimes in Washington. Nor was our friendship affected by our occasional differences of opinion, even on basic issues. Oscar Schachter was true to the description by Thomas Aquinas (a thinker he had come to appreciate in his legal studies on evidence, as he once told me) that the task of a teacher is not to impose on a pupil ready-made solutions, but to propose instruments and strengthen a pupil’s capacity for independent research.

Maurizio Ragazzi (ed.), International Responsibility Today, xi–xvi. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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All this, in addition to the constant readiness he showed to help me in my professional life, is enough to account for the sense of profound gratitude that I have towards Oscar Schachter. B. A Book of Essays This book of essays is intended to be, on my part, an expression of this gratitude. Neither its timing nor its form seems to be inappropriate. Once again, the formidable mind of Aquinas can help me to clarify this point. In reciprocating a favor received, there are two necessary considerations: the sentiment and the deed. As to the sentiment, repayment should be made at once. As to what is given in return, however, immediate repayment would not seem to be virtuous, but constrained, thus being best postponed to the appropriate time.1 In the present instance, an appropriate time is now, a year after Oscar Schachter’s death, as evidence that the memory of his teaching and friendship has not vanished, and as a humble gesture of comfort to his family. Regarding the way of expressing gratitude, the beneficiary is under a moral obligation to reciprocate with equal graciousness. From this it follows that gratitude inclines, as far as possible, to pay back something more than what has been received. In fact, if one repays less or the equivalent, the beneficiary would not really seem to be expressing gratitude but only to be returning what he has received.2 The logic is inescapable. How can I therefore even try to ‘pay back more’ than the many gifts I received from Oscar Schachter? A vain attempt indeed, all the more so if I sought to accomplish it through my limited forces alone. Hence the idea of expressing gratitude to Oscar Schachter by the joint efforts of many who have known and loved him personally, or have at least read and admired his scholarly work. The project of this book of essays had a long gestation, from its conception several years ago, through its nurturing in periods when it lay dormant, due to pressing commitments, to its final delivery over the last year. While it is sad that what was meant to honour the 90th birthday of Oscar Schachter has turned into a celebration of his memory, it is comforting to think that God, in His infinite bounty, gave me the time to visit Oscar in his New York clinic, discuss with him the details of this project, and obtain his enthusiastic support. 1 ‘Et quantum quidem ad affectum, statim recompensatio fieri debet . . . Quantum autem ad donum, debet expectari tempus . . . Si autem, non convenienti tempore, statim velit aliquis munus pro munere reddere, non videtur esse virtuosa recompensatio’. (S. Thomae Aquinatis Summa Theologiae, II–II, q. 106, a. 4 (Leonine text, as reproduced in the Summa Theologiae edited by Caramello).) 2 ‘Et ideo qui beneficium accepit ad hoc obligatur, ex debito honestatis, ut similiter gratis aliquid impendat. Non autem videtur gratis aliquid impendere nisi excedat quantitatem accepti beneficii: quia quandiu recompensat minus vel aequale, non videtur facere gratis, sed reddere quod accepit. Et ideo gratiae recompensatio semper tendit ut, pro suo posse, aliquid maius retribuat’. (Ibid., a. 6.)

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C. A Focus on International Responsibility Lilly Melchior Roberts has correctly noted that legal Festschriften, the genre to which the present volume belongs, come in different sizes and forms.3 In the present case, I immediately decided that I would be editing a monographic Festschrift. This decision may be surprising, especially because the scholar to whose memory this book of essays is dedicated was a ‘generalist’ par excellence, having contributed seminal works to most, if not all, of the main areas of public international law. But it was precisely this factor that prompted me to focus on one area alone, lest the wide spectrum of Oscar Schachter’s interests elicit such a variety of responses as to translate into an intellectually stimulating but hardly user-friendly volume. The selection of the particular topic was fairly natural. The seminar led by Oscar Schachter which I attended while at Columbia Law School was on remedies for international wrongs, with the consequence that a volume on responsibility would be an ideal continuation of the exchange started at that time. In addition, a century after Anzilotti’s classic work,4 the subject has been attracting an ever increasing interest in international law, as reflected also in the work of the International Law Commission, both the recently completed project on State responsibility,5 and the one under way (at the time of writing)

3 ‘Legal Festschriften’, 56 Law Library Journal (1963), 47–60, at 49. On page 51 of this article, the author remarked that the Italian ‘raccolta’ of poems or prose on the occasion of a wide variety of happy or sad events was the eighteenth century forerunner of the nineteenth century scholarly Festschrift: it is therefore natural, perhaps, that it should be an Italian pupil of Oscar Schachter who has taken the initiative and been the editor of this book of essays! On Festschriften, see also Ea., ‘The Importance of Legal Festschriften for Work in International and Comparative Law’, 11 The American Journal of Comparative Law (1962), 403–11. Two very helpful bibliographies are: Ea., A Bibliography of Legal Festschriften (1972); Dupré de Boulois, Bibliographie des Mélanges— Droit français—Bibliography of french legal Festschriften (2001). 4 Teoria generale della responsabilità dello Stato nel diritto internazionale. Parte prima: il problema della responsabilità di diritto internazionale (1902). This reference to the significance of Anzilotti’s monograph is not meant to obfuscate the much longer history of the term in ethics, law and international law: ‘C’est à la fin du XVIIIe siècle que le mot responsabilité entre dans la langue française; il apparait dans les journaux français à peu prés en même temps qu’emerge responsibility en anglais’. (Antoine (ed.), Morale et langue française (Rapport de l’Académie des sciences morales et politiques) (2004), 163.) There is no need to add that the history of the concerns the concept is meant to address is much longer than the history of the term, as evidenced by the hapax legomenon, dating back to Medieval times, recorded on the same page of the publication that has just been cited. 5 The text of the Commission’s draft articles and commentary on them are in ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fiftysixth Session, Supp. No. 10 (Doc.A/56/10). The United Nations General Assembly took note of the draft at the end of 2001. See ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). On 2 December 2004, the General Assembly commended the draft articles to the attention of governments, without prejudice to the question of their future adoption or other appropriate action. (A/RES/59/35.)

xiv maurizio ragazzi on responsibility of international organizations.6 Oscar Schachter was an active participant in this renewed debate on classic features and innovative trends in international responsibility. In this respect, it will be sufficient to recall the space dedicated to this subject in his general course at the Hague Academy.7 That the selection of the topic was a happy one is confirmed by the number of contributions received (thirty-six). This number is remarkable for a monographic Festschrift, especially if one considers that contributions are entirely voluntary, in the sense that the topics were not specifically commissioned. The responses received have spontaneously led me to organize the volume (mainly for the reader’s benefit) around four general areas (or parts of the volume): general issues of State responsibility, particular concerns, State responsibility and the courts, and the responsibility of international organizations and other non-State entities. I need not add that the allocation of each contribution to one or the other area, while obvious in some instances, has been somewhat arbitrary in others, because the contribution in question could equally well have been included in another part of the volume. For example, the contribution by Antônio Augusto Cançado Trindade has been included, for reasons of convenience, in Part III on State responsibility and the courts, but could well have been included in Part I on account of its discussion of crimes, Part II on account of its application of responsibility to human rights, or Part IV on account of its treatment of individual, in addition to State, responsibility. I therefore hope that the index will help the reader to appreciate that relevant passages may be found in contributions other than those listed in the particular area of his or her interest. D. An International List of Contributors Although Oscar Schachter saw and commented on the original list of prospective contributors, its compilation was my exclusive responsibility (with the consequence that any omission, for which I apologize, is attributable to me). Those who have accepted my invitation and have therefore contributed to this volume (and, in the case of Sienho Yee, had already expressed to me several years ago an interest in participating in a collection for Oscar Schachter, should such a project materialize) belong to twenty different nationalities. This fact

6 See ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10), Chapter VIII. 7 In the substantially revised and supplemented version of his 1982 general course, the themes usually addressed under the heading of international responsibility fill two out of seventeen chapters: International Law in Theory and Practice (1991), 184–226.

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alone shows the worldwide esteem and affection in which Oscar Schachter is held. The caliber of the contributors, and the care they have displayed in the preparation of their articles, further attest to the preeminence of Oscar Schachter in what he liked to call the invisible college of international lawyers.8 Many more prominent authors would have gladly contributed, had the topic, language or deadline been different. I am grateful to them all, for the interest they have shown in this initiative. While their names obviously cannot be listed here, I must make an exception for Luis Mariano Garcia-Rubio, a fine lawyer who died in May 2004 at the age of thirty-four and whose courageous fight against cancer was as exemplary as his passion for international law. I was myself tempted to write a contribution for the volume. However, I finally decided against it, not only because editing has already required a considerable investment of time, but also, and more importantly, because of my professional role as an international civil servant: while I have done my editing work in my own spare time and using my own resources (and therefore this project was exclusively motivated and carried out in my private capacity), still the current debates on responsibility of international organizations cautioned me to adopt an extra measure of discretion. In editing the various contributions, I have lent my modest assistance, irrespective of whether or not I agreed with the authors’ reasoning and conclusions. The only limitation has been respect for faith and morals, to which, I think, the editor is as much entitled as the contributor. The length of the various contributions is somewhat varied, although each contributor has done his or her best to remain within the upper limit of 5,000 to 7,000 words. The preparation of the preliminary matter (dedication, preface, Oscar Schachter’s summary biography and select bibliography, list of contributors, tables of cases and documents, and list of abbreviations), as well as of the final bibliography and index, was my exclusive responsibility. The preparation of the Memorial List, on the other hand, was the publisher’s responsibility. Annebeth Rosenboom’s human touch and wide publishing experience, the courtesy of Nienke van Schaverbeke (Publishing Assistant), and the promptness and accuracy of Leonieke Aalders (Desk Editor), made the selection of Martinus Nijhoff not only an obvious choice because of its reputation, but also an enjoyable adventure. My gratitude extends to Shabtai Rosenne (one of the contributors to this volume) for having been instrumental, at my request, in establishing my contact with the publisher.

8 See his article ‘The Invisible College of International Lawyers’, 72 Northwestern Law Review (1977), 217–26.

xvi maurizio ragazzi E. A Note on Style As far as possible, I have tried to ensure a uniform structure for each contribution, and a uniform style of citation. However, whenever authors have insisted on preserving their own personal style, I have gladly accommodated their request, even at the cost of sacrificing uniformity. For this reason, to take just one example among many, some contributors prefer the expression ‘articles’, while others ‘draft articles’, when referring to those on State responsibility adopted by the International Law Commission in 2001. This balance between uniformity of theme and plurality of authorship is also reflected in that each contribution, while identified as a ‘chapter’ in the table of contents (thus underlining uniformity), is called an ‘essay’ in the text (thus acknowledging plurality). In every essay, the citation of a case, document, or doctrinal work, is given initially in full and then in an abbreviated form. Should any such abbreviated form be found insufficient, the reader may always turn to the tables of cases and documents, the list of abbreviations, and the bibliography at the end of this volume. Quotations from the Holy Bible adhere, in Latin, to the text of the Nova Vulgata (Editio Typica Altera) and, in English, to the text of the ‘Revised Standard Version’. Washington, DC, 13 December 2004, on the first anniversary of Oscar Schachter’s death

Maurizio Ragazzi

OSCAR SCHACHTER SUMMARY BIOGRAPHY

(In preparing this summary biography, the editor has consulted various printed and electronic sources, in particular the ‘Biographical Note’ in 178 RdC (1982), 16–17, and the entry ‘Schachter, Oscar’ in Who’s Who in America 1995 (49th edn.), ii, 3259.)

A. Personal Data Born in New York City, 19 June 1915 (son of Max Schachter and Fannie Javits). Married Mollie Miller, 9 August 1936; two children ( Judith, married John Modell, and Ellen, married John P. Leventhal). After Mollie Miller’s death in 1980, married Muriel L. Sackler, 14 June 1982. Died in New York City, 13 December 2003.

B. Education BSS 1936, College of the City of New York (prizes in Philosophy, Economics and highest standing in class). JD 1939, Columbia University Law School (Kent Scholar, Ordronaux Prize, first in class). Editor-in-Chief, Columbia Law Review 1938–9. C. Professional Qualifications and Private Practice Member of the Bar of New York, 1939. Private practice, New York City, 1939–40.

Maurizio Ragazzi (ed.), International Responsibility Today, xvii–xix. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

xviii oscar schachter summary biography D. Professional Experience, United States Government Attorney, Department of Labor (1940), Federal Communications Commission (1941), Board of War Communications (1941–2). Adviser on International Economic and Financial Matters, Department of State (1942–3).

E. Professional Experience, International Organizations Assistant General Counsel, United Nations Relief and Rehabilitation Administration (UNRRA), and Legal Adviser to UNRRA delegations to USSR and Poland (1944–6). Senior Legal Counsellor, United Nations Secretariat (1946–7). Deputy Director, United Nations General Legal Division (1947–52). Director, United Nations General Legal Division (1953–66). Deputy Executive Director and Director of Studies, United Nations Institute for Training and Research (UNITAR, 1966–75). Legal Adviser at various international conferences and commissions, including the United Nations Atomic Energy Commission (1946–7), the United Nations Maritime Conference (1948), the International Investment Law Conference (1958), the International Arbitration Conference (1958).

F. Professional Experience, Academia Visiting lecturer on international law and international organization, Yale University Law School (1955–71). Lecturer, Hague Academy of International Law (Carnegie lecturer, 1963; General Course, 1982). Professor, Columbia University, Law School and School of International Affairs (1975–85); Hamilton Fish Professor of International Law and Diplomacy (1980–5); Professor Emeritus (1985–2003). Visiting Professor of International Law (Harvard Law School, University of Michigan, New York University, Rutgers University).

G. Professional Experience, Others Member of the panel of arbitrators, ICSID (1980–7). Judge, Court of Arbitration, Canada-France Maritime Boundary Dispute (1989–92). Expert Adviser, United Nations Committee on Transnational Corporations (1989–93).

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H. Membership in Associations President, ASIL, 1968–70; Honorary President, 1994–6. Co-Editor-in-Chief, AJIL, 1978–84; Honorary Editor since 1985. Associate Member (1965), Member (1973) and Honorary Member (1995), Institut de Droit International; Vice-President (1991–3). Member of the Executive Committee, American Branch of the International Law Association. Fellow, World Academy of Arts and Sciences. Fellow, American Academy of Arts and Sciences. Director, International Peace Academy. Member, International Institute of Space Law. Fellow, International Academy of Astronautics. Member, Council of Foreign Relations Law.

I. Awards Manley O. Hudson Gold Medal for distinguished scholarship, ASIL (1981). Wolfgang Friedmann award, Columbia University (1983). Carl Fulda award, University of Texas Law School (1990). Columbia Law School Medal of Excellence (1991). Certificate of Merit for Creative Scholarship, ASIL (1992). Honorary Doctor of Laws, Columbia University (2000).

OSCAR SCHACHTER SELECT BIBLIOGRAPHY

(This bibliography, while fairly comprehensive, does not pretend to be exhaustive. It does not include, for example, privately printed papers for the exclusive use of Columbia Law School students, remarks at panels of ASIL meetings and other conferences, or book reviews. In preparing this bibliography, in addition to independent research, the editor has consulted various printed and electronic sources, including the list of Oscar Schachter’s principal publications in 178 RdC (1982), 18–20, and 42 CJTL (2004), 649–56.)

A. Books Toward Wider Acceptance of UN Treaties (with Nawaz and Fried—a UNITAR study, 1971). Sharing the World’s Resources (1977). Competition in International Business: Law and Policy on Restrictive Practices (with Hellawell (eds.), 1981). International Law in Theory and Practice (1991). United Nations Legal Order (with Joyner (eds.), 1995). International Law: Cases and Materials (with Damrosch, Henkin, Pugh and Smit (eds.), 4th edn., 2001) (1st edn. 1980; 2nd edn. 1987; 3rd edn. 1993). Basic Documents Supplement to International Law: Cases and Materials (with Damrosch, Henkin, Pugh and Smit (eds.), 4th edn., 2002).

B. Articles The Development of International Law through the Legal Opinions of the United Nations Secretariat, 25 BYIL (1948), 91–132. The Place of Law in the United Nations, Annual Review of United Nations Affairs (1950), 205–30.

Maurizio Ragazzi (ed.), International Responsibility Today, xxi–xxvii. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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The Charter and the Constitution: The Human Rights Provisions in American Law, 4 Vanderbilt Law Review (1951), 643–59. Problems of Law and Justice, Annual Review of United Nations Affairs (1951), 190–218. Law and Flexibility, Annual Review of United Nations Affairs (1952), 173–92. Legal Aspects of Space Travel, 11 Journal of the British Interplanetary Society (1952, No. 1), 14–16. Who Owns the Universe?, Ryan (ed.), Across the Space Frontier (1952), 118–31. The Role of International Law in the United Nations, 3 New York Law Forum (1957), 28–49. A Preview of Space Law Problems. Warning: Early Unilateral Positions, 16 Bar Bulletin. New York County Lawyers’ Association (1958–59), 33–6. The International Official in a Divided World, ASIL Proceedings (1959), 344–9. Private Foreign Investment and International Organization, 45 Cornell Law Quarterly (1960), 415–31. The Enforcement of International Judicial and Arbitral Decisions Against States, 54 AJIL (1960), 1–24. The Question of Treaty Reservations at the 1959 General Assembly, 54 AJIL (1960), 372–9. Legal Issues at the United Nations, Annual Review of United Nations Affairs (1960– 1961), 142–61. Promoting the Rule of Law, 53 The Hyphen (1961). Legal Aspects of the United Nations Action in the Congo, 55 AJIL (1961), 1–28 (under the pseudonym of ‘E. M. Miller’, but expressly identified as the work of Oscar Schachter in the table of contents). Dag Hammarskjold and the Relation of Law to Politics, 56 AJIL (1962), 1–8. The Relation of Law, Politics and Action in the United Nations, 109 RdC (1963), 165–256. Preventing the Internazionalization of Internal Conflict: A Legal Analysis of the U.N. Congo Experience, ASIL Proceedings (1963), 216–24. Prospects for a Regime in Outer Space, Cohen (ed.), Law and Politics in Space: Specific and Urgent Problems in the Law of Outer Space; Proceedings (1964), 95–104. Legal Problems, Annual Review of United Nations Affairs (1963–1964), 118–38. Interpretation of the Charter in the Political Organs of the United Nations, Engel and Métall (eds.), Law, State, and International Legal Order. Essays in Honour of Hans Kelsen (1964), 269–84. The Quasi-Judicial Role of the Security Council and the General Assembly, 58 AJIL (1964), 960–5. The Uses of Law in International Peace-Keeping, 50 Virginia Law Review (1964), 1096–114. Scientific Advance and International Law Making, 55 California Law Review (1967), 423–30. Conciliation Procedures in the United Nations Conference on Trade and Devel-

oscar schachter select bibliography xxiii opment, Sanders (ed.), International Arbitration: Liber Amicorum for Martin Domke (1967), 268–74. World Order and the Space Programme, 6 Astronautics and Aeronautics (1968), 53–7. Towards a Theory of International Obligation, 8 VJIL (1968), 300–22. The Generation Gap in International Law, ASIL Proceedings (1969), 230–3. Intervention and the United Nations, 3 Stanford Journal of International Studies (1968), 5–12. The Future of the United Nations, 64 ASIL Proceedings (1970), 277–85. Marine Pollution Problems and Remedies (with Serwer), 65 AJIL (1971), 84–111. (Also as a separate publication: Marine Pollution—Potential for Catastrophe (extract from a UNITAR research report, 1971).) Myres McDougal—An Appreciation, 1 Denver Journal of International Law and Policy (1971), 22–4. How Effective are Measures Against Racial Discrimination, 4 Human Rights Journal (1971), 293–310. International Legislation, Sills (ed.), International Encyclopedia of the Social Sciences, vii (1972), 551–60. The Place of Policy in International Law, 2 Georgia Journal of International & Comparative Law (1972), 5–14. Some Reflections on International Officialdom, Fawcett and Higgins (eds.), International Organization. Law in Movement. Essays in Honour of John McMahon (1972), 53–63. The Role of the Institute of International Law and Its Methods of Work— Today and Tomorrow, Livre du Centenaire 1873–1973. Evolution et perspectives du droit international (Institut de Droit International, 1973), 403–51. The United Nations and Internal Conflict, Moore (ed.), Law and Civil War in the Modern World (1974), 401–45. Just Prices in World Markets: Proposals De Lege Ferenda, 69 AJIL (1975), 101–9. The Uses of Law in International Political Organs, Comunicazioni e Studi (1975), 791–802. A Normative Framework for Reducing Economic Inequalities, Dorsey (ed.), Equality and Freedom: International Comparative Jurisprudence (1977), iii, 973–92. The Evolving International Law of Development, 15 CJTL (1976), 1–16. The Twilight Existence of Nonbinding International Agreements, 71 AJIL (1977), 296–304. The Invisible College of International Lawyers, 72 Northwestern Law Review (1977), 217–26. Principles of International Social Justice, Jus and Societas—Essays in Tribute to Wolfgang Friedmann (1977), 249–77. The United Nations and Internal Conflict, Raman (ed.), Dispute Settlement through the United Nations (1977), 301–64. Les Aspects juridiques de la politique américaine en matière de droits de l’homme, 23 AFDI (1977), 53–74.

xxiv oscar schachter select bibliography Introduction to Report, Association of the Bar of the City of New York, Committee on International Human Rights (Conference on the Human Rights Provisions of the Helsinki Final Act, September 30, 1977, Professor Oscar Schachter Chairman). International Law Implications of U.S. Human Rights Policies, 24 New York Law School Law Review (1978), 63–87. Rhetoric and Law in International Political Organs, Lasswell et alii (eds.), Propaganda and Communication in World History (1979), ii, 446–57. The Obligation of the Parties to Give Effect to the Covenant on Civil and Political Rights, 73 AJIL (1979), 462–5. Richard R. Baxter, 74 AJIL (1980), 890–1. Alona Evans, 74 AJIL (1980), 891–2. The Crisis of Legitimation in the United Nations (Alf Ross Memorial Lecture, Copenhagen), 50 Nordisk Tidsskrift for International Ret (1981), 4–19. The Obligation to Implement the Covenant in Domestic Law, Henkin (ed.) The International Bill of Rights: The Covenant on Civil and Political Rights (1981), 311–31. International Law in Theory and Practice. General Course in Public International Law, 178 RdC (1982), 9–396. The 1981 Session of the Institute de Droit International, 76 AJIL (1982), 176–81. Hardy Cross Dillard (1902–1982), 76 AJIL (1982), 595–7. The Nature and Process of Legal Development in International Society, Macdonald and Johnston (eds.), The Structure and Process of International Law (1983), 745–808. Creativity and Objectivity in International Tribunals, Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit Menschenrechte. Festschrift für Hermann Mosler (1983), 813–21. The International Civil Servant: Neutrality and Responsibility, Jordan (ed.), Dag Hammarskjöld Revisited (1983), 39–63. Alwyn Freeman (1910–1983), 77 AJIL (1983), 285. Human Dignity as a Normative Concept, 77 AJIL (1983), 848–54. Self-Help in International Law, 37 Columbia Journal of International Affairs (1984), 231–46. Resolving World Resource Conflicts, Dorner (ed.), World Without War. Political and Institutional Challenges (1984), 114–47. Compensation for Expropriation, 78 AJIL (1984), 121–30. The Legality of Pro-Democratic Invasion, 78 AJIL (1984), 645–50. The Right of States to Use Armed Force, 82 Michigan Law Review (1984), 1620–46. Napomene o stalnom suverenitetu i meunarodnoj odgovornosti, 31 Jugoslovenska Revija za Medunarodno Pravo (1984), 143–55 (with English summary). International Law in the Hostages Crisis, Christopher et alii (eds.), American Hostages in Iran: the Conduct of a Crisis (1985), 325–73.

oscar schachter select bibliography xxv Compensation Cases—Leading and Misleading, 79 AJIL (1985), 420–2. McDougal’s Jurisprudence: Utility, Influence, Controversy, ASIL Proceedings (1985), 266–73. The Lawful Resort to Unilateral Use of Force, 10 YJIL (1985), 291–4. In Defense of International Rules on the Use of Force, 53 The University of Chicago Law Review (1986), 113–46. Philip Jessup’s Life and Ideas, 80 AJIL (1986), 878–95. Treaty Law and Outer Space: The Role of the United Nations, ASIL Proceedings (1986), 373–7. Introduction: Self-Judging Self-Defence, 19 Case Western Reserve Journal of International Law (1987), 121–7. Self-defense, ASIL Proceedings (1987), 350–4. Disputes Involving the Use of Force, Damrosch (ed.), The International Court of Justice at a Crossroads (1987), 223–41. Entangled Treaty and Custom, Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), 717–38. Self-Defense and the Rule of Law, 83 AJIL (1989), 259–77. The Extraterritorial Use of Force Against Terrorist Bases, 11 Houston Journal of International Law (1989), 309–16. The Lawful Use of Force by a State Against Terrorists in Another Country, 19 Israel Yearbook on Human Rights (1989), 209–31. Just War and Human Rights, 1 Pace Yearbook of International Law (1989), 1–19. The Greening of International Law, Humanité et droit international: Mélanges RenéJean Dupuy (1991), 271–7. The Emergence of International Environmental Law, 44 Journal of International Affairs (1991), 457–93. Non-Conventional Concerted Acts, Bedjaoui (ed.), International Law: Achievements and Prospects (1991), 265–9. Leland Goodrich (1899–1990), 85 AJIL (1991), 330–1. United Nations Law in the Gulf Conflict, 85 AJIL (1991), 452–73. Is There a Right to Overthrow an Illegitimate Regime?, Le Droit international au service de la paix, de la justice et du développement: Mélanges Michel Virally (1991), 423–30. Authorized Uses of Force by the United Nations and Regional Organizations, Damrosch and Scheffer (eds.), Law and Force in the New International Order (1991), 65–93. Recent Trends in International Law Making, 12 Australian Yearbook of International Law (1992), 1–15. Internal Conflicts and International Law, Pathak and Dhokalia (eds.), International Law in Transition. Essays in Memory of Judge Nagendra Singh (1992), 1–9. Human Rights and Economic Development, Bello and Ajibola (eds.), Essays in Honour of Judge Taslim Olawale Elias (1992), i, 389–98. State Succession: The Once and Future Law, 33 VJIL (1993), 253–60.

xxvi oscar schachter select bibliography Legal Aspects of the Gulf War of 1991 and Its Aftermath, Kaplan and McRae (eds.), Law, Policy, and International Justice: Essays in Honour of Maxwell Cohen (1993), 5–40. The UN Years: Lachs the Diplomat, 87 AJIL (1993), 414–16. Dispute Settlement and Countermeasures in the International Law Commission, 88 AJIL (1994), 471–7. United Nations Law, 88 AJIL (1994), 1–23. Sovereignty—Then and Now, Macdonald (ed.), Essays in Honour of Wang Tieya (1993), 671–88. Micronationalism and Secession, Beyerlin et alii (eds.), Recht zwischen Umbruch und Bewahrung. Völkerrecht. Europarecht. Staatsrecht. Festschrift für Rudolf Bernhardt (1995), 179–86. The Charter’s Origins in Today’s Perspective, ASIL Proceedings (1995), 45–8. Is the state withering away?, Canadian Council on International Law, Proceedings of the Annual Conference (1995), 184–90. Implications for International Law of New Challenges to State Sovereignty. Introductory Statement by the Moderator: Oscar Schachter, International Law as a Language for International Relations (1996), 575–8. New Custom: Power, Opinio Juris and Contrary Practice, Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in Honour of Krzysztof Skubiszewski (1996), 531–40. The Decline of the Nation-State and its Implications for International Law, 36 CJTL (1997), 7–23. (Also in Charney, Anton and O’Connell (eds.), Politics, Values and Functions: International Law in the 21st Century. Essays in Honor of Professor Louis Henkin (1997), 13–28.) The UN legal order: an overview, Joyner (ed.), The United Nations and International Law (1997), 3–26. United Nations Collective Security: Its Once and Future Role, Meador (ed.), The Korean War in Retrospect: Lessons for the Future (1998), 119–27. The erosion of state authority and its implications for equitable development, Weiss et alii (eds.), International Economic Law with a Human Face (1998), 31–44. The Role of Power in International Law, ASIL Proceedings (1999), 200–5. Telford Taylor 1940–1942, 37 CJTL (1999), 655–9. The Genesis of the Declaration: A Fresh Examination, 11 Pace International Law Review (1999), 51–7. Louis B. Sohn, 69 Annuaire (2000–2001), 800–1. Linking Equity and Law in Maritime Delimitation, Ando et alii (eds.), Liber Amicorum Judge Shigeru Oda (2002), ii, 1163–8.

oscar schachter select bibliography xxvii C. Interviews/Talks ‘International Law: An Interview with Oscar Schachter’, 9 The Fletcher Forum (1985), 231–6. ‘Special Feature: The State of International Legal Education in the United States (Interview with Oscar Schachter)’, 29 HILJ (1988), 273–9. Stern, ‘A Conversation with Oscar Schachter’, ASIL Proceedings (1997), 343–55 (Walsh reporter). Ragazzi, ‘The Changing Role of the Nation-State in Development’, 3 Development Law Newsletter (1997), 2–3 (Summary of talk by Professor Oscar Schachter to the International Association of Development Lawyers at the World Bank headquarters in Washington, DC, on 9 April 1997). Cassese, ‘Personal Recollections—Interview with Oscar Schachter (The European Tradition in International Law: Hans Kelsen)’, 9 EJIL (1998), 389–90. Brown Weiss, ‘An Interview with Oscar Schachter’, ASIL Proceedings (2001), 18–22 (Clincy reporter).

D. About Oscar Schachter Higgins, ‘Oscar Schachter as Scholar’, Raman (ed.), Dispute Settlement through the United Nations (1977), 11–31. Szalai, ‘The Art of the Research Director: A Profile of Oscar Schachter as UNITAR’s First Director of Research’, Raman (ed.), Dispute Settlement through the United Nations (1977), 33–50. ‘Professor Oscar Schachter, 1915–2003’, Columbia Law School web site: (Memorial Information, Biography, Dean Leebron’s Statement, Damrosch’s Remarks at Oscar Schachter’s Funeral, UN Secretary General’s Statement). ‘Secretary-General Saddened by Death of Eminent Jurist, Scholar Oscar Schachter, “Pioneer” in Development of International Law’, United Nations Press Release SG/SM/9083 (15 December 2003), United Nations web site: . Saxon, ‘Oscar Schachter, Pioneer in International Law, Dies at 88’, New York Times (Obituary, 17 December 2003). Ragazzi, ‘In Memory—Oscar Schachter (1915–2003)’, 2 ChJIL (2003), vii–viii. Damrosch, ‘Oscar Schachter (1915–2003)’, 98 AJIL (2004), 35–41. ‘In Memoriam—Tribute to Oscar Schachter’, Columbia Law School Report (Summer 2004), 84–8 (Gardner, Alvarez, Damrosch, Henkin, and Judith Schachter). ‘In Memoriam—Oscar Schachter 1915–2003’, 42 CJTL 2004, 619–56 (Annan, Blix, Corell, Henkin, Higgins, Marks, Schachter Modell, Schwebel, with a list of principal publications).

CONTRIBUTORS

Chittharanjan F. Amerasinghe, LLM (Harvard), PhD and LLD (Cambridge), formerly Professor of Law at the University of Ceylon, a Judge of the United Nations Administrative Tribunal and of the Commonwealth Secretariat Tribunal, and Executive Secretary of the World Bank Administrative Tribunal, is a member of the Institut de Droit International. Robert John Araujo SJ, JD (Georgetown), BCL (Oxford), LLM and JSD (Columbia), formerly an attorney at the US Department of the Interior and then at Standard Oil/British Petroleum, is Professor of Law at Gonzaga University, Spokane (WA, United States), and Legal Adviser to the Permanent Mission of the Holy See to the United Nations. Julio Barboza, LLB (Buenos Aires), LLM (Southern Methodist), formerly Legal Adviser to the Argentine Foreign Ministry, Ambassador of Argentina, Special Rapporteur and Chairman of the International Law Commission, is Professor of Public International Law at the Catholic University of Buenos Aires and President of the United Nations Administrative Tribunal. Giovanni Battaglini is Emeritus Professor of International Law at the University of Ferrara, and a member of the Committee on Human Rights of the Società Italiana di Diritto Internazionale (SIOI, Rome). Rudolf Bernhardt, Dr. Jur. (Frankfurt), formerly President of the European Court of Human Rights and Director of the Max Planck Institute for Comparative Public Law and International Law, is Emeritus Professor of Law at Heidelberg University and a member of the Institut de Droit International. Ian Brownlie, CBE, QC, FBA, DCL (Oxford), formerly Chichele Professor of Public International Law in the University of Oxford, is Distinguished Fellow of All Souls College (Oxford), a Bencher of Gray’s Inn, and a member of Blackstone Chambers (London), the International Law Commission, and the Institut de Droit International. Maurizio Ragazzi (ed.), International Responsibility Today, xxix–xxxiii. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

xxx contributors Antônio Augusto Cançado Trindade, PhD (Cambridge), formerly President of the Inter-American Court of Human Rights, is Professor of International Law at the University of Brasilia, Judge of the Inter-American Court of Human Rights, and a member of the Institut de Droit International. David D. Caron, JD (Berkeley) and Dr. Jur. (Leiden), formerly a member of the United Nations Compensation Commission for claims arising out of the Gulf War, is C. William Maxeiner Distinguished Professor of Law at the University of California at Berkeley. Christian Dominicé, Dr. Jur. (Geneva) and M.Inst.Aff. (Columbia), formerly Professor of International Law at the University of Geneva and the Graduate Institute of International Studies, is a member of the Institut de Droit International and the OSCE Court of Conciliation and Arbitration. Giorgio Gaja is Professor of International Law at the University of Florence Law School, and a member of the International Law Commission and the Institut de Droit International. Héctor Gros Espiell, Dr. Jur. (Montevideo), formerly President American Court of Human Rights, Minister of Foreign Affairs and a Judge of the United Nations and the ILO Administrative Professor at the Catholic University of Montevideo and a member de Droit International.

of the Interof Uruguay, Tribunals, is of the Institut

Rosalyn Higgins, DBE, QC, LLB (Cambridge) and JSD (Yale), formerly Professor of International Law in the University of London, is a Judge of the International Court of Justice, a member of the Institut de Droit International, and a Bencher of the Inner Temple. Maurice Mendelson, QC, MA and DPhil (Oxford), formerly Professor of International Law in the University of London (University College), is a Master of the Bench of Lincoln’s Inn and a member of Blackstone Chambers Barristers (London). Kazuhiro Nakatani, LLB (University of Tokyo), is Professor of International Law at the University of Tokyo and Secretary of the Japanese Branch of the International Law Association. Mary Ellen O’Connell, LLB (Cambridge), JD (Columbia), formerly an associate at the Washington, DC, office of Covington & Burling, is William B. Saxbe Designated Professor of Law at the Moritz College of Law, Ohio State University.

international responsibility today xxxi Francisco Orrego Vicuña, PhD (LSE, London), is Professor of International Law at the Law School of the Institute of International Studies of the University of Chile, and a member of the Institut de Droit International. Vratislav Pechota, Dr. Jur. and CSc (Charles University, Prague), formerly Chairman of the Sixth (Legal) Committee of the United Nations General Assembly, UNITAR Research Fellow and Assistant Director of the Parker School (Columbia University), is Emeritus Adjunct Professor of Law and Senior Research Scholar (Columbia University). Jorge Peirano, Dr. Jur. (Montevideo), formerly Professor of Public International Law at the University of the Republic (Uruguay) and President of ICC and MERCOSUR arbitral tribunals, is Professor of Public International Law at the University of Montevideo. Laura Picchio Forlati, Dr. Jur. (Padua), is Professor of International Law at the University of Padua, School of Law, and a member of the European Group of Private International Law and of its sub-group on ‘The Impact of Fundamental Rights on Conflicts of Laws and Jurisdictions’. Pemmaraju Sreenivasa Rao, BL and ML (Andhra University, India), LLM and SJD (Yale), formerly Legal Adviser to the Ministry of External Affairs of India, is a Special Rapporteur and a member of the International Law Commission, and an associate member of the Institut de Droit International. Daphné Richemond, LLM (Yale), is an associate at Cleary, Gottlieb, Steen & Hamilton in New York, specializing in cross-border transactions and international litigation. François Rigaux, Dr. Jur. (Louvain), formerly Dean of the Faculty of Law of the Catholic University of Louvain and President of its department of international law, is Emeritus Professor of the Catholic University of Louvain, a member of the Académie Royale de Belgique, Vice-Director of the Classe des Lettres et des Sciences Morales et Philosophiques, and a member of the Institut de Droit International. Natalino Ronzitti, Dr. Jur. (Pisa), is Professor of International Law at the Libera Università Internazionale degli Studi Sociali (LUISS, Rome), School of Law. Shabtai Rosenne, LLB (London) and PhD (Hebrew University of Jerusalem), formerly a member of the International Law Commission, Legal Adviser to the Israeli Ministry for Foreign Affairs, Permanent Representative of Israel to

xxxii

contributors

the United Nations, and Ambassador-at-Large of Israel, is an honorary member of the Institut de Droit International and a recipient of the Hague Prize for International Law (2004). Emmanuel Roucounas, Dr. Jur. (Paris), formerly Professor of International Law at the University of Athens and a member of the International Law Commission, is Chair of International Law at the Academy of Athens, and a member of the Permanent Court of Arbitration and the Institut de Droit International. Tullio Scovazzi, Dr. Jur. (Milan), is Professor of International Law at the University of Milano-Bicocca, and Legal Adviser of the Italian Government at several international negotiations relating to the law of the sea, environmental law, and cultural heritage. Brigitte Stern, Dr. Jur. (Paris) and MCJ (New York University), is VicePresident of the United Nations Administrative Tribunal, Professor at the University of Paris I (Panthéon-Sorbonne), and Associate Professor at the Graduate Institute of International Studies (Geneva). Stefan Talmon, LLM (Cambridge), DPhil (Oxford), is University Lecturer in Public International Law at the University of Oxford, a Fellow of St. Anne’s College (Oxford), and an Associate Professor at the University of Tübingen. Hugh Thirlway, MA, Llb (Cambridge), Dr. en Droit (Nancy), formerly Professor of International Law at the Graduate Institute of International Studies (Geneva), is Head of the Department of Legal Affairs in the Registry of the International Court of Justice. Tullio Treves, Dr. Jur. (Milan), formerly Legal Adviser to the Italian Permanent Mission to the United Nations, is Professor of International Law at the University of Milan, a Judge at the International Tribunal for the Law of the Sea, and a member of the Institut de Droit International. Budislav Vukas, LLM and PhD (Zagreb), is Professor of Public International Law at the Faculty of Law of the University of Zagreb (Croatia), Vice-President of the International Tribunal for the Law of the Sea, and a member of the Institut de Droit International. Sir Arthur Watts, KCMG, QC, MA and LLM (Cambridge), formerly Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom and Special Negotiator for Succession Issues (former Yugoslavia), is a Bencher of Gray’s Inn, and a member of the 20 Essex Street chambers (London) and the Institut de Droit International.

international responsibility today xxxiii Prosper Weil is Emeritus Professor of the University of Paris and Honorary Director of the Institut des hautes études internationales (Paris); formerly President of the World Bank Administrative Tribunal, he is a member of the Permanent Court of Arbitration, the Académie des Sciences Morales et Politiques (Institut de France), and the Institut de Droit International. Rüdiger Wolfrum, Dr. Jur. (Bonn), is Professor at the University of Heidelberg, Director at the Max-Planck Institute for Comparative Public Law and International Law, and a Judge at the International Tribunal for the Law of the Sea. Chusei Yamada, LLB (Tokyo) and MA (Fletcher School), formerly Ambassador to India and Professor of Law at Waseda University, is a member of the International Law Commission and a Special Assistant to the Minister for Foreign Affairs of Japan. Sienho Yee, JD (Columbia), formerly an associate at the New York office of Sullivan & Cromwell and a member of the International Monetary Fund Legal Department, is Associate Professor of Law, University of Colorado Law School, and Editor-in-Chief of the Chinese Journal of International Law. Karl Zemanek, Dr. Jur. (Vienna), formerly President of the UN Conferences regarding succession to treaties, and treaties with international organizations, and a Judge at the European Nuclear Energy Tribunal, is Emeritus Professor of the University of Vienna, and a member of the Permanent Court of Arbitration and the Institut de Droit International. Editor Maurizio Ragazzi, LLM (Columbia) and DPhil (Oxford), formerly an associate at the New York and Paris offices of White & Case and an ICC sole arbitrator, is Senior Counsel specializing in international law at the World Bank (Washington, DC).

TABLE OF CASES

(Within each sub-division, cases are listed in alphabetical order, except that the different phases of the same case are listed in chronological order) Permanent Court of International Justice Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, PCIJ, Series A, No. 9 ...................................................................... 271, 275, 324, 447 Factory at Chorzów, Merits, Judgment No. 138, 1928, PCIJ, Series A, No. 17 ....................................................................

9, 271, 275, 280, 324

German Settlers in Poland, Advisory Opinion, 1923, PCIJ, Series B, No. 6 ......................................................................

174, 410

Interpretation of Judgment No. 3, Judgment No. 4, 1925, PCIJ, Series A, No. 4 ......................................................................

298

Legal Status of the South-Eastern Territory of Greenland, Orders of 2 and 3 August 1932, PCIJ, Series A/B, No. 48 ................

326

“Lotus”, Judgment No. 9, 1927, PCIJ, Series A, No. 10 ..........

436

Phosphates in Morocco, Judgment, 1938, PCIJ, Series A/B, No. 74, 10 ..............................................................................

436

S.S. “Wimbledon”, Judgments, 1923, PCIJ, Series A, No. 1 ......

301

International Court of Justice Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), pending ............................................................

Maurizio Ragazzi (ed.), International Responsibility Today, xxxv–xlviii. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

285

xxxvi table of cases Ambatielos, Preliminary Objection, Judgment, ICJ Reports 1952, 28 ....

308

Ambatielos, Merits, Judgment, ICJ Reports 1953, 10 ..........................

308

Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, 177 ......................................................................................

327

Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, ICJ Reports 1985, 192 ..............................

298

Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, ICJ Reports 2003, 7 ..............

298

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (El Salvador v. Honduras), Judgment, ICJ Reports 2003, 392 ................................

298

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgment 11 July 1996, ICJ Reports 1996, 595 ......................................................................................

83

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia and Montenegro), pending ......................................................................

285

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia and Montenegro), pending ........

285

Arbitral Award of 31 July 1989, Provisional Measures, Order 2 March 1990, ICJ Reports 1990, 64 ..........................................

308, 326

Arbitral Award of 31 July 1989, Judgment, ICJ Reports 1991, 53 ....................................................................................................

308

Arrest Warant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment 14 February 2002, ICJ Reports 2002, 3 ........

118, 280, 284

table of cases xxxvii Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12 ............................ 118, 273, 279, 280, 281, 304, 324 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3 ..................................

31, 96, 161, 190, 305, 311, 313

Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports 1962, 151 ......

365

Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992, 240 ......

437

Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, ICJ Reports 1984, 3 ..........

320

Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, ICJ Reports 1981, 3 ..................................................................................

320

Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, 18 ..........................................................

300

Corfu Channel, Merits, Judgment, ICJ Reports 1949, 4 ..............

18, 83, 131, 284, 401, 436

Corfu Channel, Assessment of Amount of Compensation, Judgment, ICJ Reports 1949, 244 ........................................................

301

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, 62 ..............................................

272

East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, 90 ................................................................................ 190, 305, 311, 318 Elettronica Sicula S.p.A. (ELSI), Judgment, ICJ Reports 1989, 15 ............................................................................................

164, 284

Fisheries, Judgment, ICJ Reports 1951, 116 ..............................

283

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973, 49 ......

283

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, ICJ Reports 1974, 175 ..............................

283

xxxviii

table of cases

Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports 1974, 3 .............................................. Frontier Dispute, Judgment, ICJ Reports 1986, 554 .................... Gab‘íkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7 ............................................................

61 283 50, 60, 123, 276, 283, 332, 436

Haya de la Torre, Judgment, ICJ Reports 1951, 71 ..................

324

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, 73 ................................................................................

385, 416

Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999, 1045 ..............................................................

283

LaGrand (Germany v. United States of America), Order 3 March 1999, ICJ Reports 1999, 9 ..................................................

307

LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466 ................................................................ 116, 118, 273, 275, 278, 280, 284, 301, 304, 307, 325, 386 Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order 15 March 1996, ICJ Reports 1996, 13 ................................................................................

325

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening), Judgment, Merits, ICJ Reports 2002, 303 .............................................. 111, 271, 280, 286 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, ICJ Reports 1990, 92 ........ 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, 16 ................................................................................

321, 322

32, 281, 284, 365

table of cases xxxix Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ...................................................... 13, 14, 32, 33, 34, 36, 118, 121, 276, 277, 281, 284, 305, 311–12, 327 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226 ........................................................

77, 210, 312, 444

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66 ..................

382, 386

Legality of Use of Force (Serbia and Montenegro v. Belgium) ..........

285, 437

Legality of Use of Force (Serbia and Montenegro v. Canada) ..........

285, 437

Legality of Use of Force (Serbia and Montenegro v. France) ............

285, 437

Legality of Use of Force (Serbia and Montenegro v. Germany) ........

285, 437

Legality of Use of Force (Serbia and Montenegro v. Italy) ..............

285, 437

Legality of Use of Force (Serbia and Montenegro v. Netherlands) ......

285, 437

Legality of Use of Force (Serbia and Montenegro v. Portugal) ..........

285, 437

Legality of Use of Force (Serbia and Montenegro v. United Kingdom) ........................................................................

285, 437

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment 1 July 1994, ICJ Reports 1994, 112 ........................................................

283

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment 15 February 1995, ICJ Reports 1995, 6 ..............................

283

Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment 16 March 2001, ICJ Reports 2001, 40 ................................................................................

283

Maritime Delimitation in the Area Between Greenland and Jan Mayen, ICJ Reports 1993, 38 ........................................

302, 357

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, 392 ....................

285

xl table of cases Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14 ..........................................................

68, 74, 131, 272, 285, 335, 336, 426, 428, 436

Minquiers and Ecrehos, Judgment, ICJ Reports 1953, 47 ............

283

Monetary Gold Removed from Rome in 1943, Judgment, ICJ Reports 1954, 19 ..................................................................

301, 317, 318

North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3 ......

214, 357

Northern Cameroons, Judgment, ICJ Reports 1963, 3 ..................

314

Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, 253 ..............................................................................

192, 285, 312–13

Nuclear Tests (Australia v. France), Application to Intervene, Order of 20 December 1974, ICJ Reports 1974, 530 ......................

322

Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, 457 ..............................................................................

285, 313

Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 20 December 1974, ICJ Reports 1974, 535 ............

322

Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, ICJ Reports 1996, 803 .......................................................................................... 285, 329, 330, 331, 332 Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order 10 March 1998, ICJ Reports 1998, 190 ..............................................................................

285

Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment 6 November 2003, ICJ Reports 2003, 161 .............................................................................. 274, 275, 285, 329, 330, 331, 332, 335, 336, 337, 338, 339 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order 29 July 1991, ICJ Reports 1991, 12 ..........

325, 326

table of cases xli Reparation for Injuries Suffered in the Service of the United States, Advisory Opinion, ICJ Reports 1949, 174 .............................. 345, 382, 383, 384, 387, 440, 442 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, ICJ Reports 1999, 31 ........

298

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, Judgment, ICJ Reports 1950, 395 ..............

298

South West Africa, Second Phase, Judgment, ICJ Reports 1966, 6 ..................................................................................

315

Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/Malaysia), Application of the Philippines to Intervene, Judgment, ICJ Reports 2001, 575 ..........................................

284, 303

Temple of Preah Vihear, Merits, Judgment, ICJ Reports 1962, 6 ..................................................................................

284

Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, 6 ............................................................

283

United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3 ............................................................

18, 47, 272, 305, 426

Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, Advisory Opinion, ICJ Reports 1955, 67 ..........................................................

449

Western Sahara, Advisory Opinion, ICJ Reports 1975, 12 ..........

327

European Court of Human Rights Assanidze v. Georgia, Judgment (Merits and Just Satisfaction), 8 April 2004, ........................

250

Bankovi‘ et al. v. Belgium et al. (Decision on Admissibility), 12 December 2001, ..............

89, 91

Bensaid v. The United Kingdom, Judgment (Merits), 6 February 2001, ..................

91

xlii

table of cases

Broniowski v. Poland, Judgment (Merits and Just Satisfaction), 22 June 2004, ........................

251

De Wilde, Ooms and Versyp (‘Vagrancy’) v. Belgium, Judgment (Merits), 18 June 1971, ..........

245

Einhorn v. France (Decision on Admissibility), 16 October 2001, ..................................................

90

Hutchison Reid v. The United Kingdom, Judgment (Merits and Just Satisfaction), 20 February 2003, ..................................................

247

Ila{cu and others v. Moldova and Russia, Judgment (Merits and Just Satisfaction), 8 July 2004, .................................................. 250, 426, 431 Loizidou v. Turkey, Judgment (Merits and Just Satisfaction), 18 December 1996, ..............

426

Nivette v. France (Decision on Admissibility), 3 July 2001, ..................................................

90

Pellegrini v. Italy, Judgment (Merits and Just Satisfaction), 20 July 2001, ..........................

287

Sidabras and Diautas v. Lithuania, Judgment (Merits and Just Satisfaction), 27 July 2004, ......

248

Soering v. The United Kingdom, Judgment (Merits and Just Satisfaction), 7 July 1989, ........

89

T.I. v. The United Kingdom (Decision on Admissibility), 7 March 2000, ......................

90

Inter-American Court of Human Rights Aloeboetoe et al., 10 September 1993, Series C No. 15, ......................

267

Bámaca-Velásquez, 22 February 2002, Series C No. 91, ......................

257

Barrios Altos, 30 November 2001, Series C No. 87, ......................

267

Blake, 22 January 1999, Series C No. 48, ......................

257

table of cases xliii Bulacio, 22 September 2003, Series C No. 100, ..............................

257

Cantoral-Benavides, 3 December 2001, Series C No. 88, ..............................

257, 267

Castillo-Páez, 27 November 1998, Series C No. 43, ..............................

257

Cesti-Hurtado, 31 May 2001, Series C No. 78, ..............................

257

Durand and Ugarte, 3 December 2001, Series C No. 89, ..............................

267

Godínez Cruz Case, Judgment, 20 January 1989, Series C No. 5, ..............................

153

International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights), 9 December 1994, Series A No. 14, ..............................

153

Juan Humberto Sánchez, 7 June 2003, Series C No. 99, ..............................

257

Loayza-Tamayo, 27 November 1998, Series C No. 42, ..............................

257, 266

Myrna Mack-Chang, 25 November 2003, Series C No. 101, ..............................

254, 266

‘Panel Blanca’ (Paniagua-Morales et al.), 8 March 1998, Series C No. 37, ................

256–7

Plan de Sánchez Massacre, 29 April 2004, Series C No. 105, ..............................

254

‘Street Children’ (Villagrán-Morales et al.), 26 May 2001, Series C No. 77, ................

257, 267

The Word ‘Laws’ in Article 30 of the American Convention on Human Rights, 9 May 1986, Series A No. 6, ..............................

152

Trujillo-Oroza, 27 February 2002, Series C No. 92, ..............................

257, 267

Velásquez-Rodríguez, 29 July 1988, Series C No. 4, .............................. 152, 153, 158, 425

xliv table of cases Other Courts and Arbitral Tribunals AAPL v. Sri Lanka, Award, 1990 (International Centre for Settlement of Investment Disputes), 6 ICSID Review—Foreign Investment Law Journal (1991), 526 ..................................................

166

American International Group, Inc., and American Company v. The Islamic Republic of Iran and of Iran (Bimeh Markazi Iran), Award, 1983, Claims Tribunal Reports (1983, III), 96

Life Insurance Central Insurance 4 Iran-United States ....................................

164

American Manufacturing and Trading Inc. v. The Republic of Zaire, Award, 1997 (International Centre for Settlement of Investment Disputes), 36 ILM (1997), 1531 ................................

166

Antoine Goetz et al. v. Republic of Burundi (ICSID Case No. ARB/95/3), Award of 10 February 1999, 15 ICSID Review —Foreign Investment Law Journal (2000), 457 ........................

166, 175

Arab Monetary Fund v. Hashim (No. 3), [1991] 2 AC 142 ................

387

Arab Organization for Industrialization, Arab British Helicopter Company and Arab Republic of Egypt v. Westland Helicopters Ltd, United Arab Emirates, Kingdom of Saudi Arabia and State of Qatar (Swiss Federal Supreme Court, 1988), 80 ILR (1989), 622 ..................................................................................................

438

Asian Agricultural Products Ltd. v. Democratic Socialist Republic of Sri Lanka (ICSID Case No. ARB/87/3), Award of 27 June 1990, 30 ILM (1991), 577; 6 ICSID Review—Foreign Investment Law Journal (1991), 526 ..................................................

174

‘Award of the Commission of Arbitration Established by the Agreement Concluded on 24th February 1955 between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Greece for the Arbitration of the Ambatielos Claim together with the Annexes to the Award, 6 March, 1951’, RIAA, xii, 91 ............

308

Azurix Corp. v. The Argentine Republic, Decision on Jurisdiction, 2003 (International Centre for Settlement of Investment Disputes), ..........................................

165, 166

Case C-13/00, Commission v. Ireland, [2002] ECR I–2943 ............

417, 418

Case C-53/96, Hermès International v. FHT Marketing Choice, [1998] ECR I–3603 ......................................................................

417

Case C-224/01, Köbler v. Österreich, [2003] ECR I–10239 ............

416

table of cases xlv Case C-316/91, Parliament v. Council, Judgment, 2 March 1994, [1994] ECR I–625 ........................................................................

415, 417

Case Concerning Air Services Agreement of 27 March 1946 (United States v. France), 54 ILR (1979), 304 ................................ 50, 51, 54 ‘Case Concerning the delimitation of maritime boundary between Guinea-Bissau and Senegal. Decision of 31 July 1989’, RIAA, xx, 119 ......................................................

308

CME Czech Republic B.V. (The Netherlands) v. Czech Republic, Partial Award, 2001 (UNCITRAL Arbitration Proceedings), ........

166

CMS Gas Transmission Company v. Republic of Argentina, Decision on Objections to Jurisdiction, 2003 (International Centre for Settlement of Investment Disputes), 42 ILM (2003), 788 ..........

165, 166, 167, 169

Compañía de Aguas del Aconquija et al. v. Argentina, Award, 2000 (International Centre for Settlement of Investment Disputes), 40 ILM (2001), 426 ......................................................................

166

Dole Food Co. v. Patrickson, 123 S. Ct. 1655 (United States Supreme Court, 2003) ..................................................................

168

Doyle v. Chicago St Paul and Kansas City R. Co, 77 Iowa 607, 92 NW 555 (1889) ..............................................................................

88

Emilio Agustín Maffezini v. The Kingdom of Spain, Award, 2000 (International Centre for Settlement of Investment Disputes), 16 ICSID Review —Foreign Investment Law Journal (2001), 212 ....

166

Enron Corporation and Ponderosa Assets, L. P. v. The Argentine Republic, Decision on Jurisdiction, 2004 (International Centre for Settlement of Investment Disputes), ........................................

166, 168, 169

Genin et al. v. Republic of Estonia, Award, 2001 (International Centre for Settlement of Investment Disputes), 6 ICSID Reports (2004), 236 ......................................................................

166

Gold belonging to the National Bank of Albania arbitration, RIAA, xii, 35 ..................................................................................

301

Government of the United States of America (Respondent) v. Barnette and another (Appellants) [2004] UKHL 37, ..................................................................................

287, 288

xlvi

table of cases

International Tin Council, [1990] 2 A.C. 418 (House of Lords, United Kingdom) ..........................................................................

438

Italian Constitutional Court, Judgment No. 16 of 2 February 1982, ..........................

293, 294

Italian Court of Cassation, Judgment No. 251 of 3 February 1971, Giustizia civile (1971), i, 385–8 ........................

292

Italian Court of Cassation, Judgment No. 1824 of 13 February 1993, Foro italiano (1994), i, 537 ............................

290

Lanco v. Argentina, Preliminary Decision on Jurisdiction, 1998 (International Centre for Settlement of Investment Disputes), 40 ILM (2001), 457 ........................................................................

166

Leyland Shipping Co, Ltd. v. Norwich Fire Ins. Society, [1918] AC 350 ..........................................................................................

86

Lorenzo Bozano v. France, Yearbook of the European Convention on Human Rights (1985), 162–6 ..........................................................

144

M. & Co. v. Germany (European Commission of Human Rights, decision of 9 February 1990 on application no. 13258/87), 64 Decisions and Reports 138 ............................................................

412

Madej v. Schomig, United States District Court, N.D. Illinois, Eastern Division, 2002, U.S. Dist. Lexis 17996, Sept. 24, 2002 ................................................................................

273

Matter of an UNCITRAL Arbitration Between Ronald S. Lauder and the Czech Republic, Award of 3 September 2001, ..........................

174

Mauney v. Gulf Refinings Co., 9 So 2d 750, (Miss. 1942) ................

88

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930 (1990) ..............................................................................................

182

Mondev International Limited v. United States of America, Award, 2002 (International Centre for Settlement of Investment Disputes), 42 ILM (2003), 85 ..........................................................................

168

Nastios v. National Foreign Trade Council, 181 F.3d 38 (1st Cir. 1999), cert. granted, 68 U.S.L.W. 3353 (U.S. 1999) (No. 99–474) ..................................................................................

57, 58

Naulilaa Award (‘Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique (Sentence sur le principe de la responsabilité)’, 1928), RIAA, ii, 1011 ................................................................................

50, 128

table of cases xlvii New York Cent. & Hudson River R.R. v. United States, 212 US 481 (1909) ..............................................................................

25

Padua Tribunal, Judgment of 7 January 1995, 106 Diritto ecclesiatico (1995), 497–508 ....................................................

292

Palsgraf v. Long Island R. Co, 248 NY 339, 162 NE 99 (1928) ......................................................................................

86

Philippe Gruslin v. Malaysia, Award, 2000, 5 ICSID Reports (2002), 483 ............................................................................

168

Prosecutor v. Anto Furundzija (Trial Chamber II—ICTY), Judgment, ..................................

76

Prosecutor v. Dusko TadiÆ, a/k/a/ ‘Dule’ (Appeals Chamber— ICTY), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), ..................................................................

73, 272

Prosecutor v. Dusko TadiÆ (Appeals Chamber—ICTY), Judgment (15 July 1999), ........

426, 429

Rainbow Warrior (‘Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair. Decision of 30 April 1990’), 74 ILR (1987), 241; RIAA, xx, 215 ....

115, 332

Rayner ( J.H.)(Mincing Lane) Ltd. v. Dept. of Trade & Industry, [1990] 2 AC 418 ..................................................................

388

Reichsgericht, 9 Dec. 1935, RGSt 70, 71 ..............................

88

Shahin Shaine Ebrahimi, et al. v. The Government of the Islamic Republic of Iran, Award, 1994, 30 Iran-United States Claims Tribunal Reports (1994), 170 ..............................................

164

S.S. ‘I’m Alone’, RIAA, iii, 1609 ............................................

18, 115

Stevens, RIAA, iv, 265 ................................................................

427

The Islamic Republic of Iran v. The United States of America, DEC 62–A21–FT (4 May 1987), 14 Iran-United States Claims Tribunal Reports (1987, I), 324 ..................................

61

The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, <www.itlos.org> ..........

401

Trail Smelter Arbitration, RIAA, iii, 1905 ....................................

210, 401, 448

xlviii

table of cases

Vivendi, Annulment Decision, 2002 (International Centre for Settlement of Investment Disputes), 17 ICSID Review Foreign Investment Law Journal (2002), 168 ..................................................

166

Waite and Kennedy v. Germany (Application No. 26083/94), 118 ILR (2001), 121 ........................................................................

361

Wena Hotels Ltd. v. Arab Republic of Egypt (Case No. ARB/98/4), Decision of the Ad Hoc Committee of 28 January 2002, 41 ILM (2002), 933; Gaillard and Banifatemi (eds.), Annulment of ICSID Awards (2004), 371–402 ..................................................

176

Westland Helicopters Ltd and Arab Organization for Industrialization, United Arab Emirates, Kingdom of Saudi Arabia, State of Qatar, Arab Republic of Egypt and Arab British Helicopter Company (Case No. 3879/AS) (International Chamber of Commerce, Court of Arbitration), 80 ILR (1989), 596 .................................... 359, 438 Westland Helicopters Ltd v. Arab Organization for Industrialization (England, High Court, 1994), 108 ILR (1998), 564 ....................

438

Woods v. Duncan [1946] AC 401 (HL) ..............................................

88

Yeager, 17 C.T.R. 92 (1987–IV) ........................................................

430

Zafiro, RIAA, vi, 160 ............................................................................

427

TABLE OF DOCUMENTS

(Within each sub-division, documents are listed in alphabetical order, except for ILC reports and reports by the same ILC Special Rapporteur, which are listed in chronological order) Treaties Additional Protocol I to the Geneva Conventions, 1125 UNTS 3 ............................................................................................

69, 197

Additional Protocol II to the Geneva Conventions, 1125 UNTS 609 ........................................................................................

71

Agreement between the Government of the United States of American and the Japanese Government for the Settlement of the Awa Maru Claim (14 April 1949), 89 UNTS 141 ............

43

Agreement between the Government of Ukraine and the Government of Israel on the Settlement of Claims Arising from the Catastrophe of 4 October 2001 (20 November 2003), International Law in Brief, 20 May 2004, ........................................

45

Agreement establishing the African Development Fund (29 November 1972), 1197 UNTS 13 ............................................

372

Agreement establishing the World Trade Organization (15 April 1994), 33 ILM (1994), 1144 ..........................................

50

Algiers Accords (19 January 1981), 1 Iran-United States Claims Tribunal Reports (1983), 3–56 ............................................................

47

Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (London, 1990), 30 ILM (1991), 537 ....................................................................................................

214

Maurizio Ragazzi (ed.), International Responsibility Today, xlix–lxxi. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

l

table of documents

American Convention on Human Rights, O.A.S. Official Records, OEA/Ser.K/XVI/1.1 Doc. 65, Rev. 1, Corr. 1 (7 January 1970) ......................................................................

151, 243, 255, 265–6, 425

Area between Greenland and Jan Mayen, Agreement, 18 December 1995, 31 Law of the Sea Bulletin (1996), 59 ..................................................................................

302

‘Canada-Union of Soviet Socialist Republics: Protocol on Settlement of Canada’s Claim for Damages Caused by “Cosmos 954”’, 20 ILM (1981), 689 ......................................

46

Charter of the United Nations (1945), ............................................................

187 and passim

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (A/RES/39/46), 1465 UNTS 85 .......................................................................... 75, 140, 158 Convention Concerning the Rights and Duties of Neutral Powers in Maritime War (Hague, XIII), Treaty Series 545 ........................................................................

197

Convention Establishing the Multilateral Investment Guarantee Agency, 1508 UNTS 99 ........................................

383

Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Vienna, 1986), 1457 UNTS 133 ........................................................................

215

Convention on Early Notification of a Nuclear Accident (Vienna, 1986), 1439 UNTS 275 ............................................

215

Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187 ..........................................

358, 448

Convention on the High Seas, 450 UNTS 82 ..........................

374

Convention on the Law of the Non-navigational Uses of International Watercourses (Doc.A/51/869) ..........................

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1035 UNTS 167 ......................................

57, 212, 375–6, 417, 418

374

table of documents

li

Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 ......................................

158

Convention on the Rights of the Child, 1577 UNTS 3 ........

350

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, 575 UNTS 159 .......................................... 167, 175, 179, 383 Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague, V), Treaty Series 540 ................................................

197

European Convention on Human Rights, 213 UNTS 221 (as amended: ) .......................... 144, 151, 153, 243, 244, 287, 361 Exchange of Notes between the Government of Japan and the Government of the United States concerning Compensation for the Damages Caused by Nuclear Tests in the Marshall Islands (4 January 1955), 237 UNTS 197 ..............................................................................

45

Fourth Convention between the European Economic Community and its Member States, of the one part, and the ACP [African, Caribbean, and Pacific] States, of the other part (Lomé, 15 December 1989), OJ L 229, 17 August 1991, 3 ............................................

414

General Agreement on Tariffs and Trade (1947), 55 UNTS 194 ........................................................................

59

Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949), 75 UNTS 31 ......................

139, 140

Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 UNTS 135 ..........................................

198

Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (12 August 1949), 75 UNTS 287 ........................................................................

33

Inter-American Convention on Forced Disappearance of Persons, ........................................

158

lii

table of documents

Inter-American Convention to Prevent and Punish Torture, OAS Treaty Series, No. 67 ..........................................................

158

Interim Agreement between the United Nations and Switzerland, 1 UNTS 163 ........................................................

387

International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (A/RES/44/34) ......

69

International Convention on Civil Liability for Oil Pollution Damage (Brussels, 1969), 973 UNTS 3 ..................................

217

International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Brussels, 1971), 1110 UNTS 57 ..............................

217

International Convention on the Suppression and Punishment of the Crime of Apartheid, Gen. Ass. Off. Recs., Twenty-eighth Session, Supp. 30 (Doc.A/9030) ................................................

70

International Covenant on Civil and Political Rights, 999 UNTS 171 ..........................................................................

140, 350

International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 ..................................................................

192, 350

‘Italy-The Holy See: Agreement to Amend the 1929 Lateran Concordat’, 24 ILM (1985), 1589–97 ......................................

289, 293

Kyoto Protocol to the United Nations Framework Convention on Climate Change (FCCC/CP/1997/L.7/Add.1), 37 ILM (1998), 22 ....................................................................................

215

Lateran Pacts between the Holy See and Italy (1929) (English translation), ....

289, 290–1, 292

London Agreement on the Charter of the International Military Tribunal, 82 UNTS 279 ............................................

64

Montreal Protocol on Substances that Deplete the Ozone Layer, ......................................................

214

New York Convention on the Recognition and Enforcement of Arbitral Awards, 330 UNTS 38 ................................................

182

North American Free Trade Agreement (1992), 32 ILM (1993), 289 ..................................................................................

57

North Atlantic Treaty, 34 UNTS 243 ..........................................

200, 274

table of documents

liii

Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the EC and its member States, of the other part (Cotonou, Benin, 2000), OJ L 317, 15 December 2000, 3 ......................

408

Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 1999), ........................................

220

Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Doc.UNEP/FAO/PIC/CONF/2) ......

417, 418

Statute of the International Criminal Court (A/RES/49/59, Annex) ..............................................................

154, 256

Treaty Establishing a Constitution for Europe, ............

406

Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran, 284 UNTS 93 ......................................................................................

272, 329

Treaty of Peace with Germany (Treaty of Versailles), ........................

154

Treaty of Westphalia, 1648 (English trans.), ....................................

144–5

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 UNTS 205 ............................

448

Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 to the WTO Agreement), 33 ILM (1994), 1226 ..................................................................

50, 51, 61

United Nations Convention against Corruption, 42 ILM (2003), 518 ....................................................................................

417, 418

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psycotropic Substances (Doc.E/CONF.82/15, Corr. 1 and Corr. 2) ..................................................................

417, 418

United Nations Convention on Biological Diversity, 1760 UNTS 79 ......................................................................................

57, 417, 418

liv

table of documents

United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982 (DOC.A/Conf.62/122, and Corr. 1 to 11), 1833 UNTS 396 ..................................

United Nations Framework Convention on Climate Change, 1771 UNTS 107 .................................................................... United States-Morocco Bilateral Investment Treaty (1985), S. Treaty Doc. No. 19, 99th Cong., 2d Sess. (1986) ........ Vienna Convention on Consular Relations, 596 UNTS 261 ..............................................................................

39, 51, 57, 411, 418, 419, 426 416, 417, 418 174 272, 323, 386

Vienna Convention on Diplomatic Relations, 500 UNTS 95 ................................................................................

41, 272

Vienna Convention on Succession of States in Respect of Treaties, 1946 UNTS 3 ........................................................

57, 375

Vienna Convention on the Law of Treaties, 1155 UNTS 331 ....................................................................

51, 60, 61, 121, 123, 228, 232, 233, 288, 305, 350, 351, 374, 396, 416

Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (Doc.A/CONF.129/15) ................................ 352, 375, 410, 416, 417, 418 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (Doc.A/CONF.67/16) ........................................

374

United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 1954 UNTS 3 ........

417, 418

WHO Framework Convention on Tobacco Control, 42 ILM (2003), 518 ............................................................................

417, 418

table of documents

lv

Reports of and to the International Law Commission Ago, ‘Second Report on State Responsibility’ (Doc.A/CN.4/233) ......................................................................

8

Ago, ‘Third Report on State Responsibility’ (Doc.A/CN.4/241 and ADD.1–6) ..............................................................................

7, 11

Ago, ‘Fifth Report on State Responsibility’ (Doc.A/CN.4/291 and ADD.1 and 2) ......................................................................

138, 262

Ago, ‘Eighth Report on State Responsibility’ (Doc.A/CN.4/318 and ADD.5–7) ..............................................................................

145

Arangio-Ruiz, ‘Preliminary Report on State Responsibility’ (Doc.A/CN.4/416) ......................................................................

12, 13, 15

Arangio-Ruiz, ‘Fourth Report on State Responsibility’ (Doc.A/CN.4/444/Add.1–3) ......................................................

55, 229

Arangio-Ruiz, ‘Fifth Report on State Responsibility’ (Doc.A/CN.4/453) ......................................................................

227, 229

Arangio-Ruiz, ‘Fifth Report on State Responsibility – Addendum 1’ (Doc.A/CN.4/453/Add.1 and corr 1) ..............

228, 229

Arangio-Ruiz, ‘Seventh Report on State Responsibility – Addendum 1’ (Doc.A/CN.4/469/Add.1) ..................................

231

Arangio-Ruiz, ‘Seventh Report on State Responsibility – Addendum 2’ (Doc.A/CN.4/469/Add.2) ..................................

232

Bennouna, ‘Preliminary Report on Diplomatic Protection’ (Doc.A/CN.4/484) ......................................................................

165

Crawford, ‘First Report on State Responsibility (Add. 1)’ (Doc.A/CN.4/490/Add.1) ..........................................................

67

Crawford, ‘Third Report on State Responsibility’ (Doc.A/CN.4/507) ......................................................................

20

Crawford, ‘Third Report on State Responsibility (Addendum)’ (Doc.A/CN.4/507/Add.1) ..........................................................

104

Fitzmaurice, ‘First Report on the Law of Treaties’ (Doc.A/CN.4/101) ......................................................................

435

Gaja, ‘First Report on Responsibility of International Organizations’ (Doc.A/CN.4/532) ............................................

364, 376, 385, 386, 405

lvi table of documents Gaja, ‘Second Report on Responsibility of International Organizations’ (Doc.A/CN.4/541) ......................................

122, 364–5, 377, 405, 408, 409, 410, 412, 414, 421, 438

García Amador, ‘International Responsibility: Sixth Report’ (Doc.A/CN.4/134 and Addendum) ....................................

177

Rao, ‘First Report on Prevention of Transboundary Damage from Hazardous Activities’ (Doc.A/CN.4/487) ..................

391

Rao, ‘First Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, Relating to the Legal Regime for Allocation of Loss in Case of Transboundary Harm’ (Doc.A/CN.4/531) ................................................................

391, 398

Rao, ‘Second Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law (International Liability in Case of Loss from Transboundary Harm Arising out of Hazardous Activities)’ (Doc.A/CN.4/540) ..............................................

211

Riphagen, ‘Second Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles)’ (Doc.A/CN.4/344) ......................................

13

Riphagen, ‘Sixth Report on (1) the Content, Forms and Degrees of State Responsibility, and (2) the “Implementation” (Mise en Œuvre) of International Responsibility and the Settlement of Disputes’ (Doc.A/CN.4/389) ................................................................

227

‘Report of the International Law Commission on the Work of its Twenty-fifth Session’ (Doc.A/9010.Rev.1) ................

7

‘Report of the International Law Commission to the General Assembly on the Work of its Twenty-seventh Session’ (Doc.A10010/Rev.1) ..............................................

8

‘Report of the International Law Commission on the Work of its Twenty-eighth Session’ (Doc.A/31/10) ....................

263

‘Report of the International Law Commission on the Work of its Thirty-fourth Session’, Gen. Ass. Off. Recs., Thirty-seventh Session, Supp. No. 10 (Doc.A/37/10) ............

375

table of documents

lvii

‘Report of the International Law Commission on the Work of its Forty-second Session’, Gen. Ass. Off. Recs., Forty-fifth Session, Supp. No. 10 (Doc.A/45/10) ..................................

72

‘Report of the International Law Commission on the Work of its Forty-fifth Session’, Gen. Ass. Off. Recs., Forty-eighth Session, Supp. No. 10 (Doc.A/48/10) ..................................

12, 55

‘Report of the International Law Commission on the Work of its Forty-sixth Session’, Gen. Ass. Off. Recs., Forty-ninth Session, Supp. No. 10 (Doc.A/49/10) ..................................

72, 391

‘Report of the International Law Commission on the Work of its Forty-eighth Session’, Gen. Ass. Off. Recs., Fifty-first Session, Supp. No. 10 (Doc.A/51/10) ..................................

70, 75, 103, 226, 391

‘Report of the International Law Commission on the Work of its Forty-ninth Session’, Gen. Ass. Off. Recs., Fifty-second Session, Supp. No. 10 (Doc.A/52/10) ..................................

391

‘Report of the International Law Commission on the Work of its Fiftieth Session’, Gen. Ass. Off. Recs., Fifty-third Session, Supp. No. 10 (Doc.A/53/10) ..............................................

53

‘Report of the International Law Commission on the Work of its Fifty-second Session’, Gen. Ass. Off. Recs., Fifty-fifth Session, Supp. No. 10 (Doc.A/55/10) ..................................

391, 398

‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10) ..................................

3, 8, 15, 16, 23, 42, 93, 96, 100, 104, 105, 110, 115, 120, 125, 176, 190, 205, 209, 211, 224, 225, 226, 275, 279, 297, 311, 332, 355, 368, 391, 395, 402, 407, 413, 436

lviii

table of documents

‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10) ..................................

‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10) ..................................

‘Report of the International Law Commission on the Work of its Fifty-sixth Session’, Gen. Ass. Off. Recs., Fifty-ninth Session, Supp. No. 10 (Doc.A/59/10) ..................................

‘Report of the Working Group on Responsibility of International Organizations’ (Doc.A/CN.4/L.622) ............

345, 376, 378, 391, 402, 405, 407, 413, 437

344, 345, 356, 364, 371, 376, 378, 381, 385, 391, 405, 407, 409, 415, 437

405, 409, 410, 411, 412, 413, 421 345

Other Documents ‘Address of His Holiness Pope John Paul II to the Diplomatic Corps (13 January 2003)’, ..................................................

148

Aerial Collision Incident between the United States and China, Chinese statement formerly at ....................................

46

‘Annex to Resolution 2625(XXV) adopted, without a vote, on 24 Oct. 1970’, Gen. Ass. Off. Recs., Twenty-fifth Session, Supp. 28 (Doc.A/8028) ........................................................

68

Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations (1997) ..........................................................

197

Appellate Body, United States—Import of Certain Shrimp and Shrimp Products, 12 October 1998, 38 ILM (1999), 118 ........................................................................................

59

Bank for International Settlements, ..................................................................

373

table of documents

lix

Bederman, ‘Interim Report on Lump Sum Agreements and Diplomatic Protection’, International Law Association, Committee on Diplomatic Protection of Persons and Property, Report of the Seventieth Conference (New Delhi, 2002), 230 ........................................................

164

Butorac, ‘UN priprema stvaranje Srebrenice u Darfuru’, Nedjeljni vjesnik (Zagreb), 14/15 August 2004 ......................

239

‘Canada: Claims against the Union of Soviet Socialist Republics for Damage Caused by Soviet Cosmos 954’, 18 ILM (1979), 899 ..............................................................

46

Cassel, D.W., Jr., ‘Massachusetts Tossed from Foreign Policy Arena’, Chicago Daily Bulletin (26 June 2000), 6 ......

58

‘Charter of Economic Rights and Duties of States. Resolution 3281 (XXIX) of the United Nations General Assembly (adopted on 12 Dec. 1974)’, ........................................................

191, 193

Coalition Provisional Authority Order Number 17 (Revised) of 27 June 2004, ................................

433

Code of Canon law for the Latin Church (English translation), ..............................

287, 289, 292

Commission on Human Rights, ‘Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms’ (Final Report by van Boven, Doc.E/CN.4/Sub.2/1993/8) ................................................

399

Committee on Maritime Neutrality: International Law Association, Report of the Sixty-Seventh Conference (1996) ........

200

‘Comunicato della Presidenza della Repubblica sulla riunione del Consiglio Supremo di difesa del 19 marzo 2003’, 86 RDI (2003), 904 ..................................................

201

Constitution of the African Union, ........................................

238

Constitution of the Republic of Italy (English translation), ........

202, 288, 294

lx table of documents Consultative Group on Flag State Implementation, ‘Report to the Secretary-General’ (Doc.A/59/63) ....................................

216

Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104–114, 110 Stat. 785 (1996) (codified at 22 U.S.C. § 6021–91 (Supp. III 1998)) ....................

57

‘Declaration made by the EC pursuant to Article 35(3) of the WHO Framework Convention on Tobacco Control’, OJ L 196, 2 August 2003, 7 ........................................................

419

‘Declaration made pursuant to article 5(1) of Annex IX to the Convention and to article 4(4) of the Agreement’ (European Community, 1 April 1998), ..................................................

411

‘Declaration (No. 19) on the implementation of Community law annexed to the Final Act of the Treaty on European Union (Maastricht, 7 February 1992)’, OJ C 191, 29 July 1992, 95 ............................................................................

413

‘Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (Claims Settlement Declaration, 19 January 1981)’, ........................................................

164

‘Declaration on Principles Guiding Relations between Participating States’, Conference on Security and Co-operation in Europe, Final Act (Helsinki, 1975), ................................................................

137

‘Declaration on Principles of International Law Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations (Annex to Resolution 2625 (XXV) adopted on 24 Oct. 1970)’, Gen. Ass. Off. Recs., Twenty-fifth Session, Supp. 28 (Doc.A/8028) .................................................................................. 191, 193 ‘Declaration on the Granting of Independence to Colonial Countries and Peoples. Resolution 1514 (XV) of the United Nations General Assembly (adopted on 14 Dec. 1960)’, ...................................... ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their

188

table of documents

lxi

Independence and Sovereignty (Res. 2131 (XX), 21 December 1965)’, 60 AJIL (1966), 662–4 ..............................

147

‘Declaration on the Right to Development. Annex to United Nations General Assembly Resolution 41/128 (adopted on 4 Dec. 1986)’ (A/RES/41/128), ..................................................................

184

‘Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities’ (Doc.A/CN.4/L.662) ......................................................................

120

El Observador (Montevideo, Uruguay), 11 and 26 April 2004 ........

189

El País (Montevideo, Uruguay), 26 April 2004 ..............................

189

Free Trade Commission Clarifications Related to NAFTA Chapter 11, 31 July 2001, ................................

174

GATT: Dispute Settlement Panel Report on U.S. Restriction on Imports of Tuna (submitted to Parties, 16 August 1991), GATT Doc.D29/R (1991), 30 ILM (1991), 1594 ......................

59

GATT: Dispute Settlement Panel Report on U.S. Restriction on Imports of Tuna, GATT Doc.DS21/r (1994), 33 ILM (1994), 839 ......................................................................................

59

‘General questions on sanctions’ (S/PV.4128), 17 April 2000 ...... Gresh, A., ‘Objectif Bagdad’, Le Monde diplomatique (No. 582, September 2002) ..........................................................

369 146

Gros Espiell, H., ‘Report on the Implementation of United Nations Resolutions Relating to the Right of People under Colonial and Alien Domination to Self-determination’ (Doc.E/CN.4/Sub.2/390) ..............................................................

186

Guatemala, Memoria del Silencio—Informe de la Comisión para el Esclarecimiento Histórico (1999), ....................................................

255

Hague Rules of Aerial Warfare (1923), ..................................................

197

Higgins, ‘Final Report (October 1994)’ (‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’), 66 Annuaire (1995), i, 461–3 ................................ 355, 438, 444, 451

lxii

table of documents

Higgins, ‘Preliminary Exposé and Draft Questionnaire ( June 1989)’ (‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’), 66 Annuaire (1995), i, 249–89 .............................................. Higgins, ‘Provisional Report (August 1993)’ (‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’), 66 Annuaire (1995), i, 373–420 .... ICJ Pleadings, Land and Maritime Boundary between Cameroon and Nigeria ..............................................................................

355, 357, 360, 438, 445

274, 355, 438, 445, 446, 447 111, 281, 282, 283

ICJ Pleadings, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ..........................................

327

ICJ Pleadings, Legality of Use of Force (Serbia and Montenegro v. Canada), Provisional Measures, CR/99/27 (12 May 1999) ....

273–4

ICJ Pleadings, Legality of the Use of Force (Serbia and Montenegro v. Portugal), 22 April 2004 at 11.45 a.m., Verbatim Record CR 2004/18 ............................................................

274

ICJ Pleadings, Nuclear Tests ......................................................

20, 312

ICJ Pleadings, Oil Platforms (Islamic Republic of Iran v. United States of America), ........................ ICSID Convention, Regulations and Rules (2003), ....................

330, 331, 333, 334, 337, 338 383

Inmarsat Group Limited, <www.inmarsat.com> ........................ ‘Informe Anual de la Comisión Interamericana de Derechos Humanos’ (No. 47/96) ........................................................

403 151

Institut de Droit International P VADM n. 2, 2ème séance administrative 27.8.03 -15 h.20—Version révisée: Draft Procedural Resolution P.03/03 (SH-cs/GDS-mq/ RKB-mq/Rki-mq) ................................................................

149

Institut du Monde Arabe, ......................................................

379

Intelsat, <www.intelsat.com> ....................................................

403

table of documents

lxiii

International Law Association, Committee on Diplomatic Protection of Persons and Property, First Report, Sixty-Ninth Conference (London, 2000), 604–54 ......................

165

IUCN-World Conservation Union, ........

379

Jutarnji list (Zagreb), 16 August 2004 ..............................................

238

Kissinger, H., ‘New World Disorder’, Newsweek, 31 May 1999 ..................................................................................

143

Law of Administration for the State of Iraq for the Transitional Period, 8 March 2004, ..........................................

424

League of Nations, Codification Conference (1930), Third Committee, Doc.C.351(c).M.145(c).1930.V ..................................

299

Letter from the United States Ambassador, Joseph W. Prueher, to the Chinese Foreign Minister, Tang Jiaxuan, 11 April 2001, ......................................................................

39

Measures Affecting Government Procurement, Request for Consultations by the European Communities, WTO Doc.WT.DS88/1 (26 June 1997) ......................................

58

‘Message of His Holiness Pope John Paul II for the Celebration of the World Day of Peace, 1 January 1998. From the Justice of Each Comes Peace for All’, ......

183

Model Bilateral Treaty (Government of the United States of America) Concerning the Encouragement and Reciprocal Protection of Investment, ..............................................................

173, 181

Moscow Declaration on War Crimes (30 November 1943) ..........

154

NATO summit, Washington, D.C., ....................................

200

New Zealand Resource Management Act 1991, ......

30

Organisation pour la mise en valeur du fleuve Sénégal, <www.gouv.sn/integration/omvs.html> ........................................

372

lxiv table of documents Organization of American States, ‘Resolution Establishing the Inter-American Armed Force in the Dominican Republic (6 May 1965)’, 59 AJIL (1965), 987–8 ........................................

147

Orrego Vicuña, ‘Final Report on Responsibility and Liability under International Law for Environmental Damage (December 1996)’, 67 Annuaire (1998), i, 312–46 ........................

209

Panel of Experts’ recommendation (S/2001/1015) ........................

369

Pella, ‘Une Cour Pénale Internationale’ (Doc.A/CM.4/39) ..........

154

Recommendation 6 (2004), Council of Europe, Committee of Ministers, ................................

250

‘Report by the Secretary-General: Negotiations with the Swiss Federal Council’ (Doc.A/175) ......................................................

387

‘Report of the Panel’ (humanitarian situation in Iraq) (S/1999/356) ..................................................................................

367

‘Report of the Secretary-General’ (Doc.A/51/389), 20 September 1996 ........................................................................

363, 364

‘Report of a Special Panel of Experts’ (Doc.A/53/312), 27 August 1998 ..............................................................................

369

Report of the G-7 Finance Ministers on ‘Poverty Reduction and Economic Development’ ( July 2000), ....................................................................

44

Report of the G-7 Finance Ministers on the Köln Debt Initiaitive to the Köln Economic Summit ( June 1999), ............................

44

‘Report of the United Nations Conference of Environment and Development’ (United Nations, 1993) ..........................................

214

‘Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban 31 August–8 September 2001)’ (Doc.A/CONF.189/12), ............................................

267

Resolution 3 (2004), Council of Europe, Committee of Ministers, ..................................................

250

table of documents ‘Resolution 95(I) of the United Nations General Assembly on the Affirmation of the principles of International Law recognized by the Charter of the Nuremberg Tribunal (adopted on 11 Dec. 1946)’, Resolutions Adopted by the General Assembly during the Second Part of its First Session from 23 October to 15 December 1946, 175 ..................................................................

lxv

65

‘Resolution 260A(III) of the United Nations General Assembly on the Convention on the Prevention and Punishment of the Crime of Genocide (adopted on 9 Dec. 1948)’, Gen. Ass. Off. Recs., Third Session, 174 (Doc.A/810) ...................................................................................... 69, 237 ‘Resolution 3074 (XXVIII) of the United Nations General Assembly on Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity’, 2187th plenary meeting, 3 December 1973 ................

158

‘Resolution 3314 (XXIX) of the United Nations General Assembly on the Definition of Aggression (adopted on 14 Dec. 1974)’, Gen. Ass. Off. Recs., Twenty-ninth Session, Supp. 31 (A/9631), 142 .................................................................... 66, 205 ‘Resolution of the United Nations General Assembly’ (A/RES/50/51(1995)) ........................................................................

369

‘Resolution of the United Nations General Assembly’ (A/RES/51/242(1997)) ......................................................................

369

‘Resolution of the United Nations General Assembly’ (A/RES/52/162(1997)) ......................................................................

369

‘Resolution of the United Nations General Assembly on the Formulation of the Nürnberg Principles’, 320th plenary meeting, 12 December 1950 ............................................................

65

‘Resolution of the United Nations General Assembly on the Participation of the Holy See in the Work of the United Nations (adopted on 1 July 2004)’ (A/RES/58/314) ....................

290

‘Resolution of the United Nations General Assembly on the Report of the International Law Commission on the Work of its Fifty-third Session (adopted on 12 December 2001)’ (A/RES/56/82) ......................................................................

211

lxvi

table of documents

‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83) ............

‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 2 December 2004)’ (A/RES/59/35) ..............

7, 23, 56, 60, 93, 117, 126, 176, 209, 224, 272, 294, 405, 424

117, 224, 299

‘Resolution 552 of the United Nations Security Council’ (S/RES/552(1984)) ................................................................

198

‘Resolution 582 of the United Nations Security Council’ (S/RES/582(1986)) ................................................................

198

‘Resolution 660 of the United Nations Security Council’ (S/RES/660(1990)) ................................................................

365, 366

‘Resolution 687 of the United Nations Security Council’ (S/RES/687(1990)) ................................................................

220

‘Resolution 731 of the United Nations Security Council’ (S/RES/731(1992)) ................................................................

366

‘Resolution 748 of the United Nations Security Council’ (S/RES/748(1992)) ................................................................

366

‘Resolution 792 of the United Nations Security Council’ (S/RES/792(1992)) ................................................................

397

‘Resolution 864 of the United Nations Security Council’ (S/RES/864(1993)) ................................................................

397

‘Resolution 941 of the United Nations Security Council’ (S/RES/941(1994)) ................................................................

394, 397

‘Resolution 1127 of the United Nations Security Council’ (S/RES/1127(1997)) ..............................................................

397

‘Resolution 1173 of the United Nations Security Council’ (S/RES/1173(1998)) ..............................................................

397

‘Resolution 1343 of the United Nations Security Council’ (S/RES/1343(2001)) ..............................................................

369

‘Resolution 1368 of the United Nations Security Council’ (S/RES/1368(2001)) ..............................................................

140

table of documents

lxvii

‘Resolution 1373 of the United Nations Security Council’ (S/RES/1373(2001)) ......................................................................

141

‘Resolution 1377 of the United Nations Security Council’ (S/RES/1377(2001)) ......................................................................

141, 146

‘Resolution 1438 of the United Nations Security Council’ (S/RES/1438(2002)) ......................................................................

141, 146

‘Resolution 1440 of the United Nations Security Council’ (S/RES/1440(2002)) ......................................................................

141, 146

‘Resolution 1455 of the United Nations Security Council’ (S/RES/1455(2003)) ......................................................................

141

‘Resolution 1456 of the United Nations Security Council’ (S/RES/1456(2003)) ......................................................................

141

‘Resolution 1465 of the United Nations Security Council’ (S/RES/1465(2003)) ......................................................................

146

‘Resolution 1478 of the United Nations Security Council’ (S/RES/1478(2003)) ......................................................................

369

‘Resolution 1483 of the United Nations Security Council’ (S/RES/1483(2003)) ......................................................................

203

‘Resolution 1511 of the United Nations Security Council’ (S/RES/1511(2003)) ......................................................................

203

‘Resolution 1516 of the United Nations Security Council’ (S/RES/1516(2003)) ......................................................................

141, 146

‘Resolution 1546 of the United Nations Security Council’ (S/RES/1546(2004)) ......................................................................

207, 433

‘Resolution on International Monetary Law’, International Law Association, Report of the Sixty-Third Conference (1988), 20–3 ....................................................................................

44

‘Resolution on Responsibility and Liability under International Law for Environmental Damage’ (Institut de Droit International ), 67 Annuaire (1998), ii, 486–513 ...................................................... 209, 211, 221 ‘Responsibility of international organizations: Comments and observations received from international organizations (25 June 2004)’ (Doc.A/CN.4/545) .................................................. 406, 408, 409, 415

lxviii table of documents Rio Declaration on Environment and Development (Doc.A/Conf.151/5/Rev.1), 31 ILM (1992), 874 ..............

214

Roosevelt, F.D., ‘Annual Message to Congress’, 6 January 1941, ........

138

Secretary of State, Colin L. Powell, Press Briefing, 13 April 2001, ....................................................................

47

Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, in the framework of the effective application of Article 50 of the Charter (Doc.A/49/33), 7 April 1994 ......................

369

‘Speech by E. Mitropoulos before the Singapore Shipping Association’, 25 May 2004, <www.imo.org> ......................

403

‘State responsibility. Comments and observations received from Governments (25 March 1998)’ (Doc.A/CN.4/488) ................................................................

99

Summary Record of the International Law Commission’s forty-seventh session (1995) ....................................................

25

Symposium on the European System for the Protection of Human Rights, Achievements and Prospects, Strasbourg, Address on 2 November 1998 (Bernhardt) ..........................

246

Testimony of Secretary of Defence Donald H. Rumsfeld, 7 May 2004 ............................................................................

423

‘The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties’, 68 Annuaire (1999), ii, 386–99 ................................................................................

394, 396

The Debtors Act, 1869, 32 & 33 Vict. c. 62, § 4 (1869) ....

119

‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’ (resolution, Institut de Droit International ), 66 Annuaire (1996), ii, 444–53 ................

355, 438–9, 440, 443, 444, 445, 449

The Model Penal Code and Commentaries (1985) ............................

26

The Times (London), 11 September 2003 ................................

108

table of documents

lxix

The Times (London), 13 January 2004 ....................................

110

The Times (London), 6 May 2004 ............................................

110, 112

The Times (London), 7 May 2004 ............................................

110

The Times (London), 8 May 2004 ............................................

111

The Times (London), 25 June 2004 ..........................................

113

The Times (London), 16 August 2004 ......................................

110

‘Transcripts of Interview with Iranian President Mohammad Khatami, 7 January 1998’, ............................

47

‘UN envoy urges Sudan to open access to Darfur camp closed to aid workers’, ....................

238

UNCITRAL Arbitration Rules,

180

United Nations Compensation Commission, Decision 123 (2001) ......................................................................................

165

United Nations Compensation Commission, Decision of the Governing Council on Business Losses of Individuals, S/AC.26/1191/4, 23 October 1991 ..................................

165

‘United Nations Compensation Commission Governing Council, Report and Recommendations Made by the Panel of Commissioners Concerning the Third Instalment of “F4” Claims’ (Doc.S/AC.26/2003/31), 43 ILM (2004), 704 ..........................................................................................

220

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome (15 June-17 July 1998), Off. Recs., Final Docs. (A.CONF.183/13) ..................................................................

71, 76

United Nations General Assembly, 20 October 2003 (A/ES-10/PV. 21) ................................................................

276

United Nations General Assembly, Sixth Committee, Gen. Ass. Off. Recs., Sixth Committee, Summary Records of 14th and 15th Sessions (27 and 28 October 2003) (Docs.A/C.6/58/SR.14 and 15) .......................................... 377, 386, 388, 406, 407

lxx table of documents United Nations Press Release GA/L/3268, 9 November 2004 (Statement by Ambassador Allieu Kanu (Sierra Leone)) ..................................................................................

438

United Nations Secretary-General, ‘An Agenda for Peace’ (Doc.A/50/60–S/1995/1), 3 January 1995 ..................................

369

United Nations Secretary-General Bulletin on the ‘Observance by the United Nations Forces of International Humanitarian Law’ (ST/SGB/1999/13), 6 August 1999 ..................................................................................

365

United Nations Security Council (S/PV.4405), 5 November 2001 ............................................................................

369

United Nations Security Council (on behalf of its President) (S/PRST/1995/9), 22 February 1995 ..........................................

369

United States Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1990, Pub. L. No. 101–162, § 609, 103 Stat. 988, 1037–38 (1989) (codified at 16 U.S.C. § 1537 note (1994) (Amendments)) ......................................................................

58–9

United States Foreign Sovereign Immunities Act, 90 Stat. 2891 ........................................................................................

168

United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc.WT/DSB/7/31 (15 May 1997) ....

57, 59

United States Institute of Peace, <www. usip.org> ................................

395

United States—The Cuban Liberty and Solidarity Act, ................................................................................................

58

United States Trade Act, P.L. No. 107–210, 116 Stat. 933 (2002) ................................................................................................

181

Universal Declaration of the Rights of Peoples (Algiers, 4 July 1976), ....

143

Universal Declaration of Human Rights, Gen. Ass. Off. Recs., Third Session (Doc.A/37/51) ............................................................ 137, 350 Universal Postal Union, <www.upu.int/members/en/members. html> ................................................................................................

372

U.S. Participation in the UN: Report by the President to the Congress (1970) ................................................................................................

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table of documents

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‘Vienna Declaration and Programme of Action (World Conference on Human Rights, Vienna 1993)’, 32 ILM (1993), 1661 .............................................................................................. 188 Vukas, ‘Final Report on Humanitarian Assistance (February 2003)’, 70 Annuaire (2002–2003), 541–69 .............................. 236 Vukas, ‘Provisional Report on Humanitarian Assistance ( June 2002)’, 70 Annuaire (2002–2003), 457–90 .................................... 236 World Commission on Environment and Development, Our Common Future (‘Brundtland report’) (Doc.A/42/427) .................... 213 World Tourism Organization, <www.worldtourism.org/aboutwto/eng/menu.html> ................................................ 372

LIST OF ABBREVIATIONS

AFDI AJIL Annuaire ASIL Proceedings AV BYIL ChJIL CJTL EJIL GYIL HILJ ICJ Pleadings ICJ Reports ICLQ IJIL ILM ILR JAIL LJIL NILR NYIL ÖZöR PCIJ RBDI RdC RDI RGDIP RIAA

Annuaire Français de Droit International American Journal of International Law Annuaire de l’Institut de droit international Proceedings of the American Society of International Law Archiv des Völkerrechts British Year Book of International Law Chinese Journal of International Law Columbia Journal of Transnational Law European Journal of International Law German Yearbook of International Law Harvard International Law Journal International Court of Justice: Pleadings, Oral Arguments, Documents Reports of Judgments, Advisory Opinions and Orders of the International Court of Justice International and Comparative Law Quarterly Indian Journal of International Law International Legal Materials International Law Reports Japanese Annual of International Law Leiden Journal of International Law Netherlands International Law Review Netherlands Yearbook of International Law Österreichische Zeitschrift für öffentliches Recht Publications of the Permanent Court of International Justice Revue Belge de Droit International Recueil des Cours de l’Académie de Droit International de La Haye Rivista di Diritto Internazionale Revue Générale de Droit International Public United Nations Reports of International Arbitral Awards

Maurizio Ragazzi (ed.), International Responsibility Today, lxxiii–lxxiv. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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UNTS VJIL YILC ZaöRV

United Nations Treaty Series Virginia Journal of International Law Yearbook of the International Law Commission Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

PART ONE

STATE RESPONSIBILITY (GENERAL ISSUES)

CHAPTER ONE

THE ESSENCE OF THE STRUCTURE OF INTERNATIONAL RESPONSIBILITY Chittharanjan F. Amerasinghe

1. Introduction ‘International responsibility’—is the concern for this subject as a concept much ado about nothing or perhaps a case where mountains labour only to produce a mouse? The reason for asking such a question, as a prelude to examining certain aspects of international law traditionally connected with the subject, is that such concern seems to be associated only with the international legal system, there being no equivalent concern for the corresponding concept in national legal systems. The first three articles of the International Law Commission’s draft articles on the responsibility of States,1 which deal with ‘general principles’ relating to the internationally wrongful act of a State, provide as follows (for convenience, I have replaced the term ‘State’ with ‘international person’): (1) Every internationally wrongful act of an international person entails the international responsibility of that person. (2) There is an internationally wrongful act of an international person when conduct consisting of an action or omission: (a) is attributable to the international person under international law; and (b) constitutes a breach of an international obligation of the international person. (3) The characterization of an act of an international person as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. Apart from some criticism which may be made of the formulation of the principles as applied to international responsibility as well as to State responsibility, 1 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10).

Maurizio Ragazzi (ed.), International Responsibility Today, 1–6. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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the question asked earlier needs an answer. The source of the concern appears to stem from the existence of more than one species of the genus law or legal system.2 Principally there are national legal systems which belong to one species and there is the single species of the international legal system. A third seems to have raised its head of late—namely transnational law and the transnational legal system. The latter, though not specifically a national legal system, is akin to national legal systems and not to the international legal system.3 Moreover, the validity of transnational law depends in fact on its being recognized primarily by national legal systems, because when it comes to enforcing transnational law, where a dispute involving it has been settled by transnational arbitration, it has first to depend on national systems of law rather than on the international legal system. (In passing, it must be recognized that the transnational legal system and its law involve dispute settlement by (ad hoc) arbitral tribunals which constitute the dispute settlement mechanism of that system.) 2. Responsibility in National, Transnational and International Law The result of the coexistence of these three species of legal systems has led to some confusion of the international legal system, including its structural nature, with the other two legal systems. National legal systems do not define the term ‘liability’4 in the structure of such systems, obviously, because national legal systems had a confirmed existence before the international legal system in its modern garb, and it was assumed that in national law responsibility or liability was clearly understood to exist in the circumstances where there was a breach of national law (even if another national law or even international law was applicable substantively). The relationship between breach of law in the national legal system and legal liability was and is so basic that there was no need to define it or explain some of the basic principles applicable to it. Not so with international law and international responsibility. Because of its late origin in its modern form, there was a danger of confusing international responsibility with liability or responsibility arising in national legal systems or now even in the transnational legal system. Thus, it is useful and, perhaps, necessary to point out that international responsibility arises from a violation of international law and not from a violation of national law or transnational law. The Commission’s articles seek to establish as general principles for State responsibility:

2 On the characterization of international law as law see Amerasinghe, ‘Theory with Practical Effects: Is International Law neither Fish nor Fowl?’, 37 AV (1999), 1–24. 3 For an explanation of transnational law and the transnational legal system see, inter alia, Amerasinghe, Local Remedies in International Law (2nd edn., 2004), 127–37. 4 This is the equivalent term used in national systems, rather than ‘responsibility’.

the essence of the structure of international responsibility (i) (ii) (iii) (iv)

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an internationally wrongful act or omission, attributable to a State under international law, constituting a breach of an international obligation of the State, the breach of obligation being determined by international law, it being irrelevant that national law determined that the act is lawful.

This formulation of general or basic principles leaves much to be desired. Firstly and most importantly, there is no reference to transnational law and the transnational legal system.5 Secondly, the reference to national law tells only half the story: the point, really, is that national law is irrelevant per se. Indeed, international law may implicate national law (or transnational law) for the purpose of determining whether there has been a violation of international rights and obligations. Thirdly, why should a general principle be made of ‘attribution’ of the act or omission to the State?6 It is sufficient to point out that the act or omission must be by a State. All that is necessary then is that what is meant by this be explained in the section which is now Chapter II of the Commission’s articles. Fourthly, it is obviously necessary to refer to the principle that the breach of international obligation may consist of conduct which is an act or omission. Before consideration is given to how basic general principles for international responsibility may be formulated in the light, inter alia, of the criticism above of the Commission’s articles, it is useful to bear in mind certain valuable points. As regards international responsibility, the establishment of basic principles is considered necessary, as indicated earlier, primarily because of the presence of national and transnational law or legal systems. Positively, it is in order to make quite clear that because such responsibility is governed both in terms of primary rights and obligations and secondary rights and obligations only by international law that resort is had to recording such basic principles. Negatively, it must be made clear that norms from other legal systems are per se irrelevant for this purpose. Another point of importance (and this does not apply to State responsibility) is that who or what is an international person is determined in any given context by international law per se. This does not exclude, as also in the case of substantive rights and obligations of a primary and secondary nature, reference to other systems of law, such as national systems, by international law, for the purpose of identifying an international person.

5 The internal law of an international organization is part of international law: see Amerasinghe, The Law of the International Civil Service: As Applied by International Administrative Tribunals (2nd edn., 1994), i, 22–5; Id., Principles of the Institutional Law of International Organizations (1996), 324–32. 6 The term generally current is ‘imputability’: see Amerasinghe, ‘Imputability in the Law of State Responsibility for Injuries to Aliens’, Id., Studies in International Law (1969), 205 ff., and authorities there cited, particularly Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 170 ff. Why has the term been jettisoned in the International Law Commission’s draft?

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3. Basic Principles of International Responsibility For international responsibility the following may be identified as basic principles that have evolved: (1) The international responsibility of an international legal person arises when there has been a violation of international law by such a person. (2) Who or what is an international legal person in a given context is to be determined solely by international law. (3) Whether there has been a violation of international law by an international legal person in a given context is to be determined solely by international law. (4) Whether the violation of international law has been by the relevant international legal person in a given context shall be determined solely by international law. (5) Both the primary and secondary rights and obligations involved in the violation of international law are to be determined solely by international law. (6) While determinations under (2) to (5) above are to be made solely by international legal norms and not by norms of the national legal systems or the transnational legal system, the latter two systems become relevant where international law invokes them for the purpose of making such determinations. There are concepts associated with the above principles which may require elaboration. Thus, violations of international law result from conduct which may be acts or omissions. Also, in determining whether the violation of international law is by the international legal person in issue, the concept of imputability is relevant. As for international legal persons, these may be, for example, States, certain entities other than States, international organizations or even natural persons, the determination of legal personality in a given context being a matter for international law. The secondary rights and obligations referred to are remedial rights and obligations, including those arising from self-defence, reprisal and humanitarian intervention, for example, which involve the direct exercise of preventive rights by the relevant international person without the intervention of third party settlement, such as by a court or tribunal, or of a negotiated arrangement between the parties involved in the violation of primary rights and obligations. These are but examples of explanations of how the basic principles are implemented in given contexts, the basic principles outlined above being the skeletal structure of international responsibility.7

7 Undoubtedly a skeletal structure comprising basic principles modelled on the above structure proposed for international responsibility could usefully be adopted for the narrower State responsibility.

CHAPTER TWO

LEGAL INJURY: THE TIP OF THE ICEBERG IN THE LAW OF STATE RESPONSIBILITY? Julio Barboza

1. Introduction ‘Every internationally wrongful act of a State entails the international responsibility of that State’ recites Article 1 of the draft articles on State responsibility adopted by the International Law Commission in 2001.1 Only two elements are explicitly mentioned in Article 1, namely the wrongful act of a State, and the responsibility of the State as its necessary consequence. In the classic treatment of the subject, there were, however, three pillars of State responsibility, to wit, the wrongful act of the State; the injury; and the causality relation between them. The causality relation being a mere bridge, the other two were the remaining substantive elements.2 The first Special Rapporteur on State responsibility, Ago, stated that ‘under international law an injury, material or moral, is necessarily inherent in every violation of an international subjective right of a State’.3 The International Law Commission replaced this statement by the following: ‘any breach of an obligation towards another State involves some kind of injury to that other State’.4 The change was very significant since it expressed the Commission’s decision at that time to open the door to the concept of ‘legal injury’, implicit in the quoted sentence. ‘Legal injury’ or ‘damage’ was understood to mean the damage caused to the subjective right of the injured State by the breach of a legal obligation, in harmony with the bilateral concept of responsibility then prevailing.5

1 The text of the draft articles is reproduced in the Annex of a United Nations General Assembly resolution adopted on 12 December 2001 (A/RES/56/83). 2 Stern, ‘Et si l’on utilisait le concept de préjudice juridique? Retour sur une notion délaissée a l’occasion de la fin des travaux de la CDI sur la responsabilité des États’, 47 AFDI (2001), 3–44, at 4. 3 Ago, ‘Third Report on State Responsibility’ (Doc.A/CN.4/241 and ADD.1–6), para. 74. 4 ‘Report of the International Law Commission on the Work of its Twenty-fifth Session’ (Doc.A/9010.Rev.1), YILC (1973), ii, 161–235, at 183, para. (12). 5 Ago announced the widening of responsibility in the passage in which he mentioned the

Maurizio Ragazzi (ed.), International Responsibility Today, 7–22. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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Today it should be extended, in case of obligations erga omnes or erga omnes partes, to cover legally protected collective interests of the international community as a whole or of a group of States, respectively. The 2001 version of the articles seems to be, however, quite different. The Commission ultimately decided that material or moral damage could be an element for responsibility only if that was required by the primary norm,6 which is correct, but the notion of ‘legal injury’ as an implicit, albeit inevitable, element of responsibility was dropped altogether. Article 2, which addresses the elements of State responsibility, only refers to the breach of an international obligation and the attribution of that breach to the State, without mentioning injury or damage. Moreover, in its Commentary on Article 2, the Commission makes it clear that neither ‘injury’ to another State nor ‘fault’ is a necessary prerequisite of responsibility.7 In Pellet’s opinion, by removing injury from the definition of international responsibility, the Commission has deleted the entirely artificial notion of ‘legal injury’.8 Certainly, the removal of legal injury seems to have been effected, but perhaps it is not very wise to have done so. The only explanation of what constitutes a ‘wrongful act’ under Article 1 is that of Article 2(b), which equates ‘wrongful act’ with the breach of an international obligation of a State, i.e.

new relations generated by the breach of an international obligation as ‘all the forms of legal relationships which may be established in international law by a State’s wrongful act’ (‘Second Report on State Responsibility’ (Doc.A/CN.4/233), para 19.) The Commission followed that trend when it stated that the term ‘responsibility’ denoted ‘the set of new legal relationships to which an internationally wrongful act on the part of a State may give rise in various cases. Later, it will be for the Commission to say whether, for example, such relationships may arise only between that State and the State whose rights have suffered injury, or also between the first-mentioned State and other subjects of international law, or possibly even with the international community as a whole’. (Emphasis in the original.) ‘Report of the International Law Commission to the General Assembly on the Work of its Twenty-seventh Session’ (Doc.A10010/Rev.1), YILC (1975), ii, 47–187, at 55, para. 40. 6 That correlates with the law regarding responsibility for the treatment of foreigners, where damage was required as a condition of responsibility by the primary norm. 7 ‘But whether such elements are required depends on the content of the primary obligation, and there is no general rule in this respect. For example, the obligation under a treaty to enact a uniform law is breached by the failure to enact the law, and it is not necessary for another State party to point to any specific damage it has suffered by reason of that failure. Whether a particular obligation is breached forthwith upon a failure to act on the part of the responsible State, or whether some further event must occur depends on the content and interpretation of the primary obligation and cannot be determined in the abstract’. ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), Commentary on draft Article (2), para. (9). 8 ‘[D]ans une telle perspective, le dommage se trouve évacué, non pas du droit de la responsabilité internationale, mais de sa définition (ou de son origine). Il n’est plus nécessaire à l’engagement de la responsabilité . . . la Commission . . . avait, à juste titre, écarté l’idée, entièrement artificielle, de “préjudice juridique”, qui n’ajoute rien à la conception objective de la responsabilité définie comme la conséquence du seul fait internationalement illicite’. (Pellet, ‘Remarques sur une révolution inachevée. Le projet d’articles de la CDI sur la responsabilité des Etats’, 42 AFDI (1996), 7–32, at 6–7.)

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‘when an act of that State is not in conformity with what is required of it by that obligation’ (Article 12). If we compare the structure of Article 1 to that of a set of scales, the elements sitting in one plate are summarily described in comparison with the description of the range of consequences ‘sitting’ on the other plate. Each and every article of Chapters II and III of Part II (content of the international responsibility of a State) is devoted to describing the different remedies by which reparation may be made, we suppose, for symmetrical types of damage occasioned by the breach of the obligation. So we may try to deduce, from the remedies applied under the concept of ‘responsibility’, the corresponding kinds of injuries that the consequence of the breach was intended to remedy. Obviously, restitution (Article 35) and compensation (Article 36) seem intended to make reparation for a material injury, and satisfaction (Article 37) for a moral one. If, as we shall endeavour to demonstrate later, cessation is but a form of restitution and assurances and guarantees of non-repetition also imply some form of reparation for a moral damage, then only by causing a material or moral injury would the breach of an obligation produce some legal consequence according to the draft articles. That is confirmed by Article 31, inspired no doubt by the decision in the Chorzów Factory case,9 which states that there must be full reparation for the damage, whether material or moral, caused by the internationally wrongful act of a State. No remedy is, then, provided for breaches of international obligations where no material or moral damage has occurred, so the somewhat paradoxical conclusion would be that, after indirectly announcing in Article 1 that injury is not a necessary condition to generate responsibility, the subsequent articles inexorably require injury (material or moral) in order for responsibility to arise. That is equivalent to saying that there is no responsibility without injury (material or moral), which flies in the face of Article 1, or, if preferred, that the only responsibility in such a case would be a platonic responsibility, as suggested by Daillier and Pellet.10 If, however, there is no reparation, then there is no responsibility to speak of, as we shall try to show, unless this new notion of platonic responsibility11 can surmount the contradiction implicit in Article 1 of a State being responsible for a breach, but in fact with no responsibility. It seems, contrary to the position just commented upon, that some injury must have occurred at some

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Factory at Chorzów, Merits, Judgment No. 138, 1928, PCIJ, Series A, No. 17. ‘[L]a responsabilité pour manquement à une règle de droit international demeure purement théorique si le fait internationalement illicite n’a causé aucun préjudice . . . Si le fait internationalement illicite n’a causé aucun dommage, la responsabilité demeurera platonique et ne pourra donner lieu à réparation’. Nguyen Quoc Dinh, Daillier and Pellet, Droit international public (6th edn., 1999), 765. 11 A responsibility which may well be ‘platonic’ but perhaps not quite compatible with Aristotelian logic. 10

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point for reparation to be in order, some injury the existence of which would render the Commission’s articles coherent.12 It was not, perhaps, necessary to make that sort of injury explicit in the text of the articles, but surely the Commentary should have referred to it. I submit that the injury in question is an injury originating in the commission of the breach, necessarily affecting the subjective right of a State or the legally protected collective interest of a group of States or of the international community as a whole. Responsibility, as we shall try to demonstrate, is, in the context of the Commission’s articles, equivalent to a form of lato sensu reparation, the concept of which is, on the one hand, inseparable from damage and, on the other, a necessary requirement for the return to legality. 2. Reparation and Punishment The term ‘responsibility’ in Article 1 has been deprived by the Commission of any punitive element. That was not Kelsen’s conception: international law being a coercive order, sanction was the only possible legal consequence for the breach of an international obligation.13 Reparation could be offered by the responsible State in order to avoid the sanction so that, strictly speaking, reparation for Kelsen was not an element of the secondary norm at all. Originally, Ago had introduced a dual possibility as a consequence of the wrongful act of a State. He distinguished ‘sanction’ from ‘reparation’ by writing, in his celebrated course at the Hague Academy in 1939, that sanction had an afflictive character, it was an end in itself, and its only function was that of punishing the author of the breach, whereas reparation was limited to restoring the right of the injured subject, or at least to letting him have equivalent satisfaction.14 It is worth noting that, even in 1939, Ago considered reparation to be the restoration of the injured State’s right, which is key to the notion of ‘legal injury’. As Special Rapporteur, Ago expressed his idea that the breach of an international obligation produced a double order of legal relations between the responsible and the injured States: new subjective rights were created for the victim, to which corresponded new obligations of the responsible State, and the injured State was able to inflict a sanction upon the responsible State. The general term ‘responsibility’ should be understood ‘to mean the situation of a 12 ‘Cherchez le dommage’ replaces, in this research, the classical ‘cherchez la femme’ of detective stories. 13 Kelsen, Principles of International Law (2nd edn. Tucker, 1996), 22. 14 ‘Il n’y a pas là une simple question de termes. La sanction, on vient de le dire, a eu un caractère d’affliction; elle est un fin par soi même: sa fonction unique est de réprimer le tort. La réparation n’a point du tout ce caractère; elle sert au contraire à permettre au sujet lésé par le tort d’obtenir la restauration de son droit ou du moins une satisfaction par équivalent de ce droit’. (Ago, ‘Le délit international’, 68 RdC (1939), 415–554, at 429.)

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subject of international law confronted either with the right of another subject to claim reparation from it, or with the faculty of another subject to impose a sanction on it—in the sense given to those terms above’.15 In any case, the Commission abandoned Ago’s duality. Sanctions, in the modern guise of countermeasures, were deprived of all punitive connotations in the process leading to the final text of the Commission’s Article 49(1), pursuant to which the only purpose of countermeasures is now that of inducing the responsible State ‘to comply with its obligations under Part Two’—basically, cessation (where appropriate) and reparation stricto sensu (restitution-compensation-satisfaction). Moreover, according to paragraph 2 of the same article, countermeasures have become only provisional: they are ‘limited to the nonperformance for the time being of international obligations of the State taking the measures towards the responsible State’. In accordance with paragraph 3, they must, ‘as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question’. Thus countermeasures, which were punitive sanctions in the concepts of Kelsen and Ago, were reduced by the Commission’s articles to mere procedural instruments to induce the responsible State to make reparation, thereby changing their nature. Some authors, however, maintain that punitive ingredients may be found in the implementation of reparation. Dominicé, for instance, states that the absence of the distinction, in international law, between civil and penal responsibility results in a concept of responsibility having a mixed character, where punitive elements may be detected side by side with compensatory aspects.16 Still other authors support the idea that reparation contains punitive ingredients.17 The forced submission of the responsible State to the legal order, which forcibly deprives it of the fruits of the wrongful act and obliges it to re-establish, at its cost, the status quo ante,18 is perceived as a retributive aspect of reparation. The purpose of those afflictive aspects, however, if indeed they exist in reparation, is not to inflict pain, as would be the aim of a punitive sanction, but to induce the responsible State to make reparation. The suffering that such procedures may inflict upon the responsible subject would be but an unwanted by-product.19 15

Ago, ‘Third Report’, para 37. ‘[N]ous pensons que l’absence de distinction entre responsabilité pénale et responsabilité civile qui caractérise le droit international a précisément pour effet que la réalisation de la responsabilité présente un caractère mixte. Il y a certains éléments compensatoires, mais aussi des éléments afflictifs. Prétendre que la responsabilité internationale n’a que des conséquences compensatoires c’est rester sous l’emprise des catégories du droit interne et des distinctions qui s’établissent entre elles’. (Dominicé, ‘Observations sur les droits de l’Etat victime d’un fait internationalement illicite’, Droit international 2 (Institut des hautes études internationales) (1981/82), 1–70, at 57.) 17 Villalpando, in an excellent thesis on L’émergence de la communauté internationale dans la responsabilité des Etats, University of Geneva (No. 659, 2003), 232, includes Combacau and Sur, as well as D’Agostino and Spinedi, among those who see punitive aspects in reparation. 18 Particularly if that is achieved through the measures of execution into which countermeasures have been transformed. 19 A civil sanction in domestic law may also inflict suffering upon those affected by them. As the saying goes: you cannot make an omelette without first breaking eggs. 16

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julio barboza 3. Reparation and Cessation

Learned opinion is not unanimous regarding the nature of cessation. The International Law Commission’s commentary on Article 6 of the Second Part (first reading) indicated that cessation may be ascribed either to the operation of the primary or of the secondary rule, and that in any event the distinction between primary and secondary rules is only a relative one, cessation being situated, so as to speak, ‘between’ the two categories of rules.20 Happily, the Commission did not insist on the relative character of the distinction between primary and secondary rules in its commentary to the present Article 31. I believe (as hopefully the Commission also does by now) that the distinction between primary and secondary norms, being of a logical character, is not at all relative. The concept of primary and secondary norms, and the distinction between them, is just a logical scheme21 reflecting a legal reality, namely the fact that conduct may be in accord with the primary norm, in which case it is rightful, or in contradiction with the norm, and therefore wrongful. In the latter case, consequences must follow, as is explicit in the secondary norm. There is nothing relative in this dual possibility, and therefore all the ingredients of responsibility for wrongful conduct are in the secondary norm; nothing could be ‘in between’.22 Perhaps the ‘in between’ place assigned to cessation by the Special Rapporteur was due to the fact that, in his opinion, it pertained ‘to the wrongful act itself rather than to legal consequences’,23 as he said in his Preliminary Report, but only a few lines below he admitted however that, ‘[w]hile thus falling outside the realm of reparation and of the legal consequences of a wrongful act in a narrow sense, cessation falls, nevertheless, among the legal consequences of a wrongful act in a broad sense’.24 I submit that, in whatever sense we may ascribe to it, the so-called duty of cessation would not exist had the original breach not taken place and that the breach by a continuous act starts the moment the threshold of illegality is

20 ‘In terms of legal theory, cessation may be ascribed either to the continued normal operation of the “primary” rule of which the wrongful conduct constitutes a violation or to the operation of the “secondary” rule coming into play as an effect of the occurrence of the wrongful act . . . The Commission is of the view that the very distinction between primary and secondary rules is a relative one and that cessation is situated, so to speak, in between the two categories of rules’. (‘Report of the International Law Commission on the Work of its Forty-fifth Session’, Gen. Ass. Off. Recs., Forty-eighth Session, Supp. No. 10 (Doc.A/48/10), Commentary on Article 6, para. (4).) 21 Of such scheme it could be said that it is wrong, because it does not reflect in the plan of logic the reality that it intends to make schematic, but not really that it is ‘relative’. Relative to what? What is there ‘in between’ the two possibilities of the principle of non-contradiction? 22 In the so called sine delicto liability, or (roughly) responsabilité pour risque, which constitutes the substance of another of the Commission’s subjects, compensation belongs in the primary norm, but it must be recalled that the origin of that responsibility is not a wrongful act, but the damage caused by a legal activity involving risk. 23 Arangio-Ruiz, ‘Preliminary Report on State Responsibility’ (Doc.A/CN.4/416), para. 31. 24 Ibid., para. 32.

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crossed; therefore, cessation is a consequence of a pre-existing and ongoing breach. ‘Cessation’ is not defined in the Commission’s articles and is a rather indefinite concept. Regarding the rights of the injured State, Riphagen proposed, as Special Rapporteur, a text for the then Article 4 which, without naming it, might have referred in sub-paragraph (a) to something like cessation.25 Arangio-Ruiz, in turn, complained that cessation was the ‘Cinderella’ of the doctrine regarding the consequences of internationally wrongful acts and that it had rarely been the specific object of study.26 No wonder that is so, I venture to say, because cessation does indeed seem to be nothing more than a form of narrow-sense restitution. Cessation cannot consist in simply ceasing the wrongful conduct: the concept of cessation works here as a screen behind which another concept hides. The conduct replacing the continuous wrongful act constituting the breach is not at all indifferent to the law; in fact it is utterly relevant. In a case where hostages have been taken, for instance, killing the hostages may be a way to cease the original conduct of retaining them, but cessation within the meaning of Article 30 would not have taken place. Cessation always implies some form of restitution, because it always entails a return, or necessary steps towards the return, to the status quo ante.27 If the breach is committed through a positive action, like the taking of hostages, or the illegal possession of objects, there

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‘Without prejudice to the provisions of Article 5, 1. A State which has committed an internationally wrongful act shall: (a) discontinue the act, release and return the persons and objects held through such act, and prevent continuing effects of such act’. (Riphagen, ‘Second Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles)’ (Doc.A/CN.4/344), para. 164.) 26 ‘Except for some valuable thoughts expressed on it by the previous Special Rapporteur . . . this remedy has indeed rarely been the specific object of study; and when it is considered, it is often done within the framework and for the purposes of a discussion aimed at determining, obversely, the notion of restitutio in integrum rather than for the purpose of determining the concept of cessation per se, as a remedy with a role of its own’. Arangio-Ruiz, ‘Preliminary Report’, para 29. We must add to this thought of the Special Rapporteur that, in domestic law, we do not know of any doctrine on ‘cessation’. There are, of course, court orders of ‘cease and desist’ and the like, but no exercise on the doctrinal construction of cessation of the conceptual type which Arangio-Ruiz has undertaken. 27 The International Court of Justice seems to agree with this notion in para. 151 of its recent advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, of 9 July 2004. (The text of the advisory opinion is electronically available at .) Para. 151 reads in part as follows: ‘Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem. Moreover, in view of the Court’s finding (see paragraph 143 above) that Israel’s violations of its international obligations stem from the construction of the wall and from its associated régime, cessation of those violations entails the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem. All legislative and regulatory acts adopted with a view to its construction, and to the establishment of its associated régime, must forthwith be repealed or rendered ineffective’. (Emphasis added.)

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is no other way to obtain cessation than by giving back the kidnapped persons or the objects that had been illegally taken. The error in viewing cessation as playing a role different from restitution is more visible in the concept of ‘omissive wrongful acts’ which, according to Arangio–Ruiz, ‘may well fall (as well as, and perhaps more frequently than, commissive wrongful acts) into the category of wrongful acts having a continuing character’.28 He seems to believe that, as long as the omission ‘is protracted beyond the date within which such an obligation is due to be performed, non-compliance with an obligation de faire is a wrongful act of a continuing character’.29 I respectfully beg to disagree on this point: the breach of the obligation has been completed as soon as the date on which the obligation is due has passed without the obligation having been complied with.30 That obligation, moreover, can never be fulfilled because the date is a fundamental part of the obligation. If a person has a contractual obligation to pay a sum of money on 31 January 2005, and he does not pay it on that date, he will never be able to fulfil the obligation to pay the money on that date, because that date has already passed. He will have a new obligation, imposed by the law and not by the contract which was the source of the first obligation,31 to make reparation for the breach by paying the same amount of money plus compensating for whatever other damage has been caused by the breach. For instance, he would have to pay interest and, in certain cases, perhaps lucrum cessans. A legal obligation is no more than a legal link between two or more subjects of law. It refers to a certain conduct, for instance to pay a sum of money. In the case we considered, the new obligation (the obligation to make reparation) may refer to the same conduct, but it derives from a different source: it is, then, a different obligation. There could be, however, other cases where the omission has the aspect of a continuing act. For example, in the case of the Rainbow Warrior, France was illegally omitting to send back two French agents to the island of Hao and cessation could only be achieved by their internment in the island, in other words, by the specific performance of the new obligation of reparation, which was technically a restitution of the kind envisaged by the Commission’s Article 35. To express this simple idea by saying that France should have ceased not delivering the agents, in other words by presenting a double negation, seems a rather acrobatic, purposeless exercise. What was asked of France was to do

28

Ibid., para 42. Ibid. 30 What is done cannot be undone, as Lady Macbeth would put it. 31 I am supposing, for the sake of brevity, that the obligation in question is conventional. Naturally, it would be different if the contract envisaged the possibility of paying later adding to the principal a certain sum of money. My hypothesis is that the contract is silent on this point. 29

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something specific rather than to cease not doing something. Why, then, call it cessation? In fact, cessation always implies a form of returning, as far as possible, to the situation prevailing before the breach, normally by means of some positive action. The real meaning of cessation seems to be ‘do this or that instead of what you are doing now’, and that action is nothing else than the conduct required by the obligation of restitution under Article 35: ‘to re-establish the situation which existed before the wrongful act was committed’. According to Arangio-Ruiz, restitution consisted, not in merely giving back or surrendering an object illegally detained ( just to make an example), but in re-establishing an object in the state in which it was before the violation.32 Such a measure, however, which is surely a matter of reparation, also included cessation of the wrongful conduct, ‘as cessation consists exclusively, per se, in giving back the object’.33 In other words, restitution was more than just returning the object (cessation): it included putting the object back into the condition in which it was before the breach. This does not seem to be the opinion of the Commission in the last version of the articles. In its commentary on Article 35, the Commission explains that the article in question reflected the narrower concept of restitution, which ‘does not extend to the compensation which may be due to the injured party for loss suffered, for example for loss of the use of goods wrongfully detained but subsequently returned’.34 In the Commentary, it is added that the definition adopted does not absorb elements of reparation into the concept of restitution, and that restitution in this narrow sense may have to be completed by compensation in order to ensure full reparation for the damage caused:35 Article 36 makes this clear. In the example given by ArangioRuiz, cessation would have coincided with restitution: repairing the object in order to leave it in the condition existing prior to the breach would have been part of compensation by equivalent. But the present analysis of the Commission is more convincing: transforming cessation into an autonomous concept is tantamount to introducing an artificial separation between acts (restitution and compensation) which are comprised within the concept of reparation.

32

Arangio-Ruiz, ‘Preliminary Report’, para. 49. Ibid. (Emphasis added.) 34 ‘The concept of restitution is not uniformly defined. According to one definition, restitution consists in re-establishing the status quo ante, i.e. the situation that existed prior to the occurrence of the wrongful act. Under another definition, restitution is the establishment or re-establishment of the situation that would have existed if the wrongful act had not been committed. The former definition is the narrower one; it does not extend to the compensation which may be due to the injured party for loss suffered, for exemple for loss for the use of goods wrongfully detained but subsequently returned’. (‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), Commentary on Article 35, para. (2).) 35 Ibid. 33

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The Commission’s Commentary on Article 30 points towards another difference between restitutio and cessation: the former may lose its priority vis-à-vis compensation by equivalent in the case of Article 35(b), whereas cessation must take place however onerous.36 This is not, however, very convincing, since it could equally be said that what is called cessation is in reality restitution, which must invariably take place for certain reasons. Examples would include cases where full reparation cannot possibly be completed without it, or because the scandalous character of a breach prolonging itself indefinitely makes stopping it imperative. Cessation makes reparation possible, for instance, in case of continued pollution of an international watercourse, as no estimation of the damage can be made before pollution stops.37 Besides, onerosity as a condition preventing restitution is not of the essence: whether or not one adopts that condition, the nature of restitution is not altered. In any case, cessation, whatever is meant by that word, is at the service of the return to legality and, together with that return, of reparation for the ‘legal damage’. It is not an autonomous element of responsibility. With respect to ‘assurances and guarantees of non-repetition’, which are referred to in the same article as cessation, legal opinion is not unanimous as to their nature, and the Commission cautiously placed them within the ‘general principles’ but not under ‘reparation for injury’. Assurances and guarantees of non-repetition are said to look towards the future, whereas the other means of reparation look to the past, to damage caused. They are, of course, aiming at the future but they, like Jano, have two faces, and only one of them is looking at the future: the other looks at the present, where the measure is directed at producing an important effect. In that sense, assurances and guarantees are no different from the other measures of reparation, which also have a preventive character and therefore look at the future as well as at the present. Assurances and guarantees of non-repetition, besides bearing deterrent effects, also intend to reaffirm the legality that the breach had jeopardized and give assurance in that respect to the injured State. Thus, they quiet incertitude: not in vain are they called ‘assurances’. Assurances and guarantees of non-repetition seem to be, then, also a form of completing reparation when the circumstances of the case give credibility to a repetition of the injury.

36 ‘Unlike restitution, cessation is not subject to limitations relating to proportionality. It may give rise to a continuing obligation, even when literal return to the status quo ante is excluded or can only be achieved in an approximate way’. (Footnote omitted.) Ibid., Commentary on Article 30, para. (7). 37 Of course, reparation may start sooner by the polluter periodically making partial compensation without first establishing the amount of the damage, but the polluting activity must stop at some time, otherwise the sums given as partial compensation would become a tariff for polluting or, if preferred, a new version of Penelope’s work.

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4. The ‘Legal Injury’ Some authors believe that ‘legal injury’ might be included in a wider category, that of ‘moral injury’, whereas others find it hard to distinguish the border line between those two concepts.38 Tanzi considers that ‘it is not clear whether the expression “moral damage” can be used also to mean the mere violation of a legal right (legal damage) or only a patent offence to the sovereign dignity of a State’.39 He attributes the confusion to the great importance of non-material interests in international law and perhaps also to the fact that ‘the forms of reparation for both sorts of injuries fall within the sphere of satisfaction.’40 It has been said that the breach of an obligation may be considered a ‘moral’ injury, because the mere fact of the violation affects the moral person, the honour or the sovereign dignity of a State. Therefore, a ‘legal’ injury would be no more than a ‘moral injury’ and satisfaction the way to restore legality or, if preferred, to re-establish the situation prevailing before the breach. However, not all breaches of obligations cause moral injury, and satisfaction is not always the remedy that would bring back the status quo ante, thus remedying the legal injury. A State may incur a breach simply through a bona fide, albeit wrong, interpretation of its duties, and bona fides is to be presumed of a State. In such a case, however, the legal injury would remain and the integral reparation of that breach might need, for instance, restitution and compensation, had there been material damage. Admittedly, the distinction between ‘legal’ and ‘moral’ injury may in some cases be a fine line, but the differences are perceptible. It is a legal norm which suffers the impact of the breach and that is why it should be called a ‘legal’ and not a ‘moral’ injury. Also, the interest behind the norm may be of such a nature that the breach would only mean an inconvenience to the State without affecting its moral dignity or its sovereign personality. In other words, some breaches of obligations may cause moral damage to a State, for example if the breach is made defiantly or with the intention to humiliate that State or, regardless of intention, if it does in fact humiliate that State, but moral injury does

38 Stern, ‘Et si l’on utilisait’, 26: ‘Certes, le débat reste ouvert sur la spécificité du préjudice juridique par rapport au préjudice moral, ou en d’autres termes sur la frontière entre les deux notions’. She quotes Combacau as saying that ‘l’Etat a un intérêt légal à voir le droit international respecté a son égard; des lors, si un Etat porte atteinte à un intérêt matériel d´un autre Etat en violant un de ses droits, il porte en même temps atteinte à son intérêt moral à être traité de façon légalement correcte par ses partenaires internationaux’. In note 67, Stern adds that the same author assimilates both terms a few lines below: ‘La violation de ses obligations par une partie, alors même qu’elle ne causerait pas à une autre partie de préjudice matériel, est-elle toujours la source d’un dommage moral résultant de l’atteinte à son droit au respect de leurs obligations par toutes les autres parties (“dommage juridique”)?’. 39 Tanzi, ‘Is damage a distinct condition for the existence of an internationally wrongful act?’, Spinedi and Simma (eds), United Nations Codification of State Responsibility (1987), 1–33, at 8. 40 Ibid., 9. (Emphasis added.)

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not necessarily follow the breach of an obligation, whereas legal injury always does. Courts are inclined to underline the particularly vicious character of certain violations, thus reaffirming the law and showing the moral damage suffered by the injured State and making moral and legal damage more difficult to distinguish from one another. In the Corfu Channel case, the International Court of Justice declared the mine-sweeping made by British men-of-war in the waters of the channel to be a violation of Albanian sovereignty: that declaration was to be considered enough satisfaction for Albania.41 Likewise, in the Hostages case, the Court solemnly declared that Iran had violated certain obligations it had to the United States.42 In those cases, besides the injury to the subjective right of the injured State, the breach of the obligation resulted in moral injury to its dignity or moral personality. I submit that, in those circumstances, the satisfaction granted by the Court makes reparation for the moral, not the legal, injury. On the other hand, when there is no other injury but legal injury, a declaration by the Court, or by the State responsible, that the obligation in question has been violated or some other form of reaffirmation of the objective legal order should be made in order to operate the return to legality. Otherwise, if there are other injuries for which reparation should be made, normally there is no reference to legal damage, unless special circumstances so dictate because the return to legality is operated by the reparation of the other damage, and so the satisfaction of the legal injury is implicit. This is, precisely, another interesting trait of legal injury, namely that, if integral reparation of a breach requires, for instance, restitution and compensation (even satisfaction) because there has been some other damage, once reparation of that damage has been completed there is no further need of a remedy for the legal injury, which has been satisfied by the reparation made.43

41

Corfu Channel, Merits, Judgment, ICJ Reports 1949, 4, at 35. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3, at 44–5. 43 The decision in the I’m Alone case is somewhat puzzling in that respect, but one where moral injury and, expressly so, legal injury were compensated. The United States were condemned to pay to the Canadian Government compensation for the benefit of the captain and the members of the crew, to acknowledge the illegality of the act and to apologize to the Canadian Government, and to pay 25,000 United States dollars ‘as a material amend in respect of the wrong’. (RIAA, iii, 1609, at 1618.) The tribunal did not order compensation for the material loss of the ship or its cargo, as it was owned by a group of American citizens for the sole purpose of liquor smuggling. This is a case where moral and legal injuries were considered together and one does not know if the apologies were destined to satisfy the moral damage and the sum of money the legal damage, or vice versa. The remedies should both go to compensate for the moral wrong done to Canada for sinking a ship against the terms of the Washington Convention of January 23, 1924, between the United States and Great Britain which, together with the sum of money granted the captain and crew, would have effaced the legal injury. Obviously, the illegal sinking of a ship is a rather strong moral injury to the State of the flag. 42

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The reverse, however, is not true: a State cannot satisfy a legal injury and leave the other injuries without being remedied. For instance, legal injury is not satisfied by a State making excuses and admitting its having breached an international obligation towards another State if it has not, at the same time, paid the restitution and/or the compensation due. Alternatively, where a breach caused no material or moral injury, the legal injury would still have to be specifically redressed; that seems to be one of the objects of a declaratory judgement, for instance. In other words, legal injury is only satisfied by a complete return to legality, whereas moral injury is a specific kind of damage which is normally remedied by satisfaction. In a related matter, it is interesting to note that legal injury arises exclusively in the field of responsibility for wrongful acts of a State and seems to constitute yet another aspect differentiating that type of accountability from sine delicto liability, which is triggered by damage unconnected with the breach of any obligation and, consequently, untainted by wrongfulness. In matters of sine delicto liability, damage and compensation arise from the primary norm, the obligation of compensation being a primary obligation. It is only if compensation is not paid, and the primary obligation thus breached, that responsibility for a wrongful act—with corresponding legal injury—arises.44 There seems to remain yet another difference between moral and legal injury. I have advanced the opinion that a breach of obligation causes a legal injury in two different ways: one by damaging a State’s subjective right; the other by affecting the objective legal order. The moral injury done to a State remains, so as to speak, with that State whereas the legal injury transcends to a collective dimension even if it only breaches a bilateral obligation. If a contractual obligation is breached, not only the treaty establishing that obligation is adversely affected, and with it the corresponding rights of all other States parties to that treaty, but the basic norm pacta sunt servanda is also weakened. If the obligation breached is established by a customary rule, the effectiveness of customary international law is prejudiced. In a decentralized legal order such as international law, desuetudo is a constant threat. Whenever the breach of an international obligation occurs, the subjective right corresponding to that obligation is injured; at the same time, the so-called ‘objective legal order’ is also injured.45 The breach of an obligation by a State always entails the violation of the subjective right of another State, since the

44 For the differences between responsibility for wrongful acts and sine delicto liability, see the author’s ‘La responsabilité “causale” devant la Commission du Droit International’, 34 AFDI (1988), 513–22. See also Id., ‘Liability: Can We Put Humpty-Dumpty Together Again?’, 2 ChJIL (2002), 499–526, at 505–14. 45 See Dupuy (P.M.), ‘Responsabilité et légalité’, La responsabilité dans le système internationale, Colloque du Mans (Societé française pour le droit international) (1991), 263–99, at 278: ‘le fait illicite équivaut à la fois à la méconaissance du Droit et d’un droit’.

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correlation between obligation and subjective right is always valid.46 The abeyance of law is an important factor of stability in a society that is constantly menaced by instability. A State has an interest that the law be respected with regard to itself, and the other States of the international community also have an interest in the respect of the law regarding that State because thus the legal order is respected and reaffirmed, and they are reassured in their own legal rights. That general interest, however, is not legally protected in the situation envisaged by Article 42 of the Commission’s articles, according to which there are injured States and third States. When the obligation breached is not erga omnes (or erga omnes partes), the general interest does not result in any right of action in favour of third (party) States and the principle of non-intervention prevails. Conversely, when an erga omnes (or erga omnes partes) obligation is breached, as envisaged in Article 48, two different legally protected interests are touched: the individual legally protected interest of the injured State and the collective interest—also legally protected—of the group. Article 42 thus refers to ‘injured States’, whereas Article 48 to ‘other than injured States’ with certain rights conferred on them in accordance with that article. In relation to erga omnes obligations, there are no third States. Article 48 attributes a collective right to a group, which has no legal personality and cannot act as a centralized group in international law. There is no other way, in order for that legal protection of the collective interest to work, than to invest each member of the group with a subjective right of identical content as the one protecting the collective interest. That grants each member of the group a procedural right of action so that the collective right may be enforced by each one of them acting uti singulus. These are mechanisms typical of international law, a decentralized legal order.47 Tanzi has asked what the use of a legal fiction would be, giving legal subjectivity to an abstract entity (the community of the States parties to a treaty) by ‘conferring a subjective right on it which it cannot itself assert nor have enforced’. In his opinion, ‘States members uti singuli would be the addressees

46 On the other hand, responsibility is always towards another State: ‘there is not such a thing as responsibility in the air’. (Crawford, ‘Third Report on State Responsibility’ (Doc.A/CN.4/507), para. 84.) 47 Long before Article 48 was drafted, or dealt with by the Commission, Stern had explained this: ‘De même que l’individu ne peut pas agir sur le plan international dans le cadre du droit international général, de même la communauté internationale n’est pas aujourd’hui suffisamment personifiée pour pouvoir agir sur le plan international. L’Etat reste le sujet principal, le passage obligé du droit international. Et en ce sens je crois que la CDI est en train de construire une fiction similaire a celle sur laquelle est construite la protection diplomatique’. (‘Conclusions: la responsabilité dans le système international’, La responsabilité dans le système international, 319–36, at 332.) That was also the thesis sustained by New Zealand in the Nuclear Tests case, when referring to the law relating to the activity of atmospheric nuclear testing it stated that ‘the duty to refrain from this activity is owed to the international community as a whole and the corresponding right to be protected from it is shared by every member of that community’, ICJ Pleadings, Nuclear Tests, ii, 264.

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of procedural rights by which they would assert those substantial rights of which they had been deprived, inasmuch as these rights would belong only to the community of States members as a whole’. He considers that the main feature of obligations erga omnes would consist ‘in the overcoming of the classic synallagmatic nature of the international legal obligations. In fact, the breach of one of these obligations would entail the contemporary violation of the corresponding subjective rights (having the same content) of all the States parties’.48 To each obligation erga omnes there would correspond, then, a jus omnium.49 The procedural rights granted to non-injured States by Article 48 stop short, for the moment at least, of countermeasures. The door, however, seems to have been left ajar by the inclusion of the somewhat enigmatic Article 54. Be that as it may, the rights conferred on group members with a collective interest, including members of the international community as a whole, by Article 48 would not be easy to explain if legal injury were banned from the domain of international responsibility. On what basis other than legal injury to their subjective rights collectively granted would States that have suffered no damage in the sphere of their individual interests be authorized to invoke the responsibility of another State? It seems to me that the breach of an obligation protecting a collective interest injures the above mentioned jus omnium, and that the concept of legal injury is the vehicle for transiting from the collective right back to the individual subjective right, just as it was the vehicle for going the reverse way: from the individual to the collective. The members of the international community (or of the group with a protected collective interest) are united by the solidarity established among them by the jus omnium, which has been injured by the breach of the collective obligation. The only link between the State responsible and one of the States identified by Article 48 is the breach of the collective obligation. The only injury suffered by one of those States is a legal injury, because the interest of the international community has in this case the protection of the law and is thus a legal right. Article 48, in my opinion, grants that legal protection and thus opens up a vast panorama and widens the ‘public law’ field within the domain of international law: the concept of ‘legal injury’ is instrumental for that purpose.

48 Tanzi, ‘Is damage a distinct condition’, 17 (also written long before the drafting of Article 48). That indivisibility of the obligation and solidarity among the addressees of the corresponding right of protection are the defining characters of an obligation erga omnes is contested in Ragazzi, The Concept of International Obligations Erga Omnes (1997), 200–3 (distinguishing between obligations erga omnes and ‘self-existent’ obligations). 49 For a complete development of this subject, see Villalpando, L’émergence, 259–83.

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5. Conclusion: the Return to Legality The return to legality is the ultimate purpose of Article 1 of the Commission’s articles on State responsibility,50 the first part of which addresses the violation of legality and the second part its restoration. Responsibility is basically reparation, reparation and injury are inseparable, and legal injury is the only damage that is, in turn, inseparable from the breach of an obligation. So, the breach of an obligation invariably causes a legal injury and legal injury requires reparation. Such is the internal logic of responsibility, as it has evolved lately over several decades. It was, perhaps, different in the past: legal injury could have been redressed, in the opinion of an important doctrinal current, by a combination of reparation and retribution. Nonetheless, the law of State responsibility has been gradually eliminating all punitive aspects and equating responsibility with reparation.51 As to serious breaches of obligations under peremptory norms of international law, as contemplated in Articles 40 and 41, it seems evident that the measures of Article 42 do not reintroduce any punitive aspect to the law of responsibility. The finality of those measures seems to be that of reinforcing, through obligations imposed on so-called ‘non-injured States’, the reparation of the injuries caused by the conduct envisaged in Article 41. Those measures, then, are no contradiction to the tendency towards objectivity in international law: it is not so much the evil of the mere breach of an obligation (Grotius’s maleficium?) but the causation of a legal injury that triggers legal consequences, and these consequences only tend to make reparation for that injury. A wrongful act is irrevocable, but not irreparable: reparation, in turn, brings back legality. Legal injury, both to the subjective right of an individual State and to the legally protected collective interest of a group (or of the international community as a whole) thus appears to be central to the scheme of responsibility.

50 ‘Nulle formule mieux que l’article introductif du projet de la CDI du droit relatif à la codification de la responsabilité internationale des Etats (première partie) ne marque plus le lien direct et essentiel qui unit responsabilité et légalité. L’une est la conséquence directe, sinon toujours immédiate, de l’autre’. (Dupuy (P.M.), ‘Responsabilité et legalité’, 263.) 51 In the field of international criminal law there is, of course, punishment. But it is exercised on individuals, and the notion of international crimes of States has altogether disappeared from the International Law Commission’s draft articles.

CHAPTER THREE

STATE CRIMES: LOOKING AT MUNICIPAL EXPERIENCE WITH ORGANIZATIONAL CRIME1 David D. Caron

1. Introduction The 20th century was the century of codification for international law, and the broad area of State responsibility was the last area awaiting such a transformation. The adoption by the International Law Commission of its articles on State responsibility in 2001,2 and the General Assembly’s taking note of those articles,3 are significant steps in that codification. At the final stages of its long efforts on the topic, the Commission decided to remove the controversial terminology, if not all the components of the concept, associated with ‘State crimes’ from the text.4 Oscar Schacter, from the perspective of his many long and well lived years, would likely observe that a popular idea like ‘State crimes’ will find other ways to be considered and deliberated. I offer this brief comment as a point of research for such future discussions. I do not mourn the absence of State crimes from the draft articles because, as these comments indicate, I do not believe the concept was sufficiently well thought out and what was conceptually retained is far more coherent. This brief comment is also offered in homage to Oscar Schacter: gentleman, scholar and humanist. As several scholars have noted, State crimes were undoubtably one of the most controversial aspects of the draft articles.5 Particularly difficult for the 1 This essay draws heavily on, and updates, my remarks at the Annual Meeting of the American Society of International Law in 1998: ‘State Crimes in the ILC Draft Articles on State Responsibility: Insight from Municipal Experience with Corporate Crimes’, ASIL Proceedings (1998), 307–12. 2 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). 3 ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 4 See Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 35–8. 5 For a sampling of scholarly views, see Weiler, Cassese and Spinedi (eds.), International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (1989).

Maurizio Ragazzi (ed.), International Responsibility Today, 23–30. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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work of the Commission generally was the fact that its consideration of the subject extended over such a long period. When the notion of a State crime was adopted, the Commission did not yet know what the consequences of this distinction would be. When the Commission reached the subject of such consequences years later, the fact that State crimes were a part of the draft articles tended toward its retention and continued elaboration. States, in contrast to the Commission, felt no such commitment to the notion of State crimes and their comments were quite critical of the notion. Such comments argued that (1) the notion of State crimes is unsupported by practice, (2) the endorsement of criminal prosecution of the State will undermine the movement to prosecute the responsible individuals, and (3) the notion of State crimes does not add anything to the combination of ordinary State responsibility and jus cogens norms. In addition, many specific criticisms, by no means unimportant, went to drafting. Some States, for example, argued that the draft provisions were exceedingly vague and noted that many municipal systems would hold such vagueness to be a bar to the enforceability of such norms. As Crawford, the final Special Rapporteur within the Commission on State responsibility, noted: ‘the idea of international crimes as expressed in the Draft articles was divisive and had the potential to destroy the project as a whole’.6 In the end, the draft sought to ‘embody the values underlying [State crimes], while avoiding the problematic terminology of “crimes”’.7 My goal in this brief essay is to highlight a line of research that was not particularly followed in the Commission’s work on the discussion of State crimes, that is, the rather extensive consideration that have been given to corporate crimes in various national systems.8 Is this an appropriate and useful approach? A number of States argue that the notion of State crimes is simply unsupported by practice, and might thus further contend that the practice within States regarding corporate crimes is simply irrelevant. Although some States go too far in stating that there is ‘no’ practice supporting the idea of State crimes, it is true that the practice is quite limited. But how much force should be given to this observation in any event? Even if one was to conclude that the notion of a State crime does not exist as of yet and that the concept of State crimes is thus a matter of progressive development rather than codification, that conclusion does not preclude the further conclusion that State crimes may be a desirable element in the law of State responsibility. To emphasize this point, let me quote the statement of a United States delegate: ‘Other provisions . . . went far beyond current law and practice. Sweeping . . . provisions imprecisely formulated and defined, were poten-

6

Crawford, The International Law Commission’s Articles, 20. Ibid., 38. 8 When referring to both corporate and State crimes, I refer to the more general notion of ‘organizational crimes’. 7

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tially very damaging in the light of the failure of the Draft Articles to provide adequate safeguards’. What is interesting about this statement is that it is not from a United States representative discussing the State responsibility draft articles and the notion of State crimes in 1998, but rather one discussing the draft articles on the Law of Treaties and the notion of jus cogens in 1967.9 To point out that State crimes are new advises cautious assessment of their merit, but is not in itself a bar to their eventual adoption. Thus prescriptively the practice and literature to consider is not only that in international law, but also the experience of many nations and the writings of many scholars concerning corporate crimes. It is particularly relevant to do so because corporate crimes not only exist in much of the common law world but are also finding a place in civil law Europe. Moreover, it is likely that this national experience with corporate crime has influenced at least indirectly the attitudes of States and NGOs which supported or opposed the relevant articles of the International Law Commission’s draft. Indeed, the Commission’s Summary Report for 1995 suggests that unspecified analogies to corporate crimes were made. A review of this municipal experience with corporate crimes, particularly in the United States, leads me to make three points. In drawing these lessons, as is always the case with comparative exercises, I have attempted to exercise great care in drawing analogies between municipal practice and international interstate practice.10 But before laying out these points, I emphasize that the examination of the national corporate crime experience is complicated by the fact that it exhibits considerable variation even within a single State. Although other jurisdictions were examined,11 my comments arise primarily from the United States where corporate criminal responsibility has been very popular since the Supreme Court decided that a corporation could be as liable for the acts of its employees under the criminal law as under the civil, under the doctrine of respondeat superior, on unspecified ‘policy grounds’.12 In that case, the Supreme Court dismissed the argument that innocent shareholders would suffer. The Court said that the great majority of business transactions were made through corporations and acts of a corporation’s agent could be controlled by imputing liability to his employer ‘on public policy grounds’. But since then, in the view of Fischel and Sykes, the ‘doctrine of corporate criminal liability has developed [in the United States] . . . without any theoretical justification’.13 Likewise, the Model Penal

9

See U.S. Participation in the UN: Report by the President to the Congress (1970), 238–40. In the 1995 Summary Record of the Commission’s forty-seventh session, one member is reported as having said that an unspecified analogy to corporate crimes was ‘extremely tenuous’. 11 As to the United Kingdom, see, e.g., Fisse and Braithwaite, Corporations, Crime and Accountability (1993), and Wells, Corporations and Criminal Responsibility (2nd edn., 2001). 12 New York Cent. & Hudson River R.R. v. United States, 212 US 481, 493 (1909). 13 Fischel and Sykes, ‘Corporate Crime’, 25 Journal of Legal Studies (1996), 319–49, at 319. 10

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Code states that the development of corporate criminal responsibility has proceeded without reference to ‘any intelligible body of principle’ and in the absence of ‘articulate analysis’.14 An explanation for such incoherence in the field is that in each of the several States of the United States such crimes are set forth in individual statutes—an invitation to experimentation. 2. Arguments for Corporate Crimes and the Value of Moral Stigma In the justifications of corporate crimes and State crimes, the question that always arises is: what does a regime of organizational criminal responsibility add to the already existing regimes of organizational civil responsibility and individual criminal and civil responsibility? The primary justifications asserted for corporate criminal responsibility are threefold. First, the imposition of fines will increase deterrence. Second, the stigma (or ‘reputational damage’) of being found criminally responsible will increase deterrence. Third, such criminal responsibility satisfies a public societal need for retribution against a perceived bad actor. All of these arguments likewise have been made in support of the criminal responsibility of States. Underlying these justifications is the assumption or conclusion that criminal proceedings will yield these particular desirable results while the other regimes of individual criminality and organizational civil responsibility will not. From this perspective, it seems clear that organizational criminal proceedings supplies a moral stigma that the other regimes do not. Coffee writes that ‘[t]he classic reason offered for using the criminal law when financially equivalent civil remedies are available has been that the criminal law uniquely can focus public censure upon the guilty defendant’.15 In Coffee’s words, the criminal law, perhaps ‘uniquely’, possesses a ‘moral force’.16 There may be quite tangible consequences to such moral stigma. A corporate attorney argues, for example, that the stigma of a criminal prosecution can have effect on long term profitability of a corporation through an increase in the risk of investment in that corporation.17 One can imagine similar conclusions being reached with regard to States and the risk associated with investment in such States. It is far less clear that the fines that accompany a criminal prosecution accomplish something more than civil penalties do. From an economic perspective, deterrence—at least as a result of a fine or penalty—takes place when

14

The Model Penal Code and Commentaries (1985), at Article 2.07, section 332. Coffee, ‘“No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate Punishment’, 79 Michigan Law Review (1981), 386–559, at 447. 16 Id., ‘Paradigms Lost: The Blurring of the Criminal and Civil Law Models—And What Can Be Done About It’, 101 Yale Law Journal (1992), 1875–93, at 1875. 17 Bros, ‘A Fresh Assault on the Hazardous Workplace: Corporate Homicide Liability for Workplace Fatalities in Minnesota’, 15 William Mitchell Law Review (1989), 287–326. 15

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‘expected punishment cost’ of the proscribed action exceeds the expected gain, as discounted by the likelihood of apprehension and conviction. The imposition of criminal liability thus potentially provides the firm with the correct incentives to invest in cost justified precautions to prevent crimes from occurring, e.g. monitoring of employees activities. It is argued by some that such deterrence is appropriate inasmuch as the corporation after all is in a better position than the State to detect and punish misconduct by its employees. Similarly, it can be argued in the international case that the State is in a better position than the amorphous international community to monitor and punish its agents. But this model of incentives and rational actors would seem equally satisfied with ordinary civil, rather than criminal, State responsibility, unless the civil penalty is limited to an amount significantly less than the criminal fine. Moreover, one must question the use of such a model with States in any event since the dearth of compulsory international adjudicative institutions would suggest that States would significantly discount the punishment cost given the low likelihood of apprehension and conviction. The important point therefore is that the primary justification for State crimes is the moral stigma of criminal conviction. But if that is the case, then the International Law Commission’s decision to change the focus of this aspect of the articles over to peremptory norms so as to reduce the penal character of the category, then this reason for the category at all is undermined if not eliminated. The main value of the notion of State crimes is the word ‘crime’. 3. Arguments against Corporate Crimes and the Question of whether Innocents Suffer The number of arguments raised against corporate crimes is considerably greater than the justifications, although it should be emphasized that many of the arguments apply to only certain forms of corporate crimes. Before focusing on the morally central argument that innocents suffer, I very briefly touch on a few of the other arguments. First, a number of commentators suggest that all realistic and proper aims of corporate criminal liability are served by imposition of civil responsibility.18 This argument is likewise made with regard to State crimes also. Second, others question whether this use of the unique moral force of criminal law is destructive of that unique force. Coffee argues that there has been a trend toward encroachment of the criminal law into areas formerly thought civil or regulatory in character, and that this should be resisted. Overuse of

18 See, e.g., Khanna, ‘Corporate Criminal Liability: What Purpose does it Serve?’, 109 Harvard Law Review (1996), 1477–534.

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the criminal law in his view impairs its role of ‘moral education’.19 A similar argument is raised concerning State crimes. Third, criminal proceedings are more expensive. In the municipal context, it has been argued that there are greater costs associated with criminal proceedings, largely because of greater procedural protections. Evidence must be ‘beyond reasonable doubt’. This requires greater resources in terms of evidence gathering and presentation than the ‘preponderance of the evidence’ standard. In addition, accused have greater rights to procedural protections, which lead to more expensive trials. It is somewhat unclear whether, in the international context, such criminal procedural protections and higher evidentiary standards would apply. But I would think it likely that the greater moral force which is sought to be wielded by this form of criminal proceedings logically would give rise to higher evidentiary burden and procedural protections. Such features of the criminal trial could not be substantially relaxed without undermining the perceived legitimacy of the result. Fourth, deterrence in fact may not be enhanced. Coffee asserts that fines on corporations have been inadequate at achieving deterrence. Certainly, if the fine is set too low, the corporation may disregard the deterrence signal sent. But Coffee refers also to the so-called ‘deterrence trap’ whereby the maximum meaningful fine levied against a corporation is necessarily bounded by the wealth of the corporation while the benefit to be gained is not limited in this way.20 Finally, in this framework, deterrence is unlikely when there are no set levels of fines because calculation is necessary for rational actors. Fifth, corporate criminality may lead to fewer prosecutions of criminally responsible individuals. The views and evidence here, as best as I can ascertain in this brief review, is conflicting and complicated. It also seems difficult to transfer these views to the international sphere where the gravity of the crimes and the availability of enforcement mechanisms is so different. It is contended by some that there is a predisposition of juries to let individuals ‘off ’ and punish the corporation on the same evidence. Yet, Coffee identifies what he calls the ‘nullification problem’, that is a reluctance by judges and juries to impose severe penalties on corporations. The international context may be critically different in that the wronged State is potentially both the claimant in terms of the delict and the de facto prosecutor in terms of crimes. In the domestic context, the victim is the claimant and the State is the prosecutor. The merger of roles in the international context may lead to more strategic choices on the part of the victim, yet may come in time to separate as further institutions emerge on the international level. Is it more effective to pursue the individual rather than the organization? What is the stigmatizing effect of crim-

19 20

Coffee, ‘Paradigms Lost’, 1877. Id., ‘“No Soul”’, 389–93.

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inal proceedings on a corporation? Coffee, in particular, concludes in the corporate context that a ‘dual focus’ on corporation and individual is advisable.21 All of these arguments deserve close consideration but I find the discussion concerning the moral position regarding innocents as particularly important bearing in mind when considering the applicability of municipal corporate crime experience to State crimes. Commentators point out that punishment imposes an external cost, that is the costs of fines spill over onto ‘innocent’ parties. The corporation does not bear the ultimate cost of a fine: ‘when the corporation catches a cold, someone else sneezes’. Stockholders are frequently given as an example. How is a State different from a corporation in this regard? In the international case, the innocents presumably are the citizens, and also corporations operating in the relevant State, both of which could suffer the burden in increased taxes, and a lower quality of life, or the higher costs of doing business, due to instability. The primary parallel is that the citizen is to the State as the shareholder is to the corporation. In the case of the corporations, the justification for the shareholder suffering is that such shareholders were unjustly enriched because of the crimes of the corporation and, indeed, it is possible that it is this very profitability that led the shareholder to choose to invest in the firm—they may disinvest, they may seek information about the companies practice. This justification does not work nearly as neatly in the case of States. Like the shareholder, some citizens of the State may be unjustly enriched by the crime of the State. But not all citizens are ‘shareholders’ in the State. We also must bear in mind that citizens can not exit the State as a shareholder may move between corporations. In addition, with corporations it is rare that the criminal statutes involve the commission of a crime against the corporation itself. But a State without question can commit a crime against its own people. In this circumstance, the citizen is not only not a shareholder, he or she is also the victim. Moreover, if the State is criminally fined, in all likelihood those victims become victims once again. But, then again, these last considerations apply as well to the civil responsibility of States. 4. Due Diligence should be a Means of Avoiding Criminality Criminal jurisprudence ties moral culpability to intent, crimes require both an act and a mens rea. But what then does it mean to speak of an organization being criminally responsible? Corporations and States do not have intent. One approach is to view organizational criminal culpability as rooted in the failure

21

Ibid., 410.

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of the organization to structure itself so as to mimic the self reflection of an individual. Thus if a State establishes processes, issues guidelines, and diligently seeks to control criminal behaviour by its agents then it should not be morally culpable if such an agent commits an act that otherwise would be a State crime.22 Stated in the affirmative, the criminal responsibility of corporations should be limited to cases where there has been a failure to put systems in place designed to prevent the crime. Municipally, this approach can be seen, for example, in the New Zealand Resource Management Act 1991, which provides at Section 340 that a principal (otherwise liable for an agent’s offence committed against the Act) is not so liable if it can prove that it took ‘all reasonable steps to prevent the commission of the offence’.23 Analogously, if a State gives specific instructions to its agents and a rogue individual nonetheless violates such instructions, then the State would be free of at least criminal responsibility for the acts of the individual. If so, this in turn suggests that the rules of attribution or circumstances precluding wrongfulness would need to be revisited so that they varied depending upon whether ordinary or criminal State responsibility was involved.

5. Conclusion My brief review here of municipal experience suggests that valuable insights could be found in the relatively developed debate surrounding that experience. Most importantly, I conclude that the addition of a ‘lack of due diligence’ requirement as an element of a State crime is not only an appropriate change, but more importantly a necessary change for the notion of State crimes to win wider acceptance by States. The requirement that the State fail to exercise due diligence may alleviate the fears of some States that they may be unjustly harassed by the specter of criminal charges. Simultaneously, such a change will allow the majority of States to focus on those very few States that either from the very top intently violate the central prohibitions of the modern world or which do not exercise the due diligence required of a modern State to prevent their agents from committing such acts.

22 Thus it is argued, in United States law, that certain corporate compliance programs should serve as a defense to corporate crime. See, e.g., Walsh and Pyrich, ‘Corporate Compliance Programs as a Defense to Criminal Liability: Can a Corporation Save its Soul?’, 47 Rutgers Law Review (1995), 605–91; Carr and Thomas, ‘Devising a Compliance Strategy Under the ISO 14000 International Environmental Management Standards’, 15 Pace Environmental Law Review (1997), 85–231. See also Arlen, ‘Deterring Corporate Crime,’ USC Law 4–7 (Spring 1998) (arguing against strict liability). 23 The text of the New Zealand Resource Management Act 1991 (and subsequent amendments) is electronically available at the New Zealand Government web site: .

CHAPTER FOUR

DO STATES HAVE A DUTY TO ENSURE COMPLIANCE WITH OBLIGATIONS ERGA OMNES BY OTHER STATES? Giorgio Gaja

1. Introduction Oscar Schachter’s long-standing care for the general interests of the international community could not fail to include concern for compliance with erga omnes obligations, which seek to protect those interests. This was well reflected in his writings on erga omnes obligations, especially in his Hague lectures and their subsequent revision in book form.1 In his concluding remarks on the subject he noted that the concept of obligations erga omnes ‘may well have the desirable effect of making governments more conscious of their interest in the observance of international law and of their legal right (and in some cases, their legal duty) to take action through collective counter-measures and in political and judicial bodies to combat grave violations’.2 Having had the privilege of some conversations with this eminent scholar about the legal consequences of infringements of erga omnes obligations, I should like to take the opportunity of the present collection to offer some reflections on one of the issues that has recently become topical, but had already been mentioned in the passage quoted above. As is well known, in the Barcelona Traction case the International Court of Justice said that erga omnes obligations: [b]y their very nature . . . are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.3

1

Schachter, International Law in Theory and Practice (1991), 208–13. Ibid., 212–13. 3 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3, at 32, para. 33. 2

Maurizio Ragazzi (ed.), International Responsibility Today, 31–36. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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This raises the question whether the existence of a legal interest only implies that all States are entitled to resort to certain remedies in case of an infringement of one of these obligations by another State. Could one also say that, as Oscar Schachter suggested, all States are ‘in some cases’ under a duty to respond? 2. The View of the International Court of Justice The first indication that in certain cases States have a duty to react to infringements of erga omnes obligations was given by the International Court of Justice in its advisory opinion on Namibia, when the Court said: A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence. Once the Court is faced with such a situation, it would be failing in the discharge of its judicial functions if it did not declare that there is an obligation, especially upon Members of the United Nations, to bring that situation to an end.4

This obligation appears to refer to conduct that States would have to take individually, but may include a collective response. The Court went on to assert that States had some specific obligations of non-recognition and of not assisting South Africa.5 No further developments were made with regard to the more general obligation stated in the passage quoted above, apart from noting that: As to the general consequences resulting from the illegal presence of South Africa in Namibia, all States should bear in mind that the injured entity is a people which must look to the international community for assistance in its progress towards the goals for which the sacred trust was instituted.6

In its recent opinion on the Wall, the Court held that: all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.7

This statement, which is also reproduced in the operative part of the opinion, only relates to the Geneva Convention, in which common Article 1 imposes on States parties the duty to ‘respect and ensure respect for the present 4 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, 16, at 54, para. 117. 5 Ibid., 54–6, paras. 119–26. 6 Ibid., 56, para. 127. 7 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 159. (The text is electronically available at .)

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Convention in all circumstances’.8 Although the original meaning of this provision was arguably not that of imposing on a State a duty to ensure compliance by other States,9 the currently prevailing view, which is shared by the International Committee of the Red Cross, is that common Article 1 imposes on States parties also the duty to ensure that other States comply with their obligations under the Convention.10 The Court appears to endorse this interpretation. The Court’s advisory opinion also contains a more general statement to the effect that States have a duty to ensure compliance with erga omnes obligations by other States. After stressing that the obligation corresponding to the right to self-determination has that character, the Court said: It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its rights to self-determination is brought to an end.11

The Court refers to cessation of the continuous breach of the erga omnes obligation. The passage above does not state any requirement that the infringement of the right to self-determination be qualified as serious, although this characterization may be taken as implied in view of the context of the Court’s opinion. The seriousness of the breach is moreover implied in the fact that the Court also says that ‘all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall’ and ‘not to render aid or assistance in maintaining the situation created by such construction’.12 This language closely follows the wording that Article 41 of the articles drafted by the International Law Commission on the responsibility of States for internationally wrongful acts uses for the case of a ‘serious breach by a State of an obligation arising under a peremptory norm of general international law’.13

8 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (12 August 1949), 75 UNTS 287. 9 Kalshoven, ‘The undertaking to respect or ensure respect in all circumstances: from tiny seed to ripened fruit’, 2 Yearbook of International Humanitarian Law (1999), 3–61. 10 Gasser, ‘Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations’, Fox and Meyer (eds.), Armed Conflict and the New Law. Effecting Compliance (1993), 15–49; Boisson de Chazournes and Condorelli, ‘Common Article 1 of the Geneva Convention revisited: Protecting collective interests’, 82 International Review of the Red Cross (2000), 67–87. 11 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 159. 12 Ibid. 13 Thus Article 40, which is reproduced with the related commentary in Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 245–8.

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chapter four giorgio gaja 3. The View of the International Law Commission

Articles 40 and 41 of the articles on responsibility of States set out some specific, additional consequences for such a breach by a State. They include a duty for all the other States to ‘cooperate to bring to an end through lawful means any serious breach within the meaning of article 40’.14 Thus the articles state a duty which concerns cessation of serious breaches of a category of erga omnes obligations.15 While the commentary on Article 41 only refers to cooperation among States,16 whether institutionalized or not, conduct to be taken by States individually is not excluded.17 The emphasis on cooperation may be explained by the fact that, as the commentary notes, ‘it is often the only way of providing an effective remedy’.18 4. A Duty to Ensure Compliance as a Consequence of the Breach Both the International Court of Justice and the International Law Commission consider as a consequence of the breach, and thus as part of the law of State responsibility, the duty of a State to bring to an end the infringement of an erga omnes obligation on the part of another State. Taking this approach, the duty would rise in case of serious breach of an erga omnes obligation. A serious breach would result in new duties not only for the responsible State, but also for all the other States. It may seem odd that the infringement of an obligation on the part of one State entails the emergence of duties for other States.19 However, these duties are clearly designed to affect the responsible State negatively and ensure cessation of the breach. The States’ concern for the protection of the legal interests involved would explain why serious infringements of erga omnes obligations result in further obligations for all States. Whether duties to this effect exist under international law is debatable, given the limited practice that would appear to support the existence of such duties. It is noteworthy that the International Law Commission said that: 14

Ibid., 249–53. Ibid., 188 and 278. 16 This point was stressed by Judge Kooijmans in his separate opinion attached to the Court’s advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. 17 See Gattini, ‘A Return Ticket to “Communitarisme”, Please’, 13 EJIL (2002), 1181–97, at 1186–7. 18 Crawford, The International Law Commission’s Articles, 249. 19 In her separate opinion attached to the Court’s advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Judge Higgins held that, while there are ‘certain rights in which, by reason of their importance, “all States have a legal interest in their protection”’, this ‘has nothing to do with imposing substantive obligations on third parties to a case’ (para. 37). 15

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It may be open to question whether general international law at present prescribes a positive duty of cooperation, and paragraph 1 [of Article 41] in that respect may reflect the progressive development of international law.20

5. A Duty to Ensure Compliance as a Primary Obligation Cessation of a breach provides a remedy to a continuing infringement. However, cessation may also be regarded as a form of compliance with the primary obligation breached. As the International Law Commission said in its commentary on Article 30 on State responsibility: The function of cessation is to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule.21

Under the primary norm, all States have an obligation not to take conduct that would result in a breach. This obligation may be extended by the norm to cover also conduct that is required to prevent a breach by other States. Common Article 1 of the Geneva Conventions as it is currently understood provides an apt example. This additional obligation does not depend on a breach having been actually committed and even less so on the seriousness of the breach. This type of additional obligation cannot be regarded as connaturate to all the erga omnes obligations. However, it is not necessarily confined to obligations under international humanitarian law. The States’ concern for the protection of certain interests may well lead to imposing on all States the duty to ensure compliance by other States with obligations protecting those interests.22 States would then be required not to remain as spectators of other States’ infringements. How far such additional obligations are imposed by international law is uncertain. Also under this approach practice may seem to give insufficient support to the existence of a duty to ensure compliance. However, the scope of the duty would not necessarily apply to all the erga omnes obligations: a duty to ensure compliance may have come into being only in relation to some of these obligations. Thus, although following a different perspective, the passages in the Court’s advisory opinions quoted above provide some elements in favour of the existence of an obligation to ensure compliance with the obligation corresponding to the right of self-determination.

20

Crawford, The International Law Commission’s Articles, 249. Ibid., 197. 22 As was said by Henkin, ‘Inter-State Responsibility for Compliance with Human Rights Obligations’, Vohrah et al. (eds.), Man’s Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese (2003), 383–97, at 395: ‘in principle, every State is responsible for the condition of human rights of every human being in every country, at least in respect of gross violations of those rights’. 21

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chapter four giorgio gaja 6. Resort to Lawful Means

Whether one takes one or the other approach, the existence for all States of a duty to ensure compliance with erga omnes obligations by other States may entail the risk of unjustified or exaggerated responses. However, in the current state of affairs, this risk is certainly limited, as States are generally reluctant to act in this direction. At any event, the Court stressed in its more recent advisory opinion that, when ensuring compliance by other States, ‘the United Nations Charter and international law’ would have to be respected.23 Resort to collective responses, especially in an institutionalized form, would also alleviate that risk.

23 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 159.

CHAPTER FIVE

DIPLOMACY AND STATE RESPONSIBILITY Kazuhiro Nakatani 1. The Theory of State Responsibility in the Context of Diplomacy The general theory of State responsibility, in addition to that of the law of treaties, is the backbone of international law. It includes some basic concepts, such as attribution of conduct to the State, circumstances precluding wrongfulness and reparation. The long-time work by the International Law Commission on the draft articles on State responsibility has greatly contributed to the clarification of the general principles on this area of the law. However, apart from the law of treaties, which has regularly been used and developed in diplomatic practice, the law of State responsibility has not been applied in practice as described in theory. Complex diplomatic concerns make the consequences of an internationally wrongful act unpredictable and, therefore, the law of State responsibility is applied inconsistently. Some examples are evidence of this: (a) it often happens that a wrong-doer admits neither responsibility nor even the facts leading to the attribution of responsibility (as will be seen in Section 2, below); (b) an innocent State sometimes admits responsibility to save the lives of its nationals (as will be seen in Section 3, below); (c) the gap between legal theory and diplomatic practice exists with respect to the circumstances precluding wrongfulness, and it is not easy to describe to which circumstance a State action pertains (as will be seen in Section 4, below); (d) sometimes, an injured State renounces a request for compensation; even if the alleged wrong-doer does not admit responsibility, monetary indemnification is occasionally made on an ex gratia basis (as will be seen in Section 5, below); and (e) a vague statement which can be interpreted as an apology, even if the State which makes the statement does not admit that it apologizing, can be a useful diplomatic tool (as will be seen in Section 6, below). Maurizio Ragazzi (ed.), International Responsibility Today, 37–47. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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International lawyers have to admit the limited role of the theory of international responsibility. The more important a case involving State responsibility is in the diplomatic context, the more unlikely it is that the general law of State responsibility be applied without modifications. Whereas general principles of State responsibility are fairly easy to apply to small damage cases (for example, a window at an embassy being broken by the police of the host State), they are far more difficult to apply to large damage cases, such as aggression or genocide. And yet, these latter cases are far more important in diplomatic practice. It has also to be admitted that the cessation of a wrongful act, provided for in Article 41 of the Commission’s draft articles as the preliminary step to reparation, is very hard to attain in many violent-related cases. Among the numerous inter-State conflicts which involve problems of State responsibility, the percentage of those that have been dealt with by third parties, or in which third parties have intervened in some capacity, is very small. Almost all the cases belong to a bilateral context, and direct negotiation is the usual means of solving the dispute. In this diplomatic context, it is no wonder that deviations from the general law of State responsibility often occur. But such deviations appear also in multilateral contexts. For example, non-military enforcement measures decided by the United Nations Security Council do not need to observe the conditions for countermeasures under general international law.1 The renunciation of public debts by the Paris Club and G-7, as will be shown below, is another example. 2. Problems Relating to Fact Finding The first difficulty in applying the law of State responsibility in an actual case is that the alleged wrong-doer rarely admits the facts leading to the attribution of State responsibility. One recent example can be found in the Aerial Collision Incident between United States and Chinese military airplanes, which occurred on 1 April 2001. On that day, a United States reconnaissance military aircraft collided with a Chinese military aircraft over the ocean approximately one hundred and four kilometers southeast of Hainan Island, People’s Republic of China. The United States blamed China, claiming that the incident had occurred because the Chinese airplane had intentionally flown too closely to the United States airplane in an unsafe manner; China, on the other hand, blamed the United States, claiming that the incident had occurred because the United States airplane had suddenly veered towards the Chinese airplane. The United States

1 See Nakatani, ‘Economic Sanctions and Compliance: Theoretical Aspects’, Schoenbaum et al. (eds.), Trilateral Perspectives on International Legal Issues: From Theory into Practice (1998), 347–64, at 355–9.

diplomacy and state responsibility 39 asserted that the reconnaissance operation over the high seas was legal under international law, while China asserted that the reconnaissance operation was in breach of Article 58(3) of the United Nations Convention on the Law of the Sea, which provides that any flight in the airspace above another State’s exclusive economic zone must have ‘due regard to the rights and duties of the coastal State’.2 While, according to the United States, the emergency landing by the American airplane on the Hainan Island was a measure in accordance with international custom, China asserted that the landing without the permission of China was a violation of its airspace. As there was no authoritative fact-finding by a third party, in this case as in most international disputes, the divergence of views on the actual facts of a case can easily lead to a deadlock, with the consequence that, in such a situation, there is no room for applying the rules on State responsibility. 3. Admission of State Responsibility to Protect Nationals Abroad A State sometimes makes an extraordinary response for the sole purpose of protecting its nationals, and even admits State responsibility. In the Aerial Collision Incident, mentioned above, the United States apparently admitted responsibility in order to obtain the release its twenty-four crew members, who were detained in the Hainan Island after the emergency landing. On 11 April 2001, the United States Ambassador, Joseph W. Prueher, addressed a letter to the Chinese Foreign Minister, Tang Jiaxuan, reading in part as follows: Both President Bush and Secretary of State Powell have expressed their sincere regret over your missing pilot and aircraft. Please convey to the Chinese people and to the family of pilot Wang Wei that we are very sorry for their loss. Although the full picture of what transpired is still unclear, according to our information, our sincere crippled aircraft made an emergency landing after following international emergency procedures. We are very sorry the entering of China’s airspace and the landing did not have verbal clearance, but very pleased the crew landed safely. We appreciate China’s efforts to see to the well-being of our crew.3

On the following day, the United States crew members were released. There is a precedent to this response. In the USS Pueblo case of 1968, the United States negotiator, General Gilbert H. Woodward, signed a document prepared by North Korea in order to free the eighty-two crew members of the USS Pueblo, who were detained by North Korea. The document read as follows: 2

United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982 (Doc.A/Conf.62/122, and Corr.1 to 11). 3 The text of the letter is electronically available at . (Emphasis added.)

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To the Government of the Democratic People’s Republic of Korea, The Government of the United States of America, Acknowledging the validity of the confessions of the crew of the USS Pueblo and of the documents of evidence produced by the Representative of the Government of the Democratic People’s Republic of Korea to the effect that the ship, which was seized by the self-defense measures of the naval vessels of the Korean People’s Army in the territorial waters of the Democratic People’s Republic of Korea on January 23, 1968, had illegally intruded into the territorial waters of the Democratic People’s Republic of Korea, Shoulders full responsibility and solemnly apologizes for the grave acts of espionage committed by the U.S. ship against the Democratic People’s Republic of Korea after having intruded into the territorial waters of the Democratic People’s Republic of Korea, And gives firm assurance that no U.S. ships will intrude again in the future into the territorial waters of Democratic People’s Republic of Korea, Meanwhile, the Government of the United States of America earnestly requests the Government of the Democratic People’s Republic of Korea to deal leniently with the former crew members of the USS Pueblo confiscated by the Democratic People’s Republic of Korea side, taking into consideration the fact that these crew members have confessed honestly to their crimes and petitioned the Government of the Democratic People’s Republic of Korea for leniency, Simultaneously with the signing of this document, the undersigned acknowledges receipt of 82 former crew members of the Pueblo and one corpse.4

General Woodward made the following formal statement just before the signing the document: The position of the United States with regard to the Pueblo, as consistently expressed in the negotiation at Panmunjom, and in public, has been that the ship was not engaged in illegal activity, that there is no convincing evidence that the ship at any time intruded into the territorial waters claimed by North Korea, and that we could not apologize for actions which did not believe took place. The document which I am going to sign was prepared by the North Koreans and is at variance with the above position, but my signature will not and cannot alter the facts. I will sign the document to free the crew and only to free the crew.5

Although this statement is apparently incompatible with the above-mentioned document, North Korea accepted that the statement would be attached to the signature of the document. In these two cases, what was most important for China and North Korea was to save their faces by obtaining the admission of State responsibility and an apology from the United States, while for the United States the most important thing was to free its detained nationals. The precise application of the law of State responsibility, and precise fact-finding, were put aside. For modern democratic States, what is paramount is to protect their nationals’ lives rather than uphold in the abstract the dignity of the State. Therefore,

4 5

‘Release at Panmunjom of Crew of U.S.S. Pueblo’, 63 AJIL (1969), 682–5. Ibid. (Emphasis added.)

diplomacy and state responsibility 41 similar responses will continue to occur in future cases, when human lives are at peril. 4. Relativity of Circumstances Precluding Wrongfulness in a Diplomatic Context Even when there is no doubt on the legality of a given act, sometimes it is not easy to identify the precise category of circumstances precluding wrongfulness, which justify the act. In the case of the Seizure of the Japanese Ambassador’s Residence in Peru, which occurred on 17 December 1996, seventy-two hostages were rescued on 22 April 1997, when the Special Forces of the Peruvian military stormed the residence.6 There was neither prior consent by, nor prior notification to, Japan, although an ambassador’s residence enjoys inviolability according to the Vienna Convention on Diplomatic Relations (Articles 1(i) and 22).7 The legal problem to be posed here is how to explain, from a legal point of view, that Japan did not lodge a protest with Peru for lack of prior notification. This is how the Press Secretary of the Japanese Ministry of Foreign Affairs replied on 24 April 1997, the day after the rescue operation, to a question concerning the Japanese Government’s view on the lack of notification in light of the Vienna Convention: Yesterday, Prime Minister Hashimoto stated in the press conference that although it was regrettable that there had not been any prior notification, he understood the circumstance. This is the position taken by the Japanese Government. The Japanese Government regrets that there was no prior notification to her. Here the expression ‘regret’ implies matters of international law. But she understands the circumstance when prior-notification cannot be made because of the urgent situation.8

On the other hand, in the Diet of 20 May 1997, the Japanese Foreign Minister, Yukihiko Ikeda, replied to a question whether or not Peru, by not giving notification, had violated international law: I think it is possible to say the following. Prime Minister Hashimoto, during the telephone conversation that I mentioned, manifested his understanding, legally speaking. As I said before, if I have to speak in legal terms, I cannot but say that the questions of international law are resolved by the ex posto facto approval.9

6 On this incident and the relevant documents, see Hamamoto and Nakatani, ‘The MRTA Seizure of the Japanese Ambassador’s Residence in Peru (1996–1997)’, 44 JAIL (2001), 120–33. 7 Vienna Convention on Diplomatic Relations, 500 UNTS 95. 8 Hamamoto and Nakatani, ‘The MRTA Seizure’, 126–7. 9 Ibid., 127.

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From the Press Secretary’s remarks, it was unclear under which of the three following categories the Japanese legal evaluation of the rescue operation should be classified: (a) necessity precluded wrongfulness, (b) consent to the operation precluded wrongfulness, or (c) Japan simply renounced any claim against Peru. In light of the Foreign Minister’s remarks, though, it is reasonable to assume that Japan’s position was the second one, namely that consent to the operation had precluded wrongfulness. One of the most serious problems concerning circumstances precluding wrongfulness in a diplomatic context is that States have always invoked ‘self-defence’ and have seldom invoked ‘necessity’ when they had to justify their use of force. The reason is obvious. Self-defence has a hybrid nature. It is an inherent right of States (Article 51 of the United Nations Charter) as well as one of the circumstances precluding wrongfulness. Also, under general international law, it is unclear to what extent the exercise of self-defence is permissible. Necessity is quite different, as its legality is subject to the strict conditions embodied in Article 25 of the International Law Commission’s draft articles on State responsibility.10 When a State invokes a circumstance precluding wrongfulness, such as necessity, it has the burden of proof. The hybrid nature of self-defence makes it difficult to address the problem of the burden of proof. Therefore, in a diplomatic context, it is far easier for a State to try to justify the use of force by self-defence than by necessity. On this point, the gap between diplomatic practice and legal theory is considerable. 5. Diplomatic Reality Relating to Indemnification According to Article 36(1) of the International Law Commission’s draft articles on State responsibility, a State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused, insofar as such damage is not made good by restitution. But the diplomatic reality concerning indemnification is more complex. One example can be found in the Awa Maru Incident of 1945. The Awa Maru, a Japanese vessel, was carrying wounded men and Red Cross supplies during the Second World War. In a United States-Japan agreement of 1944, the United States assured the safe conduct. However, on 1 April 1945, during its voyage through the Taiwan Strait from Singapore to Japan, the Japanese vessel was torpedoed and sunk by the Queenfish, a United States warship. The two thousand and forty-four Japanese passengers and crew members were killed.

10 For the text of the draft articles, see ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10).

diplomacy and state responsibility 43 The legal consequence of this tragic event was the following: upon a resolution of the Japanese Diet, the Agreement between the Government of the United States of American and the Japanese Government for the Settlement of the Awa Maru Claim was signed on 14 April 1949 and entered into force on the same day. It provided, in part, as follows: WHEREAS the Government of the United States of America acknowledged responsibility for the sinking of the vessel and assured the Japanese Government that it would be prepared after the termination of hostilities to consider the question of indemnity . . . The undersigned . . . have reached the following agreement . . . Article I The Japanese Government, mindful of the equities of the situation as they have developed since the inception of the Occupation of Japan under General of the Army Douglas MacArthur and in appreciation of the assistance—direct and indirect, in goods and services—received during the post-surrender period from the Government of the United States of America, waives on behalf of itself and all Japanese nationals concerned all claims of any description against the United States Government or any United States national arising out of the sinking of the Awa Maru. Article II The provisions of Article I shall bar, completely and finally, all claims of the nature referred to therein, which will be henceforward extinguished, whoever may be the parties in interest. Article III The Japanese Government will, in consideration of the special nature of this case, endeavor to provide adequate treatment in way of solatium for the families of those who perished in this disaster as well as for the owner of the vessel. Article IV The Government of the United States of America expresses its deep regret for the sinking of the Awa Maru and its sympathy with the families of those who perished in the disaster.11

The Awa Maru case is an example of an injured State renouncing its claim against the wrong-doer, in consideration of the friendly relations between the two States. Another example of renunciation of claims, and one of the most remarkable ones in modern diplomatic practice, is that of State debts owed by some developing countries. This is how the International Law Association, in its Resolution on International Monetary Law in 1988, addressed the issue: 6. Under international law, the inability of a debtor to pay a foreign debt will normally have to be considered under the rule of necessity . . . 9. According to the ILC, the wrongfulness of an act is precluded if the State has ‘no other means of safeguarding an essential interest threatened by grave and imminent peril’ . . . It would appear that the organization of domestic peace, the provision for external security, the maintenance of services essential for the wellbeing of the population, and the preservation of the environment are ‘essential interests’ . . . 11

The text of the agreement is in 89 UNTS 141.

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11. A state of necessity does not have the legal effect of terminating an affected obligation. It is limited to a suspension of the obligation to pay during the existence of the state of necessity; subsequently the obligation will revive. The losses arising out of the non-fulfilment of the original obligation must be allocated among the parties according to equitable principles.12

In diplomatic practice, however, the legal problem whether non-payment can be justified as necessity is avoided in most cases. What is even more important is the renunciation by creditor States of debts owed by developing countries, and particularly Heavily-Indebted Poor Countries (HIPC), within the framework of the Paris Club, an informal group of creditor governments from major industrialized countries as well as G-7. (Understandings reached at these fora are non-binding, though.) In particular, the Report of the G-7 Finance Ministers on the Köln Debt Initiaitive to the Köln Economic Summit in June 1999 provides: 12. While bilateral creditors in the Paris Club currently grant countries qualifying for the HIPC Initiative debt forgiveness of up to 80 percent on commercial debt, we support an even deeper degree of cancellation. To achieve debt sustainability, we would be prepared to forgive up to 90 percent and more in individual cases, if needed, in particular for the very poorest among those countries.13

In the Okinawa Summit of July 2000, the Report of the G-7 Finance Ministers entitled ‘Poverty Reduction and Economic Development’ further provides: 11. We affirm our commitment to bilateral debt reduction within the HIPC framework. In this respect, we have now committed ourselves to grant 100% debt forgiveness reduction on our commercial claims eligible for treatment in the framework of the Paris Club.14

In some cases, monetary payment is made not as a mode of reparation but as a kind of comity, which means voluntary payment without admitting responsibility. When the wrong-doer does not want to admit responsibility, but both the injured State and the wrong-doer agree to a diplomatic settlement of their dispute, the injured State is satisfied when the ex gratia payment is made by the wrong-doer. An example is found in the aftermath of the Daigo Fukuryu Maru (Lucky Dragon No. 5) Incident of 1954. On 1 March 1954, twentythree crewmen of the Daigo Fukuryu Maru, a Japanese fishing vessel, were irradiated by the blast from a United States hydrogen bomb Bravo test at Bikini Atoll. In the Exchange of Notes between the Government of Japan and the Government of the United States concerning Compensation for the Damages Caused by Nuclear Tests in the Marshall Islands of 4 January 1955, the United

12

‘Resolution on International Monetary Law’, International Law Association, Report of the Sixty-Third Conference (1988), 20–3. 13 See . 14 See .

diplomacy and state responsibility 45 States Ambassador Johan M. Allison addressed the following note to the Japanese Foreign Minister, Mamoru Shigemitsu, who accepted it: Your Excellency knows of the deep concern and sincere regret the Government and people of the United States of America manifested over the injuries suffered by Japanese fishermen in the course of these tests, and of the earnest hopes held in the United States for the welfare and well-being of these injured fishermen. The Government of the United States of America has made clear that it is prepared to make monetary compensation as an additional expression of its concern and regret over the injuries sustained. I now desire to inform Your Excellency that the Government of the United States of America hereby tenders, ex gratia, to the Government of Japan, without reference to the question of legal liability, the sum of two million dollars for the purposes of compensation for the injuries or damages sustained as a result of nuclear tests in the Marshall Islands in 1954. The Government of the United States of America understands that the tendered sum will be distributed in such an equitable manner as may be determined in the sole discretion of the Government of Japan, and also wishes to observe that this sum includes provision for a solarium on behalf of each of the Japanese fishermen involved and for the claims advanced by the Government of Japan for their medical and hospitalization expenses. It is the understanding of the Government of the United States of America that the Government of Japan, in accepting the tendered sum of two million dollars, does so in full settlement of any and all claims against the United States of America or its agents, nationals, or juridical entities, on the part of Japan and its nationals and juridical entities for any and all injuries, losses, or damages arising out of the said nuclear tests.15

A recent example of ex gratia payment is found in the Agreement of 20 November 2003 between the Government of Ukraine and the Government of Israel on the Settlement of Claims Arising from the Catastrophe of 4 October 2001. On that day, a Siberian Airlines jet was shot down accidentally by the Ukraine Air Defense Forces and seventy-eight persons of Israeli and Russian nationalities were killed. The Agreement provides: Noting that Ukraine recognizes the Aerial Catastrophe as a terrible human tragedy and expressed deep regret over the loss of lives caused by the Aerial Catastrophe, Noting that Ukraine has not acknowledged any liability or responsibility with regard to the Aerial Catastrophe, HAVE AGREED AS FOLLOWS: Article 1 In full and final settlement and discharge of any and all disputes, differences, claims, counterclaims, actions or causes of action of nationals of the State of Israel . . . the Ukrainian side shall pay, on an ex gratia basis, to the Israeli side in a single payment the lump sum amount of 7,590,933.34 US dollars for the benefit of the Israeli heirs, legatees and dependents . . . of the Aerial Catastrophe victims . . .16

15 16

237 UNTS 197. See International Law in Brief, 20 May 2004, .

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In some cases, it is not clear whether the payment is made on an ex gratia basis or as a legal consequence of admitting responsibility. For example, in the well-known Cosmos 954 Incident of 1978, Canada claimed payment from the Soviet Union of the sum of 6,041,174.70 Canadian dollars, based on the relevant international agreements and on general principles of international law. According to Canada, this claim was presented without prejudice to the right of Canada to make an additional claim for compensation in this matter in respect of damage not yet identified, determined or occurred.17 On 2 April 1981, Canada and the Soviet Union agreed that the latter would pay to the former the sum of 3,000,000 Canadian dollars in full and final settlement of this incident.18 Although the legal basis of the payment is not clear, it can reasonably be implied from the notes by the Soviet Union in the diplomatic communications that the payment was made on ex gratia basis.19 6. Diplomacy and Satisfaction What constitutes an apology as an element of satisfaction, which is a mode of reparation, is not easy to evaluate in practice. The delicate words employed in diplomacy in two different languages make it difficult to find out the true intention of the concerned States. However, employing two different languages has the advantage for both States, in some cases, as they can unilaterally interpret the words in their own favor. They can make an agreement only when this discrepancy in interpretation is possible. In the Aerial Collision Incident between the United States and China, mentioned above, China considered the United States Ambassador Prueher’s letter containing the words ‘very sorry’ as an apology. According to China, ‘as the US Government has already said “very sorry” to the Chinese people, the Chinese Government has, out of humanitarian considerations, decided to allow the crew members to leave China after completing the necessary procedures’.20 The United States, on the other hand, did not consider the Ambassador Prueher’s letter as an apology under international law. The Secretary of State, Colin L. Powell, made the following remarks in a Press Briefing on 13 April 2001: And then as you expect in this kind of negotiation, drafts went back and forth, and all the way to the end the Chinese were trying to get us to accept responsibility and issue an apology. I only say those two together because it’s the accep-

17 ‘Canada: Claims against the Union of Soviet Socialist Republics for Damage Caused by Soviet Cosmos 954’, 18 ILM (1979), 899. 18 ‘Canada-Union of Soviet Socialist Republics: Protocol on Settlement of Canada’s Claim for Damages Caused by “Cosmos 954”’, 20 ILM (1981), 689. 19 ‘Canada: Claims’, 915–16, 922–3, and 927–8. 20 The text was formerly available at .

diplomacy and state responsibility 47 tance of responsibility that leads to an apology. We just refused to do that, repeatedly, so we looked for other expressions that would be useful to break this impass and we linked those expressions to two things: one, the loss of a human life, pilot Wang Wei, and the fact that we did enter their airspace without their permission in a time of emergency. We saw nothing wrong with expressing regret and sorrow, we’re sorry, we’re very sorry, to make these points. Now, the Chinese are characterizing that as an apology, but if it was an apology, then why were they asking for an apology, which they did not get? So, we should not be fooled by Chinese propaganda that says they got an apology. If they think that was an apology, why were they demanding an apology for four days?21

Interestingly, a vague statement which can be interpreted as an apology, even if the State which makes the statement does not admit so, can be a useful diplomatic tool. This is the reality of diplomacy.

7. Conclusion In the Hostages crisis, which started on 4 November 1979, the International Court of Justice, in its judgment of 24 May 1980, decided that Iran had committed an internationally wrongful act and was under an obligation to make reparation to the Unites States for the injury.22 However, Iran never admitted responsibility at that time. The crisis was resolved pursuant to the Algiers Accords of 19 January 1981.23 As soon as the fifty-two American hostages held in Iran safely departed from Iran, the Iranian financial assets frozen in United States banks were unfrozen. The Unites States withdrew all claims against Iran before the International Court. It was only in January 1998 that President Khatami of Iran stated in a CNN interview as follows: With regard to the issue which you raised, I do know that the feelings of the great American people have been hurt, and of course I regret it.24

No doubt, the relationship between diplomacy and State responsibility is complex. Once we acknowledge this complexity, we will not be satisfied with a mere discussion of the general law of State responsibility, ignoring diplomacy. The future study of State responsibility should therefore put greater emphasis on diplomatic reality.

21

See . United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3, at 44–5. 23 1 Iran-United States Claims Tribunal Reports (1983), 3–56. 24 See ‘Transcripts of Interview with Iranian President Mohammad Khatami, 7 January 1998’, electronically available at . 22

CHAPTER SIX

CONTROLLING COUNTERMEASURES Mary Ellen O’Connell

1. Introduction Oscar Schachter towers over the second half of the twentieth century as a great general theorist and practioner of international law. He understood the international legal system deeply, explained it clearly, and prescribed for it accurately. In this short contribution in his memory, I look at one little-noticed, but important, example of these personal traits. They are all revealed in his call for the control of countermeasures through judicial means. I do so in profound gratitude for the teacher and scholar that he was.1 2. The Problem of Countermeasures One of the best-known facts about international law is that it lacks a central institution for general law enforcement—in contrast to most other legal systems. In place of over-arching executive branch enforcement, much enforcement remains in the hands of those who believe they have been wronged. Their primary tool for enforcement is the countermeasure. In everyday expression, a ‘countermeasure’ is an action taken to respond negatively to a prior action. Schachter used the term to refer to both reprisals— unlawful actions—as well as retorsions—lawful though unfriendly actions.2 By now, however, the term appears to be used only for reprisals. It is used synonymously with the phrase ‘unilateral peaceful reprisal’. The term ‘countermeasure’ evolved to replace the term ‘reprisal’ following the adoption of the

1 During our last conversation in November 2003, Professor Schachter recalled to me when we first met. He knew precisely—I was helping Sir Robert Jennings at the 1982 Cambridge session of the Institut de Droit International and carried Professor Schachter’s bag to his room. Subsequently, I was his student in three courses at Columbia Law School between 1983 and 1985, but I remained his student to the end. 2 Schachter, International Law in Theory and Practice (1991), 185.

Maurizio Ragazzi (ed.), International Responsibility Today, 49–62. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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United Nations Charter and the prohibition on the use of force. A State takes a countermeasure when it takes an action that would otherwise violate international law in response to a prior law violation. Countermeasures are the primary general means available to States to enforce international law rights and obligations. They are adaptable to most law violations and may be used with only minimal process—basically simple notice to the target State. They are measures of self-help that allow self-judging by the victim of the alleged wrong. As such, countermeasures are attractive to some States, but are highly problematic as a means of law enforcement. Thus, the countermeasure, the general means of law enforcement in international law, a means in regular use, has serious drawbacks from the perspective of legal theory. Despite these characteristics of countermeasures—their common use and their core challenge to theory—they have not been the subject of great scholarly attention. In Schachter’s words: It seems almost certain that non-violent self-help and counter-measures will remain an important feature of international law and perhaps even increase as the network of international law and obligations expands. The more law, the more chance of violation and the greater likelihood of counter-action by those who feel injured and without other means of redress. Recent actions, such as trade embargoes, freezing of assets, suspension of treaty obligations, expulsion of foreign nationals, confirm this. Few areas of international law are in greater need of clarification and analysis. It [is a] . . . relatively neglected subject.3

In the years since Schachter wrote those words, more attention has been paid, but the question raised here is whether more has been done to resolve the central problem of countermeasures—self-judging. The International Law Commission, the subsidiary organ of the United Nations General Assembly charged with codification and progressive development of international law, has included the study of countermeasures in its fifty-year long project on the law of State responsibility. The use of countermeasures has also received attention from the International Court of Justice,4 the World Trade Organization’s Dispute Settlement Body,5 and arbitral tribunals.6 As a result, the basic principles governing countermeasures are wellknown. Countermeasures may only be used in response to a prior wrong, following notice to the wrongdoer. They must aim at the wrongdoer and be proportional in the circumstances. They must aim at inducing compliance with

3

Ibid., 184–5. Gab‘íkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7. 5 Agreement establishing the World Trade Organization, 15 April 1994, 33 ILM (1994), 1144; Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 to the WTO Agreement), ibid., 1226, at 1228–9. 6 Naulilaa Award (‘Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique (Sentence sur le principe de la responsabilité)’, 1928), RIAA, ii, 1011; Case Concerning Air Services Agreement of 27 March 1946 (United States v. France), 54 ILR (1979), 304. 4

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the wrongdoer’s obligations. However, States have no obligation to enter into dispute resolution prior to taking countermeasures beyond providing notice. It is true that a number of treaties require some use of binding dispute resolution before taking countermeasures. These treaties indirectly create broad limits on how much self-help States may engage in as a practical matter. The most important treaties with respecting to limiting the right to take countermeasures are trade treaties since economic sanctions are probably the form of countermeasure most often used. Of the countermeasure-restricting trade treaties the most important are the treaties of the World Trade Organization (WTO), owing to the Organization’s large membership. The WTO’s Dispute Settlement Understanding mandates prior approval by the Dispute Settlement Body before an injured State may impose countermeasures.7 The WTO also provides for an arbitral panel to set the level of countermeasures used in trade cases.8 This requirement even reaches economic sanctions imposed for enforcement purposes having nothing to do with trade. It could potentially reach most economic sanctions. Also, under the United Nations Convention on the Law of the Sea,9 a State at the receiving end of interim measures or of the arrest of its vessels may request prompt review of those measures by the International Tribunal on the Law of the Sea.10 The Vienna Convention on the Law of Treaties requires mandatory conciliation for disputes over treaty suspension or termination lasting more than one year.11 Some bilateral treaties also require prior dispute resolution.12 Despite this patchwork of treaties, some countermeasures are not covered and remain subject to customary law only, wherein the victim judges for itself whether the law has been violated and what response is lawful. In most domestic societies, self-help has been limited to emergency situations of warding off a violent attack. In these systems, only the police or other executive agencies are otherwise authorized to use coercion under the oversight of courts. International law has not evolved to this extent despite the urging of some of our greatest theorists. The greatest general international legal theorist of the first half of the twentieth century was reputed to be Hans Kelsen.13 Kelsen, like Schachter, concerned himself with the enforcement of international law and the regulation of 7

See Annex 2 to the WTO Agreement, mentioned at footnote 5, above, Article 4. Ibid., Article 22.6. 9 United Nations Convention on the Law of the Sea, 10 December 1982 (DOC.A/Conf.62/122, and Corr. 1 to 11). 10 Ibid., Articles 290(5) and 292. 11 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Article 66(2). 12 See, e.g., the bilateral air services agreement discussed in the Air Services case, mentioned in footnote 6, above, at 320. See also the other examples mentioned in footnote 42, below. 13 Paulson, ‘Introduction’, Kelsen, An Introduction to the Problems of Legal Theory (English trans. Paulson and Paulson, 1992), xvii, citing Pound, ‘Law and the Science of Law in Recent Theories’, 43 Yale Law Journal (1933–4), 525–36, at 532. See also Hart, ‘Kelsen Visited’, 10 UCLA Law Review (1962–3), 709–28, at 728. 8

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enforcement. For Kelsen, war and reprisals, subject to constraints, were the necessary legal sanctions of international law.14 He recognized that the problem in permitting war and reprisals as means to enforce the law came down to the issue of who decides the law has been broken. Under the theory of absolute sovereignty, no decision-maker could be superior to the State, so the State itself had to be allowed to be its own judge. This conundrum led Kelsen, who understood international law to be superior to the State, to become a strong advocate of international courts. He could see the argument for a world legislature as well, but the production of objective decisions on the application of legal norms and sanctions was the greater imperative in a world of where the sanctions could produce mass death. He predicted that international law would follow the evolution of national law. The first phase is complete decentralization; courts would then follow, then an enforcement arm for the courts; after that, disarmament would be possible and entities like the Council of the League of Nations could mediate disputes before they arose. Presumably a parliament could follow after that.15 On this analysis, the League of Nations had been a mistake. It came too soon. The world should have ‘contented itself with establishing an authentic international juridical community’.16 Kelsen understood that the problem of peace would only finally be settled with the establishment of a world federal State. In the meantime, however, emphasis should be placed on international law and in particular the development of a court with compulsory jurisdiction:17 The objective examination and unbiased decision of the question of whether or not the law has been violated is the most important, the essential stage in any legal procedure. As long as it is not possible to remove from the interested States the prerogative to answer the question of law and transfer it once and for all to an impartial authority, namely an international court, any further progress on the way to the pacification of the world is absolutely excluded.18

The next logical step after World War I was a court with the power to impose sanctions for non-compliance. The Permanent Court of International Justice should have been given the power to impose sanctions. For Kelsen, the KelloggBriand Pact, too, was a mistake. Rather than simply outlawing war, the Pact should have established a court to decide on the use of military force.19 War should have been reserved for the purpose of executing that court’s judgments.20 Kelsen believed that a court might have offered a way out of the World War I peace treaties—regarded by many as unfair and intolerable and eventually

14 15 16 17 18 19 20

See Kelsen, General Theory of Law and State (English trans. Wedburg, 1961), 330. Ibid., 339. Kelsen, The Legal Process and International Order (1935), 23–4. Id., Peace Through Law (1944), 14. Ibid., 13–14. Ibid., 16. Ibid., 18.

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linked to the causes of World War II.21 In advocating courts, Kelsen was joined by Hersch Lauterpacht who wrote, in 1933, that ‘the decisive test is whether there exists a judge competent to decide upon disputed rights and to command peace’.22 Kelsen also sought to answer the critics of international law’s self-help sanctions through an objective third-party decision-maker. Quincy Wright was such a critic, writing that ‘self-help in which the State acts as its own judge and sheriff can hardly be called legal sanctions. They are essentially acts of policy, not law’.23 For Wright, ‘self-defense, reprisals to remedy a wrong or intervention to prevent an impending injury’24 did not belong in a law enforcement system. If, however, a State was not judge in its own case, Wright’s primary objection was removed. In addition to the theoretical problem of self-judging, self-help countermeasures are open to complaints about fundamental fairness because they are more available to powerful countries with large economies. Self-judged countermeasures are also subject to the problem of escalation. The target State may judge that it is the victim of the wrongful application of countermeasures and take counter-countermeasures. The dispute is then exacerbated by the escalating measures.25 These problems were seen in the 1980s in cases where small South Pacific Island States seized United States fishing vessels for unlawful fishing. The seizures were a countermeasure for the prior wrong. The United States concluded its nationals had the right to fish and took counter-countermeasures, employing economic sanctions against the islands.26 3. The Direct Control of Countermeasures Despite these evident problems connected with countermeasures and the strongly expressed views of scholars, prior dispute resolution did not develop as a precondition to their use. In the Air Services case—the first important decision on countermeasures after the adoption of the Charter—the arbitral tribunal went to some length to free States from any obligation to use prior dispute resolution. The International Law Commission, relying heavily on the decision, 21

Kelsen, The Legal Process, 18. Lauterpacht (H.), The Function of Law in the International Community (1933), 424. 23 Wright, ‘Enforcement of International Law’, ASIL Proceedings (1944), 77–86; see also Kunz, ‘Sanctions in International Law’, 54 AJIL (1960), 324–47. 24 Wright, ‘Enforcement’, 78. 25 See ‘Report of the International Law Commission on the Work of its Fiftieth Session’, Gen. Ass. Off. Recs., Fifty-third Session, Supp. No. 10 (Doc.A/53/10), paras. 35–7; Schachter, ‘Dispute Settlement and Countermeasures in the International Law Commission’, 88 AJIL (1994), 471–7; De Hoogh, Obligations Erga Omnes and International Crimes. A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (1996), 234–41. 26 See ‘Remarks of Camillus S.N. Narakobi, Emerging Legal Regimes in the Pacific’, ASIL Proceedings (1982), 359–62. 22

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rejected the obligation of prior dispute resolution before taking countermeasures. This rejection came despite the arguments of the Commission’s Special Rapporteur at that time, Arangio-Ruiz, as well as the growing obligations on States to resort to dispute resolution in a variety of contexts. Schachter too argued for prior dispute resolution. The Air Services case27 concerned a dispute between France and the United States over the interpretation of their bilateral air services agreement. In 1978, Pan American Airways (Pan Am) wished to schedule six weekly flights from the United States West Coast to Paris via London. Pan Am planned to change the gauge of the plane in London, down-sizing from a Boeing 747 to a 727. France objected to the plan, saying that, since changes of gauge were mentioned in the agreement only in relation with stops in the two contracting countries, a change of gauge in a third country was inconsistent with the agreement. Pan Am and the United States government argued that, since the Agreement did not expressly forbid such a change, it should be permitted. On 1 and 2 May 1978, Pan Am completed flights into Paris using the smaller plane. On 3 May, however, when the third flight landed, French police surrounded the plane, refusing to allow Pan Am to disembark the passengers or off-load cargo. The plane returned to London and Pan Am suspended its flights.28 The next day, 4 May, the United States suggested binding arbitration to France and permission for Pan Am to continue the flights pending the arbitration. On 9 May, the United States authorities instituted a retaliatory measure against Air France, requiring it to file all flight schedules within specific time limits.29 On 13 May, France agreed to arbitration but protested the retaliatory measures, saying negotiations had not ended nor had remedies in the French system been exhausted. France refused permission to Pan Am to resume flights. On 31 May, the United States issued an order prohibiting Air France, starting 12 July, from operating its three-time weekly Paris-Montreal-Los Angeles schedule. That measure was never implemented because, on 11 July, France and the United States signed a compromis setting out the terms of arbitration.30 The arbitrators found both that Pan Am could change gauge in London and that the United States had properly implemented countermeasures. The arbitrators found that the additional requirement of filing schedules and the threat to prohibit Air France service to Los Angeles, even after France accepted in principle going to arbitration, were lawful measures under international law. The Arbitral Tribunal held regarding the lawfulness of the United States countermeasures:

27 28 29 30

See the Air Services case, mentioned in footnote 6, above. Ibid., paras. 2–4. Ibid., para. 5. Ibid., paras. 5–9.

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Under 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 the 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’ . . .31 It goes without saying that recourse to counter-measures involves the great risk of giving rise, in turn, to a further reaction, thereby causing an escalation which will lead to a worsening of the conflict. Counter-measures therefore should be a wager on the wisdom, not on the weakness of the other Party. They should be used with a spirit of great moderation and be accompanied by a genuine effort at resolving the dispute. But the Arbitral Tribunal does 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 where such counter-measures are accompanied by an offer for a procedure affording the possibility of accelerating the solution of the dispute.32

Yet, the introduction of a requirement of prior dispute resolution before the application of countermeasures could reduce the practical and theoretical problems. The objective decision-maker, not the alleged victim, would decide if a law violation had occurred and what an appropriate remedy would be. ArangioRuiz urged the International Law Commission, in 1992 and 1993, to adopt a new rule that had the potential to address the age-old problem of countermeasures once and for all. Arangio-Ruiz wanted States to exhaust all dispute settlement procedures prior to the application of unilateral countermeasures.33 He also wanted a requirement that States submit all countermeasures once imposed to a third-party for review. Arangio-Ruiz wanted an end to countermeasures because they tended to be used by the powerful in contradiction to the principles of equality and justice.34 He argued that dispute resolution prior to taking countermeasures is part of the State’s obligation to peacefully settle disputes.35 He also proposed the following provision, which was included in one of the Commission’s drafts of the articles on State responsibility: In cases, however, where the dispute arises between States Parties to the present articles, one of which has taken countermeasures against the other, the State against which they are taken is entitled at any time unilaterally to submit

31

Ibid., para. 81. Ibid., para. 91. 33 Arangio-Ruiz, ‘Counter-measures and Amicable Dispute Settlement Means in the Implementation of State Responsibility: A Crucial Issue before the International Law Commission’, 5 EJIL (1994), 20–53. 34 See ‘Report of the International Law Commission on the Work of its Forty-fifth Session’, Gen. Ass. Off. Recs., Forty-eighth Session, Supp. No. 10 (Doc.A/48/10), para. 228. 35 Arangio-Ruiz, ‘Fourth Report on State Responsibility’ (Doc.A/CN.4/444/Add. 1–3), paras. 41–51. 32

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the dispute to an arbitral tribunal to be constituted in conformity with Annex II to the present articles.36

This provision would have created, in effect, a general, compulsory, binding dispute settlement requirement in international law.37 It was a pivotal moment. Schachter wrote in strong support of the Arangio-Ruiz proposal: It is true that some major powers have hesitated to adopt compulsory settlement procedures and that this attitude is not likely to change quickly. But, as indicated in the General Assembly debates, a number of governments do favor obligatory dispute settlement to restrain questionable countermeasures. Nor is it irrelevant that in recent years France, the United Kingdom and the United States have each had recourse to dispute settlement in response to countermeasures taken against them by allegedly injured states. It is not inconceivable that they, like others, will eventually conclude that it is in their national interest to agree generally to obligatory dispute settlement in order to restrain unlawful countermeasures . . . For as long as unilateral countermeasures are considered acceptable measures of law enforcement, it is surely in the common interest to try to prevent their illicit and arbitrary use. The proposals of the special rapporteur offer the Commission the opportunity to contribute to that important objective.38

But the proposals were rejected. They caused a clash between those wishing finally to remedy this core structural weakness of international law, and those who saw them as wholly inconsistent with what States would accept. Members of the International Law Commission argued that not only would States reject the basic requirement, but the form of the proposals was unworkable.39 The Commission divided along the old fault line of how much weight to give to the wishes of States.40 Arangio-Ruiz’s proposals were revolutionary. They would have eliminated in one move the right of an injured party to judge for itself the use of a sanction. They would have eliminated self-judging in the enforcement of international law in all cases except the immediate, emergency decision to use armed force in self-defence. Despite all this, they did not make it into the final version of the Commission’s draft articles. Instead, the final articles include only the requirement, in Article 52, to offer negotiations before taking measures and also: ‘Countermeasures may not be taken, and if already taken must be suspended without undue delay if: (a) The internationally wrongful act has ceased; and (b) The dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties’.41

36

See Article 5(2) in YILC (1995), ii, Part Two, 78. See O’Connell, ‘Report of the Economic Sanctions Committee: The Impact of Sanctions on the Development of New International Law’, American Branch of the International Law Association (2001–2002), 86–95, at 94 (citing Robert Rosenstock, then United States representative to the International Law Commission). 38 Schachter, ‘Dispute Settlement’, 476 (footnotes omitted). 39 Ibid., 472–3. 40 Ibid., 475. 41 ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 37

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Rejecting prior dispute resolution was surely a defeat for the progressive development of international law, but it may have been a temporary one. Rather than an explicit, general requirement of dispute resolution, evidence is mounting of an indirect system providing ever-increasing control of self-judging in the use of countermeasures. 4. The Indirect Control of Countermeasures This section discusses two sources of new restraint—the growing network of treaties that require dispute resolution prior to taking countermeasures and the evolution of the notice principle from simple notice to proto-dispute resolution. Many treaties now in force require dispute resolution prior to countermeasures and thereby are steadily building an equivalent.42 In particular, economic sanctions are now largely subject to review by WTO. The WTO dispute settlement system has the potential to reach most applications of unilateral economic sanctions. WTO clearly restricts the use of countermeasures pending the outcome of the dispute resolution process. Cases on the use of economic sanctions for the enforcement of human rights and international environmental protection have gone to the WTO’s Dispute Settlement Body because of alleged interference with trade obligations.43 WTO’s control over the use of economic sanctions, together with many other treaty obligations requiring prior third party involvement, suggests we are approaching a general obligation of prior dispute resolution. The WTO dispute resolution obligations reach beyond pure trade disputes. The European Union and its predecessor, the European Community, have taken the United States to the Dispute Settlement Body to protest uses of economic sanctions by the United States to achieve non-trade goals. The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 199644 focuses on Cuba’s unlawful expropriation of alien property, but its general purpose is to promote democracy in Cuba.45 Its aim is not primarily to regulate trade between the

42 See fotnote 12, above. See also the North American Free Trade Agreement, 32 ILM (1993), 289 (consultations and arbitration); the Convention on the Law of the Sea, Part XV (conciliation and compulsory trial procedures); the Vienna Convention on Succession of States in Respect of Treaties, 1946 UNTS 3, Article 41 (consultation and negotiation); the Convention on the Law of the Non-navigational Uses of International Watercourses (Doc.A/51/869), 36 ILM (1997), 700, Article 33 (consultation and negotiation); the United Nations Convention on Biological Diversity, 31 ILM (1992), 818, Article 27 (consultation and negotiation); for other examples, see Merrills, International Dispute Settlement (3rd edn., 1998), passim. 43 Nastios v. National Foreign Trade Council, 181 F.3d 38 (1st Cir. 1999), cert. granted, 68 U.S.L.W. 3353 (U.S. 1999) (No. 99–474); United States—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc.WT/DSB/7/31 (15 May 1997). 44 Pub. L. No. 104–114, 110 Stat. 785 (1996) (codified at 22 U.S.C. § 6021–91 (Supp. III 1998)). 45 Clagett, ‘Title III of the Helms-Burton Act Is Consistent with International Law’, 90 AJIL (1996), 434–40.

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two States; rather, the Act imposes a variety of measures to enforce both a clear rule of international law (against the expropriation of alien property) and a less clear one (the obligation of Cuba to be a democratic State). According to Lowenfeld: The Act is a mixture of codification of existing economic sanctions previously imposed pursuant to executive orders; inducements and promises related to restoration of democracy in Cuba; threats against persons from third countries that do business with Cuba; a new, unprecedented remedy for expropriation; and restrictions on entry into the United States by persons who ‘Traffic in confiscated property’ or who are affiliated with such persons by ownership, employment or family.46

Although the subject of the Act (also known as Helms-Burton) is not a matter regulated under the WTO, the European Community took the United States to WTO dispute settlement because of the methods employed in enforcing the Act’s goals. In 1996, the European Community requested the establishment of a dispute settlement panel with the United States, arguing that the United States was in violation of various GATT provisions as well as provisions of the General Agreement on Trade in Services. The Panel suspended its work at the European Community’s request on 25 April 1997,47 when President Clinton withheld implementation of the Act. The European Union again took the United States to the Dispute Settlement Board in a non-trade case in respect to a law adopted by the State of Massachusetts prohibiting State government purchases from corporations doing business with the military dictatorship of Burma, also known as Myanmar. The aim of the law was to induce Burma to respect human rights, especially to desist from the practice of using forced or slave labour.48 The European Union initiated proceedings at the WTO, charging that the Massachusetts law and, therefore, the United States, were in violation of the WTO agreement on government procurement.49 They suspended the case pending decision by United States courts on the constitutionality of the law. The United States Supreme Court found the law unconstitutional.50 Thailand, India, and Malaysia took the United States to the Dispute Settlement Board in a case that, unlike the European Union cases just reviewed, did reach decision. The United States imposed sanctions on States that failed to require precautions to save highly endangered sea turtles during harvesting of shrimp.51

46

Lowenfeld, ‘Congress and Cuba: The Helms-Burton Act’, 90 AJIL (1996), 419–34. United States—The Cuban Liberty and Solidarity Act, electronically available at . 48 Cassel, ‘Massachusetts Tossed from Foreign Policy Arena’, Chicago Daily Bulletin (26 June 2000), 6. 49 Measures Affecting Government Procurement, Request for Consultations by the European Communities, WTO Doc.WT.DS88/1 (26 June 1997). 50 See Nastios, cited in footnote 43, above. 51 Department of Commerce, Justice, and State, the Judiciary, and Related Agencies 47

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States may take GATT-inconsistent measures to protect national security, the life or health of nationals, and to force compliance with environmental protection, including protection of the environment beyond national jurisdiction.52 The measures must not be discriminatory and must be the least-trade restrictive to accomplish the purpose. India, Pakistan, Malaysia, and Thailand requested a panel of the Dispute Settlement Board to declare the United States law GATT-unlawful.53 The Panel, in a decision largely following a GATT Panel decision prior to the formation of the WTO, the Tuna-Dolphin decision,54 found the United States statute unlawful on a number of grounds, including that the United States could not take measures to protect the environment beyond national jurisdiction nor take measures aimed at the processing of a product rather than at the product itself— in this case the shrimp.55 The Dispute Settlement Board Appellate Body, however, while still finding the United States law GATT-unlawful, found the United States purpose permissible. The United States law ‘serves an environmental objective that is recognized as legitimate’ but it ‘has been applied by the United States in a manner which constitutes arbitrary and unjustifiable discrimination between members of the WTO’.56 Thus, States may take unilateral countermeasures even in the form of economic sanctions to enforce well-recognized international environmental protection law. Arguably they may also use countermeasures to enforce the labor standards of the International Labor Organization treaties and other human rights treaties. While some might be concerned by the potential negative impact of such measures on free trade, the WTO’s dispute settlement system will oversee such countermeasures ensuring they are the least trade restrictive, non-discriminatory and consistent with exceptions to the GATT. While the United Appropriations Act of 1990, Pub. L. No. 101–162, § 609, 103 Stat. 988, 1037–38 (1989) (codified at 16 U.S.C. § 1537 note (1994) (Amendments)); see also Richards and McCroy, ‘The Sea Turtle Dispute, Implications for Sovereignty, the Environment and International Trade Law’, 71 University of Colorado Law Review (2000), 295–341. 52 ‘Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures . . . (b) necessary to protect human, animal or plant life or health . . . (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption’. The General Agreement on Tariffs and Trade, 30 October 1947 (55 UNTS 194), Article xx, 3 GATT B.I.S.D. (1958), 19. 53 See United States—Import Prohibition of Certain Shrimp and Shrimp Products, cited in footnote 43, above. 54 GATT: Dispute Settlement Panel Report on U.S. Restriction on Imports of Tuna (submitted to Parties, 16 August 1991), GATT Doc.D29/R (1991), 30 ILM (1991), 1594; GATT: Dispute Settlement Panel Report on U.S. Restriction on Imports of Tuna, GATT Doc.DS21/r (1994), 33 ILM (1994), 839. 55 See United States—Import Prohibition of Certain Shrimp and Shrimp Products, cited in footnote 43, above. 56 Appellate Body, United States—Import of Certain Shrimp and Shrimp Products, 12 October 1998, 38 ILM (1999), 118, at 174–5.

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States was one of the States that resisted Arangio-Ruiz’s proposal, it has accepted significant limits on the right to use unilateral sanctions in trade disputes. In addition to WTO and other treaties requiring prior dispute resolution, the requirement of notice is developing in ways that may be significant for controlling countermeasures. States taking countermeasures must provide prior notice to the target State in most cases. In the Gab‘ikovo case, the International Court of Justice said that ‘the injured State must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it’.57 Providing notice makes clear that the State taking countermeasures is acting out of necessity. To prove necessity, the State needs a means of demonstrating that other avenues would not work. This can be shown by rendering formal notice to the wrongdoer and allowing an opportunity to repair or to engage in negotiation or peaceful settlement of the dispute. When these overtures are ignored or rejected without more by the wrongdoer, the case for necessity is made. If the countermeasure involves the breach of a treaty, the Vienna Convention indicates, the parties are required to allow three months from the time of notice until using the measure of breach.58 Article 52 of the International Law Commission’s draft articles on State responsibility, however, requires more than mere notice. It requires an offer to negotiate: (1) Before taking countermeasures, an injured State shall: (a) Call on the responsible State, in accordance with article 43, to fulfill its obligations under Part Two; (b) Notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. (2) Notwithstanding paragraph 1(b), the injured State may take such urgent countermeasures as necessary to preserve its rights.59 The requirement, in Article 52, of offering to negotiate is not found in the countermeasure cases. Indeed, Special Rapporteur Crawford’s commentary does not indicate the source of the requirement—other than pointing out that the more demanding forms of dispute settlement are not yet required of States.60 Negotiation is, however, a logical extension of the notice requirement. Notice inherently incorporates an opportunity to respond and that response is at least nascent negotiation. If State A believes State B has committed a wrong against it, State A may communicate to State B that, unless the wrong ceases and/or

57

ICJ Reports 1997, 7, at para. 84. See Article 65(2) of the 1969 Vienna Convention on the Law of Treaties. 59 ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 60 Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 297–8. 58

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compensation is paid, State A will take countermeasures. State B can agree to State A’s demands or can ignore them or reject them without more. More typically, State B will respond that it has done nothing wrong. State A will typically reply in turn. Thus, the notice requirement will often result in at least some basic negotiation.61 Negotiation is a form of dispute resolution. It is the most basic form, but it is a form nonetheless. It is, in turn, governed by the principle of good faith.62 Good faith in negotiation means, among other things, that parties communicate with a purpose. A party that enters negotiation with no intention of resolving the dispute is not negotiating in good faith. From these simple principles more sophisticated requirements can develop, especially in the context of the growing sophistication of dispute resolution throughout the international system.63

5. Conclusion Schachter, along with Kelsen, Lauterpacht and other great international law theorists of the twentieth century understood the problem of self-judging wrongs in a system of law enforcement. When the use of armed force was prohibited

61 O’Connell, ‘Enforcing the New International Law of the Environment’, 35 GYIL (1992), 293–332, at 325–6. 62 Good faith, as defined by O’Connor, is ‘directly related to honesty, fairness and reasonableness . . . and it is determined at any particular time by the compelling standards of honesty, fairness and reasonableness prevailing in the international community at that time’. O’Connor, Good Faith in International Law (1991), 121. Good faith is a general principle of dispute settlement. This conclusion is not based on the explicit statements of any single authority. Nevertheless, the requirement of good faith is found throughout dispute settlement agreements and has been applied as a dispute settlement principle by the International Court of Justice. The 1969 Vienna Convention on the Law of Treaties, for example, provides that: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’ (Article 26). Thus, to the extent a dispute settlement obligation is a treaty-based obligation, States must perform in good faith. The WTO Dispute Settlement Understanding provides explicitly that: ‘If a request for consultations is made pursuant to a covered agreement, the Member to which the request is made shall . . . reply to the request within 10 days after the date of its receipt and shall enter into consultations in good faith . . .’ (WTO Agreement, Annex 2, Article 4(3).) The Iran-United States Claims Tribunal decided in 1987, in Case No. A21, that, for the United States to fulfill its good faith obligation, it had to provide for enforcement of Tribunal decisions against United States nationals in United States courts. The Islamic Republic of Iran v. The United States of America, DEC 62–A21–FT (4 May 1987), reprinted in 14 Iran-United States Claims Tribunal Reports (1987, I), 324, at 330. In the Fisheries Jurisdiction case, the International Court of Justice found that Iceland, Germany and the United Kingdom had a customary law-based obligation to negotiate and to conduct the negotiations in good faith. See Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports 1974, 3, paras. 75 and 78. Finally, the proper functioning of any dispute settlement mechanism is dependent on participants acting in good faith. This fact alone qualifies good faith as a general principle of dispute settlement. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 105–62. 63 For an argument that the duty to settle disputes peacefully requires cooperation among parties to dispute settlement and not mere good faith, see Peters, ‘International Dispute Settlement: A Network of Cooperational Duties’, 14 EJIL (2003), 1–34.

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in the United Nations Charter, the most dangerous form of self-help law enforcement was eliminated. But the problem of coercive countermeasures remained. Arangio-Ruiz in the early 1990s saw an opportunity finally to eliminate selfjudging by imposing a requirement of prior dispute resolution on States taking countermeasures. It was a bold proposition, and one that Schachter understood could resolve a central theoretical and practical weakness of international law. Schachter supported neutral control of countermeasures. Unfortunately, achieving direct control was not politically possible in the twentieth century. We may, however, arrive at the same place through indirect means—by advocating countermeasure controls in treaties and by building on the prior notice requirement. These are small but significant steps toward turning international law into a respected system of law—one that Schachter aimed at his whole career, as scholar, practioner and teacher.

CHAPTER SEVEN

INTERNATIONAL CRIMES AND STATE RESPONSIBILITY Pemmaraju Sreenivasa Rao

1. Introduction The concept of international crimes in international law is relatively new and has acquired currency and content since the Second World War. At the end of the First World War, there was some consideration to the question of establishing the responsibility of former Kaiser Wilhelm II and other high-placed personalities for starting the war and for atrocities committed during the war. The Commission of Fifteen appointed by the Preliminary Peace Conference at the close of the First World War to examine the question found them guilty of ‘gross outrages upon the law of nations and international good faith’, but concluded that ‘no criminal charges’ could be brought. A mere condemnation by the Conference was recommended. The Commission however emphasized that it would be desirable to provide for penal sanctions in the future for such grave violations of the elementary principles of international law.1 The concept has since gained currency in recent years because of the atrocities committed during international as well as internal armed conflicts, such as the conflicts involving the territories of the former Yugoslavia, Rwanda and Sierra Leone. The establishment of the International Criminal Court is another major milestone, which now heralded a true system of international criminal jurisdiction. It is now opportune to review the categories of conduct that could be treated as international crimes and the legal consequences that follow the commission of such crimes by way of State responsibility.

1 Pal, Crimes in International Relations (1955), 3. Following the conclusion of the Peace Treaty with Germany, military tribunals of the Allied countries were to try offences committed during the war. However the definition of war crimes was far from settled, while the trials conducted in German territory after the war concluded with unsatisfactory results. Jia ‘The Differing Concepts of War Crimes and Crimes against Humanity in International Criminal Law’, GoodwynGill and Talmon (eds.), The Reality of International law: Essays in Honour of Ian Brownlie (1999), 243–71, at 245.

Maurizio Ragazzi (Eds.), International Responsibility Today, 63–80. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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2. Types of Crimes and their Legal Consequences Crimes against peace, war crimes and crimes against humanity are the first batch of crimes that were identified as worthy of punishment. These crimes were made punishable under the London Agreement on the Charter of the International Military Tribunal of August 1945.2 The crime against peace was defined as the waging of a war of aggression or a war in violation of international treaties, agreements, or assurances. The violations of the laws or customs of war were covered by war crimes. Crimes against humanity referred to murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Laws and customs of war can be traced primarily, though not exclusively to the Hague peace conferences of 1899 and 1907, subsequently expanded in the four Geneva Conventions of 1949. Violations under these Conventions could however be prosecuted only in the national jurisdiction. In contrast the Nuremberg trial (and the Military Tribunal for the Far East)3 were international in character. The idea behind the institution of the international trials for the designated crimes is a worthy one that is securing justice. These trials were meant not only to bring the perpetrators of crimes to justice but also to put the future or potential perpetrators of such crimes on notice that they would not be left with impunity. Thereby some deterrent effect is also in-built in the idea. While the idea was well-conceived and the beginnings of a new international criminal law was made, the Nuremberg and Tokyo trials were flawed in as much as they were aimed at only those accused that belonged to the vanquished army. Besides the Courts were created and operated under the authority of the victorious Powers. Instead of summarily executing the defeated generals, the victorious Powers subjected them to a judicial process, albeit one-sided, before executing the sentences awarded. These trials therefore suffered understandably from a lack of legitimacy and precedential value, based as they were on lists of crimes not clearly sanctioned by international law of the time. Radhabinod Pal, the distinguished member of the International Military Tribunal for the Far East, emphasized:

2

82 UNTS 279. For the text of the Special Proclamation establishing the International Military Tribunal of the Far East, on 19 January 1946, and the Charter of the Tribunal, see Bevans (ed.), Treaties and Other International Agreements of the United States of America, 1776–1949 (13 vols., 1968–76), iv, 20–6. For the amended text of the Charter of the International Military Tribunal of the Far East, 26 April 1946, see ibid., 27–32. 3

international crimes and state responsibility 65 Whatever view of the legality or otherwise of a war may be taken, victory does not invest the victor with unlimited and undefined power now. International laws of war define and regulate the rights and duties of the victor over the individuals of the vanquished nationality. In my judgment, therefore, it is beyond the competence of any victor nation to go beyond the rules of international law as they exist, give new definitions of crimes, and then punish the prisoners for having committed offense according to this new definition.4

Further, it was obvious that the Nuremberg and Tokyo trials were meant to be temporary and ad hoc responses to an otherwise felt need for the creation of a more permanent and universally based international system of criminal justice. Such a system is to be composed of not only an international code of crimes but also an elaborate set of uniform and non-discriminatory principles governing international criminal jurisdiction to be administered by a permanent international criminal court. These tasks became one of the early preoccupations of the United Nations. In pursuance of Article 13(1)(a) of its Charter, the United Nations entrusted these tasks to the International Law Commission, which was also mandated to formulate the principles of international law recognized in the Charter and the judgment of the Nuremberg Tribunal. The work of the International Law Commission on the formulation of the Nuremberg principles was brief. It did not specifically ascertain the extent to which the principles contained in the Charter and judgment constituted principles of international law, as these were unanimously affirmed by the United Nations General Assembly in resolution 95(I) of 11 December 1946.5 The Commission merely formulated them in seven principles, along with commentaries, and forwarded them to the General Assembly without recommending any further action. The General Assembly by resolution 488 (V) of 12 December 1950,6 in turn, sent them to States for their comments and requested the Commission to take them into consideration in preparing the draft Code of offences against peace and security of mankind.7 The work of the Commission on international criminal jurisdiction also did not go too far. In the course of its consideration of a draft statute of an international criminal court, it was deemed desirable to establish a permanent international criminal court, but there was no clear suggestion that this should be linked to the United Nations. In any case, it would not be established as a

4 Quoted in Hogan-Doran and van Ginkel, ‘Aggression as a Crime under International Law and the Prosecution of Individuals by the Proposed Intentional Criminal Court’, 43 NILR (1996), 321–51, at 331. 5 ‘Resolution 95(I) of the United Nations General Assembly on the Affirmation of the principles of International Law recognized by the Charter of the Nuremberg Tribunal (adopted on 11 Dec. 1946)’, Resolutions Adopted by the General Assembly during the Second Part of its First Session from 23 October to 15 December 1946, 175. 6 ‘Formulation of the Nürnberg Principles’, 320th plenary meeting, 12 December 1950. 7 The Work of the International Law Commission (6th edn., 2004), i, 76.

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chamber of the International Court of Justice. The General Assembly decided to postpone the consideration of the Commission’s drafts in this regard until it had the opportunity to consider the finished product of its work on the definition of aggression, and of the Commission’s work on the draft Code of offences against peace and security of mankind.8 The work on this Code progressed in two stages: at first from 1949 to 1954, and then from 1983 to 1996. The Commission completed its second reading of the draft Code in 1996. By 1954, when the Commission interrupted its work on the draft Code awaiting the results of the work of the General Assembly on the definition of aggression (which was completed in 1974),9 the Commission had adopted the first version of the draft Code and finalized several principles.10 Many of its principles took into consideration the Nuremberg formulations, revising them in the light of the Charter prohibition in Article 2(4) on the use of force and the principle regarding the right of self-defence contained in Article 51. In addition, activities involving armed bands making incursions into another territory or those calculated to cause civil strife or result in terrorist activities in another State or their toleration were also included in the list of offences against the peace and security of mankind. Violation of agreements aimed at ensuring international peace and security, annexation of a foreign territory in contravention of international law, intervention through coercive means in internal affairs of another country designed to force its will were also included as offences in the same category. Moreover, acts of genocide or other acts designed to bring about the physical destruction of a group in whole or in part, crimes against humanity, and acts in violation of the laws or customs of war, were also included in the Code. An important distinction was introduced between crimes against international law and crimes under international law, the former ones being offences under the draft Code. On the other hand, piracy, slavery, traffic in dangerous drugs, traffic in women and children, counterfeiting of currency, and damage to submarine cable, being generally crimes devoid of any political element, were regarded as crimes under international law, left to States for prosecution. Another important point of policy that was endorsed in Article 1 of the draft Code was that, even though crimes against international law were undeniably acts of State (hence political in nature), only the individuals who had committed them would be punished. This was consistent with the Nuremberg judgment, whereby ‘[c]rimes against international law are committed by men, not

8

Ibid., 78. ‘Resolution 3314 (XXIX) of the United Nations General Assembly on the Definition of Aggression (adopted on 14 Dec. 1974)’, Gen. Ass. Off. Recs., Twenty-ninth Session, Supp. 31 (A/9631), 142. 10 The text of the 1954 draft Code is available in The Work of the International Law Commission, 265–7. 9

international crimes and state responsibility 67 by abstract entities, and by punishing individuals who commit such crimes’ can the provisions of international law be enforced.11 Thus from the beginning of the debate on crimes in international law a dilemma has existed. On the one hand, certain wrongful acts of States, or acts in violation of international law, have been singled out as crimes of States, to which an aggravated set of consequences of State responsibility should be attached. This has never been intended to introduce a new concept of criminal responsibility of States, similar to the criminal responsibility of individuals under national law. For ‘[t]here is little or no disagreement with the proposition that the “the law of international responsibility is neither civil nor criminal, and that it is purely and simply international”’.12 The concept of international crime is also seen as an extension of the wellestablished trend to distinguish between general obligations of international law and specific obligations that are essential for the protection of the fundamental interests of the international community. This trend commenced with the adoption of the Charter in 1945. This recognized, as Abi-Saab explained, ‘certain common values or interests as pre-eminent, as it did with the maintenance of international peace and security in the Charter, and surrounds them with greater legal protection by attaching graver consequences to the violation of their protective norms’.13 Draft article 19 on State responsibility, adopted in the first reading of the International Law Commission in 1976, reflected this trend. Those who supported it hoped that States, having accepted certain violations as crimes of State, would do everything in their power to prevent their commission. On the other hand, though, it is obvious that in the case of such crimes, States being abstract entities, only those individuals who have conceived and committed them would be punished, while it has not been clear whether the State itself should bear some form of responsibility, and if so with what consequences. In short, the very concept of State crimes was opposed as non-existent, undesirable, impractical and certainly not in conformity with the well-advanced and accepted trend in favor of individual criminal responsibility.14 Brownlie, for example, maintained that the concept had no legal value, adding that, while in principle it was possible to subject States to penal sanctions, this could only produce instability.15 Equally contested are the issues concerning the establishment

11

Quoted ibid., 85. Crawford, ‘First Report on State Responsibility (Add. 1)’ (Doc.A/CN.4/490/Add.1), para. 60(iv). 13 Abi-Saab, ‘The Uses of Article 19’, 10 EJIL (1999), 339–51, at 339–40. 14 For a forceful presentation of this point of view, see Rosenstock, ‘An International Criminal Responsibility of States’, International Law on the Eve of the Twenty-first Century: Views from the International Law Commission (1997), 265–85. On international individual criminal responsibility in international law, see Shaw, International Law (5th edn., 2003), 234–41. 15 Brownlie, International Law and the Use of Force by States (1963), 150–4. 12

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of an international criminal court and the specification of penalties for the crimes accepted as part of the draft Code. The work on the draft Code of offences made progress during the period from 1983 to 1991, without reaching however any resolution of the most controversial issues. At the end of the first reading, twelve crimes had been identified and included in the draft Code (which would have no retroactive effect). Of these twelve crimes, aggression, colonialism, apartheid, and serious harm to the environment were crimes which were also listed in draft Article 19 on State responsibility adopted in the first reading by the International Law Commission.16 Thus these crimes were treated as having the sanction of ‘rules of international law in force’. It must be noted that the function of Article 19 and, more generally, of the draft articles on State responsibility, is not to deal with the primary rules. Rather, in the words of Abi-Saab, the intent is to ‘demonstrate by their example that the aggravated consequences of the breach of such rules are already part of the “law in force” and not merely de lege ferenda’.17 The problem of the definition of ‘aggression’ was to a great extent solved because of parallel developments on this issue at the United Nations. The General Assembly, after several years of discussions, finalized by consensus the definition of aggression in 1974. This definition contained elements that were built upon those incorporated in the draft Code of 1954. A series of armed activities specified in Article 3 of the definition, despite a declaration of war, may constitute prima facie evidence of an act of aggression. The 1954 draft Code had also included a prohibition on providing safe-haven to persons engaging in terrorist acts in or against another State as an act of aggression, but this was not included in the 1974 definition of aggression. The work of the International Law Commission on the Code of offences, finalized in 1991, incorporated the 1974 definition on aggression. This was possible because that definition is regarded as having acquired the status of customary international law.18 The crimes of colonialism, apartheid and intervention were defined largely by reference to the relevant United Nations declarations, including the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations.19 The recruitment, training and financing of mercenaries was another 16

The examples of international crimes given in Article 19 were those of aggression, the establishment or maintenance by force of colonial domination, slavery, genocide, apartheid and massive pollution of the atmosphere or of the seas. For the text of, and commentary on, Article 19, see YILC (1976), ii (Part Two), 95–122. 17 Abi-Saab, ‘The Uses’, 342, note 7. 18 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, at 103, para. 195. The International Court noted that there appeared to be general agreement on the nature of acts, which can be treated as constituting armed attacks. In particular, it noted that acts under paragraph 3(g) of the resolution on the definition of aggression may be taken to reflect customary international law. 19 ‘Annex to Resolution 2625 (XXV) adopted, without a vote, on 24 Oct. 1970’, Gen. Ass. Off. Recs., Twenty-fifth Session, Supp. 28 (Doc.A/8028).

international crimes and state responsibility 69 crime that was included. The definition of a ‘mercenary’ was drawn from the definition found in paragraph 1 of Article 1 of the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, adopted by the United Nations General Assembly on 4 December 1989.20 In addition, Article 3(g) of the definition of aggression and Article 47 of the 1977 Additional Protocol I to the Geneva Conventions21 also provided some inspiration for the inclusion of the crime of mercenarism in the draft Code. Terrorism was yet another crime that was included in the draft Code. This was a crime that was already taking the lives of many innocent civilians around the world. The definition adopted by the International Law Commission was not a comprehensive one but concentrated on crucial aspects of the prohibited conduct of the agents or representatives of a State against another State and on outlawing safe-havens, which are at the root of the problem of terrorism. The undertaking, organizing, assisting, financing, encouraging or tolerating of acts directed against persons or property and of such a nature as to create a state of terror in the minds of public figures, groups of persons, or the general public, was prohibited. This was essentially a revised version of the formulation contained in the 1954 draft Code. This definition did not deal with either the means employed or the objectives of the crime, such as compelling a government or an international organization to do or to abstain from doing some act. Property itself was not defined. These are some of the elements that came to be included in the later definitions of international terrorism.22 Genocide, systematic and mass violations of human rights, and exceptionally serious war crimes, were the other offences that were already the subject of international treaties. The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly in 1948,23 provided the necessary basis for the definition of genocide. The crime of systematic or mass violations of human rights was drawn from the 1954 Code and was updated in view of later developments. This does not include isolated cases

20

A/RES/44/34. 1125 UNTS 3. 22 The definition of international terrorism is the subject matter of several sectoral conventions covering diverse fields such as civil aviation, protection against hostage-taking, security of international protected persons, physical protection of nuclear materials, safety of maritime navigation, safety of offshore fixed platforms. In Europe and South Asia there are regional conventions to suppress and prevent terrorism. Numerous bilateral treaties were concluded providing for the ‘extradite or prosecute’ obligation in the case of specified terrorist offences. For the text of the various conventions, see International Instruments Related to the Prevention and Suppression of International Terrorism (2001). On the status of negotiations on the conclusion of a comprehensive convention on international terrorism under United Nations auspices, for which a draft proposal of India provided the basis, see Hafner, ‘Certain Issues of the Work of the Sixth Committee at the Fifty-sixth General Assembly’, 97 AJIL (2003), 147–62. 23 ‘Resolution 260A(III) of the United Nations General Assembly on the Convention on the Prevention and Punishment of the Crime of Genocide (adopted on 9 Dec. 1948)’, Gen. Ass. Off. Recs., Third Session, 174 (Doc.A/810). 21

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of murder, torture, slavery, servitude, or forced labor, deportation or persecution, committed against civilian population. But those acts, when committed as part of a State or group policy or design involving private individuals having de facto power, or organized criminal gangs, would be punishable. This type of crime was also referred to as a crime against humanity. The other type of crime, namely war crime, covered only those exceptionally serious violations of international humanitarian law as were specified in Article 22 of the draft Code. The definition of apartheid was drawn from the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General Assembly in 1978.24 There was some doubt about two other crimes that were also included: illicit traffic in narcotic drugs and willful and severe damage to the environment. Of the two, the latter was mentioned as an example of international crime under draft Article 19 on State responsibility. Intense opposition from the Western European States, the United States, and others, to the long list of crimes approved on first reading marked the subsequent discussion of the draft Code. These States were opposed to the inclusion in the draft of crimes of colonialism, apartheid, terrorism, mercenary activities, illicit traffic in narcotic drugs, and willful and severe damage to the environment. Some of these crimes were opposed as being only of historical importance, others opposed as being contentious, and still others as being worthy of regulation through national law, or covered as components of either war crimes or crimes against humanity. Developing countries, on the other hand, favored their retention on the ground that they are serious crimes, worthy of condemnation at all times in whatever manifestation they might appear. In this respect, various declarations and conventions reflected a strong consensus of the international community on the normative content of these crimes. As the collapse of the Soviet Union and the end of cold war had weakened the support for the inclusion of these crimes, the Commission deleted them form the draft Code, in its second reading completed in 1996. The Code, as revised, contained only five crimes:25 aggression, genocide, crimes against humanity (being certain acts committed in a systematic manner or on a large scale and instigated or directed by a government or by any organization or group), certain war crimes committed in violation of international humanitarian law (whether in international or in internal armed conflicts, if committed in a systematic manner or on a large scale), and crimes against the United Nations and associated personnel. However, thanks to the insistence of some of its members, before adopting the draft Code in its revised version the International Law Commission recorded an important understanding, as follows: 24 Adopted on 30 Nov. 1978 by resolution 3068. See Gen. Ass. Off. Recs., Twenty-eighth Session, Supp. 30 (Doc.A/9030). 25 For the text of the draft articles and commentary, see ‘Report of the International Law Commission on the Work of its Forty-eighth Session’, Gen. Ass. Off. Recs., Fifty-first Session, Supp. No. 10 (Doc.A/51/10), 83–120 (Articles 16 to 20).

international crimes and state responsibility 71 With a view to reaching consensus, the Commission has considerably reduced the scope of the Code. On first reading in 1991, the draft Code comprised a list of 12 categories of crimes. Some members have expressed their regrets at the reduced scope of coverage of the Code. The Commission acted in response to the interest of adoption of the Code and of obtaining support by Governments. It is understood that the inclusion of certain crimes in the Code does not affect the status of other crimes under international law, and that the adoption of the Code does not in any way preclude the further development of this important area of law.26

The work on the Code took nearly forty years to complete and was marked by intense ideological and political battles. There was understandable weariness among those that favored a more universally acceptable and widely representative list of crimes to be included in the Code but failed to see it happen. Under the circumstances, the understanding reached has a saving grace. Enlarging the scope to include crimes committed in the context of internal armed conflicts was also an attempt to highlight the same crimes, as incorporated in the Additional Protocol II to the Geneva Conventions of 1949,27 against the opposition of some developing countries. Similarly, the inclusion of offences against the United Nations and associated personnel did not have a wide support. The United Nations Convention on the Safety of United Nations and Associated Personnel of 1994,28 for all its merits and the worthy cause it aimed to serve, is not immune from difficulties. The basic problem is the lack of clarity in the exercise of the peacekeeping powers of the Security Council under Chapter VI and VII of the Charter. In addition, whereas crimes against humanity were included in the Nuremberg Charter by focusing on those crimes committed in the context of an armed conflict, the crimes specified in the draft Code regarding systematic and massive violations of human rights were not thus limited. This amounts to the international prosecution of a crime, in time of peace, ignoring the domestic jurisdiction of the State. In other words, the draft Code was set as a basis for the international prosecution of human right abuses, a very controversial development without consensus in the international community. 3. Crimes and Tribunals The draft Code was not adopted either as a convention or as a declaration of the General Assembly. Instead, it provided a basis for the drafting of the Statute of the International Criminal Court, adopted in 1998.29 This Statute was based,

26

YILC, 1996, ii (Part II), 16–17, para. 46. 1125 UNTS 609. 28 A/RES/49/59, Annex. 29 The Statute was adopted in Rome, on 17 July 1998, by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. 27

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among other proposals, on a draft prepared by the International Law Commission and submitted to the General Assembly in 1994.30 The draft Statute recommended by the Commission adopted an innovative approach. In Article 20, the Commission identified the crimes within the jurisdiction of the prospective court: genocide, aggression, serious violations of the laws and customs applicable in armed conflict, crimes against humanity, and certain treaty crimes specified in the annex to the draft Statute. (Except for the crime of genocide, the court, to exercise its jurisdiction, would need the consent of the States parties to the Statute.) Of the fourteen treaties listed in the annex, six were specifically concerned with terrorist offences of one kind or another.31 Thus, the Commission’s proposal had distinguished between crimes under general international law and those provided under specific treaties. Further, in the case of genocide, this crime was so strongly condemned as a crime under general international law that there would be no need for the court to seek the consent of any State to try and punish anybody accused of having committed it. The work of the International Law Commission on the draft Code of crimes and the establishment of an international criminal court was regarded by some as a component of cold war politics.32 But once the horrible events involving genocide, ethnic cleansing, mass and systematic violations of human rights, and war crimes, reared up their ugly heads in the heart of Europe, the work on the establishment of an international criminal court and the specification of crimes that are punishable within the Statute governing the court became not only a matter of urgency but also a matter of fundamental importance for the public order of the international community. It is a fact that the renewed consideration, within the Commission, of the topic of an international criminal jurisdiction was commenced at the specific request of the United Nations General Assembly in consideration also of the problems faced by the Caribbean islands and some Latin American countries on account of illicit traffic in narcotic drugs.33 There is also no doubt that, after the attack of Iraq on Kuwait and the military action 30 ‘Report of the International Law Commission on the Work of its Forty-sixth Session’, Gen. Ass. Off. Recs., Forty-ninth Session, Supp. No. 10 (Doc.A/49/10), 43–161. 31 These are hijacking of aircraft, unlawful acts against the safety of civil aviation, crimes against internationally protected persons including diplomatic agents, hostage-taking, unlawful acts against the safety of maritime navigation and unlawful acts against the safety of fixed platforms located on the continental shelf. The other crimes included were concerned with the protection of wounded and sick, ship-wrecked, prisoners of war, protection of civilian persons in time of war, grave breaches under 1977 Protocol I to the 1949 Geneva Convention, torture, and illicit traffic in narcotic drugs and psychotropic substances. Ibid., 147–57. 32 According to Rosenstock, for example, the proposed distinction between delicts and crimes, originally suggested by García Amador, would have died but ‘for the Cold War and some weird notions and openings for opportunism it spawned’ (‘An International Criminal Responsibility’, 269). 33 See the operative para. 1 of Resolution 44/39 of 4 December 1989, ‘Report of the International Law Commission on the Work of its Forty-second Session’, Gen. Ass. Off. Recs., Fortyfifth Session, Supp. No. 10 (Doc.A/45/10), 39.

international crimes and state responsibility 73 taken with the authorization of the United Nations, a possible trial of Saddam Hussein and his principal advisers was under consideration. But the matter gained its momentum more because of the events in the Balkans, with the consequence that a complete draft Statute with sixty articles was prepared by the Commission in less than two years. This work became naturally the basis for the subsequent establishment of a permanent international criminal court.34 The creation of at least two ad hoc international criminal tribunals by the Security Council was also facilitated by the Commission’s work.35 The crimes which were designated to fall within the jurisdiction of the International Criminal Tribunal for the former Yugoslavia are grave breaches of the Geneva Conventions of 1949, violations of the laws and customs of war, genocide and crimes against humanity. The same subject matter jurisdiction was also conferred upon the International Criminal Tribunal for Rwanda. In both cases individual responsibility is prescribed and the offences included were considered to be ‘of an undoubtedly customary international law nature’.36 These crimes must have

34

On the draft Statute of 1994 and the views of member States on various aspects of the matter, see Rao, ‘Trends in International Criminal Jurisdiction’, Rajan (ed.), United Nations at 50 and Beyond (1996), 53–73. See also Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’, 88 AJIL (1994), 140–52. 35 There were other important reports and seminars, which provided a basis for the proposal of the Secretary-General of the United Nations on the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda. See Rao, ‘Trends’, 53, notes 1 and 10. The establishment of the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) by the Security Council was justified as a measure essential for the maintenance of international peace and security under Chapter VII of the Charter. This decision was challenged, at the time it was taken by the Security Council, on the ground that Article 41 of the Charter could not provide a basis for the establishment of an international criminal tribunal. Such a power not only appeared to override the sovereign rights of States to maintain their own criminal jurisdiction. It also went beyond the political function assigned to the Security Council under the Charter in as much as it amounted to exercising a judicial or legislative function. See Rao, ‘The United Nations and International Peace and Security. An Indian Perspective’, Tomuschat (ed.), The United Nations at Age Fifty: A Legal Perspective (1995), 143–85, at 58 and note 41. The jurisdiction of the ICTY was also challenged before the Tribunal itself in the TadiÆ case. This challenge was rejected by the trial chamber of the Tribunal on the ground that, as a creature of the Security Council, it was not open to the Tribunal to question or review its powers. But the Appellate Chamber ruled that it had the inherent power, as a judicial body, to pronounce on the matter. It came however to the conclusion that the Security Council had validly exercised its powers under Chapter VII of the Charter and that Article 41 provided a proper basis for the establishment of the ICTY. See Prosecutor v. Dusko TadiÆ a/k/a ‘Dule’ (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, electronically available at , paras. 2, 36, 40, 47, 64, and 145–6. This was not the first time that the exercise of the powers of the Security Council under Chapter VII was subject to serious doubts of law. In spite of the Council’s wide powers to maintain international peace and security, the powers assigned to the Security Council are subject to the limits of Articles 24 and 25. In particular, for example, it is questionable whether the Council can replace an unpopular regime or impose a boundary upon a State as a measure under Article 41. On the view that the establishment of the ICTY under article 41 of the Charter is valid and lawful, see, for example, Lamb, ‘Legal Limits to the United Nations Security Council Powers’, Goodwyn-Gill and Talmon (eds.), The Reality, 361–88, at 378–9. 36 Brownlie, Principles of Public International Law (6th edn., 2003), 569 (quoting Shraga and Zacklin).

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occurred as part of an armed conflict. To the contrary, the subject matter jurisdiction specified in Article 5 of the Statute of the International Criminal Court covers not only crimes associated with armed conflicts, whether international or internal, but crimes against humanity committed in peacetime also. The crime of genocide also is triable in situations unconnected to an armed conflict, even if, in most cases, it is likely to be associated with an armed conflict. The crime of aggression is triable only after a definition is agreed upon and the conditions for the exercise of the jurisdiction of the Court are set out and adopted in accordance with Articles 121 and 123 of the Statute. In reality, the definition of aggression in General Assembly resolution 3314 contains all the elements or acts that are sufficient to define the crime of aggression. Although not legally binding on the Security Council, in the exercise of its primary responsibility to maintain international peace and security, the definition of aggression found in resolution 3314 is quite complete. Any attempt to question this definition with a view to adjusting it to the requirements of the International Criminal Court is fraught with the serious risk of undermining the consensus that was carefully built around that definition. Its great value lies not only in its emphasis on armed attack as the central element in identifying aggression but also in its fairly exhaustive enumeration of the acts that constitute such an armed attack within the meaning of the definition. Besides, these acts, particularly the conduct under paragraph 3(g), have for long been treated as part of customary international law.37 The conduct enumerated in sub-paragraph 3(g) is not only a crucial element for the definition of aggression but it also constitutes an essential element for treating intervention and cross-border terrorism as unlawful. There is one additional reason for retaining the definition of resolution 3314. It would take a long time before a new definition could be fashioned and, in the meantime, the trial of those accused of the most heinous of crimes would possibly be delayed. Therefore, the subject of the current discussions on aggression should not be the elements or the conduct constituting aggression, but rather the applicable legal standards and the margin of appreciation (if any) in assessing whether there is sufficient evidence to conclude that a crime has indeed been committed. As to the question of relationship between the International Criminal Court and the Security Council, there is room for some innovative thinking. This is not a new question. The International Law Commission, for example, had considered it when adopting the draft Statute of an international criminal court in 1994. At that time, it had suggested that no prosecution of the crime of aggression should take place before the court unless the Security Council has first had an opportunity to determine whether there is an act of aggression. In addition, draft Article 23(3) had expressly provided that no prosecution

37

See the paragraph in the judgment of the Nicaragua case cited in footnote 18, above.

international crimes and state responsibility 75 should be commenced if the situation is being examined by the Security Council, unless the Security Council decides otherwise. Genocide, war crimes, and crimes against humanity,38 have consistently been recognized as intentional crimes worthy of prosecution before an international criminal court. The definition of genocide is uncontroversial, as it is clearly established on the basis of Article II of the Convention of 1948. As to crimes against humanity, they are defined in Article 7 of the Statute of the International Criminal Court, which reflects customary intentional law.39 They are separate crimes from war crimes, even though sometimes associated with them,40 and are no longer linked to armed conflict for purposes of prosecution. They can be prosecuted only if committed on a large scale or in a systematic manner against civilian population. War crimes, on the other hand, can be prosecuted only if committed as part of a plan or policy. The criteria for war crimes differ from those for crimes against humanity. The word ‘systematic’ is used for the latter category, while being part of a plan or policy is a requisite for war crimes. But both categories of crime, to be prosecuted, must have been committed on a large scale. The crimes against humanity specified in the Statute of the International Criminal Court are the same as those specified in the draft Code of offences of 1996.41 Both instruments also prescribe the same set of criteria for crimes to qualify as ‘serious’ for prosecution. The commentary to Article 20 of the draft Code, which uses the word ‘systematic’ (unlike Article 8 of the Statute, which uses the terms ‘plan or policy’), explains that a crime is systematic ‘when it is committed according to a preconceived plan or policy’.42 Crimes against humanity, as defined in the Statute, also include torture in Article 7(1)(f ) and apartheid in Article 7(1)( j). The crime of torture is defined in broader terms than those of the definition given in the Convention against Torture, which refers to several different criteria.43 Nevertheless, torture, as a 38

On the notion of crimes against humanity and some of the problems it still raises, see Cassese, ‘Crimes Against Humanity: Comments on Some Problematical Aspects’, Boisson de Chazournes and Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (2001), 429–47. Can private individuals or groups commit a crime against humanity? Is approval or acquiescence of a governmental body necessary before private individuals and groups may be punished for the commission of this crime? Who may be the victim of this crime? Only a group of civilians, or should crimes committed against military personnel also be included? (The answer to this last question, in my view, should be positive.) Is there any obligation on States to prosecute and punish crimes against humanity? (The answer to this question, in my view, is that there is no such an obligation. In addition, States are entitled to try and punish crimes against humanity perpetrated abroad by foreigners against other foreigners.) 39 Brownlie, Principles, 561. 40 Jia, ‘The Differing’, 265–71. 41 Ibid., 255. The same author notes that, in the case of war crimes, the draft Code lists 27 types of war crimes while the Statute lists 50. Ibid., 248, note 23. 42 ‘Report of the International Law Commission on the Work of its Forty-eighth Session’, Gen. Ass. Off. Recs., Fifty-first Session, Supp. No. 10 (Doc.A/51/10), 114, para. 7. 43 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (A/RES/39/46), adopted by the General Assembly on 10 December 1984.

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component of crimes against humanity, could only be punished when committed as part of a widespread or systematic conduct. In more recent years, particularly after the decision of the ICTY Trial Chamber II in the Furundzija case,44 the crime of torture has been regarded as an international crime on its own without being either linked to the crimes against humanity or being subjected to any particular pattern of activity.45 The crime of terrorism is included in Article 20(f )(iv) (internal armed conflicts) of the draft Code of 1996 and in the treaties that are specified in the annex to Article 20(e) of the International Law Commission’s draft Statute for an international criminal court. However, in its final version, the Statute omitted any reference to the crime of terrorism. On the other hand, the crime of hostage-taking is included under war crimes in Article 8(2)(a)(viii) (grave breaches) and Article 8(2)(c)(iii) (internal armed conflict). The crime of illicit trafficking in drugs was not included in the Statute. This crime and the crime of terrorism, however, could be considered to fall under the jurisdiction of the Court once an agreed definition is found. In this respect, it may be recalled that the recommendation of the United Nations conference on the establishment of an International Criminal Court, in Resolution E, was that ‘a Review Conference pursuant to article 123 of the Statute of the International Criminal Court consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court’.46 4. Crimes and JUS COGENS We have surveyed so far the categories of crimes that have commended themselves for inclusion in the Statute of the International Criminal Court and the Code of crimes. These documents have acknowledged the individual criminal responsibility for the purposes of prosecution, without however prejudicing any consequences that might otherwise arise on account of State responsibility.47 It is quite clear that genocide cannot take place or continue if there is no com-

44

Prosecutor v. Anto Furundzija. The text of the judgment is electronically available at . 45 See Brownlie, Principles, 564, where the author also refers to the views of Cassese in support of this proposition. 46 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome (15 June-17 July 1998), Off. Recs., Final Docs. (A.CONF.183/13), i, 72. 47 On the interrelationship between individual responsibility and State responsibility see Nollkaemper, ‘Concurrence between Individual Responsibility and State Responsibility in International Law’, 52 ICLQ (2003), 615–40. Nollkaemper thinks that the law in the area of State responsibility covering principles governing attribution, defences, and remedies, should be developed.

international crimes and state responsibility 77 plicity of the State in the territory in which it is perpetrated. Similarly, other crimes punishable under the Statute should occur on a large scale or in a systematic manner, which means as part of a plan or policy. Aggression is another typical example of a quintessential State crime. The argument that States cannot be punished like individuals is not entirely accurate. Sanctions can be and are actually imposed on States, when considered responsible for crimes either by the Security Council or States acting unilaterally. These sanctions can have a severe impact on the target State. Its sovereignty is severely restricted. Its economy cannot sustain the well-being of its population. The sanctions imposed on Iraq, Afghanistan during the Taliban regime, and on Libya by several States, are some of the recent examples of punishment meted out to States accused or found to have committed international crimes. Humanitarian intervention and the NATO military action in the Balkans are unilateral actions to punish the culprit and stop the continuation of the commission of crimes. The dilemma often faced by the international community is not how to punish a State when it commits or is accused of committing international crimes, but how to secure the interests of the civilian population of the target State, which inevitably bears the major brunt of the punitive action. The social and economic costs of sanctions, on the population of the target State as well as on third States, are not generally calculated in the costs of the sanctions imposed in response to international crimes. The draft articles on State responsibility finalized by the International Law Commission in 2001 have specified certain consequences in case of a serious breach by a State of an obligation arising under a peremptory norm of general international law. Article 40(2) defines a serious breach as one involving ‘a gross or systematic failure by the responsible State’ to fulfill an obligation arising under a peremptory norm. Several examples of such norms are given in the commentary to the article: prohibition of aggression or the use of force contrary to the principles of the Charter, and prohibition against slavery, the slave trade, genocide, racial discrimination and apartheid.48 In addition, the commentary refers also to torture, as defined in Article 1 of the Convention against Torture, basic rules of international humanitarian law applicable in armed conflicts (described by the International Court of Justice as ‘intransgressible’ in character),49 and the obligation to respect the right of self-determination. Brownlie, commenting upon the concept of jus cogens, noted aptly that many problems remain and that ‘more authority exists for the category of jus cogens than exists for its particular content’.50 Jennings, quoting Brownlie

48 See Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 246–7. It is noted that mentioning these examples is without prejudice to the future development of other norms as jus cogens. 49 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, at 257, para. 79. 50 Brownlie, Principles, 490.

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approvingly, also observed that he might have added ‘for its practical effects in given situations’.51 As to the particular consequences of a serious breach of an obligation arising from peremptory norms of general international law, noted in Article 41, the Commission’s commentary pointed out that such consequences arise not only in respect of the responsible State but also in relation to all other States.52 These are the obligation to cooperate to bring to an end through lawful means to any serious breach, and the non-recognition as lawful of the situation created thereby. This is without prejudice to other consequences generally applicable in the case of any wrongful conduct. Further, under Article 48(1)(b), read in conjunction with paragraph (2), such third parties, or States other than the injured State, could invoke the responsibility of the responsible State and claim (a) cessation of the wrongful act, assurances and guarantees of non-repetition, and (b) performance of the obligation of reparation ‘in the interest of the injured State or of the beneficiaries of the obligation breached’. Articles 40, 41 and 48 are the result of an effort on the part of the International Law Commission to tone down the concept of international crimes of State, which has been found unacceptable to some States and scholars, and replace it with the concept of jus cogens and obligations erga omnes. The consequences prescribed in the particular case of a serious breach of obligations arising from peremptory norms are no different generally from those that are applicable in the case of other wrongful acts. Except that, in the former case, there are a right and an obligation to cooperate to bring the serious breach to an end. In addition, ‘entitlement’ is given to States other than the injured States to invoke the responsibility of the State, but with a specific limitation. This type of resolution of the emotional and sometimes heated drama concerning the acceptability of the concept of State crime, and the special consequences that it might entail, may at first sight appear to be an anti-climax with a tame ending. But if the long march by which crimes have finally arrived on the scene of international law is of any guidance, the result is quite logical and no other ending would have been more natural. Pellet, an ardent advocate of the concept of international crime, noted that the draft articles adopted by the International Law Commission enabled that concept to survive the earlier attempts to kill it, even if ‘the word “crime” has been carefully banished from the text’. Further, ‘if the consequences which have been specifically derived 51 Jennings, ‘The Pinochet Extradition Case in the English Courts’, Boisson de Chazournes and Gowlland-Debbas (eds.), The International Legal System, 677–98, at 697. 52 See Crawford, The International Law Commission’s Articles, 245. These are consequences additional to the consequences generated by any wrongful act. The commentary, in this connection, making a distinction between obligations of jus cogens and obligations erga omnes, noted that the former focus on ‘the scope and priority to be given to a certain number of fundamental obligations’, while the latter indicate essentially ‘the legal interest of all States in compliance’. The question of the relationship between jus cogens and erga omnes, though, is fairly complex. See Ragazzi, The Concept of International Obligations Erga Omnes (1997), 190–210.

international crimes and state responsibility 79 from it are fairly innocuous, in the eyes of some, the draft, thanks to the “safeguard clauses” with which it is liberally sprinkled, reasonably preserves the future’.53 As Gaja explained, an essential feature of an international crime ‘is then that the common interest protected by a rule imposing an obligation erga omnes is also defended by a rule establishing some form of responsibility which operates toward all States’.54 Further, as noted also in the commentary of the Commission to Article 19 adopted on first reading, international crimes are a sub-category of jus cogens.55 In that sense, only serious breaches of obligations arising from peremptory norms of general international law, and not all violations of that category of norms, would qualify for special consequences. Finally, as Abi-Saab noted, the jus standi in question here is ‘not for the third party to claim reparation (as long as he is not affected in his own subjective interests), but for upholding legality, for the re-establishment of the legal situation’.56 He added that this is ‘the extent of the “value added” of the concept of “international crime” as concerns the role of the third parties’, which may involve the possibility of bringing the case before judicial instances or putting into motion other institutional mechanisms, particularly in view of the fact that in most of the examples of international crimes ‘the victim has no or little voice on the intentional level’.57

5. Conclusion This brings us to one final point, which will serve as a general conclusion. Ours is a decentralized world where few international institutions are endowed with the authority and necessary means to organize and control the responses on behalf of the international community as a whole.58 That being the case,

53 Pellet, ‘The new draft articles of the International Law Commission on the responsibility of states for internationally wrongful acts: A requiem for states’ crime?’ 32 NYIL (2001), 55–79, at 58. 54 Gaja, ‘Obligations Erga Omnes, International Crimes, and Jus Cogens: A Tentative Analysis of Three Related Concepts’, Weiler, Cassese and Spinedi (eds.), International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (1989), 151–60, at 156. 55 Ibid., 157. 56 ‘On Defining the Concept’, Weiler, Cassese, and Spinedi (eds.), International Crimes, 217–19, at 218. See also Abi-Saab, ‘The Concept of “International Crimes” and its Place in Contemporary International Law’, ibid., 141–50, at 149. 57 Ibid., 219 and 150, respectively. 58 Article 53 of the Vienna Convention on the Law of Treaties refers to the ‘international community of States as a whole’. But the International Court of Justice referred to the existence of obligations owed to the ‘international community as a whole’, in the Barcelona Traction case. The International Law Commission, in its commentary to Article 25 of the draft articles on State responsibility, endorsing the broader expression as the one more widely used in all treaties and other international instruments, explained the relevance of the expression ‘international community of States as a whole’. It noted that the insertion of the words ‘of States’ in Article 53 of the Vienna Convention ‘was intended to stress the paramountcy that States have

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the system, which is otherwise constructed as a progressive measure, is open to be abused through unilateral acts of some States to gain ‘legitimacy to questionable policies based on objectives collateral to the enforcement of the law’.59 It is this apprehension that made some commentators very wary of the concepts, which are grafted onto universal international law without at the same time making any serious attempts at an ‘adequate institution building’ at the international level to support such concepts.60 It must also be added that, by emphasizing the individual criminal responsibility and merely punishing individuals, we will not be able in the long run to stamp out the situations that provide the environment for lawless behavior. As Jennings rightly pointed out, we should not fall prey to the ‘flights of erroneous fancy from the Nuremberg Tribunal’, and believe thereby that we ‘are developing international law’. We must with energy and much thought address ourselves, as he wisely warned, to the ‘patent inadequacy of the international legal system’.61 In so addressing the inadequacies of the international system, States and State responsibility have a vital role to play.

over the making of international law, including especially the establishment of norms of peremptory character’ (See Crawford, The International Law Commission’s Articles, 184.) Nevertheless, it is fair to conclude that the full meaning and import of the emergent concept of ‘international community as whole’ are not clear. For example, States continue to play a predominant role in the formation and implementation of international law. International law is still seen as a law of cooperation among States at best and mostly as an instrument of national policy. Except as otherwise agreed, States are not obliged to submit their disputes to any compulsory third party or judicial settlement. Auto-determination of duties and self-enforcement of rights still predominate at the international level. It is not clear under the circumstances that, as Simma wondered, ‘[w]ill chaos and violence come to reign among States, as Professor Weil foresees, or will a more communal, more socially conscious, substance of the law gradually spill over and make States more prepared to equip the international community with an adequate institutional framework?’ (‘From Bilateralism to Community Interest in International Law’, 250 RdC (1994), 217–384, at 249. See also Weil, ‘Towards Relative Normativity in International Law?’, 77 AJIL (1983), 413–42, at 441–2.) 59 Brownlie, Principles, 493. 60 Simma, ‘From Bilateralism’, 249. See also Rao, ‘Comments on Article 19 of the Draft Articles on State Responsibility Adopted by the International Law Commission’, 37 IJIL (1997), 673–6. 61 Jennings, ‘The Pinochet Extradition’, 693.

CHAPTER EIGHT

INTERNATIONAL RESPONSIBILITY AND THE PRINCIPLE OF CAUSALITY François Rigaux

1. Introduction Legal responsibility relies on two concepts: one borrowed from the natural sciences, the principle of causation, while the other is an ethical one, the duty to refrain from inflicting harm on other beings. While the principle of causation imparts a determinist character to the law of responsibility, the ethical component rests on the premise of a free will. Human agents interfere with the operation of the laws of nature. They are able to handle and even to curb them for their proper ends. Two questions arise: what is the cause of a certain event? Who is responsible for it? International responsibility occupies a smaller niche within the realm of the law of tort. The wrongful act is imputable to a collective actor, the State, which implies another level of abstraction: States are mere concepts, they do not exist but for the human beings to whom some action (or omission) can be ascribed. Beneath the problem of international liability lies an issue of municipal law: who is responsible for what within the State framework? Contemporary international law does not exclude the individual or personal liability of State organs who can be held accountable for their participation in an international tort. The principle of causation and the law of moral responsibility belong also to very popular frames of mind: victims of a wrongful act claim the vindication of their suffering. Not only do they expect the acknowledgment of the wrong by the Sate but they also pretend that the individuals who participated in it be brought to trial. Is a State liable for the crimes committed by a former government? Two different stances have been adopted, on the one hand by the Federal Republic of Germany, which agreed to pay damages to victims of the Nazi Regime, and on the other hand by the German Democratic Republic, which did repudiate the Third Reich legacy, or the Turkish Government, which has always declined to acknowledge the Armenian genocide. Maurizio Ragazzi (ed.), International Responsibility Today, 81–91. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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Another problem concerns the cases of negligence or omission, ‘the failure to do something when action was called for either morally or legally’:1 That a non-event, such as an omission, should count as a cause sounds absurd in ontology, not in ethics or in the law, and is therefore a good focus for investigating the difference between natural law and moral (or common) law.2

The crime of omission stands outside the chain of events within which a fact is connected with its consequences. It is a purely hypothetical factor: should that event have interposed, the evil would (possibly) have been spared. An ethical duty—moral or legal—required someone to prevent the evil. It is peculiarly noticeable when a chain of command is running along the chain of events. If soldiers are accused of war crimes or if prisoners are tortured, the officers in charge of military discipline had a duty to prevent the perpetration of such wrongful acts and can themselves be punished although they did not materially engage into the conduct. At any event, the State is internationally liable for any tortuous act of its organs. The present essay, which is offered in memory of a fine scholar and a very independent-minded international lawyer, Oscar Schachter, will be divided into three parts: first, some introductory remarks on the mysterious nature of causality in the social sciences, secondly, the difficulty to extricate a causal reasoning from the muddle of complex historical facts and, thirdly, the analysis of a purely hypothetical chain of events in the case law of the European Court of Human Rights. 2. The Rule of Causality before the Lawyer Most lawyers apply the principle of causality as laymen would: is it not apparent even for children that there is a causal link between an antecedent fact and its consequence? If I throw a stone at a mirror it will fly into pieces. A more scholarly approach to the rule of causation will damp the beginner’s ardor. Quoting a text from Bertrand Russell, George Henrik von Wright considers the law of causality as a relic of bygone era, surviving, like the monarchy, only because it is erroneously supposed to do no harm.3

The same scepticism is professed by Hart and Honoré: causation in the law is less a concept to be analysed than a ghost to be exorcized.4

1 Bunge, ‘The revival of causality’, Guttorm (ed.), Contemporary Philosophy: a new survey, ii (1986), 133–55, at 136. 2 Ibid. 3 von Wright, Explanation and Understanding (1971), 35. 4 Hart and Honoré, Causation in the Law (2nd edn., 1985), 3.

international responsibility and the principle of causality 83 One of the best French scholars in the field of wrongs evokes le redoutable mystère de la causalité.5

The decline of the concept of causality in the law goes along with its waning role in the natural sciences, where explanations built on probability become more fashionable. Many wrongs are compensated through insurance mechanisms: the risks are supported by the society at large without the necessity of involving any individual. In a crowded society, when every one is exposed to a slight slackening of attention, it becomes too heavy a task to ascertain the origin or the cause of every damage. However, a popular feeling of justice, much resented by victims of criminal acts, claims to be avenged on some identifiable author. Individual responsibility cannot be ruled out. As for the crimes alleged against State officials, their victims want to bring them to trial. The multiplication of international criminal courts set up to cope with such claims goes along with inter-State disputes where a State lodges a claim against another State for alleged international wrongs. In the case concerning the Application of the Convention for the Prevention and Punishment of the Crime of Genocide, the International Court of Justice met with an objection of the responding State according to which ‘the responsibility of a State for an act of genocide perpetrated by the State itself would be excluded from the scope of the Convention’. The answer of the Court was the following one: The Court would observe (La Cour observera) that the reference in Article IX to ‘the responsibility of a State for genocide as for any of the other acts enumerated in Article III’, does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’.6

The lesson that can be drawn form the judgment of 11 July 1996 is that State liability and individual responsibility are not mutually exclusive. A State is bound by the wrongful acts of its public officials. State liability is peculiarly relevant concerning crimes of omission, which imply that someone had the power and the duty to interfere. In its judgement on the merits of the Corfu Channel case,7 the International Court condemned Albania for a crime of omission, while no wrongful act was attributable to the United Kingdom. Two British warships were mined in Albanian territorial waters. The causal link between the minefield and the explosion was clearly established. What remained mysterious was by whom the newly laid minefields were operated. The United Kingdom alleged in support

5

André Tunc’s preface to Viney, Le déclin de la responsabilité individuelle (1965), 3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgment 11 July 1996, ICJ Reports 1996, 595, at 616, para. 32. 7 Corfu Channel, Merits, Judgment, ICJ Reports 1949, 4. 6

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of its claim three different points: (a) that the minefields were laid by the Albanian Government; (b) that they were with the connivance or knowledge of that Government; and (c) that ‘whowever the authors of the minelaying were, it could not have been done without the Albanian Government’s knowledge’.8 The first argument was not strongly pushed by the Claimant since Albania possessed no navy able to lay mines. The second argument was closely investigated by the Court without reaching a conclusion favorable to the Claimant: In the light of the information now available to the Court, the authors of the minelaying remain unknown.9

In order to meet the third allegation of the Claimant, the Court had to rule on the duties of a State for incidents occurring in its territorial waters. From the exclusive territorial control exercised by a State it cannot be drawn that the government should have known the presence of minefields. To demonstrate such knowledge the Court held two additional elements, that the Albanian territorial waters were submitted to a close scrutiny of the government and that the minelaying could not have been not observed by the Albanian look-posts. After the Court was satisfied with the demonstration of both conditions, it still had to determine the obligations resulting for Albania from this knowledge. The Court did not deal at length with that agreement since both parties agreed that: if Albania had been informed of the operation before the incidents of October 22nd, and in time to warn the British vessels and shipping in general of the existence of mines in the Corfu Channel, her responsibility would be involved . . .10

Finally, the Court observed that, even if the minelaying was done at the last possible moment, the Albanian authorities had time enough to warn the approaching battleships of the danger into which they were running: In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania.11

After the Court had dismissed the second allegation of the claimant State, it had to determine Albania’s ‘knowledge of minelaying in her territorial waters independently of any connivance on her part in this operation’.12 Such independence can be cast to doubt when one reads the further developments of the motivation: the Court draws the conclusion that the laying of the minefields which caused the explosion on 22 October 1946 could not have been accomplished without the knowledge of the Albanian government. Moreover, the

8 9 10 11 12

Ibid., Ibid. Ibid., Ibid., Ibid.,

17. 22. 23. 18.

international responsibility and the principle of causality 85 minelaying ‘was done at a time when there was a close Albanian surveillance over the Strait’.13 Thus, the knowledge did not derive ‘independently’ from the minelaying itself as could have been the case had the minefield been discovered by later investigations (for which, moreover, Albania was not equipped): the Court submitted that the coastguards had observed the very operation of minelaying. The difference between such ‘knowledge’ and ‘collusion’ appears very thin. One is prone to adhere to Judge Badawi Pacha’s dissenting opinion, when he observed that [i]n the British argument, knowledge is so confused with connivance, that it is impossible to separate them.14

There is a contradiction in the Court’s reasoning, when dismissing connivance but accepting knowledge: if the State’s officials who had observed the very operation of minelaying and could thus identify the author of it had duly informed their government, the absence of protest of that government was a clear token of collusion. The Court chose to condemn the respondent State for a mere crime of omission because it seemed the easiest path to follow. Moreover, should collusion or connivance have been established, the duty of notification would have made no sense. The peculiarity of the crime of omission is that it takes no place in the causal relationship. Moreover, it introduces into the judicial reasoning a purely hypothetical factor: what would have occurred had the Albanian authorities notified the British warships that they entered a zone of perils? From that moment the responsibility for the explosion would have shifted to the United Kingdom. If the warships took the risk of disregarding the notification, the Albanian Government was clear of any fault. Had it been responsible for an act of collusion, the sole minelaying could have raised a question of international responsibility. It is not relevant to assert that the Court did not resort to the concept of fault.15 Omission is a fault, even if it does not take any place in the causal link. It is a fault based on power and duty. The exclusive power granted a State on its own territory does imply the duty to insure secure circulation on that territory.

13

Ibid., 22. Ibid., 61. 15 Jiménez de Aréchaga and Tanzi, ‘International State Responsibility’, Bedjaoui (ed.), International Law: Achievements and Prospects (1991), 347–80, at 350–1. 14

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3. Causality and General Laws in Social Sciences The Corfu Channel case raised a very ordinary legal question and was in this respect closely similar to any tort action before State courts and even less intricate that most of them. The link between the incident and its material cause could not be plainer. The sole problem was to identify the person (the State) upon whom the blame could be put. Many tort cases let appear compound causes with a plurality of agents, enticing the difficulty to sort out the main agent or to rule on contributory negligence. Images are resorted to to give a more exact notion of the causal nexus: Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain or, if you please, a net. An analogy is of little aid. Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential . . . Should analogy be thought helpful, however, I prefer that of a stream.16

Indeed, each of the three images, chain, net and stream, tries to conjure up a different aspect of causality. Chain rests on a linear approach17 of successive events; net indicates that diverse chains concur in the result;18 and stream gives to those multiple chains of events a purposeful direction. State responsibility raises the most awkward problems for the application of the principle of causality. State liability is collective, and the judge must identify the officials within the State whose conduct engaged its responsibility. Moreover, when the alleged wrong concerns the mutual attitudes of more than one State, it will be all the more difficult. Various actions and omissions are compounded within a net where each State reacts to some action of another State or to what is deemed such action. The worst crime of international law is the launching of a war of aggression but it is not easy to sort out each and any of the involved acts or omissions. With regard to the First World War and in spite of the provisions of the Versailles Treaty, the question of war guilt (die Kriegsschuldfrage) still remains controversial.19 The legality of the war in Kosovo and of the war against Iraq is a hotly disputed issue.20

16 Palsgraf v. Long Island R. Co, 248 NY 339, 162 NE 99 (1928), Andrews J. diss. at 103. The Court’s opinion was written by the Chief Justice of the Supreme Court of New York, Benjamin Cardozo, but the claim was dismissed by a narrow majority (4–3). 17 Keekok Lee has criticized the linear model: ‘the direction is not so much linear as loopish’, Social Philosophy and Ecological Scarcity (1989), 53. 18 The word ‘net’ was proposed by Lord Shaw of Dunfermline in Leyland Shipping Co, Ltd. v. Norwich Fire Ins. Society, [1918] AC 350, at 369 (HL). 19 See, for instance, Rigaux, ‘De la doctrine de la guerre juste à la prohibition du recours à la force’, 14 Bulletin de la Classe des Lettres de l’Académie royale de Belgique (6th series, January–June 2003), 35–90, at 69–75. 20 Ibid., 86–90.

international responsibility and the principle of causality 87 The obstacles to apply the principle of causation to big historical events are manifold: the uniqueness of such events, the multiplicity and the unpredictability of free agents, the incompatibility of statistical methods with an ethical approach. First of all, the uniqueness of historical events. History sometimes stammers, it never repeats itself. There are no general laws to govern historical events: The main function of general laws in the natural sciences is to connect events in patterns that are usually referred to as explanation and prediction.21

According to Hannah Arendt: In diesem Sinne ist der Glaube an Kausalität in den Geschichtswissenschaften ein Aberglaube.22

The point made by Arendt is that each historical event is new and as such is blowing up the continuity of historical events. Since historical events do not repeat themselves, they are unpredictable and can never be totally explained. Even if road accidents regularly occur at the same dangerous crossing and although they are never identical, case law can bring out patterns which will lead future judicial decisions. This cannot be true for the main historical events which could be submitted to an international judge. A learned member of both World Courts, Charles de Visscher, has stressed that in international law peculiar and even uncommon situations take precedence over general ones.23 Since law is more easily applied to situations whose repetition allows for the formulation of a common or general rule, international law suffers from the indeterminacy and unpredictability of the situations with which international lawyers are dealing. The most relevant examples are to be found in the causes and origins of a war: so many actors interplay upon and within each other that it is very difficult to sort out individual or collective responsibilities. Let us take some classical examples, such as the Crimean War, or even the First World War. Historians do not agree and could not agree on the attribution to a man or to a government of the sole responsibility for the launching of the war.24 The provisions of the Versailles Treaty and of the other peace treaties beg the question, since they rely on the acceptance by the defeated powers of their own responsibility. Other events, for instance migrations, are collective: why do people,

21 Hempel, ‘The Function of General Laws in History’, 39 The Journal of Philosophy (1942), 35–48, at 35. 22 Arendt, Elemente und Ursprüngen totaler Herrschaft (1953, new edn. 1986), 705. The first German edition is not identical to the preceding American one, The Origins of Totalitarianism, the new edition of which (1966) does not contain the same denegation. 23 This idea appears more than once in Theory and Reality in Public International Law (English trans. Corbett of rev. edn., 1968), 172, 257, 275, 339–40, and 391. 24 See, for instance, McWhinney, The United Nations and a New World Order for a New Millenium. Self Determination, State Succession and Humanitarian Intervention (2000), 66. He quotes David Lloyd George, ‘a highly pragmatic politician’, as rejecting any ‘evil man’ view of history that would lay on one person alone the blame for certain historic events.

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whole families try to escape from their country? Why do some leave, while others do not? No unique cause can be assigned to such movements, even if they do not exclude research of responsibility.25 A statistical approach can depict the reality but is not able to ascertain any moral or legal responsibility. Events do not always occur as expected. Previsibility is the main test to justify liability. The fault consists in having acted in a manner that could, within the realm of reasonable previsibility, harm others: The actor is not bound to a prevision or anticipation which would include an unusual, improbable or extraordinary occurrence, although such happening is within the range of possibilities.26

In the same decision of the Supreme Court of Missouri, one is also reminded of foreknowledge of the consequence after it has occurred: Those so contending stand on the vantage ground of what has happened, and look back in one direction from effect to cause, whereas the rule with which they are dealing is one which looks forward, not in one direction, and not to what has happened, but to what is likely to happen—from cause to probable effect.

In other words, the reconstruction of what was previsible at the time of the act or of the omission is built with hypothetical materials. The extraordinary nature of the result does not suffice to exclude the negligence, even if it ‘may be unusual, unexpected, indeed a surprise to the most experienced’.27 In other cases, the Court evaluated more leniently the liability of the actor: But what in the present case is decisive is the extraordinary combination of circumstances which produced the disaster.28

Some imprudence of the victim which contributed to the accident, but not beyond a certain degree, belongs to the circle of reasonable foreseeability.29 4. An Extension of the Principle of Causality in the Case Law of the European Court of Human Rights Crime by omission sets up a chain of hypothetical reasoning: if . . . then . . . It is not certain that the interposition of the missing action would have prevented the damage and it cannot be known how the potential victim would have reacted. It is even possible that a well-meant intervention would have had a destabilizing influence on the victim and aggravated the damage. As soon as

25 26 27 28 29

On that example, see von Wright, Explanation, 144. Mauney v. Gulf Refinings Co, 9 So 2d 750, at 781 (Miss. 1942). Doyle v. Chicago St Paul and Kansas City R. Co, 77 Iowa 607, 92 NW 555, at 556 (1889). Woods v. Duncan [1946] AC 401, at 421 (HL) by Viscount Simon. Reichsgericht, 9 Dec. 1935, RGSt 70, 71, at 74.

international responsibility and the principle of causality 89 man begins with suppositions in a hypothetical reasoning, no issue whatever can be closed. The case law of the European Court of Human Rights—a truly international tribunal—is very illustrative of purely hypothetical elements in the causal nexus which supports some verdicts of liability. First of all let us recall the territorial basis of the Court’s jurisdiction. The European Court has no jurisdiction on facts which occurred outside the territorial jurisdiction of the defendant State. This is the reason why the Court declared inadmissible the claim lodged against European NATO States by Serbian victims of the bombardment of their country during the Kosovo war. According to the Court, there is ‘no jurisdictional link between the persons who were victims of the act complained at and the respondent States’.30 The timidity of the judgment has been criticized.31 The verdict is more diplomatic than juridical. The nationality or the residence of the victims have no bearing on the Court’s jurisdiction. Neither has the territory where the harm was inflicted: preparatory acts were accomplished on the territory of the NATO States and there existed a causal link between those acts and the damage suffered abroad. The expulsion of aliens and the extradition of persons accused of a crime in foreign jurisdictions gave rise to the Court’s admission of State liability for the sole risk of exposing a person to serious violations of human rights by foreign authorities. The leading case, Soering, concerned a German national who was accused of a double murder in the Commonwealth of Virginia. He escaped to Great Britain and the Government of the United States of America requested Soering’s extradition under the terms of the Extradition Treaty of 1972 with the United Kingdom. A German court issued a warrant for the applicant’s arrest in respect of the alleged murders. What rendered the case more complicated and more interesting from the viewpoint of an international lawyer was that the Government of the Federal Republic of Germany joined in the action of its national and requested his extradition by virtue of the Treaty of 14 May 1872 between the United Kingdom and Germany for the Mutual Surrender of Fugitive Criminals, as reapplied with amendments by an Agreement signed at Bonn on 23 February 1960 and as further amended by an Exchange of Notes dated 25 and 27 September 1978.32 It is exceptional that under the European Convention of Human Rights a State acts directly against another contracting State on behalf of one of its nationals. Moreover, the United Kingdom had to choose between her obligations under two conflicting extradition treaties.33

30 BankoviÆ et al. v. Belgium et al. (Decision on Admissibility), 12 December 2001, para. 82, . 31 Orakhelashivili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’, 14 EJIL (2003), 529–68. 32 Soering v. The United Kingdom, Judgment (Merits and Just Satisfaction), 7 July 1989, para. 31, . 33 On the possibility of extradition to the Federal Republic of Germany, see ibid., para. 110.

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The Court did not retain that death penalty was as such an ‘inhuman or degrading treatment’ in the sense of Article 3 of the Convention. But the ‘conditions on death row’ could be.34 The conclusion of the Court reads as follows: However, in the Court’s view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3.35

The difficulty to obtain from the Government of the United States of America a pledge on the threatened penalty derives from the federal nature of that government and from the independence of the judiciary. How can the federal government assume an engagement to be performed by a constituent State? The second difficulty is easier to address: the government can promise that the death penalty will not be requested. Jens Soering was finally extradited to the United States under a promise that he would not be exposed to the death penalty and he was condemned to life imprisonment in Virginia.36 In two more recent cases concerning extradition to the United States, the European Court of Human Rigths was satisfied with a declaration of the competent member State of the United States that neither death penalty nor life imprisonment would be requested.37 In the Soering case, the causal link between the application of Article 3 of the Convention and the relevant fact relies on a series of pure hypotheses: it was uncertain that Soering would incur the death penalty and that he would be submitted to the death row. The sole risk that such events could occur was sufficient to protect him against his extradition to the United States. The Soering judgement has had a progeny in the field of deportation. The sole risk to exposure to inhuman treatment is sufficient to give rise to a claim under Article 3 of the Convention, but the Court is able to evaluate the reality and the importance of such a risk. It can also rely on the respect of Article 3 by another contracting State. For instance, a citizen of Sri Lanka may be removed to the Federal Republic of Germany because ‘there is no real risk that Germany would expel to Sri Lanka in breach of Article 3 of the Convention’.38 This is another instance of hypothetical reasoning, this time pre34

Ibid., paras. 106–9. Ibid., para. 111. 36 Blakesley and Lagodny, ‘Finding Harmony amidst Disagreement over Extradition, Jurisdiction, the Role of Human Rights, and Issues of Extraterritoriality under International Criminal Law’, 24 Vanderbilt Journal of Transnational Law (1991), 1–73, at 49; Breitenmoser and Wilmes, ‘Human Rights v. Extradition: The Soering Case’, 11 Michigan Journal of International Law (1990), 845–86. 37 Nivette v. France (Decision on Admissibility), 3 July 2001, para. 88, . See also Einhorn v. France (Decision on Admissibility), 16 October 2001, . 38 See T.I. v. The United Kingdom (Decision on Admissibility), 7 March 2000, . 35

international responsibility and the principle of causality 91 suming the respect by a contracting State of its conventional obligation under Article 3. The objection against the removal to Algeria of a schizophrene for the reason he would not receive in his country adequate support ‘is to a large extent speculative’.39

5. Conclusion The international cases discussed above give the lie to the determinist appearance of the principle of causality. The judicial reasoning has to rely on pure hypotheses. Condemning a State for ‘grave omissions’ implies that the defendant State could have prevented the harm. That is not demonstrated. The State is punished for not having done what could possibly have prevented the damage. In the Corfu Channel case, the International Court of Justice took the easier path of ascertaining a ‘knowledge’ which really was an instance of collusion. In so doing, the Court avoided to declare that such a wrong had been committed by the defendant State. When they have to condemn a State, international courts prefer to do it at the lowest possible moral cost for the State in question. In BankoviÆ, the Court did not perceive or refused to perceive that the launching of the attacks from the territories of European NATO States could be a wrong covered by Article 1 of the Convention even if the damage was inflicted on a territory lying outside the jurisdictional clause of Article 1 of the Convention. Here also the causal link is apt to cross the border between both States. Before the European Court of Human Rights, the harm alleged by claimants was purely hypothetical in a different way. The risk to be exposed to inhuman or degrading treatment is a sufficient basis for preventing a contracting State from extraditing or deporting an alien to the State where the risk is localized. The international border is splitting up the causal link between two countries: the Convention is applicable in one country and forbids that the authorities of another country submit the claimant to a treatment which, across the border, does not fall within the provision of the European Convention which is inapplicable in that country. The causal link, however hypothetical, compels a State to act on its own territory in a manner taking into account the violations of human rights of which another State is suspected.

39 Bensaid v. The United Kingdom, Judgment (Merits), 6 February 2001, para. 39, .

CHAPTER NINE

A PLEA FOR ‘RECONSTRUCTION’ OF INTERNATIONAL RESPONSIBILITY BASED ON THE NOTION OF LEGAL INJURY Brigitte Stern

1. Introduction These brief considerations,1 dedicated to the memory of Oscar Schachter, were prompted by the declaration on the responsibility of States, finally adopted2 following codification and progressive development work done by the International Law Commission on the law of international responsibility.3 After a brief summary of the main aspects of the recent changes, I will propose a theoretical ‘reconstruction’ of the solutions adopted by the Commission, based on the concept of legal injury,4 which the Commission did not feel necessary to take into consideration. The concept of legal injury, which may be defined as the immaterial injury inherent in breaches of the law, was not unknown to Oscar Schachter, who referred to it in particular in his general course at the Hague Academy of international law, under the term of ‘“non material” injury’, which should generate international responsibility in some cases. As he then said, ‘[i]t is preferable and indeed necessary to conclude that a legal interest is required to pursue 1 The author has put forward similar ideas, although with more in-depth developments, in the article entitled ‘Et si on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États’, 47 AFDI (2001), 3–44. The author wants to thank Athina Chanaki and Isabelle Fouchard for some editing work done on this piece. Initially written in French, the article was translated by David Boyle, who succeeded in rendering all the complexities of the text. 2 More specifically, the General Assembly took note of the articles on responsibility of States for internationally wrongful acts, presented by the International Law Commission, and commended them to the attention of Governments: ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). See also ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), 43–365. 3 For a number of general comments, see Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). 4 On this concept, see Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (1973) (with a preface by Paul Reuter).

Maurizio Ragazzi (ed.), International Responsibility Today, 93–106. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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a claim and that in most cases such legal interest arises only if the violation results in a damage. However, two important qualifications need to be made. One is that in many cases a breach of a treaty (for example, involving a State’s obligations to its own citizens, as in human rights or labour standards conventions) should be regarded as involving a “non-material” injury to other parties, whether or not they are specially affected by the breach. The other qualification concerns the obligations erga omnes’.5 He added, further on, that in some cases an actio popularis is possible, because there is ‘a legal interest in seeking redress for a violation of an erga omnes obligation irrespective of any direct injury’.6 2. Major Changes in the Theory of International Responsibility Incontestably, the law of international responsibility as it results from the work of the International Law Commission has little in common with the applicable law before the beginning of the process: every aspect of responsibility has been more or less overturned, whether it be the origin of responsibility, its nature or its content. A. A change in the origin of responsibility: the wrongful act as sole condition It is common knowledge that international responsibility was traditionally founded on three pillars: an internationally wrongful act, injury, and a causal link between the two. Yet we also know that major ground waves have completely restructured this traditional perspective since the International Law Commission, under Roberto Ago’s influence, eliminated all reference to injury as a condition for the existence of international responsibility. This is clearly a break, if only semantic, compared with the past approach, displaying the will to bring responsibility into existence as soon as the international legal order is breached, that is to introduce a sort of review of legality through the institution of international responsibility. Yet the drafters stopped along the way, since they did not (despite the efforts of Gaetano Arangio-Ruiz) accept the patently simple idea of legal injury resulting from the breach of the law as such, which would have allowed this normative advance to go beyond the half way point, or at least be stated openly.

5 Schachter, ‘International Law in Theory and Practice. General Course in Public International Law’, 178 RdC (1982), 9–396, at 193. 6 Ibid., 199.

a plea for ‘reconstruction’ of international responsibility 95 B. A change in the nature of responsibility: unity or diversity? If there were to be review of legality, it was necessary to decide whether it should lead to recognition of clear distinctions between varying aspects of legality. Historically, international law made no distinction between forms of international responsibility resulting from the nature of the rule that was breached, that is its level of importance in maintaining the legal order, contrary to the situation in all municipal legal systems, which make a clear distinction between two sorts of responsibility: civil responsibility entailing an obligation of reparation and criminal responsibility requiring punishment. Initially, it appeared that, in implementing the review of legality based on international responsibility, a similar distinction would develop based on the notion of an objective hierarchy between differing violations of international law. This idea incontestably underpinned the distinction between crimes and delicts proposed in the famous Article 19 of the 1996 Commission’s draft. However, the concept of international crime became the subject of multiple controversies and finally, in the face of reticence expressed by many States, this notion with too strong a penal connotation was abandoned. Although the trend towards a partial criminalization of international law was thus halted, a certain amount of diversification still found its way into international responsibility. In fact, the concept of international crime was diluted and replaced with what might be called an aggravated wrongful act. Initially, it was defined in 2000 as ‘a serious breach by a State of an obligation owed to the international community as a whole and essential for the protection of its fundamental interests’ (Article 41 of the May 2000 draft). Then it became a ‘serious breach by a State of an obligation arising under a peremptory norm of general international law’ (Article 40 of the final text), in other words, a breach of jus cogens. Such breaches will be dealt with in a specific way, even if they do not give rise to a specific form of responsibility. However, the additional obligations which arise in cases of breach of peremptory rules appear quite derisory, the only explicit consequences being that ‘States shall cooperate to bring to an end through lawful means any serious breach’ of jus cogens and will neither recognize as lawful any situation arising from such breaches, nor give any assistance in maintaining the situation (Article 41 of the final text). This dualism concerning wrongful acts leads to two different systems for invoking responsibility, the first being open to the injured State, whereas the second may be used by States other than the injured State. Article 42 of the final text adopted a traditional (inter-subjective) conception of the injured State: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) That State individually; or (b) A group of States including that State, or the international community as a whole, and the breach of the obligation:

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(i) Specially affects that State; or (ii) Is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.

As explained in the Commentary, ‘[c]entral to the invocation of responsibility is the concept of the injured State. This is the State whose individual right has been denied or impaired by the internationally wrongful act or which has otherwise been particularly affected by that act’.7 One can only confirm this affirmation of the importance of the injured State concept. Nonetheless, in establishing a dichotomy between injured States and the rest, the International Law Commission refused to employ the concept of legal injury. In other words, it refused to include any explicit recognition that all States within the international community have a legal interest in seeing certain fundamental rules of international law respected and that, consequently, they are all injured when these are breached. Article 48 provides for the implementation of international responsibility by States other than an injured State. Yet it seems curious, at the very least, that certain States should be able to invoke the responsibility of a State if they have not been injured. If a State is the beneficiary of an obligation that has been breached, it is hard to see how one could consider that it is not an injured State. Of course, in cases where an obligation is owed to the international community as a whole, the International Court of Justice has held that all States have a legal interest in its protection.8 In other words, it would appear that all States that are able to invoke international responsibility should be seen as injured States: otherwise, what is the justification for their action against the State responsible for the wrongful act? In the introduction to a book written in order to present the work of the Commission, the Special Rapporteur himself noted that, in addition to the injured State, there were States ‘with a more general legal interest in the breach of the international obligation (so-called “differently injured” States)’,9 recognizing thus the existence of a legal injury different from the material or moral injury. In any case, following the work of the International Law Commission, international responsibility may be invoked in different ways depending on whether the claim is made by an injured State or by what the Commission calls ‘a State other than an injured State’.

7

Doc.A/56/10, 293. Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3, at 32 (the famous para. 33). 9 Crawford, The International Law Commission’s Articles, 23, note 3. 8

a plea for ‘reconstruction’ of international responsibility 97 C. A change in the content of responsibility: a bundle of rights and obligations If the origins of responsibility have been deeply modified, the same would seem to be true of the consequences of internationally wrongful acts, that is the content of responsibility. In the traditional view, international responsibility was synonymous with an obligation to make reparation. Things are no longer so simple, as recognized in a recent publication: ‘[à] la suite des travaux de la CDI, de nombreux auteurs voient désormais dans la responsabilité pour fait internationalement illicite une situation complexe créée par un manquement, qui engendre un ensemble de droits en faveur de la victime et d’obligations à la charge de l’auteur de ce manquement, dont l’obligation de réparer n’est qu’un élément’.10 International responsibility now appears as a bundle of rights and obligations, whether it be in the general case where a State breaches a ‘normal’ legal rule, or in the special case where a jus cogens rule has been breached. The new concept is that responsibility implies both that the State responsible for the wrong must answer for its act by providing, amongst other new obligations, reparation to the injured State and that, if it does not do so, the injured States may answer the wrongful act, by applying sanctions against the State responsible for the wrongful act, whether such sanctions be collective or unilateral countermeasures. By virtue of the International Law Commission’s final text, the new relations arising from an internationally wrongful act attributed to a State include obligations going beyond reparation. In addition to the obligations arising for the State responsible for the wrongful act, the injured State (but that State alone) now has the right to take countermeasures. Briefly, historically synonymous with the obligation to make reparation, international responsibility has now become multiform and includes, in general cases, five different aspects: the continued duty of the responsible State to perform the obligation breached (Article 29), cessation of the act (Article 30(1)), assurances and guarantees of non-repetition (Article 30(2)), reparation (Article 31), and the right of the injured State to take countermeasures (Article 49). The introduction of the last consequence is clearly a major innovation in the theory of responsibility. Indeed, countermeasures, generally classified as a form of ‘sanction’, available as an alternative mechanism to international responsibility, now form an integral part of it, thus giving them a legitimacy that is not necessarily desirable. Given that this evolution went hand in hand with a broadening of the category of States with the right to invoke international responsibility, to include States other than an injured State, the result was a

10 Salmon (ed.), Dictionnaire de droit international public (2001), 999. Translation: ‘following the work of the ILC, many writers now see responsibility for internationally wrongful acts as a complex situation resulting from a breach, which gives rise to a bundle of rights in favour of the victim and obligations bearing on those responsible for the breach, of which the obligation to make reparation is but one element’.

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virtually unlimited extension of the right to take unilateral countermeasures, with all the risks of anarchy that such a situation implied. Accordingly, States other than the injured State were not authorized to take countermeasures. The invocation of international responsibility by States other than an injured State is thus clearly differentiated. States other than the injured State only have the right to require cessation of the internationally wrongful act, and assurances of guarantees of non-repetition in accordance with Article 30 from a State that has breached a rule of jus cogens. In other words, they can claim reparation for breach of the law; furthermore, the Commission has also foreseen that they can claim reparation, in the name of the injured State, or in the name of the beneficiaries of fundamental rules, such as the rules for the protection of human rights. Thus, international responsibility has now become just as complex in cases of breach of jus cogens, as this specific case involves four different aspects: the continued duty of the responsible State to perform the obligation breached (Article 29), cessation of the breach (Article 48(2)(a), referring to Article 30(1)), assurances and guarantees of non-repetition (Article 48(2)(a), referring to Article 30(2)), reparation in the name of those injured (Article 48(2)(b), referring to the articles on reparation). Clearly the content of international responsibility is no longer univocal. Undoubtedly, this additional ‘complexity’ (although it will be argued below that it was not necessary) was designed to introduce a form of review of legality into disputes involving responsibility. 3. ‘Legal Injury’, an Operational Concept for the Continued Unity of International Responsibility This rapid analysis of certain results of the codification process shows that the concept of international responsibility is no longer univocal after examination by the International Law Commission. Of course, the complexity of a theory does not justify a priori the refusal of the postulate, if it is necessary to take account of a complex reality. Yet, in this case, the concept of international responsibility seems to have been diversified arbitrarily and pointlessly, not in response to any theoretical need. The following brief arguments aim to bring home this point. In particular, these considerations aim to show that the result obtained by the Commission, through splintering international responsibility by introducing two categories of States in different situations with respect to responsibility (injured States and ‘States other than an injured State’) could have been attained, in a simpler, more legally founded way, through the use of the concept of legal injury. Moreover, this essay seeks to show that the splintering of responsibility into different obligations, the limits of which are not clearly laid out and, consequently, partly overlap each other, could also have been avoided in part if the Commission had seen fit to take account of legal injury, defined as consubstantial with breach of the law.

a plea for ‘reconstruction’ of international responsibility 99 It is true that the International Law Commission has introduced a form of review of legality to disputes involving responsibility, the practical results of which will not be criticized here, at least in this respect. However, its work appears far more unsatisfactory from a conceptual and theoretical perspective. Although the Commission has found a ‘good solution’, it has gotten there via some very indirect paths.11 This has obliged it to introduce new obligations, resulting from wrongful acts, beside the obligation to make reparation, on the one hand, and to give new rights to States other than injured States, on the other hand, without clarifying the capacity in which they have standing, given that Article 48 of the text finally adopted by the Commission, in the form of a declaration, lacks any clear legal status. True, the Commission’s text contains an affirmation of responsibility as soon as a wrongful act is committed, but this simply affirms a responsibility that is basically concomitant with the right to claim cessation of the breach, which is perfectly logical. Yet it is less logical that this invocation of responsibility is not based on the existence of what may be seen as a legal injury recognised as such, and that cessation of the breach is not seen as reparation—in the form of specific performance— for this legal injury. A. France’s position on the question of legal injury Legal injury, or more precisely the concept of an actio popularis for certain legal wrongs, is not at all supported by the French government, which has declared that ‘[m]ore fundamentally, draft Article 1 is not acceptable because it reflects the intention to set up a kind of “international public order” and to defend objective legality, instead of safeguarding the subjective rights of the State, which we see as the purpose of international responsibility . . . International responsibility is limited to the protection of the rights of the State itself; it cannot be extended to the protection of international law as such’.12 If that were not sufficiently clear, the commentary adds that, in France’s opinion, ‘“[l]egal injury” alone cannot entail the international responsibility of a State’.13 It is not so much the concept itself which was rejected, but the idea that legal injury might arise in the absence of any subjective relation between two States, as shown by the following extract from the French commentary: ‘France is not hostile to the idea that a State can suffer legal injury solely as a result of a breach of a commitment made to it. However, the injury must be of a special nature, which is automatically so in the case of a commitment under a bilateral or restricted multilateral treaty. By contrast, in the case of a commitment

11 It is worth recalling here the well turned argument that the search for the truth must itself be truthful. 12 ‘State responsibility. Comments and observations received from Governments (25 March 1998)’ (Doc.A/CN.4/488), 31–2. 13 Ibid., 32.

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under a multilateral treaty, the supposedly injured State must establish that it has suffered special material or moral damage other than that resulting from a simple violation of a legal rule. A State cannot have it established that there has been a violation and receive reparation in that connection if the breach does not directly affect it’.14 Yet, as a general rule, France rejects the idea of using international responsibility as a means of assuring respect for international legality: offering ‘the whole “international community”, by virtue of the introduction of the concept of “crime”, the possibility of engaging in an actio popularis and reacting collectively to the wrongdoing; this is not without danger. One of the functions of public international law is, in fact, to avoid tension. It is not certain, however, that an actio popularis is the most appropriate mechanism to prevent tension. On the contrary, it may be feared that such a mechanism might lead to a continuing public debate as to who complies with, or fails to comply with, public international law’.15 B. The contribution of the concept of legal injury Rather than splintering the concept of international responsibility, would it not have been better to recognize clearly that, given the international community’s lack of any legal personality, and its resulting incapacity to invoke the responsibility of States for breach of their most fundamental obligations towards that community, all State members of the international community are individually affected by a simple breach of those rules? Moreover, this analysis is not contradictory to the International Law Commission’s Commentary, which states that ‘[a] State which is entitled to invoke responsibility under Article 48 is acting not in its individual capacity by reason of having suffered injury but in its capacity as a member of a group of States to which the obligation is owed, or indeed as a member of the international community as a whole’.16 (i). The legal and philosophical contribution to the notion of international community If the approach proposed here were to be chosen, it would imply the recognition of a profound solidarity, a fusion of all States within the concept of international community, an affirmation that any harm caused to the whole causes injury to each constituent member and that each member is responsible to all the others for the respect of the essential rules of international law. The Commission, for its part, has eliminated injury as a condition for responsibility, precisely so as to take account of mere breaches of the law. In my

14 15 16

Ibid., 95. Ibid., 141. Doc.A/56/10, 319.

a plea for ‘reconstruction’ of international responsibility 101 view, a more coherent way of reaching the same objective would have been to retain injury as a condition for responsibility, but consider that the injury may be either material, moral or legal. Some see the Commission’s new conception as a step forward. For exemple, Alain Pellet considers that we have been witnesses to ‘une “reconceptualisation” de la notion même de responsabilité internationale, qui, par l’élimination du préjudice comme condition de sa survenance, s’est trouvée “objectivée” en ce sens que, d’une approche purement inter-étatique, on est passé à une vision plus “communautaire” ou “sociétale”: la responsabilité existe en “soi”, indépendamment de ses effets’.17 I personally believe that the progress would have been just as significant, if not more so, at a symbolic level, if it had been recognized that every breach of the law must be seen as a legal injury requiring reparation by the re-establishment of the breached legal order. The concept of legal injury is not, in my view, an obstacle to greater international solidarity, but rather a ‘relay’ allowing the concrete translation of all States’ preoccupation for the respect of fundamental rules of international law. In other words, recognizing legal injury would have been an even more significant step towards a communitarian view than the approach adopted, as States would not only have standing on behalf of the international community, but also on their own behalf as parties fundamentally concerned with the future of the group, that is legally concerned, due to their intimate participation in the international community, by all breaches of the community’s essential rules. This proposition involves a legal fiction similar to that which applies in the mechanism of diplomatic protection: just as the individual cannot generally take action in the international sphere, which explains why the State exercises its right to respect for its nationals, in this case the international community cannot take action for the moment, and thus the State should be able to exercise its right to respect for the basic legal values of the community. I had already suggested this solution more than fifteen years ago, during the annual conference of the Société française pour le droit international on international responsibility.18 Not only does the concept of legal injury concretize the preoccupation of all States for the respect of international rules, but in reality it would also permit the reunification of the concept of responsibility, which currently seems to be splintered between different elements that are difficult to regroup. More

17 ‘Remarques sur une révolution inachevée. Le projet d’articles de la CDI sur la responsabilité des Etats’, 42 AFDI (1996), 7–32, at 4. Translation: ‘a “re-conceptualization” of the very concept of international responsibility, which has been “objectified” by the elimination of injury as a condition for responsibility to arise, in that we have moved from a purely inter-State approach to a more “communitarian” or “social” perspective: responsibility exists “as such”, independent of its effects’. 18 See ‘Conclusions: la responsabilité dans le système international’, La responsabilité dans le système international, Colloque du Mans (Societé française pour le droit international) (1991), 319–36, at 332.

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specifically, the concept of legal injury allows a double reunification of responsibility: on the one hand, there would only be one concept, that of injured State, which may suffer different forms of injury (material, moral or legal); on the other hand, there would only be one aspect of responsibility (or consequence of the internationally wrongful act), the obligation to make reparation. (ii). Reunification of the concept of injured State In the first place, taking account of legal injury obviates the need for the laborious distinction introduced by the International Law Commission between injured States and ‘States other than an injured State’, which are not even States ‘held to have a legal interest’, in the final version adopted by the Commission. If, as appears perfectly clear, one considers that all breaches of international law cause legal injury for those to whom the obligation breached is due (whether it be a single State, a group of States or the international community as a whole, embodied by all States), that responsibility may always be invoked by an injured State. With the concept of legal injury, there would never be a situation where there was no injured State, but only States other than an injured State, or the situation where there would be both an injured State and States other than an injured State. In fact, there would always be one, or more, injured States suffering legal injury (alone or in addition to material and/or moral injury). Thus, there would always be one or more injured States able to claim, as reparation, the re-establishment of the breached legal order (alone or in addition to reparation for material or moral injury), on its own behalf, on behalf of a group of States, or on behalf of the international community. That which the International Law Commission calls an ‘injured State’, that is an individually or specifically harmed State, would be injured both from a legal perspective (legal injury) and in other ways (material and/or moral injury) and could thus claim full reparation, in accordance with Articles 30 and 31; that is restitution of the breached legal order by obtaining cessation of the breach and guarantees of non-repetition (which partake of the same logic aimed at ensuring international legality through reparation of the legal injury), and restitution, indemnification or satisfaction for the breached material or moral order. That which the Commission calls ‘a State other than an injured State’ would only suffer legal injury, which would allow it to claim precisely what the Commission has given it the right to invoke under Article 48, but without any clear legal basis, i.e. re-establishment of the legal order through cessation of the breach and in some cases guarantees of non-repetition. In reality, it would appear that the introduction of a distinction between injured States and the rest was forced on the Commission to avoid the unpredictable, disturbing consequences of the separate decision to integrate countermeasures in the theory of international responsibility. That decision was all

a plea for ‘reconstruction’ of international responsibility 103 the more open to criticism, by the way, since the will to regulate countermeasures, introduced in the 1996 draft,19 was the only acceptable justification for this indirect legitimization of countermeasures. Oscar Schachter was also in favour of introducing dispute resolution procedures to limit unilateral measures taken by States in the name of countermeasures: in his view, ‘as long as unilateral countermeasures are considered acceptable measures of law enforcement, it is surely in the common interest to try to prevent their illicit and arbitrary use’.20 Yet it is well known that all ideas of control were abandoned in the Commission’s final text. The idea of opening the right to reparation (the right to obtain the re-establishment of the breached legal order) to all States, in cases of breach of jus cogens rules, is not a bad idea as such, because it ensures review of legality for the most important rules within the international legal order through the traditional mechanism of responsibility. The real problem came from the inclusion of the right to adopt countermeasures at the very heart of the responsibility mechanism, alongside the traditional obligation of reparation. As Yves Daudet pointed out during the work of the International Law Commission, if the Commission’s structure were to be adopted, ‘[u]ne telle solution risquerait . . . de conduire à de grandes difficultés par suite d’une pléthore de réclamations ou de la généralisations de contre-mesures et sans doute faudrait-il distinguer les États directement lésés de ceux qui ne le sont qu’indirectement et agissent davantage en qualité de défenseurs de la légalité qu’en tant que victimes d’un dommage’.21 Yet such a result could also have been achieved, either by entirely eliminating countermeasures from the theory of international responsibility, the most preferable solution in my view, or by indicating that countermeasures are not open to States that have only suffered legal injury. (iii). Reunification of the consequences of the wrongful act In the second place, introducing the concept of legal injury allows unification of all the consequences of internationally wrongful acts in a sole obligation, that of reparation, excepting the rather modest ‘supplementary’ obligations which arise for States in cases of serious breaches of obligations under peremptory rules of general international law. As for countermeasures, in my view,

19 ‘Report of the International Law Commission on the Work of its Forty-eighth Session’, Gen. Ass. Off. Recs., Fifty-first Session, Supp. No. 10 (Doc.A/51/10), 147 (‘Part Three. Settlement of disputes’). 20 Schachter, ‘Dispute Settlement and Countermeasures in the International Law Commission’, 88 AJIL (1994), 471–7, at 477. 21 ‘Travaux de la Commission du droit international’, 41 AFDI (1995), 561–80, at 572. Translation: ‘such a solution . . . could create great difficulties due to plethoric claims or the generalization of countermeasures, and it would undoubtedly be necessary to distinguish between directly injured States and those which are only indirectly affected and are mainly acting in defence of international legality rather than as the victims of damage’.

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they should never have been included in the mechanism of international responsibility, given that they only intervene in case of failure to successfully invoke responsibility. Strictly speaking, the continued duty of the responsible State to perform the primary obligation, under Article 29, cannot reasonably be analyzed as a consequence of the wrongful act and, thus, as a constitutive element of international responsibility, even in Ago’s extensive perspective. It clearly stems only out of the obligation to abide by the rule of law. This ‘legal consequence’ of the wrongful act will not, thus, be taken into consideration in the ‘reconstruction’ of international responsibility proposed here. Turning to the cessation of the breach provided for in Article 30, in my view this aspect has been unduly isolated as a separate consequence from the obligation of reparation resulting from an internationally wrongful act, as it is simply the obligation of restitution of the breached legal order, or reparation in kind of the legal injury, inherent in all breaches of the law, even when it causes material or moral damage. In support of this interpretation, one may cite the International Law Commission’s Commentary on Article 48, which notes that, ‘[p]aragraph 2 [providing for cessation and reparation on behalf of the injured State] stipulates which forms of responsibility States other than injured States may claim’.22 If cessation is thus a form of reparation, what does it rectify, if not what I call legal injury? The Commission’s text also lends itself to such an interpretation. In fact, priority is given to restitution as a means of reparation ‘that is, to re-establish the situation which existed before the wrongful act was committed’ (Article 35). It is hard to see how such re-establishment could be achieved without necessarily including a return to legality, which clearly renders Article 30(a) superfluous. This confusion of genres was perceived partially by the last Special Rapporteur, who recognized that cessation ‘may be described as the restitution of performance’ and that the difference between the two concepts of restitution and cessation of the breach ‘is not always clear’.23 However, this did not lead to any modification in the presentation of the consequences of internationally wrongful acts. As for the guarantee of non-repetition, also provided for in Article 30, one may entertain certain doubts as to the status of this obligation as a rule of positive law, on the one hand, and as to its nature as a legal consequence of the wrongful act (being a measure for the prevention of other, possible future wrongful acts), on the other hand. In any case, if it had to be included, at all cost, in the obligation to make reparation, this guarantee could be seen as participating in the objective of re-establishing the breached legal order for the future

22

Doc.A/56/10, 320. (Emphasis added.) Crawford, ‘Third Report on State Responsibility (Addendum)’ (Doc.A/CN.4/507/Add.1), para. 131. See also para. 126. 23

a plea for ‘reconstruction’ of international responsibility 105 rather than for the past. This was, at least in part, the Commission’s position in the 1996 draft, since the assurances and guarantees of non-repetition were included in the full reparation to which the injured State was entitled under Article 42. The three or four distinct obligations resulting from internationally wrongful acts are thus melded into a single obligation, that of reparation for the varying forms of injury caused by the wrongful act, whether they be material, moral or legal. In the analysis presented here, responsibility would no longer be a bundle of disparate obligations, as it has now become. Responsibility could still be defined simply as the obligation to make reparation for the injury suffered by an injured State. This would be the case, regardless of whether the injury be exclusively legal (the situation envisaged, without accepting the underlying concept, in Article 48), in which case the obligation to make reparation would essentially involve the right to claim re-establishment of the legal order and, only in a subsidiary way, the right to obtain reparation of the wrongful act on behalf of those who suffered the injury; or whether it amounted to material and/or moral injury, necessarily accompanied by a legal injury, and thus including, logically, both a right to claim the re-establishment of the breached legal order (Article 30) and the right to obtain reparation of the material and/or moral injury (Article 31). Significantly, there are numerous examples of references to the traditional conception to which I have returned here (which corresponds fundamentally to the needs of the mechanism of international responsibility) by the promoters of the ‘revolutionary’ new conception of responsibility elaborated by the International Law Commission. Thus, the Commission’s own analysis remains fundamentally tributary to the definition of international responsibility as an obligation to make reparation, as it holds implicitly to the former conception of responsibility, in its Commentary, which states that, ‘to invoke responsibility in the sense of the Articles . . . a State . . . must be considered an injured State’.24 In reality, this recognizes that claiming cessation of the breach does not invoke responsibility; presented as a claim by a State other than an injured State, without any reference to legal injury, it is difficult to reconcile such a claim with the basic mechanisms of international responsibility.

4. Conclusion In my view, legal injury is a concept that would have been most useful. Many people do not share this view. Thus, Alain Pellet, in commenting on the work of the International Law Commission, has stated that ‘dans une telle perspective, le dommage se trouve évacué, non pas du droit de la responsabilité internationale, mais de 24

Doc.A/56/10, 295.

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sa définition (ou de son “origine”). Il n’est plus nécessaire à l’engagement de la responsabilité . . . la Commission . . . avait, à juste titre, écarté l’idée, entièrement artificielle de “préjudice juridique”, qui n’ajoute strictement rien à la conception “objective” de la responsabilité définie comme la conséquence du seul fait internationalement illicite’.25 I consider, on the contrary, and hope to have convinced some others, that the concept of legal injury is an eminently operational notion and that its exclusion of injury from the theory of international responsibility is to be regretted.

25 ‘Remarques sur une révolution inachevée’, 6–7. Translation: ‘in such a perspective, the injury is evacuated, not from the law of international responsibility, but from its definition (or its “origin”). It is no longer necessary in order to engage responsibility . . . the Commission . . . had, rightly, excluded the entirely artificial notion of “legal injury”, which adds absolutely nothing to the “objective” conception of responsibility defined simply as the consequence of an internationally wrongful act’.

CHAPTER TEN

THE ART OF APOLOGY Sir Arthur Watts

1. Introduction The international responsibility of States is grounded in the notion of the occurrence of a wrongful act committed by one State and injuring another. While international responsibility will involve the formulation of claims and denials, and may involve a reference of the resulting dispute to some form of international adjudication, the first steps are usually more diplomatic in nature, with the two States concerned discussing ways and means of resolving their differences over whatever incident is alleged to give rise to international responsibility. A normal feature of such diplomatic exchanges is a request by the injured State for an apology either as the sole remedy or, perhaps more often, together with some other element such as the payment of compensation. The request for and making of an apology is not, however, an altogether straightforward process. 2. Essence and Gradations In international relations apology lies at the crossroads of the diplomatically commendable and the legally dangerous. In international life as in private life, saying ‘sorry’ does much to neutralize the diplomatic fallout from an unfortunate incident; but saying ‘sorry’ may also imply an admission of legal liability. The art lies (from one point of view) in achieving the diplomatic benefits while avoiding the legal risks: but (from the other point of view) it lies in maximizing the legal gain while not wholly negating the diplomatic achievement. The State which seeks an apology from another State which it sees as responsible for an incident which has violated its international legal rights will, in principle, be seeking three things: – an acknowledgement by the other State that the incident did indeed take place (for it is often the case that the very occurrence of the incident—at Maurizio Ragazzi (ed.), International Responsibility Today, 107–116. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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least in the manner in which the State requesting the apology presents it— will be denied or be in doubt), – an admission by that other State that it bears international responsibility for the occurrence of the incident (for even if the incident did occur in the manner alleged, any ensuing international responsibility is by no means automatically established), and – an expression of regret that the incident ever happened. For the State seeking an apology, its maximum position will be likely to involve a formal and unqualified statement of apology for the incident, made in writing by someone at a high level in the wrongdoing State, and communicated to an equally high level addressee in its own State. For its part the wrongdoing State will, in principle, be likely to wish to minimize the extent to which it meets those three requirements. The eventual outcome will usually involve the striking of a balance between the two competing objectives. Achieving the right balance is made easier by the complexities and ambiguities inherent in the giving of an apology. The essence of an apology is the expression of some kind of regret over an incident which has occurred, particularly one which has had unfortunate consequences—say, the shooting down of an aircraft or sinking of a ship, or a cross-border incursion by frontier guards leading to loss of life. In its simplest form, a State which accepts that it is responsible for such an incident will in the normal course of events be expected to express its apologies for the incident. And, of course, put the other way, a State which expresses its apologies for an incident will normally be taken to have accepted legal responsibility for it. Something close to a full apology occurred in September 2003, with the exchange of mutual apologies by the Presidents of Serbia-Montenegro and Croatia for events which had occurred in the 1991–5 war which accompanied the break-up of Yugoslavia.1 President Marovic said: ‘As President of SerbiaMontenegro, I want to apologize for all the evils any citizen of Serbia and Montenegro has committed against any citizen of Croatia’. In his response, President Mesic of Croatia said: ‘I also apologize to all those who have suffered pain or damage at any time from citizens of Croatia who misused or acted against the law’. The crucial element in a full apology is that it is expressed to be an apology for the incident. To apologize for an incident is not only an expression of regret that it occurred, but an acknowledgement that the incident occurred and an admission of responsibility for it. By way of contrast to an apology for

1 The Times (London), 11 September 2003. It is notable that, strictly speaking, the apologies were given to the individuals who had been injured by the apologizing State’s citizens, rather than by the one State to the other State.

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an incident there may simply be an expression of apology that the incident occurred. This does not carry with it the same acceptance of legal responsibility as flows from an apology for the incident. It is a commonplace for one person to say to another that, say, he is sorry that one of the latter’s friends or relatives has suffered some mishap; but doing so in no way suggests that the apologizer is responsible for the accident. A further element of flexibility arises from the description given to the matter in respect of which the apology is being offered. For example, a ship may have sunk in circumstances where a naval vessel of another State was in the vicinity. But it does not necessarily follow that that naval vessel was the cause of the sinking—it may have been, but it may perhaps be equally possible that the ship hit a submerged rock, or that, being old, it sprang a leak and foundered. This leaves room for a variety of apologetic responses by the State to which the naval vessel belonged. Apart from admitting its responsibility by apologizing directly for the sinking of the ship, it may merely say that it is sorry that the ship sank, or that it is sorry that the sinking resulted in loss of life. While the contents of such apologies are sufficiently similar to offer a way forward in any diplomatic exchanges to which the sinking has given rise, they are sufficiently different to carry with them very different diplomatic (and legal) flavours. In one way or another a State which believes itself to be owed an apology from another in respect of some incident which has occurred wants to hear the word ‘sorry’, in conjunction if possible with the word ‘for’: it wants the State which it believes to have done it a wrong to say that it is sorry for what it has done. In the same way that ‘sorry that’ falls short of the admission of liability which ‘sorry for’ will imply, so too expressions of sorrow, regret or condemnation will be likely to be considered inadequate by the addressee. ‘Sorrow’ is particularly difficult in this context, for in sound it is very close to ‘sorry’, and the two words are obviously closely connected. But when in 1998 Emperor Akihito of Japan expressed sorrow for the atrocities of the Second World War, this was widely regarded as inadequate: that expression of sorrow did not carry with it the implication that the apology was being made for atrocities which had been carried out by Japan—the expression of Japan’s sorrow would still have been appropriate had those atrocities been carried out by others. ‘Regret’ involves similar difficulties. It may seem sufficiently close to ‘sorry’ to make no difference, but its inadequacy lies in it carrying with it the flavour of wishing that something had not happened rather than of being sorry for it now that it has happened; and ‘regret’ probably sits more naturally with ‘that’ (thereby merely regretting that something happened but without acknowledging involvement in the occurrence) than with ‘for’ (signifying both an expression of regret for some occurrence and participation in it). Thus the German Ambassador to Namibia’s expression of ‘deep regret’ in January 2004 for the killing in 1904 of many thousands of Herero tribesmen in what is now Namibia,

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and his description of the mass killings as ‘unfortunate’, was regarded as falling far short of the full apology which was being demanded.2 Expressions of regret are nevertheless often made and accepted as sufficient in the circumstances, usually where the transgression is not of the utmost seriousness. Thus in 1931 General Butler, of the United States army, made at a banquet disparaging remarks concerning the Prime Minister of Italy and, in response to complaints by Italy, the United States Government expressed its regret at this unauthorized action on the part of a senior officer on active duty.3 It is noteworthy that, in Article 37(2) of the articles on State responsibility adopted by the International Law Commission,4 an expression of regret is listed separately from an apology among the forms of satisfaction which may be required as reparation for an international wrong. ‘Condemnation’ of an occurrence similarly involves an element which makes it fall short of a proper apology. It shows that the occurrence is strongly disapproved, but lacks the implied admission of responsibility for it which a clear apology has. After all, States may, and often do, strongly condemn the conduct of some other State: by doing so they do not in any way suggest that they themselves bear some responsibility for that conduct. The gradations of State responses involved in these various words of apology or quasi-apology are illustrated by the response of the United States in 2004 to the events involving the abuse of Iraqi detainees in Abu Ghraib prison in Baghdad.5 At first the United States Government expressed its regrets at the abuses which had been reported, but this was generally considered an inadequate response in the light of the nature of the abuses which were being reported. The Administration then moved to a strong condemnation of the abuses,6 but this too was deemed inadequate. Only then did the Administration do what had been called for from the start and make an unreserved apology for the abuses. On 6 May 2004 President Bush, on emerging from talks with King Abdullah of Jordan, said: ‘I told His Majesty I was sorry for the humiliation suffered by the Iraqi prisoners and the humiliation suffered by their families’.7 On the following day Mr Rumsfeld, the United States’ Secretary of 2 The Times (London), 13 January 2004. In August 2004 the German Minister for Economic Co-operation and Development, speaking in Namibia, made a full apology ‘for crimes committed in Germany’s name’: The Times (London), 16 August 2004. 3 See Stowell, ‘The General Smedley D. Butler Incident’, 25 AJIL (1931), 321–4. 4 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). 5 In this particular instance, circumstances in Iraq at the time meant that there was not an established Government in Iraq which was demanding an apology from the United States Government. Nevertheless, there was an Iraqi authority with some embryo governmental status which made it clear that apology was required, added to which were forthright demands from the international community at large that the circumstances called for a fullsome apology. 6 Thus on 5 May 2004 President Bush said in television interviews that the abuse of Iraqi detainees was ‘abhorrent’, was ‘a serious matter’ and ‘reflects badly on my country’: The Times (London), 6 May 2004. 7 The Times (London), 7 May 2004.

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Defense, stated in an appearance before the Senate Armed Services Committee that he offered his ‘deepest apologies’ to the detainees, adding that ‘[o]ur country had an obligation to treat them right. We didn’t, and that was wrong’.8 Those apologies met the three requirements identified above—they acknowledged that the abuses had taken place, they accepted that United States armed forces personnel had perpetrated those abuses and thus by clear implication that the United States bore responsibility for them, and it showed that the United States regretted their occurrence and was suitably contrite. One particular factor which may play an important part in the making of an apology is the language problems which may be associated with a word such as ‘sorry’. Translation may not always be easy, yet at the same time may offer a way of reconciling, by slight differences in nuance, apparently conflicting positions. Nor can it be excluded that States may choose to use words which may not be exact translations of the terms used in each other’s texts, but which may nevertheless serve to resolve their differences in a practical way. Whatever subtleties may be associated with an apology, there is little doubt that a full and straightforward apology will imply an admission of responsibility. But for the apologizing State it does more than that, for it makes it difficult—to say the least—for it to make out of the incident in question a basis for a claim against the other State. While this may be thought to be an unlikely development, it cannot be ruled out, given that many incidents are capable of more than one construction. Such a situation did in fact arise in proceedings before the International Court of Justice, in the Land and Maritime Boundary between Cameroon and Nigeria case.9 Part of that case involved claims by Cameroon that Nigeria was internationally responsible for numerous crossborder incidents. One of these involved an incident occurring in May 1981 in which five Nigerian soldiers were killed. In response Nigeria noted that, after various exchanges at the time between the Presidents of the two States, President Ahidjo of Cameroon made a full apology in writing to President Shagari of Nigeria, the Cameroon Foreign Minister made a special journey to Nigeria in order to express oral apologies, and Cameroon paid compensation to the families of the victims.10 Those apologies would seem to rule out any possibility of Cameroon succeeding in an international claim against Nigeria arising out of that incident, but the International Court did not find it necessary to come to a concluded view on any of the many claims of international responsibility advanced by Cameroon and, by way of counter-claim, by Nigeria.11

8

The Times (London), 8 May 2004. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening), Judgment, Merits, ICJ Reports 2002, 453. 10 Cameroon, Memorial, paras. 6.13–6.27; Nigeria, Counter-Memorial, paras. 24.65–24.67; Cameroon, Reply, paras. 11.58–11.76; Nigeria, Rejoinder, Chapter 16, Appendix, paras. 29–45, all electronically available at . 11 ICJ Reports 2002, at paras. 308–24. 9

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While flexibility over the terms in which an apology is made is at the core of an international apology, two other variables may also be very relevant: namely by whom and in what form the apology is made, and to whom it is made. Both offer much scope for variation tailored to particular circumstances, and offer gradations in the degree of responsibility accepted by the State making the apology, thus allowing room for much diplomatic manoeuvering in the negotiations which may take place in the search for an appropriate level of apology. Again to take a simple set of circumstances for the purposes of illustration, we might assume that an aircraft has crashed in circumstances where another State’s aircraft was in the same general area. One possibility would be for that State, if it accepts that its aircraft was the cause of the crash, to apologize for the incident through a statement made at a suitably senior level, say by its Foreign Minister or Minister of Defence or even (if the circumstances were particularly grave) by its Head of State. But even apologies at quite senior levels may be considered insufficient in the circumstances of particularly serious incidents. Thus, in relation to the abuses at Abu Ghraib prison in Iraq, statements by the United States President’s National Security Adviser, Condoleezza Rice, that ‘[w]e are deeply sorry for what has happened to these people’, and by a senior United States army officer in Iraq, Brigadier-General Kimmit, that ‘[o]n behalf of my army, I apologize for what these soldiers did to these citizens’,12 were insufficient and had to be followed by statements of apology from Defense Secretary Rumsfeld and President Bush himself.13 Lower levels of apology may, of course, be appropriate in some circumstances, such as one conveyed in a statement made by way of a press release from an appropriate government department, or an oral statement by a press spokesman. An alternative would be for the State’s Ambassador in the State to which the crashed aircraft belonged to communicate his State’s apology to the other State, either by a formal Note to the Foreign Ministry, or in the course of a personal visit to the Ministry, or by way of a press statement released by the Embassy. At a still lower level, an apology may be expressed by some person directly associated with the aerial incident, say the relevant air force commander for the region where the incident happened,14 or even the pilot of the aircraft which had been in the area when the crash occurred— and even then there may be a further gradation of apology depending on whether the person making it does so as part of a formal and agreed diplo-

12 13 14

The Times (London), 6 May 2004. Above, footnotes 7 and 8. Cf. the apology by Brigadier-General Kimmit, cited at footnote 12 above.

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matic resolution of the incident or as an informal, immediate and personal response to what has happened. An example of the latter occurred on 21 June 2004, when eight members of the British armed forces, while sailing three small vessels from one port in Iraq to another, accidentally entered adjacent Iranian territorial waters without permission and were apprehended by the Iranian authorities.15 One of those apprehended by Iran was shown on television the following day, apparently saying that the team had entered Iranian waters in error and that ‘we apologize because this was a big mistake’. Such a personal apology, even when apparently made without prior instructions from superior authorities, may be enough to satisfy the State which regards its rights as having been infringed, as it was in this instance: upon the release of the men, Admiral Ali Fadavi, deputy commander of the Iranian naval forces, said that ‘[t]he Islamic Republic took into account that the soldiers acknowledged their error and apologised’.16 Personal and unauthorized apologies of that kind may be attractive to both States concerned, in that they not only offer a convenient and low-key solution to what might otherwise become a major incident but are sufficiently informal as not necessarily to be treated as an apology by the State itself. A State may well seek to dissociate itself from the words spoken by its junior personnel, especially where there is uncertainty about the words actually used or where there could be suspicion that the apology had been extracted under duress. States may even seek to dissociate themselves from an apology to which they have more formally agreed. In 1968 the USS Pueblo was seized by the North Korean authorities, for allegedly conducting espionage activities against North Korea from waters off its shores. The vessel and crew were held by North Korea, which refused to release them until certain demands were met: these included an apology. In the event the United States Government signed a document ‘solemnly apologizing’ for the acts described in the document, but at the same time it made a unilateral statement declaring that the document was at variance with the true position.17 Balancing the identification of the appropriate person to make an apology, there is the equivalent question regarding the appropriate addressee of the apology. Apologies to the wronged State may be made either directly or indirectly. The former is self-evident—for example, a communication signed by a Foreign Minister or Ambassador and conveyed to his opposite number. But an apology made indirectly may have no specific addressee, or at least none associated with the State to which the apology is ostensibly due. Thus an apology may

15 The incident was widely reported in the British national press on 22 June 2004 and on the days immediately following. 16 The Times (London), 25 June 2004. 17 ‘Release at Panmunjom of Crew of U.S.S. Pueblo’, 63 AJIL (1969), 682–5; ‘Panel—The Pueblo Seizure: Facts, Law, Policy’, ASIL Proceedings (1969), 1–30.

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be conveyed by a public statement made by an appropriate Government Minister in the national Parliament, or in some suitable international forum such as the United Nations: formally the addressee is the body before which the statement is made, although in reality it is intended for the ears of the State to which it is due. The same is true of statements of apology made—as is increasingly common these days—to the public media, as in press releases or in television interviews: and those interviews may be made on national television networks, or on networks particularly associated with the area in which the incident being apologized for occurred.18 An apology may be made in the course of meetings with representatives of some other interested State, as happened with President Bush’s apology for the abuses at Abu Ghraib prison in Iraq, which was made at meetings with King Abdullah of Jordan.19 But where an apology is to be made more directly, there is also considerable flexibility in the identification of the appropriate addressee, with consequential implications for the degree of diplomatic contrition and legal responsibility associated with the apology. Clearly an apology addressed by a high official of one State to a high official of another State carries with it (and subject to its particular content) a clear indication of the apologizing State’s acceptance of international responsibility for whatever is being apologized for. More equivocal, however, is an apology addressed not to the central Government of the State but rather to a provincial or regional authority, perhaps that in which the incident being apologized for had its principal impact, for example where an aircraft may have crashed. Yet more equivocal from the point of view of international responsibility is an apology addressed not to State authorities at all but rather to individuals who have been affected by the incident, such as those who may have been injured in the incident or the relatives of those who lost their lives as a result of it. 4. The Apology as a Form of Reparation These many and varied questions relating to the substance and form of apologies which may be sought and made in the course of diplomatic exchanges which follow upon the occurrence of some incident are in many respects the beginning of the international process to which the incident gives rise. While apology is thus relevant at the outset, it is equally relevant at the culmination of that process. Not only may the making of an apology mark the satisfactory closure of the matter at the international and diplomatic level, but even where

18

Thus in the context of the abuses at Abu Ghraib prison, President Bush gave television interviews on 5 May 2004 to two Arabic channels, al-Hurra and al-Arabiya, expressing his condemnation of the incidents which had occurred. 19 See above, at footnote 7.

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it does not do so and the matter is referred to some form of international adjudication, the making of an apology may be one of the forms of reparation which a tribunal may require of the State which has been found to have acted in breach of international law. To use the terminology of the articles on State responsibility adopted by the International Law Commission, full reparation for the injury caused by an internationally wrongful act takes the form of restitution, compensation and satisfaction, either singly or in combination (Article 34). Restitution (i.e. reestablishing the situation which existed before the wrongful act was committed) and compensation (Articles 35 and 36) are perhaps the two primary forms of reparation; insofar as they cannot make good the injury suffered, satisfaction is to be given by the State responsible for the wrongful act (Article 37(1)). ‘Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or other appropriate modality’ (Article 37(2)). As explained in the Commentary to Article 37, ‘[s]atisfaction . . . is the remedy for those injuries, not financially assessable, which amount to an affront to the State’.20 As one form of satisfaction, an apology is part of the armoury at the disposal of an international tribunal when it has found a State to have acted in violation of international law. Whether it is appropriate for a tribunal to require the wrongdoing State to make an apology to the injured State will depend on the circumstances of the case, and cannot be prescribed in advance. In several cases a tribunal has ordered an apology to be made. In the I’m Alone the Commissioners appointed to report on the circumstances of the sinking of a Canadian vessel on the high seas by a US customs vessel considered that the United States ‘ought formally to acknowledge its illegality [scil. the act of sinking the ship], and to apologize to His Majesty’s Canadian Government therefor’.21 In the Rainbow Warrior case, matters in dispute between New Zealand and France, arising out of the sinking by French agents in Auckland harbour of the Greenpeace vessel ‘Rainbow Warrior’, were referred to the SecretaryGeneral of the United Nations. In his ruling of 6 July 1986 the SecretaryGeneral required that ‘the Prime Minister of France should convey to the Prime Minister of New Zealand a formal and unqualified apology for the attack, contrary to international law, on the Rainbow Warrior by French service agents which took place on 10 July 1985’.22 It was at the same time agreed between New Zealand and France that the undertaking relating to the apology would be implemented not later than 25 July 1986.23

20 21 22 23

Doc.A/56/10, Commentary, para. (3). S.S. ‘I’m Alone’, RIAA, iii, 1609. Rainbow Warrior (New Zealand v. France), 74 ILR (1987), 241, at 271. Exchange of Letters of 9 July 1986: ibid., 274–5.

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However, just as an individual State may choose to regard the offer of an apology as inadequate, so too a tribunal may conclude that an apology is insufficient in the circumstances of the case before it. In the LaGrand case the International Court of Justice, having been informed that the United States had already apologized to Germany for the breach of its obligations to give consular notifications to imprisoned German nationals, nevertheless considered that ‘an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under Article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties’.24

5. Conclusion Overall, the apology can be seen as serving a useful but not necessarily decisive international function, both in the diplomatic exchanges which follow in the immediate aftermath of an incident possibly involving a breach of international law, and in any international adjudicatory proceedings to which the incident might give rise. Its value, diplomatically, lies in its flexibility, but it depends ultimately upon the attitudes of the States concerned as to its sufficiency in any given set of circumstances. For a tribunal, the ordering of an apology requires the apologizing State to acknowledge its own misconduct and, implicitly, its acceptance of the rule of international law in international relations.

24 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at para. 123; see also para. 125.

CHAPTER ELEVEN

REVISITING THE INTERNATIONAL LAW COMMISSION’S DRAFT ARTICLES ON STATE RESPONSIBILITY Chusei Yamada1

1. Introduction The International Law Commission completed the second reading of the draft articles on responsibility of States for internationally wrongful acts in 2001, after almost fifty years of strenuous work on this topic. That same year, the General Assembly passed a resolution,2 as recommended by the Commission, taking note of the articles (the text of which was annexed to the resolution), and commending them to the attention of governments without prejudice to the question of their future adoption or other appropriate action. The General Assembly also decided to include, in the provisional agenda of its fifty-ninth session in 2004, an item entitled ‘responsibility of States for internationally wrongful acts’ to consider the possibility of convening a diplomatic conference with a view to concluding a convention on this subject. The recommendation by the Commission, in 2001, for a two-stage approach to the future form of the draft articles was based on misgivings that the premature convening of a diplomatic conference would reopen various thorny issues and endanger the balance reflected in the Commission’s draft articles. In this way, it was hoped that there would be sufficient time for the development of State practice and judicial decisions along the lines of the draft articles, before the possible conversion of the draft articles into a convention. At the time of writing this essay, the result of the debates within the General Assembly regarding this possible conversion is unknown. A fairly large number

1

The author is grateful for the invaluable assistance provided, in the preparation of this essay, by Ms. Mariko Kawano, MA (Tokyo), LLM (Cambridge), Professor of International Law at Waseda University, Tokyo. 2 ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). On 2 December 2004, the General Assembly commended the articles to governments’ attention, without prejudice to future action, and decided to include this item in its provisional agenda for 2007 (A/RED/59/35). Maurizio Ragazzi (ed.), International Responsibility Today, 117–123. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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of governments would welcome a convention, which would introduce an element of clarity and stability into the realm of State responsibility. However, while it is encouraging to note that the International Court of Justice has already taken account of the draft articles on several occasions such as the LaGrand case (assurance of non-repetition),3 the Arrest Warrant case (appropriate remedies: restitutio in integrum, assurance of non-repetition),4 the Avena and Other Mexican Nationals case (appropriate remedy as a consequence of the breach of obligations under Article 36: review and reconsideration of the sentences and convictions),5 and the Construction of a Wall case (elements precluding wrongfulness and serious breaches of obligations under peremptory norms of general international law),6 it would perhaps be appropriate to allow more time for the process of application and development of the draft articles before a convention is adopted. As a member of the International Law Commission, I was involved in the elaboration of the draft articles for the last five years of their first reading and also for the entire period of their second reading. I feel obliged to defend the text of the draft articles, which is the product of brilliant successive Special Rapporteurs7 and the best minds of the Commission’s members. However, I hold several critical observations on the draft articles. These observations are not to be construed as suggesting amendments to the text. They are offered in the hope that the future application and development of the draft articles may take them into account. 2. Civil and Criminal Responsibility My basic concept of the development of international law is that it should take into account as much as possible the development of the domestic laws of civilized nations. Today, in domestic law, civil responsibility is separate from criminal responsibility. On the other hand, during the feudal period in Japan ( just to make an example), the various elements of civil and criminal responsibility were contained, in perfect harmony, within a single legal system. The magistrate acted as policeman, prosecutor, judge and warden. He dealt with criminal as well as civil cases. A similar situation existed in other nations in the

3 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at 512–14, paras. 123–7. 4 Arrest Warant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment 14 February 2002, ICJ Reports 2002, 3, at paras. 75–7. 5 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12, at paras. 115–50. 6 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, paras. 138–42 and 154–60. (The text of the opinion is electronically available at .) 7 James Crawford, Gaetano Arangio-Ruiz, Willem Riphagen, Roberto Ago, and Francisco V. García Amador.

revisiting the international law commission’s draft articles 119 past. For instance, imprisonment for debts and the punishment of fraudulent debtors continued in England until 1869.8 International law recognizes the separation of civil responsibility from criminal responsibility as evidenced, for example, by Article 11 of the International Convention on Civil and Political Rights, which prohibits imprisonment for debts. The first reading text of the draft articles on State responsibility contained a mixture of civil and criminal responsibility. It had the famous draft Article 19 on ‘crimes of States’, proposed by Ago.9 Yet there was scarcely any provision in the text regarding the legal consequences deriving from the commission of such a crime. That indicated lack of evidence substantiating the concept. I myself felt very uneasy about it and did work to remove this haunting ghost of crime of States from the second reading text. I do, of course, recognize the existence of crimes of States and the need to oppose and suppress such crimes. Invoking the criminal responsibility of a State having committed this crime would be an important tool for such efforts. However, these efforts should be pursued outside the framework of codification of the responsibility of States. The better and more effective approach would be, firstly, to strengthen the development of international law on the criminal responsibility of the individual to whom the commission of such crime is attributable and, secondly, given the absence of an enforceable criminal judicial system at the international level, the matter should be left to universal or regional political organizations. To authorize individual States to invoke the criminal responsibility of other States would lead to instability, chaos, and sometime injustice. The second reading text of the draft articles was greatly improved, thanks also to the initiative of Crawford, by removing the concepts of crimes of States and punitive damages, while leaving some aspects of them within the treatment of countermeasures. Hence the focus must be on the civil responsibility of States. 3. Damage as a Constituent Element Another aspect is that the basic principle underlying the draft articles as a whole is, as stated in draft Article 1, that every breach of international law by a State entails its international responsibility. ‘Damage’ is not required as a separate element. The State responsible for an international wrongful act is under an obligation to make full reparation for the injury caused and, in assessing the injury, damage is an essential element. Accordingly, this is not much

8

The Debtors Act, 1869, 32 & 33 Vict. c. 62, § 4 (1869). In their comments, some of the governments stated that, in international law, responsibility of States is neither civil nor criminal but international. 9

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different from the civil responsibility of the State under domestic law, which is usually based on damage as a result of a breach of contract or tort. However, this basic principle of dealing only with the consequences of international wrongful acts left out the existence of the responsibility of States for damage arising out of their lawful (or non-wrongful) acts. As a result, the International Law Commission was obliged to commence work, in 1978, on the topic of ‘international liability for injurious consequences arising out of acts not prohibited by international law’. For more than a quarter of the century, the Commission has been struggling with this topic. It completed, in 2001, its first reading of the draft articles of the sub-topic of ‘prevention of transboundary harm from hazardous activities’10 and, in 2004, its first reading of the draft principles on the allocation of loss.11 The activities in question are not prohibited, except that they entail liability if they cause damage. These cases could have been covered by the regime of the responsibility of States, if ‘damage’ rather than ‘wrongfulness’ had been made a condition for State responsibility. 4. Obligation Owed towards the International Community as a Whole A further aspect is that the basic principle of dealing with every internationally wrongful act is intended to cover all the obligations undertaken by States by bilateral treaties, multilateral treaties, and customary law. However, there is a difference between bilateral treaties on one hand, and multilateral treaties and customary law on the other hand. Bilateral treaties, in a way, are akin to contracts. They give rise to relations of reciprocal rights and obligations which are, in many cases, irrelevant to the international community as a whole. States are free to enter into any bilateral agreement as long as it does not derogate from peremptory norms of general international law, and can also arrange for detailed dispute settlement provisions between themselves, thus relying less on general rules of State responsibility. On the other hand, a substantial proportion of the obligations undertaken by universal multilateral treaties and customary law derive from norms affecting the international community as a whole, and cannot be broken down into bilateral relations, although some of them could. In recent years, universal normative treaties have been growing in number, especially in the areas of human rights, disarmament, and the environment. In my view, the efforts so far at codifying the secondary rules of international law have not sufficiently addressed the question of normative treaties.

10 For the text of the draft articles, see ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10) 370–7, para. 97. 11 For the text, see ‘Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities’ (Doc.A/CN.4/L.662).

revisiting the international law commission’s draft articles 121 To cite an example, the reservations regime under Articles 19 through 23 of the Vienna Convention on the Law of Treaties12 is based on the assumption that the rights and obligations under multilateral treaties could be broken down into reciprocal relations. However, most of the obligations that are owed to the international community as a whole do not give rise to mere relations between the affected parties. There may well be a bilateral dimension, but the obligations in question are still owed to the international community as a whole. Accordingly, the reservations regime of the Vienna Convention on the Law of Treaties needs review and such a review is now under way in the International Law Commission’s work on the topic of ‘reservation to treaties’. The draft articles on State responsibility have addressed this question of normative treaties in draft Article 40 (serious breaches of obligations under peremptory norms of general international law), draft Article 41 (obligations of all States to cooperate to bring to an end such breaches), draft Article 48 (invocation of responsibility of a State other than an injured State), and draft Article 54 (countermeasures taken by States other than an injured State). It is expected that the rules reflected in these draft articles should be further developed in the practice of States and judicial decisions. It is gratifying to note that the International Court of Justice, in its advisory opinion in the Construction of a Wall case, stated along the lines of draft Article 41 that ‘[a]ll States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction’.13 The Court added that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation. 5. Attribution of Responsibility Some other aspects of the draft articles on State responsibility deserve notice. In accordance with these articles, when a particular conduct leading to the commission of an international wrongful act is attributable to a State, presumably the responsibility arising out of that conduct is also attributable to that State. At the time of elaborating the draft articles, we did not foresee any problem with this assumption. However, in the current work of the Commission on ‘responsibility of international organizations’, it has become clear that attribution of conduct and attribution of responsibility should be separately addressed. This is because a conduct attributable to an international organization entails not only the responsibility of that international organization but

12

1155 UNTS 331. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 163(3)D. 13

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also the responsibility of the member States of that organization, by reason of their membership. The problem may occur when the conduct is not normally attributable to an international organization but is acknowledged and adopted as its own in a particular case. Some concrete instances are those arising from peacekeeping operations of the United Nations. The national contingents of contributing States perform their functions under the umbrella of the relevant Security Council resolutions. Are these forces placed at the disposal of the United Nations? Do the United Nations exercise effective control over the conduct of these forces? The answers to these questions may differ depending on the specific circumstances of the particular operations. However, the United Nations Secretariat prefers in general to acknowledge and adopt these conducts as those of the organization, which therefore is responsible for them.14 The transfer of responsibility from the State whose forces committed the wrongful act to the United Nations means that every member State of the organization is jointly responsible, and it is doubtful whether such a transfer is lawful without the consent of the affected States. A similar problem arises with respect to draft Article 11 on State responsibility, which provides that the ‘[c]onduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own’. This article was originally meant to cover the cases of a successor State and of the conduct of a private person or entity belonging to a State. Within these limitations, the transfer of responsibility would not be problematic. However, the text of draft Article 11, as now formulated, includes also the case of the transfer of attribution of conduct, and of the consequent responsibility, from one State to another. As this may adversely affect the position of the injured State, such a transfer of responsibility should not be allowed without its consent. 6. Circumstances Precluding Wrongfulness and Compensation Chapter V of Part One of the draft articles on State responsibility sets out six circumstances precluding the wrongfulness of a conduct that would otherwise not be in conformity with an international obligation. They are consent (draft Article 20), self-defence (draft Article 21), countermeasures (draft Article 22), force majeure (draft Article 23), distress (draft Article 24), and necessity (draft Article 25). Draft Article 27(b) provides that the invocation of a circumstance precluding wrongfulness is without prejudice to the question of compensation

14 See Gaja, ‘Second Report on Responsibility of International Organizations’ (Doc.A/CN.4/541), sections IV and VI.

revisiting the international law commission’s draft articles 123 for any material loss caused by the act in question. In the Gab‘íkovo-Nagymaros case, the International Court of Justice, while not accepting Hungary’s plea for a state of necessity, noted that ‘Hungary expressly acknowledged that, in any event, such a state of necessity would not exempt it from its duty to compensate its partner’.15 Draft Article 27 is a ‘without prejudice’ clause and does not give any answer to the question of compensation. What is the circumstance that would preclude wrongfulness of a conduct but would not relieve a State from its responsibility to compensate for the material loss caused by its conduct? Self-defence would preclude responsibility. Necessity might not. This question of compensation should be further developed either in the context of the circumstances precluding wrongfulness or of international liability.

7. Conclusion The elaboration of the draft articles on the responsibility of States is perhaps the most important codification of international law after the Vienna Convention on the Law of Treaties. The ultimate goal should be the adoption of these articles in the form of a convention. In the meantime, it will be seen whether they will acquire wide support among Governments, by means also of actual tests in State practice.

15

Gab‘íkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7, at 39, para. 48.

CHAPTER TWELVE

DOES THE PROSPECT OF INCURRING RESPONSIBILITY IMPROVE THE OBSERVANCE OF INTERNATIONAL LAW? Karl Zemanek

1. Introduction Some theories of law, most prominently perhaps Hans Kelsen’s ‘pure theory of law’, define law as a coercive order.1 Kelsen applies this definition also to international law when he states: ‘The law is a normative order, and since legal norms provide for coercive acts as sanctions, the law is a coercive order’.2 It is not the purpose of this essay to examine the validity of Kelsen’s theory for explaining the nature of law in general, although the question of its relevance for international law will turn up later. To avoid misunderstandings it should, however, be mentioned now that many legal scholars consider Kelsen’s definition as unduly narrowing the concept of law. Or, as Wolfgang Friedmann observed: ‘Legal philosophers are far from united on the question whether enforceability is an essential element of law’.3 Thus without endorsing Kelsen’s view, his definition should, nevertheless, remind us that some schools of legal thinking, especially in Europe, will treat international law only as ‘true’ law if its violations (in Kelsen’s language: delicts) regularly (which he calls: effectively) entail the corresponding sanction. As far as theory is concerned, this proposition does not cause problems with international law. State responsibility for wrongful acts and the eventual response with countermeasures (formerly reprisals) are established customary institutions. The articles on the responsibility of States for internationally wrongful acts,4

1

See Kelsen, General Theory of Law and State (1945), 118–20. Id., Principles of International Law (1st edn., 1952), 6. 3 Friedmann, ‘General Course on Public International Law’, 127 RdC (1969), 39–246, at 65. See also Alland, ‘International Responsibility and Sanctions: Self-Defence and Countermeasures in the ILC Codification of Rules Governing International Responsibility’, Spinedi and Simma (eds.), United Nations Codification of State Responsibility (1987), 143–95, at 171–3. 4 See text and commentary in ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), 29–365. 2

Maurizio Ragazzi (ed.), International Responsibility Today, 125–134. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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which the International Law Commission had prepared as codification of custormary international law, were taken note of by the General Assembly of the United Nations and commended ‘to the attention of Governments’.5 These articles formulate not only a regime for establishing responsibility but deal also with the latter’s implementation and, more specifically, with eventual countermeasures. While their content is generally fairly orthodox, there is one point in which some sort of progressive development or, more precisely, of articulating a not yet very clear and conclusive custom, has taken place, and that is the responsibility for violations of obligations erga omnes, e.g. those under international human rights law. In view of the uncertain nature of the relevant practice Article 48 of the Commission’s draft is cautiously formulated. In case of responsibility for violation of an obligation erga omnes Article 54 excludes eventual countermeasures of third states and allows only ‘lawful measures . . . to ensure cessation of the breach and reparation in the interest of . . . the beneficiaries of the obligation breached’ (emphasis added), leaving the question open what these ‘lawful measures’ are. The guarded formulation invites the surmise that States, in fulfilling their human rights obligations, will be motivated rather by obedience to their own courts, and by the risk of being otherwise called to account by an NGO making their record public, than by the fear that other States would take legal steps against them. While the manner in which the General Assembly received the International Law Commission’s draft and the criticism of some member States in respect of certain articles during the debate indicate that the text does not (yet) command a consensus, there is no doubt that the general concept reflects the shared opinion of the international community of States. Thus, in theory, one of Kelsen’s conditions of a coercive order is met. But are the possible sanctions regularly applied? Or, to put it differently: do States observe their international obligations because they fear the consequences which responsibility for wrongful acts may eventually entail? To give an unqualified affirmative answer would distort reality. This essay proposes to explore some of the reasons why. For this purpose it is necessary to narrow the subject of examination. As measures of self-redress, countermeasures may have different motives and purposes. This essay is only concerned with the coercive aspect, that is with countermeasures adopted for the purpose of inducing the wrongdoer to reverse the course of its action and abide by its obligation. Normative and retributive countermeasures6 are deliberately excluded.

5

‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 6 For the distinction see Cannizzaro, ‘The Role of Proportionality in the Law of International Countermeasures’, 12 EJIL (2001), 889–916, at 900, 904 and 909.

the prospect of incurring responsibility 127 Before embarking on that enquiry it may, however, be useful to recall the kind of action which States may use as countermeasures. Eiichi Fukatsu, writing more than twenty years ago,7 distinguished diplomatic, economic and military coercion. He further differentiated between the forms of coercion exercised by individual States, a group of States or by international organizations. It is interesting to note, though, that he expressly excluded coercion of the nongovernmental variety, although he recognized that NGOs frequently exert pressure on foreign States. However, the direction which the development of international relations has taken in the last couple of decades does no longer warrant this exclusion—as will be shown below. For the rest, however, Fukatsu’s categories are still a useful analytical tool. 2. Restrictions on Countermeasures The freedom to take countermeasures is restrained by limits which are part of the regime. The present state of the opinio juris is reflected in Article 50 of the International Law Commission’s articles, which has remained basically unchallenged throughout the work of the Commission on the subject and can, therefore, be considered as expressing general custom. That countermeasures shall not affect the obligation to refrain from the threat or use of force or other obligations under peremptory norms of general international law seems selfevident, although there is a loophole if the use of force is disguised as selfdefence. Problematical is the prohibition to infringe obligations for the protection of fundamental human rights with countermeasures, partly because it is difficult to demonstrate a worldwide consensus on what constitutes that ‘core’ of human rights. More fundamental is the doubt whether United Nations sanctions are subject to the same limitation. It hinges on the yet inconclusive discussion whether the Security Council is bound by—at least some—norms of international law when ordering (economic) sanctions and, hence, whether sanctions against a State may or may not impair fundamental human rights of the latter’s inhabitants, especially women and children.8 The same question arises, incidentally, with economic sanctions (embargos) which States use as tool of their foreign or security policy without naming them countermeasures. Also problematical, though not on political but on legal grounds, is the requirement of proportionality of the countermeasure as confirmed by Article 51 of the Commission’s draft. Although this is a time-honoured principle, endorsed in the famous Naulilaa arbitration between Portugal and Germany in

7

‘Coercion and the Theory of Sanctions in International Law’, Macdonald and Johnston (eds.), The Structure and Process of International Law (1983), 1187–1205, at 1188. 8 See e.g. Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’, 95 AJIL (2001), 851–72.

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1928,9 and repeated thereafter in every text-book of international law, it is an empty formula10 unless a third party—an international court or tribunal—is called in to judge. Even when a countermeasure ‘takes into account the gravity of the internationally wrongful act’ and is ‘commensurate with the injury suffered’ by the injured State, it may still have a disproportionate effect on the State which committeed the internationally wrongful act. It would precisely be the true task of proportionality to avoid that. One would, however, create a totally misleading impression were one to suggest that, within the limits just described, States defend their rights automatically with countermeasures. One cannot properly understand the functioning of international law without taking its political dimension into account. This is particularly true in respect of State responsibility. States’ actions are determined by political and economic considerations in the first instance and only inter alia also by notions of justice and law. The possible presentation of an international claim arising out of the responsibility of another State, and even more so the eventual enforcement of that claim, will be examined in the general context of relations with that State. When the latter is a big power, a major supplier of essential resources or a principal trade partner, misgivings about the effect on other essential relations may induce a victim not to pursue the claim. A further deterrent is the weakness inherent in a decentralized enforcement system: when the chances of success through the application of available measures are small, it may not be expedient to risk jeopardizing relations for nothing. It is thus not rare that States, after having considered their interests and the chances to succeed, do not claim or claim only pro forma. The consequences of this consideration are, however, quite different when the positions are reversed and it is the victim that is an economically or politically important State, may be even a great power: the aforementioned restraints will then turn into advantages. In dealing with countermeasures one should therefore keep in mind that in a decentralized system of law the latter’s unilateral enforcement is, ultimately, a function of power.11 It must also be stressed that, as a result of prohibitions or exemptions, the body of international norms, or rights under international law, which may legally be infringed by countermeasures has gradually been reduced over the years. The reduction is reflected in the exemptions stated in Article 50 of the International Law Commission’s draft on State responsibility: obligations under peremptory norms of general international law, in particular the obligation to 9 Naulilaa Award (‘Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique (Sentence sur le principe de la responsabilité)’, 1928), RIAA, ii, 1011. 10 Even the serious efforts by Cannizzaro do not dispel my doubts. Perhaps he admits his own doubt when he refers in his concluding remarks to the ‘inherent indeterminacy’ of the rule of proportionality. (See the article cited in footnote 6, above, at 916.) 11 See Zemanek, ‘The Unilateral Enforcement of International Obligations’, 47 ZaöRV (1987), 32–43, at 43.

the prospect of incurring responsibility 129 refrain from the threat or use of force, and obligations for the protection of fundamental human rights or of a humanitarian character prohibiting reprisals, may not be infringed by countermeasures; and the rules protecting the inviolability of diplomatic or consular agents, premises, archives and documents, are not permissible objects of them. Yet countermeasures can only be effective if the target State values their object and there is precious little left of rules or rights which qualify, except perhaps in the area of international economic law which, however, has its own deterrent: reciprocity. In view of these limitations it does not appear that, except in specific circumstances, State responsibility and its eventual consequences are the foremost or even major reason why States honour their international obligations fairly regularly. How then can this be explained? In seeking an answer it may be useful to differentiate between certain branches of international law. The attention-catching examples of serious violations of international law that go unpunished happen most frequently in what one could call ‘political’ international law, which includes, inter alia, the rules concerning international security or the protection of human rights. International law comprises, however, also the infinitely vaster body of what one may term international ‘administrative’ law which is regularly observed and applied and accounts for the good functioning of the world infrastructure. But its is not the most glamorous part of international law and does not attract the public’s attention, its observance being taken for granted. And that is not far from the truth, because the driving force is reciprocity.12 Reciprocity gives States a shared interest in the maintenance of predictable patterns of conduct,13 which is a stronger incentive for the regular performance of obligations than the possibility of sanctions. A State which disrupts this web of reciprocal relations by a countermeasure risks to suffer more injury than the target State, unless it is the dominant power in one of the abovementioned asymmetrical relations which, in the world of today, means almost exclusively the United States, with the European Union and China as potential candidates. The economic globalization during the last decade and its rapid expansion into social and cultural globalization have raised the interdependence of States to an unprecedented level. International economic relations, especially trade and financial services, depend thus heavily on reciprocity. The double-edged nature of a decision to sever trade relations is demonstrated by the growing awareness that economic sanctions (embargos),14 in particular those ordered by the Security Council, rarely achieve their purpose. 12 Still a classic is Simma, Das Reziprozitätselement in der Entstehung von Völkergewohnheitsrecht (1970); and Id., Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge. Gedanken zu einem Bauprinzip der internationalen Rechtsbeziehungen (1972). 13 See Watts, ‘The International Rule of Law’, 36 GYIL (1993), 15–45, at 41; and Watson, ‘A Realistic Jurisprudence of International Law’, 30 Year Book of World Affairs (1980), 265–85, at 283. 14 See Miyagawa, Do Economic Sanctions Work? (1992).

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They hurt primarily the population of the target State and may sometimes reduce it to misery, but they affect the governing elite only marginally—and, if at all, then only after a long period. The desired pressure from a dissatisfied people on the government may occur in a democracy—but democracies are rarely the target of economic sanctions by the Security Council. Nothing, however, of the sort will happen in a repressive dictatorship, as recent examples have shown. While embargos may thus impair the human rights of the population, they miss their purpose of bringing about the norm-conforming conduct of the targeted government. Another pertinent example of the caution required in applying countermeasures which disrupt international trade relations is provided by the World Trade Organization.15 Its member States have accepted a dispute settlement mechanism which eventually authorizes countermeasures (sanction) against infringements of the regime. The authorization minimizes the danger of hostile reaction to the measure (retaliation) and the possible disruption of the carefully balanced regime as a consequence. 3. Responsibility and New Actors in International Relations Interdependence as a deterrent for countermeasures in international trade relations is not the only consequence of globalization. The forces which caused the change in international relations during the last decades have also generated other phenomena which do not easily fit the pattern of international law and put the effectiveness of the institution of responsibility for promoting the observance of it in doubt. After the attack on the United States on 11 September 2001 the responsibility for a terrorist organization operating on the territory of a State—which it must by necessity since it is not a territorial entity—became an issue. It was at first obscured by the fact that the United States justified its attack on the Taliban regime in Afghanistan with self-defence,16 but it raised nevertheless the question of responsibility. The case provokes the query whether there is a threshold of responsibility when a terrorist movement has an operational cell on the territory of a State. After the events of 11 March 2004 in Madrid the thought must be disturbing for European States and some others which suspect the existence of such cells but are unable to prove it in their courts under the rule of law. Such a clandestine cell may plan an attack on the host State; but can an attack on another 15 Cf. Mengozzi, ‘The World Trade Organization Law: An Analysis of its First Practice’, Divenire sociale e adeguamento del diritto. Studi in onore di Francesco Capotorti (1999), i, 271–315. 16 For more details see Zemanek, ‘Self-Defence Against Terrorism; Reflexions on an Unprecedented Situation’, Marino Menéndez (ed.), El Derecho internacional en los albores del siglo XXI. Homenaje al profesor Juan Manuel Castro-Rial Canosa (2002), 695–714, especially at 702–5.

the prospect of incurring responsibility 131 State from this base be excluded? In the Nicaragua case,17 the International Court of Justice insisted on the element of control. It is beyond doubt that a terrorist organization which is acting on instructions of, or under the direction or control of, a State is engaging the international responsibility of that State by its acts in another State. Yet one may wonder whether ‘control’ remains an appropriate criterion under present circumstances. If a State possesses information about the existence of a terrorist cell on its territory without having sufficient proof for legal action against its members but suspects that the cell is part of a network which targets other States and uses the territory as an operational base, can it then be argued that this State is under an international obligation to share the information with the potentially affected State or States and incurs international responsibility if it does not, or only insufficiently, do so, for instance by withholding vital bits of information to protect their source? And what about a failed State in which the governmental machinery, even if vestiges of it should continue to exist, is either unable to know what is going on in certain parts of its territory or, if it should know, is unable to do anything about it? It is a well-known principle of international law that a State which fails in its duty to prevent the use of its territory for acts contrary to the rights of other States18 is responsible for the omission.19 But how far does this ‘duty’ go? Is it subject to responsibility for result in case of failure, or are due diligence and ultra posse nemo tenetur still the relevant measure for judging an omission? And, if responsibility for result should be the correct answer, would this justify the infringement of obligations under human rights law to achieve the result? It seems, there are more questions than answers; and if answers were attempted there would probably be as many as there are discussants. Terrorists are not the only novel actors in international relations, though. Other new actors are of a different kind but raise similar questions with regard to assigning responsibility. Examples are various forms of internationally organized crime, like trafficking in women or migrants, smuggling of nuclear material or drugs, or the notorious piracy in the Malaccan strait. Being non-territorial organizations like terrorists, they also operate on and from the territory of States which, under traditional international law, are required to prevent their illicit activities. Yet, except when they are caught red-handed, lack of evidence makes that usually impossible under the ‘due process’ rule. Moreover, the necessary cooperation among States is—despite protestations to the contrary—

17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, at 50 (para. 86) and 103 (para. 195). Article 8 of the Commission’s articles on State responsibility adheres to that concept. 18 Corfu Channel, Merits, Judgment, ICJ Reports 1949, 4, at 22. 19 See Garcia-Mora, International Responsibility for Hostile Acts of Private Persons Against Foreign States (1962), 109–12 and 130.

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neither very trustful nor, as yet, overly successful. Is ultra posse applicable under these circumstances? Globalization has also increased the role of other actors. Received international law requires companies to be linked to a State of nationality to make international law applicable to them via the legal order of that State. But in view of their international operation many multinational companies can only by an artificial construction be connected with a State. Nevertheless, economically powerful States seem to be content with the present ambiguity because it favours claims to extraterritorial jurisdiction by which they try to exercise control over companies abroad in pursuit of their interests. On the other hand, public faith in the effectivness of international law is undermined if States conclude international agreements which companies of their nationality evade by purposely selecting States for their operations abroad which are not a party to the respective agreement. The break-ups of ancient oil tankers, registered in indifferent States which still certify their seaworthiness, with disastrous results on the environment of the nearby shores of unconnected States, demonstrate the dire consequences. It is obvious that a fair balance needs to be found between these two extremes. It should, on the one hand, curb the excessive reliance on extraterritorial jurisdiction and, on the other hand, prevent companies from evading the international obligations contracted by their State of nationality. But modern industrial relations challenge the concept of State responsibility even further.20 Who should be responsible under international law for the conduct of a foreign investor? The State where he invests or the State of nationality? If a State may exercise diplomatic protection over a company of its nationality abroad, it does not seem a fair balance of interests that the same State should not be responsible for the company’s violation of international obligations which apply in the State of nationality, for instance by flouting international labour standards, in its operations abroad. In this respect, too, a fair balance between protective interest and responsibility is needed to put an end to some hiedous exploitation. This necessarily fragmentary survey of outstanding problems supports the thesis that State responsibility in its present form which, as indicated by the term, applies only to State to State relations, is, under frequently existing present circumstances, inadequate to assure the observance of international law. When powerful non-State actors effectively elude the domestic jurisdiction of their State of nationality, they challenge one of the basic axioms on which traditional international law rests, namely that States guarantee the imple-

20 Some of this is discussed by Waelde and Wouters, ‘State Responsibility in a Liberalised World Economy: State, Privileged and Subnational Authorities Under the 1994 Energy Charter Treaty’, 27 NYIL (1996), 143–91, especially at 187–9.

the prospect of incurring responsibility 133 mentation of international obligations which they undertake by making them, in one way or another, part of their domestic legal order and thus subject to its eventual enforcement, thereby obliging all persons, physical as well as juridical, under their jurisdiction to abide by them. As has been argued above, this situation should and could be remedied by a fair adaptation of the present rules of State responsibility. The case is different when a non-State actor actually escapes any national jurisdiction. If it infringes international law, it would in most cases be futile to apply coercive measures against the State to which the non-State actor seems in fact connected with intent to induce compliance with the infringed obligation, since the State will be powerless to ensure the lawful conduct of the nonState actor. This case requires new rules. It has further been argued earlier that the present condition of international relations does no longer warrant the exclusion of non-governmental coercion from consideration, like Eiichi Fukatsu did twenty years ago. But traditional thinking in international legal science is slow to adjust and many scholars still disregard the opportunities which the modern information society has opened. Factual information shown on television, if it is of a horrid nature, like the multilated bodies of genocide victims or the tortured Iraqi prisoners, has an impact on governmental policy. A sustained campaign by widely read newspapers may force the hand of a national government and an international campaign by a respected NGO puts the subject on the world agenda which governments cannot ignore. Non-governmental coercion has, admittedly, shortcomings. One is that it works only with regard to those international obligations which, when violated, rouse the public temper. It can therefore only be effective in respect of certain fields of international law, like human rights or environmental protection. A further flaw on which critics dwell lies in the domestic nature of the pressure which public opinion can bring to bear on governments, i.e. the fear to be punished at the next election, even if it is applied simultaneously in a number of States. But that is in keeping with the conventional wisdom that most foreign or international policy in a modern democracy is determined by domestic considerations. Thus, while non-State coercion may so far play only a minor, because limited, role, that is no excuse for ignoring it in constructing a theoretical model.

4. Conclusion The transformation of international relations caused by new non-State actors, be they a terrorist or criminal organization, multinational corporation, NGO or the mass media, transcends the traditional State to State relations which hitherto have been the sole concern of public international law. For that law relations with non-State actors are asymmetrical because only one side, the

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State in question, qualifies as a subject of international law. But it is an undeniable fact that the conduct of these non-State actors cannot be controlled in the usual manner by rules of inter-State law. If responsibility is to serve its purpose and remain an effective concept for safeguarding the stability of the international order, the word ‘State’ in the term ‘State responsibility’ and thus, in reality, the concept of responsibility, requires reconsideration. Rethinking is also required in respect of Kelsen’s definition of law when applied to international law. Coercion is not an end in itself in a legal system. Sanctions, by threatening and eventually applying force, are only a means to ensure that the law is observed. If one follows the theory that sanctions are necessarily a determinant element of law, it should not matter that such sanctions or, more precisely, the coercion behind it, does not come from another State but from a non-governmental source, as long as it forces the object State to fulfil a hitherto unfulfilled international obligation. Taking everything into consideration, the conclusion one can draw from this short essay is not particularly pleasing. In its endeavour to achieve as broad a consensus as possible, the International Law Commission has codified most customary rules in their closest sense and, with respect to the individual enforcement of claims arising from State responsibility, may in some respect have gone back on what custom permits. However, even in that cautious form, the articles did not find sufficient favour with the members of the United Nations to warrant their adoption as a convention. One may doubt that this will enhance the role of State responsibility as a means of exerting pressure on States to observe their international obligations. On the other hand it was perhaps wise that the articles, in assigning responsibility, did not attempt to cover problems which are caused by new actors on the international scene and by the novel situations which they create. States may have balked at so bold an undertakiung, even more than they did with regard to the articles as they stand. The result is, neverthless, that the respective conduct is not guided by firm legal rules but left to political ad hoc decisions with an uncertain and varying outcome, in the hope that one day custom might fill the gap. That is not a very cheerful conclusion. But was the situation ever better? Is nostalgia for the ‘good old times’ not tainted with wishful thinking? In his Tractatus represaliarum Bartolus wrote in the 14th century that the decentralized organization of the then-known world, which made reprisals necessary, was deplorable but had come upon us ‘because of our sins’. It seems that we have failed to become more virtuous since then.

PART TWO

STATE RESPONSIBILITY (PARTICULAR CONCERNS)

CHAPTER THIRTEEN

WAR AGAINST TERRORISM EXTRA MOENIA, SELF-DEFENCE AND RESPONSIBILITY: A PURE JURIDICAL APPROACH Giovanni Battaglini1 1. The Vertical or INTRA MOENIA Dimension of Terrorism Paragraph VI of the Declaration on Principles in the Final Act of Helsinki,2 after reaffirming the obligation of non-intervention in internal affairs, requests every participating State to ‘refrain from direct or indirect assistance to terrorist activities’ against another participating State in the territory within which the latter State has the power of government. This paragraph clearly deals with terrorism within the borders of another State or, in any case, within the seat or sphere of another subject of international law, including non-state Powers.3 It is terrorism with the purpose of subversion intra moenia directed towards an international person protected in his de facto liberty4 by its jus excludendi alios on a foot of equality with the other Powers. This kind of terrorism can therefore be likened to the extreme forms of violence of an insurgent in a civil war, either as a foe to the established legal order or even as an anarchical force, or allegedly ‘compelled to have recourse, as a last resort, to rebellion against tyranny and oppression’ in terms of the third paragraph of the Preamble of the Universal Declaration of Human Rights,5

1 The author is grateful to Prof. Ralph Church, Lecturer of English, University of Padua, for the English translation of the Italian original of this essay, and to Cristiana Fioravanti, Researcher at the University of Ferrara, for facilitating the correspondence with the editor. 2 ‘Declaration on Principles Guiding Relations between Participating States’, Conference on Security and Co-operation in Europe, Final Act (Helsinki, 1975), electronically available at . 3 Cf. Arangio-Ruiz, Diritto internazionale e personalità giuridica (1972) (from Novissimo Digesto Italiano, vol. xviii, ‘Stati e altri enti (Soggettività internazionale)’, with the addition of an alphabetical subject index), 99 ff., 107 ff., and 110 ff. 4 On this de facto liberty (or ‘jus libertatis personalis’), see Grotius, De jure belli ac pacis libri tres (Commentariis H.L.B. De Cocceii, 1768), i, 226. And cf. Giuliano, I diritti e gli obblighi degli Stati (1956), i, 63 ff., 78, 80, and 84; Balladore Pallieri, Diritto internazionale pubblico (8th edn., 1962), 421 and 423. 5 Gen. Ass. Off. Recs., Third Session (Doc.A/37/51).

Maurizio Ragazzi (ed.), International Responsibility Today, 135–149. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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even if carried out by a suicide assailant, finding a precedent (as a description of the event, which does not exhaust its theological meaning) in the Book of Judges: [ The Philistines] called Samson out of the prison, and he made sport before them . . . Now the house was full of men and women . . . And Samson grasped the two middle pillars upon which the house rested, and he leaned his weight upon them . . . Then he bowed with all his might; and the house fell upon the lords and upon all the people that were in it. So the dead whom he slew at his death were more than those whom he had slain during his life . . . He had judged Israel twenty years.6

Up to this point, these are cases falling within the vertical dimension of the Gewalt7 of each Power, which is free to oppose these tremendous forms of violence within its borders even though it may have to face widespread social reprobation, whenever it negates all respect for those human values that are insuppressible according to the Universal Declaration of Human Rights.8 2. Piracy and Terrorism EXTRA MOENIA Unlike terrorism intra moenia, terrorism on a worldwide scale with launching pads or support extra moenia is an open question, because terrorists may organize themselves without the connivance or participation of international legal subjects, in secret or unspecified locations, or on the move effectively beyond

6 Judges 16, 25–31, in the English translation in The Holy Bible. Catholic Edition (The Nelson and Sons Ltd., 1966). 7 Gewalt is an expression in which, literally, there is a convergence of the authority-power of government, on the one hand, and violence, on the other hand, as an elusive power extending ‘everywhere in the life of civilized States’, even in democracies, ‘for reasons of security’. See Benjamin, Angelus Novus. Saggi e frammenti (Solmi ed., 1999), 5 ff., 7 (in particular), and 16. 8 As in the case of the ‘four freedoms’ (freedom of speech and expression, freedom of religion and worship, freedom from want, freedom from fear) proclaimed in Franklin D. Roosevelt’s annual message to Congress of 6 January 1941 (electronically available at ), these unsuppressible rights have been, by immemorial experience, easy to formulate ‘and to observe, for those who consider them with a spirit free of prejudice’, but have also been ‘extremely fragile when a contrary propaganda exploits the innate tendency of such a great part of humanity to prevaricate and discriminate’, with the consequence that they are ‘precepts in need of constant vigilation’ regarding their application, the greatest attention being necessary to any hint of re-emerging ‘doctrines or proclamations, or even mere slogans’ against such unsuppressible rights. In no event is it possible that there be ‘peace and freedom for a people, or even one man, until peace and freedom are for everybody’. (See Arangio-Ruiz (V.), Scritti politici (1985 edn., with an introduction by Bobbio) 151, 153, 154, and 172. However, there is hope that values of all human beings, which are so high that they can be considered as principles of jus cogens for the protection of a superior collective interest, may be defended universally (internationally), because their violation would meet a (nearly universal) social reprobation: Ago, ‘Fifth Report on State Responsibility’ (Doc.A/CN.4/291 and ADD. 1 and 2), para. 117; also in Id., Scritti sulla responsabilità internazionale degli Stati (1986), ii, 586.

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public control, thus constituting destabilizing forces as hostes humani generis without international legal personality.9 In response to such acts of terrorism, one or more international legal subjects would be waging a ‘war’—if one wants to use this term—against horribly aggressive forces having no international legal personality, with the consequence that it would be a ‘war’ in the sense in which this term is used in the cases of war on crime, on drugs, on salve trade, on natural catastrophes, or even on diseases devastating entire populations, but certainly not an international war or a non-international armed conflict according to the Geneva Conventions.10 It is therefore natural, in this regard, to think of piracy, which was already a large-scale phenomenon in the Middle Ages, as an old activity often carried out amidst ‘unheard cruelties’.11 It can be said that the ‘terrorist has thus replaced the pirate of old as the hostis humani generis par excellence. Indeed the terrorist poses an even greater menace to mankind than the pirate through acts of terrorism committed by private individuals for private ends’.12 Deeds, in this sense, for reasons not belonging to subjects of international law. Although there were pirates who presented themselves as ‘promoters of a rudimentary democracy’ and as respectful of justice and the rights of the individual against States of which they ‘hated the tyranny and every abuse of power’,13 there is no doubt that their conduct spread terror among the people, especially among the illprepared and the innocent,14 always with a heavy burden of horrible human involvement. Piracy, as later private terrorism extra moenia, can be freely repressed or prevented, under general international law, by any Power that is willing and able to do so, but without involving other international persons or individuals of common humanity. The principle is always alterum non laedere or, more broadly,

9

In particular, on crimes committed by individuals or groups not belonging to—or not referable to—any State or other subject of international law, see Ronzitti, ‘Crimini internazionali individuali, tribunali interni e giustizia penale internazionale’, Cooperazione fra Stati e giustizia penale internazionale (1999), 1–35, especially at 19, 20. See also Arangio-Ruiz, Diritto internazionale e personalità giuridica, 166–8, addressing piracy as well, harmful to the condition of the individual as subditus orbi, for which delicta juris gentium even the pirate has the profile of hostis humani generis already for Cicero (Botting, I pirati (Italian trans. 1988), 24–5 (for the ‘depravation’ and ‘iniquity’ deriving from them)). 10 For example, pursuant to Article 3 of the Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949), the non international character distinguishing an intra moenia conflict does not affect the personality of the ‘Parties’ in their mutual relations, within the context of a civil war, as de facto governments or Powers. The text of the Geneva Convention (I) is at 75 UNTS 31. 11 Botting, I pirati, 22 and 23. 12 Dinstein, ‘The International Legal Response to Terrorism’, International Law at the time of its Codification. Essays in Honour of Roberto Ago (1987), ii, 139–52, at 140 and 142; see also Botting, I pirati, 47. 13 Botting, I pirati, 21. 14 Ibid., 48 and 57.

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as a value of neminem laedere while no obligation is established by any general principle, for international legal subjects to react against piracy,15 and so today terrorism, by cooperating in collective prevention and/or repression through acts performed ‘without authorisation by public authority, committed . . . outside the normal jurisdiction of a State’ by individual persons or persons in association, in terrorist activity as once in those of piracy.16 Full freedom, therefore, is left to every subject of international law in regard to this question, except for agreements of cooperation or arrangements to be timely sought, as inspired by United Nations Security Council resolution 1368, of 12 September 2001, whereby the Security Council expressed ‘its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism’.17 Should one wish to justify, in particular circumstances, a comparison with episodes of civil war, there would still be an obligation, under international law, to apply the limits, especially the humanitarian ones, regarding warfare and the treatment of insurgents in non international armed conflicts, in accordance with the Geneva Conventions.18 Or, perhaps, on the basis of principles or values the repudiation of which would be sanctioned by social reprobation as a ‘rumor shrouded in darkness that silently spreads’,19 initially prompted by elitist proposals—such as those of the Antigone of Sophocles—20 and then nurtured by the progressive development of wider perspectives in the human conscience or in the ethics of peace? Indeed, such values as the prohibition of torture (which, in particular, is opposable to public officials according to Article 1 of the New York Convention against Torture)21 have gradually been acquiring characters of absoluteness and generality, without discriminations for the International Covenant on Civil and Political Rights,22 as an obligation for an ever larger number of States, including the United States of America.

15

See Quadri, Diritto internazionale pubblico (1st edn., 1949), 261. See ‘Piracy’, Micropaedia Encyclopaedia Britannica (15th edn., 1981), vii, 1025. 17 S/RES/1368 (2001), para. 5. 18 For example, pursuant to Article 3 of the Geneva Convention (I), cited above, ‘each party to the conflict shall be bound to apply, as a minimum’, the provisions specified at numbers (1) and (2) of para. 1 of the same article, and the Parties to the conflict ‘should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention’. 19 Sophocles, The Antigone ( Jebb edn., 1891), verse 700. 20 See Cerri, Legislazione orale e tragedia greca. Studi sull’Antigone di Sofocle e sulle Supplici di Euripide (1979), 96 ff. and 100 ff. See also, on the current validity of these conclusions, especially with respect to the Convention against Torture (cited below), Fioravanti, ‘Lotta al terrorismo e Convenzione contro la tortura’, electronically available at . 21 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (A/RES/39/46). 22 999 UNTS 171. 16

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3. Security Council Resolutions against Terrorism on a Universal Scale The United Nations Security Council, in its resolutions between 2001 and 2003, only once made an explicit reference to the authors of individual criminal acts (save for those intra moenia, such as in a civil war), attributing these acts to ‘members of the Al-Qaida organization and the Taliban and other individuals, groups, undertakings and entities associated with them’.23 In the other resolutions, though, there is an implicit reference to a similar kind of terrorism on a universal scale, manifesting itself in several countries, with no exclusion or a priori designation. Hence, in the presence of any sudden manifestation in this or that country, the Security Council reacts by compelling ‘all States’ to cooperate with the relevant government on each occasion (Indonesia, the Russian Federation, Colombia, Turkey) and provide assistance, as appropriate, to the authorities in their efforts to find and bring to justice the perpetrators, organizers and sponsors of these terrorist attacks.24 Earlier resolutions, facing transnational terrorism (extra moenia), recommended generically a ‘global effort to combat terrorism’,25 because of the urgency of a common effort ‘to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant conventions relating to terrorism’.26 In this perspective, the Security Council, deeply concerned ‘by the increase, in various regions of the world, of acts of terrorism motivated by intolerance or extremism’,27 reaffirmed ‘its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation’, since acts of terrorism ‘endanger innocent lives and the dignity and security of human beings everywhere’.28 States were therefore considered only in their active position as being essential to combat the scourge of international terrorism, or passive position as having a duty ‘to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts’.29 Thus, they would be internationally responsible only if their connivance, tolerance, or even complicity could objectively be ascertained, in an undisputed or uncontroversial manner (if need be, by means of an impartial decision settling a dispute with the respondent State).30 23

S/RES/1455 (2003), para. 4. See S/RES/1438 (2002), S/RES/1440 (2002), S/RES/1456 (2003), and S/RES/1516 (2003). 25 S/RES/1377 (2001). 26 S/RES/1373 (2001), Preamble. 27 Ibid. 28 S/RES/1377 (2001), Annex. 29 S/RES/1373 (2001), Preamble. 30 See the reference, in the Preamble of S/RES/1373 (2001), to the Charter of the United 24

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chapter thirteen giovanni battaglini 4. State Terrorism against Other Subjects (such as Privateering)

The traditional dichotomy between piracy and privateering was reflected, in international law, in the condemnation of terrorism considered in primis as all those cases of individuals (who may or may not be guerrilleros) attacking civilians indiscriminately in order to provoke fear everywhere, and therefore extra moenia on the universal scale.31 A different case is that of acts which are only objectively piracy but subjectively the work of de facto organs of a State (such as the case of privateering), which could easily be demonstrated as belonging to an international legal subject, without any controversy about their nature.32 For example, since the beginning of the thirteenth century, one of the more intrepid pirates (Eustace the Monk, known also as the Black Monk), had been sacking French merchant shipping for King John of England and, after 1212, he switched to the service of the French and led an expedition against the English. After all, privateering was not only practiced by all nations from the earliest times until the nineteenth century but was also, in times of peace, commissioned by a government to make reprisals or to gain reparation for specific offences: its free exercise was therefore generally accepted, at the time, even though, at the end of the fourteenth century, ‘privateers such as Sir John Hawkins and Sir Francis Drake were encouraged or restrained according to prevailing political conditions’.33 Secondly, this consensus had been clear and continuous until 1856, when ‘by the Declaration of Paris, Great Britain and the other major European countries (except Spain) declared privateering illegal’.34 Only much later was this principle adhered to, little by little, by the States which had not taken part in the Declaration of Paris (the United States did not adhere until the end of the nineteenth century, and finally Spain adhered in 1908), with the consequence that, from then onwards, any State promoting or favoring in any way privateering would undoubtedly incur responsibility, privateering being illegal under both general and particular international law because of the universal consent to its prohibition. To ascertain the commission of this wrongful act, it would therefore be necessary to open a dispute to be settled case by case.35

Nations, and therefore to the obligation, in Article 2(4), to resolve controversies by peaceful means, with a view to preserving justice. 31 See Dinstein, ‘The International Legal Response’, 142. 32 See Botting I pirati, 2 ff., 137, and 141; see also ‘Piracy’, Micropaedia, 1025. 33 See Botting, I pirati, 23. 34 See ‘Privateer’, Micropaedia Encyclopaedia Britannica (15th edn., 1981), viii, 221. 35 Considering the use of force (or in general war, restrictively) as a ‘means’, albeit forbidden by law, to settle international disputes makes no sense. (See, for example, Article 11 of the Italian Constitution.) The de facto ‘composition’ of an international conflict of interest by making one’s interest to prevail over another’s by force (or even by war), is forbidden; while the ‘solution’ or settlement of the dispute cannot consist in anything other than the assessment, by the

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There is also a possibility, in this regard, that terrorism could be ‘justified’ on the basis of certain ideological tendencies, endorsing the use of force by any people ‘whose fundamental rights are seriously disregarded’ against international legal persons.36 A completely different case, if it can be proved, is that of a government occasionally employing ‘terrorists against another State without openly identifying with them. Such terrorists may nevertheless be looked upon as the long arm of the Government’ effectively directing their activities extra moenia.37 5. State Responsibility for Participation or Acquiescence in Terrorist Activities Anywhere There are even cases of ‘private persons secretly recruited to carry out . . . terrorism, abduction or other such assignments, the completion of which is certainly an act of the State, even if it is disguised as a private act.’38 Moreover, when a State does not fulfill its international obligations of vigilance, and fails in its specific duty not to tolerate the preparation in its territory of actions which are directed against a foreign government, ‘this constitutes an international wrongful act of omission entailing the international responsibility of the State’.39 Obviously, the consequences deriving from this wrongful act have always to be ascertained and determined through the procedures to settle an international dispute before any resort to the use of force.40

international legal order, of the conflict or conflicts of interest that are at the root of the dispute: the concept of settlement of a dispute ‘fully belongs to the domain of the law’ (Morelli, Nozioni di diritto internazionale (7th edn., 1967), 375). And, as such, the settlement of the dispute is in primis the subject of the obligation to seek it through peaceful means, the only ones fitting on the basis of Article 2 of the United Nations Charter. 36 See, for example, Article 28 of the Universal Declaration of the Rights of Peoples (Algiers, 4 July 1976), electronically available at . On this problem, in general, for a pure ideological expression, see Sgrosso Catalano, ‘La propaganda ostile nel diritto internazionale’, 20 Diritto internazionale (1966), 17–41, at 18–28, referring also to Lauterpacht, ‘Revolutionary Activities by Private Persons against Foreign States’, 22 AJIL (1928), 105–30; and to Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes- and War-Law (1954), 319. 37 Dinstein, ‘The International Legal Response’, 144. 38 Ibid., citing Ago. Now, given the circumstances pointed out step by step, does this construction seem to fit the Iraqi affair or not? See, on this point, Encyclopaedia Britannica. Book of the Year 2003 (Events of 2002), 466, 2nd and 3rd columns, and Guida del Mondo. Il mondo visto dal Sud 2003–2004 (2004), 319, paras. 18–19, and 320, paras. 34–8. 39 Dinstein, ‘The International Legal Response’, 145. 40 On the other hand, sometimes an effort in good faith to settle a dispute before an armed intervention has been lacking, as in the appearance of negotiations at Rambouillet concerning Kosovo. Cf. Kissinger, ‘New World Disorder’, Newsweek, 31 May 1999, 26–8: ‘where other options were still open . . . Rambouillet was not a negotiation—as is often claimed—but an ultimatum. This marked an astounding departure for an administration that had entered office proclaiming its devotion to the U.N. Charter and multilateral procedures’.

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The general principle enunciated by Grotius, on the basis of State practice, is that no subject of international law can be obliged to take coercive action in response to common crimes, with respect to which it is unthinkable that a foreign State be allowed to exercise the right of punishment within the territory of another State.41 However, the case of crimes manifesting extraordinary wickedness or affecting the public good of a foreign State is completely different: for them, the first principle is aut punire aut dedere, under the responsibility of the State that has received the request and, as an alternative, the principle is that of extradition (or expulsion as extradition in disguise),42 provided, of course, that this is materially possible,43 and provided that, in case of doubt, an attempt is made to settle the dispute peacefully. It is the principle of graduality in the Treaty of Westphalia (known also as the Treaty of Münster and Osnabrück), 24 October 1648: l’offensé tachera premierement de détourner l’offensant de la voye de fait, en soumettant la cause à une composition amiable, ou aux procédures ordinaires de la Justice: & si dans l’espace de trois ans (sic!) le différend ne peut estre terminé par l’un ou l’autre de ces moyens, que tous & chacun des Interessez en cette transaction soient tenus de se joindre à la Partie lezée, & l’aider de leurs conseils & de leurs forces à repousser l’injure.44

41

And it is even less thinkable ‘permettre qu’un autre Etat vienne en armes dans l’intérieur . . . pour exercer le droit de punir’. Grotius, Le droit de la guerre et de la paix (Pradier-Fodéré trans., 1867), ii, XXI (§ 4–1), 491. 42 A typical example of extradition in diguise is the case of Lorenzo Bozano v. France. The Italian request to France for the extradition of Bozano, convicted for homicide, was rejected by the Court of Appeal of Limoges, while, a few months later, Bozano was committed for trial before the Limoges Criminal Court on a charge of using false identity papers. At this point, the French police notified to Bozano an expulsion order and took him to the Swiss border. Then, the Swiss authorities extradited him to Italy. On 7 December 1984, the European Commission of Human Rights acknowledged the existence of a violation of Article 5(1)(f ) of the European Convention, regarding the arrest or detention, but not of Article 2 of Protocol No. 4 to the European Convention, regarding the freedom of movement in any country, which the Commission did not consider to be in contrast with the expulsion, which finally resulted in the extradition (originally denied by France) from Switzerland to Italy. See Yearbook of the European Convention on Human Rights (1985), 162–6, at 163–4. 43 In particular, according to this legal scheme, in the trilateral relations among the United States, the governments of other countries, and bin Laden (and Taliban terrorists?), along with the connections and disconnections among their leaders, one should evaluate, from an international law perspective, the Afghan affair (2001), given the circumstances (and the successive known developments?). See also the petition, of September 2001, by the Afghan Council of Elders of the Taliban government, in order to compel bin Laden to leave the country voluntarily, as well as in response to the demand and Western pressure to bring him to some kind of international justice (superseded by the bombings of the first days of October resulting in the American military success with the end of the local government). Then bin Laden ‘had still not been apprehended’ by any other government: Guida del Mondo, 84, 2nd column, and Encyclopedia Britannica. Book of the Year 2002 (Events of 2001), 76, 2nd column (‘Biographies: bin Laden, Osama’) and 384–5 (‘Afghanistan’). 44 Du Mont, Corps Universel Diplomatique du Droits des Gens (1726), Tract. ccxliv, 488, 2nd column, in the Première Partie of t. vi, and also the final insistence: ‘après que l’ offensé leur aura fait entendre que les voyes de douceur et de justice n’ont servi de rien; sans prejudice toutefois au reste de la Jurisdiction d’un chacun, & de l’administration competante de la Justice, suivant

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6. ‘Substitute’ Self-defence in the Territory of Another State Finally, there is the hypothesis of a State which is militarily incapable of putting an end to terrorist activities, and may even be unaware of what is happening, against another subject of international law, ‘especially when the terrorists operate in remote and sparsely populated areas’.45 According to the general principles, and given the merely nominal responsibility of the local government, the target State could resort to self-help, by using the necessary force, against the terrorist bases inside the territory of another State (provided that its action is directed against the guilty terrorists rather than the ineffective local Government). It is this case that the classic Italian doctrine of international law takes into account as an autonomous action,46 within the framework of the natural right to self-defence against an armed attack, as expressly referred to in Article 51 of the United Nations Charter. More broadly (in conformity with the lex naturae vel gentium), this is also the case of the circumstances of absolute urgency of legitimate defence or state of necessity, when there is a danger to be immediately prevented, in order to avoid that such a danger may threaten the conservation of a subject or of its vital interests.47 On the other hand, a lesser urgent state of danger implies that self-help has to be more limited, in the sense that it can certainly consist in coercive acts, but with a view to putting pressure on the obligor to fulfill its obligation. Self-help can also consist in acts by which the right holder satisfies directly its interest in lieu of the obligor, thus exercising legitimate self-help not only after the violation of its right but also preventively, when the violation is simply threatened, if the inaction of the obligor has been ascertained. Thus, the State exercising self-defence does what the local government itself should have done, ‘had it possessed the means and disposition to perform its duty’.48 This is a very important limitation, which requires careful attention and a restrained conduct in the exercise of the natural right of self-defence, above and beyond the requirements of the Charter of the United Nations (in any event, for ends that are compatible with those of the Charter), when force is used outside of the prohibition under Article 2(4). This is especially important in the case of the international protection of human rights, whenever a Power

les Loix & Constitutions de chaque Prince & Estat’. An English translation of the Treaty of Westphalia, 1648, is electronically available at . 45 Dinstein, ‘The International Legal Response’, 146. 46 See Morelli, Nozioni, 352. See also Dinstein, ‘The International Legal Response’, 146. 47 Cf. Ago, ‘Eighth Report on State Responsibility’ (Doc.A/CN.4/318/ADD.5–7), para. 12: ‘We are not . . . suggesting that the interests to be taken into account be limited to the “existence” of the State . . . To put it more simply, one should say that what is involved is an “essential” interest of a State . . . in relation to the particular case in which such an interest is involved, and not predetermined in the abstract’. 48 See Dinstein, ‘The International Legal Responsibility’, 146, note 28 (citing Hyde).

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intervenes to save them from an otherwise irreparable sacrifice, but in any event never to produce the aberrant result of damaging even more seriously other human rights or other human beings.49 It is sufficient to take a glance at the circumstances and consider the legal implications—conditions and limitations—of the use of force for a supreme exigency, as is highlighted by the United Nations Security Council resolutions against acts of terrorism when they ‘endanger innocent lives and the dignity and security of human beings everywhere’50 committing each State to do its part in its own country—through its own administration—against terrorists that ‘threaten the social and economic development of all States and undermine global stability and prosperity’.51 One of the parameters of military intervention for humanitarian purposes in the broad sense, among the most limited ones, is the Israel’s raid in Entebbe against the real and immanent danger to the mental and physical well-being, and even the lives, of the victims of the terrorist hijacking of a civilian French aircraft on 27 June 1976, after a long but fruitless attempt to solicit an effective intervention, to the benefit of the Israeli hostages, by the Ugandan authorities.52 In addition, before the brief but bloody civil war of the army of King Hussein of Jordan against the Popular Front for the Liberation of Palestine, the Israeli armed interventions beyond the Jordanian border had been, up to that point (the so-called Black September of 1970), justified—by their relative moderate size— as a defence of last resort of the colonists who were being attacked, in their border settlements, by Palestinians having their bases in Jordan.53 The rigorous proportionality of the self-defence as the use of only the necessary force to protect the urgent needs of the diplomatic or governmental personnel, in their essential well-being and life, who had been kidnapped by Khomeinist fanatics spreading terror in the American embassy in Teheran, characterized the military raid in Iranian territory ordered by the President of the United States in 1980, to the point that the laudable moderation in fulfillment of international obligations risked compromising the outcome of that action.54 49 The general humanitarian restriction to self-defence is very serious and surely irreconcilable with a declaration such as that reported in Gresh, ‘Objectif Bagdad’, Le Monde diplomatique (No. 582, September 2002), 1: ‘en septembre 1980, le régime de Bagdad se lançait à l’assaut de l’Iran . . . mis en difficulté, il utilisait en effet des armes chimiques avant de gazer, à Halabja, en mars 1988, 5000 Kurdes irakiens. Washington lança-t-il alors une croisade contre ce “tyran sanguinaire”? La presse américaine vient de confirmer que, à cette époque, une soixantaine d’officiers américains avaient fourni secrètement à l’état-major irakien “des informations détaillées sur le déploiement des forces iraniennes”. . . . Ces conseillers, informés de l’utilisation de gaz—interdits par la convention de Genève—ne s’y opposèrent pas, “car ils pensaient que l’Irak luttait pour sa survie”.’ 50 See the Annex of S/RES/1377 (2001). 51 Ibid. See also S/RES/1438 (2002), S/RES/1440 (2002), S/RES/1465 (2003), S/RES/1516 (2003). 52 On this case, and others, see Battaglini, ‘Diritti umani, autotutela e interventi armati’, 14 Annali dell’Università di Ferrara. Scienze Giuridiche (2000), 1–21, at 14–17. 53 Cf. Encyclopedia Britannica. Book of the Year 1971 (Events of 1970), 144 ff. and 429. 54 Cf. Encyclopedia Britannica. Book of the Year 1981 (Events of 1980), 691 ff. and 698.

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This is quite different from what had happened fifteen years earlier, at the time of the United States intervention in Santo Domingo. The resolutions adopted by the United Nations and the Organization of American States may lead to question the conformity of that intervention with international law if, beyond the inviolability of human rights (in particular of American nationals), its aim was, as its sole purpose, the restoration of normal conditions in the Dominican Republic and the establishment of an atmosphere permitting the functioning of democratic institutions, when, in reality, no activity should be directed towards the violent overthrow of the regime of another State, or interfere in civil strife of another State.55 Finally, in the case of the American invasion of Grenada in 1983, with the justification of protecting the human interests of the American nationals in that country, the United States administration should not only have had to establish ‘by means of clear and convincing evidence that there did in fact exist an immediate threat to the safety of U.S. citizens in Grenada’, but should also have exercised the maximum measure of restrain: ‘Even then such a threat could have justified only a limited military operation along the lines of the Israeli raid at Entebbe’.56 This is equivalent to saying that, by its very definition, humanitarian intervention, like every case of use of force in self-defence, has to be disinterested, also in the sense that ‘l’intervention cesse d’être désinteressée lorsque l’intervenant a un intérêt à dépasser les limites où devrait se tenir son action’.57 7. Distortions and Deviations in the Name of ‘Effectiveness’ The geometry of the described hypotheses places them between two Cartesian coordinates, of which the x-coordinate (or Abscissa) is a clear demarcation between fact and law and expresses the principle of the supreme source of the international legal order, namely the ‘general practice accepted as law’ in the text of Article 38 of the Statute of the International Court of Justice and, before it, the Permanent Court of International Justice. It is the condicio per quam, from which the general legal principles immediately derive. On the other hand, the y-coordinate (or Ordinate) expresses the various international forms of effectiveness,58

55 On the crisis in Santo Domingo, see Organization of American States, ‘Resolution Establishing the Inter-American Armed Force in the Dominican Republic (6 May 1965)’, 59 AJIL (1965), 987–8; ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (Res. 2131 (XX), 21 December 1965)’, 60 AJIL (1966), 662–4; Fenwick, ‘The Dominican Republic: Intervention or Collective SelfDefense’, 60 AJIL (1966), 64–7; Bohan, ‘The Dominican Case: Unilateral Intervention’, ibid., 809–12. 56 Boyle et al., ‘International Lawlessness in Grenada’, 78 AJIL (1984), 172–5, at 172. 57 Rougier, ‘La Théorie de l’Intervention d’Humanité’, 17 RGDIP (1910), 468–526, at 502. 58 See the second part of chapter III of Battaglini, Il diritto internazionale come sistema di diritto

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but as effective observance of the rules, which intersect with the projections of those general principles (except for the possibility of derogating agreements, according to the general rules of contractual relations between subjects on a foot of equality). As a condicio sine qua non, this y-coordinate is based on the facts underlying the valid and effective norms in the area above it in which, through the passage of and according to the circumstances of the individual cases, the rules of concrete cases develop.59 The jurisprudence in the broad sense, which removes the vagueness of the general principles, specifies the elements of the two coordinates. Outside of them, there are mere facts, which remain within the de facto liberty of the subjects, or there are wrongful acts if those facts are in conflict with valid norms.60 Classifying the facts in conflict with such norms as licit because ‘new’ would be a nonsense, and would only reflect an untenable concept of effectiveness,61 based on a pretext of allegedly good (political) sense. But how far can this be stretched? In this respect, the justification based on the maxim ex facto jus oritur has to be rejected, because it leads to questionable solutions in theory, and chaos in practice. There is a concrete need, through the general use of the peoples, namely their mores personarum as a source and the confirming customs as their evidence, to ‘rediscover within States and between States the paramount value of the natural law, which was the source of inspiration for the rights of nations and for the first formulations of international law’.62

comune (1999), especially 205, inspired by Kelsen, ‘Il fondamento della validità del diritto’, 40 RDI (1957), 497–511. 59 See again chapter III of Battaglini, Il diritto internazionale, 218, inspired by Kelsen, Lineamenti di dottrina pura del diritto (Italian trans., 1952), 90 ff. and 101 ff. 60 Is it not troubling to refer to allegedly new rules, deriving them, for example, from an intervention against genocide, if such an intervention has occurred outside of the procedures under the Genocide Convention, requiring the adoption of appropriate measures by the competent organs of the United Nations? The case is different, of course, when the use of force is an exercise of the natural right of self-defence, in conformity (not incompatible) with the purposes of the United Nations and their interpretation and application in the customary practice (on the basis of the general principles). See Battaglini, ‘Usi della forza e diritti umani nel sistema delle Nazioni Unite’, Dogliani and Sicari (eds.), Diritti umani e uso della forza (1999), 1–16, especially at 5 ff., including note 6. 61 This questionable notion of effectiveness is quite different from the rigorous model already known to an Italian jurist of the fourteenth century, Bartolus, for whom the various Powers were de facto sovereign independent and free. A fact is not opposed to the law but lives within a legal order as a ‘juridical fact’, with the consequence that the assessment of a fact must occur within the system, as a fact juridically relevant, and not as a fact prevailing over the law. See Miele, La Comunità Internazionale. I caratteri originari (1995), 48 ff. and 69 (referring to effectiveness as a positive norm of international law according to Kelsen). 62 ‘Address of His Holiness Pope John Paul II to the Diplomatic Corps (13 January 2003)’, para. 6. The text is electronically available at .

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In conclusion, the dissection of the myth of effectiveness in international law leads to reaffirm, with Gaetano Arangio-Ruiz in his presentation on 27 August 2003 to the Institut de Droit International (Session de Bruges), ‘that at least two previous speakers, Mr. Brownlie and Mr. McWhinney, had warned that much depended on how the formation of customary law was determined, especially when it touched upon Article 2(4) of the United Nations Charter’ and ‘that only by guarding closely that aspect, one would prevent the numerous facile law developers from justifying any entorse to the Charter by the maxim ex facto ius oritur, which was invoked immediately after NATO’s humanitarian bombings in Kosovo’; and he concludes ‘by stating that he would regret, if the work of the Commission resulted in the two following maxims: a) ex Iraqi bello ius oritur, or even worse; b) ex George Bush’s doctrina ius oritur’.63 Is there more to be added?

63 Institut de Droit International P VADM n. 2, 2ème séance administrative 27.8.03 -15 h.20— Version révisée: Draft Procedural Resolution P.03/03 (SH-cs/GDS-mq/RKB-mq/Rki-mq).

CHAPTER FOURTEEN

INTERNATIONAL RESPONSIBILITY OF THE STATE AND INDIVIDUAL CRIMINAL RESPONSIBILITY IN THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS Héctor Gros Espiell

1. Introduction The topic of the responsibility of the State in relation to the existing systems, both at the universal and regional level,1 with reference to the international protection of human rights, is a matter of capital importance in order to understand what these systems of protection have been and what they are, as well as their foundations, efficacy and limitations. This issue has aroused a deep interest among legal writers,2 and international practice and court decisions have helped to outline its features. The application of both international responsibility theory and practice to the cases of violation of human rights, especially as a consequence of the European Convention for the Protection of Human Rights and Fundamental Freedoms,3 the American Convention on Human Rights,4 and the court decisions

1 Gros Espiell, ‘Universalismo y Regionalismo en Materia de Protección Internacional de los Derechos Humanos’, Id., Estudios de Derechos Humanos, i (1985), 48–63. 2 Aguiar Aranguren, Derechos Humanos y la Responsabilidad Internacional del Estado (1997); Urioste Braga, Responsabilidad Internacional de los Estados en los Derechos Humanos (2002); Del Toro Huerta, ‘La Responsabilidad del Estado en el marco del Derecho Internacional de los Derechos Humanos’, Memoria del VII Congreso Iberoamericano de Derecho Constitucional (2002), 663–88; Mattarollo, Responsabilidad por Violaciones de los Derechos Humanos y la Obligación de Indemnizar según el Derecho Internacional (1991); Pinto, ‘Responsabilidad Internacional por la Violación de los Derechos Humanos y los Entes no Estatales’, Héctor Gros Espiell. Amicorum Liber. Human Person and International Law (1997), ii, 1155–74; ‘Informe Anual de la Comisión Interamericana de Derechos Humanos’ (No. 47/96), 151 ff.; San José Gil, ‘La Responsabilitè Internationale des États pour la Violation des Droits de l’Homme’, Karel Vasak. Amicorum Liber (1999), 783–819; Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’, 159 RdC (1978), 1–344, at 267–310; Zemanek, ‘Responsibility of States: General Principles’, Bernhardt (ed.), Encyclopedia of Public International Law, iv, 219–29; Marek, ‘Criminalizing State Responsibility’, 14 RBDI (1978–79), 460–85; Tomuschat, ‘Some Reflections on the Consequences of a Breach of an Obligation under International Law’, Haller (ed.), Im Dienst an der Gemeinschaft. Festchrift für Dietrich Schindler zum 65. Geburtstag (1989), 115–26. 3 213 UNTS 221. 4 O.A.S. Official Records, OEA/Ser.K/XVI/1.1 Doc. 65, Rev. 1, Corr. 1 (7 January 1970).

Maurizio Ragazzi (ed.), International Responsibility Today, 151–160. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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and doctrinal production based on these two texts, have meant a new conceptualization of many aspects of international responsibility, which has brought about a change in the traditional criteria as regards their application to human rights law, State obligations, and responsibility for the conduct of their agents in law and in fact. This essay does not purport to analyze the new approaches to the theory of State responsibility contributed by the international law of human rights. This point has to be immediately emphasized, as it is of paramount importance. This way of approaching the international protection of human rights, which has been the traditional way of dealing with the subject since the beginning of the process of its international regulation by means of the European Convention, the United Nations Covenants on Human Rights,5 and the American Convention, has been extremely significant in the open and progressive process for the defence and international guarantee of the rights of the human person. However, this approach does not exhaust the possibilities and the means of international law through which this protection may be secured and improved. Actually, the present international system for the protection of human rights, concurrent with, subsidiary or complementary to, the internal protection of human rights, is based on the responsibility of the States for the violation of their duty to respect these rights, and on the possibility, through the treaties in force, to impose and secure the conditions that ensure respect for human rights.6 International responsibility may arise from an action of any authority, official, agent or person who de jure or de facto is a member of the State machine, or from an omission, in any way and for whatever cause, of the State’s duty to abide by and meet the conditions necessary for the effective and general, non discriminatory, respect of human rights.7 This without prejudice (as expressly stated in Article 63 of the American Convention) to the fact that, when a violation of a protected right or freedom is acknowledged or confirmed, the Court may order that the injured person be guaranteed the exercise of his curtailed or impaired right or freedom and the consequences of the measure or situation that has caused such a violation be compensated, and a just indemnification be paid as well.8

5 See, for instance, the Inter-American Court’s judgment in the case of Velásquez-Rodríguez (Series C No. 4, of 29 July 1988), paras. 170–3. (The text of this decision is electronically available at .) See also Gros Espiell, ‘La Adopción en 1966 de los dos Pactos Internacionales de Derechos Humanos y del Protocolo Facultativo al de Derechos Civiles y Políticos, Recuerdos y Reflexiones’, 13 Anuario Hispano Luso Americano de Derecho Internacional (1997), 377–92. 6 See Articles 1 and 2 of the American Convention, and Article 1 of the European Convention. See also Barberis, ‘Una reflexión sobre el articulo 1, inciso 1, de la convención americana sobre derechos humanos’, Héctor Gros Espiell. Amicorum Liber, i, 77–92. 7 Montiel Argüello, ‘Los sujetos de las violaciones de los derechos humanos’, Héctor Gros Espiell. Amicorum Liber, i, 879–92. 8 See Article 2 of the American Convention, and the Inter-American Court’s advisory opinion in The Word ‘Laws’ in Article 30 of the American Convention on Human Rights (Series A No. 6, of 9

international responsibility of the state 153 This responsibility is not criminal in its nature.9 It does not seek the punishment of such persons or individuals as they materially violated the human right or rights in question. It is meant, as clearly stated in Article 63 of the American Convention, to guarantee the exercise of the violated rights, and, if such responsibility is to be held, to make up for the consequences of the measure or situation that has materialized the violation of such rights and to bring about the payment of a just indemnification.10 This responsibility of the State, on account of the obvious application of a general principle, is not ascertained only in the government or with reference to the authorities, agents or performers of the facts or legal acts of the government during the exercise of which the violation took place.11 It is always imputed to the State as a legal person, which invariably continues to exist in time, whatever the changes in government, although the government be a different one, even politically or ideologically opposed to the one in whose time the human rights were violated, by virtue of the fundamental principle of the continuity of the State and the different notions of State and government.

May 1986), electronically available at . See also Jiménez de Aréchaga, ‘La Convención Interamericana de Derechos Humanos como Derecho Interno’, Normas Vigentes en Materia de Derechos Humanos en el Sistema Interamericano (1988), 27–53. 9 In the case of Velásquez Rodríguez, the Inter-American Court said: ‘The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible’ (para. 134). In its advisory opinion in International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights) (Series A No. 14, of 9 December 1994), the Court stated: ‘As far as concerns the human rights protected by the Convention, the jurisdiction of the organs established thereunder refers exclusively to the international responsibility of states and not to that of individuals. Any human rights violations committed by agents or officials of a state are, as the Court has already stated, the responsibility of that state (Velásquez Rodríguez Case, Judgment, 29 July 1988, Series C No. 4, para. 170; Godínez Cruz Case, Judgment, 20 January 1989, Series C No. 5, para. 179). If these violations were also to constitute international crimes, they would, in addition, give rise to individual responsibility. However, it is the Court’s understanding that the Commission is not asking it to resolve the issues that arise from this proposition’ (para. 56). In another paragraph, the Court reiterated the same notion by adding that the jurisdiction of the organs established under the Convention refers exclusively to the international responsibility of States and not to that of individuals. (The text of the advisory opinion is electronically available at .) 10 See Article 50 of the European Convention. 11 The Inter-American Court, in the Velásquez Rodríguez judgment, stated: ‘According to the principle of the continuity of the State in international law, responsibility exists both independently of changes of government over a period of time and continuously from the time of the act that creates responsibility to the time when the act is declared illegal. The foregoing is also valid in the area of human rights although, from an ethical or political point of view, the attitude of the new government may be much more respectful of those rights than that of the government in power when the violations occurred’ (para. 184).

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chapter fourteen héctor gros espiell 2. Development of International Criminal Law

International criminal law has had a slow evolutionary process along the 20th century, characterized by a strong influence or political factors, by its controversial character and by the incapacity of the international community, until recently, to create a general, fair and efficient legal system.12 If we take as a starting point Articles 227 to 330 of the Treaty of Versailles,13 concerning Kaiser Wilhelm II’s responsibility for the criminal violations of international law that preceded, and occurred at the beginning of and during, World War I—articles that could not be enforced on account of the Dutch denial of extradition—,14 the following stage was that of the Nuremberg and Tokyo trials, after World War II (an example of the justice of the victors) held to enforce the criminal responsibility of some German and Japanese leaders for the serious war crimes against humanity and crimes against peace, without a specific geographic location.15 The United Nations started a long and difficult process to establish an International Criminal Court and to devise a code of offences against peace and against humanity. This process, most interesting from the theoretical viewpoint, is not fully completed yet,16 although significant advances have already occurred with the constitution of the International Criminal Court, pursuant to the Rome Statute.17 The political events that took place in the former Yugoslavia and in Central Africa, particularly in Rwanda since 1991, led to the creation by the United Nations—not through conventional channels, but by means of resolutions of the Security Council (resolutions 808 of 1993, and 955 of 1994), adopted by virtue of Chapter VII of the Charter—of two International Criminal Courts

12 In spite of several initiatives, and of the project prepared by the International Law Commission, so far no treaty has been entered into establishing a code of international offences and crimes. As to the prosecution of individual crimes, partial results have been obtained with the creation of criminal courts for the former Yugoslavia and Rwanda. 13 The text of the Treaty (28 June 1919) is electronically available at . 14 Glueck, War Criminals, their Prosecution and Punishment (1948); Lauterpach, ‘The Law of Nations and Punishment af War Crimes’, 21 BYIL (1944), 58–95. 15 See the Moscow Declaration on War Crimes (30 November 1943). See also Jescheck, ‘Nuremberg Trials’, Bernhardt (ed.), Encyclopedia, iii, 747–54; Röling, ‘Tokyo Trial’, ibid., iv, 863–5; Dobkine, Crimes et Humanité (1992); Varaut, Le Procès de Nuremberg (1992); Berg, El Proceso de Nuremberg (1947); Gimeno Sendia, ‘La experiencia de los juicios de Nuremberg y la necesidad de crear un Tribunal Penal Internacional’, 19 La Ley. Revista Jurídica Española (No. 4457, 14 January 1998), 63–79. 16 Graven, Principes fondamentaux d’un Code represif des crimes contre la paix et la securité de l’humanité (1950); Pella, ‘Une Cour Pénale Internationale’ (Doc.A/CM.4/39); Bassiouni, International Criminal Law (1980); Vargas Carreño, ‘Una Corte Penal Internacional, aproximación a un proyecto de estatuto preparado por la Comisión de Derecho Internacional’, La Corte y el sistema interamericano de derechos humanos (1994), 225–43; and Gros Espiell, ‘Gilberto Amado y la jurisdicción penal internacional’, 67/68 Boletim da Sociedade Brasileira de Direito Internacional (1985/1986), 62–71. 17 Statute of the International Criminal Court (A/RES/49/59, Annex).

international responsibility of the state 155 to judge correspondingly about the serious violations of international humanitarian law occurred in the territory of the former Yugoslavia and in the territory of Rwanda.18 This was followed by the adoption of the Rome Statute, creating an International Criminal Court. This Statute, established by a multilateral treaty, signed and ratified by a substantial majority of the members of the international community, but not by the United States, the People’s Republic of China and Israel among other States, is already in force. 3. International Protection of Human Rights: Lights and Shadows The international protection of human rights is characterized by its progressive character. It slowly advances in its effort to secure, by means of that progress, a better international protection of human rights, in order to render it universal, so as to make States abide by international law, and to overcome obsolete notions concerning reserved domain and sovereignty. It advances in order to achieve the harmonious coordination of international protection at a universal scale, according to the different regimes existing in the United Nations family, with international regional protection, where it exists, such as in Europe, America and Africa. It has also advanced to make the present system deeper and better, on the basis of the application and adaptation of the principles of State responsibility to the issue of human rights. But these advances—in themselves an expression of the progressive character that, we insist, characterizes the international protection of human rights— do not prevent the search for other international complementary ways or forms of protection. On the contrary, they lead us to think of other ways and other criteria. This progressive character makes it necessary to attempt an evaluation of the progress achieved and to see whether the path already followed is the only one or if, on the contrary, it may be useful to search for other different means that may render such protection safer and more efficient. It is evident that the traditional way to implement the international protection of human rights, on the basis of the principles of international responsibility, must be maintained. It is an appropriate way to deal with the question.

18 Molina, ‘The Establishment of an International Criminal Tribunal’, Héctor Gros Espiell. Amicorum Liber, i, 845–62; del Luján Flores, ‘La Corte Penal Internacional: Utopía o realidad’, ibid., i, 375–404; Mercier, Crimes sans Châtiment, Ex Yugoslavia, 1991–1993 (1994); Duparquier (ed.), La Justice internationale face au drame rwandais (1996); Dai Tribunali Penali Internazionali ad hoc a una Corte Permanente (1996).

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It has yielded quite positive results, and it must continue to be applied, expanded and deepened, that is to say, improved.19 But is it enough? Can we say today, after the events occurred in Rwanda, in Burundi, in Congo, in the former Yugoslavia and elsewhere, that this traditional form is a sufficient answer to the violation of human rights? Evidently, we cannot. The creation of international courts by the Security Council for the cases of the former Yugoslavia and Rwanda is in itself an initial step, although limited, partial, circumscribed and provisional, of the general answer which has become necessary, and that we think must be reached in the near future, on the basis of international conventions. To this initial step forward, another has been added with the constitution of the International Criminal Court, whose general character and conventional foundations improve and develop the initial formulas devised for the cases of the former Yugoslavia and Rwanda. But, unfortunately, although meant to have a universal application, the Rome Statute does not yet have this really universal effectiveness. The non-ratification, among other States, by the United States, the People’s Republic of China and Israel, constitutes a limitation and makes its importance somewhat relative. 4. State Responsibility and Individual Criminal Responsibility The responsibility of the State must be complemented with the international criminal responsibility, in certain cases, of the authors of certain violations, particularly serious and transcendent, of human rights. The international criminal impunity of the offenders who, as material authors, have acted against human rights, must not and can never be a defensible notion, and even less an international principle. These offenders who should naturally be, in principle, always punished under internal law, should not rejoice if this punishment is not effected, if the State fails or neglects to apply its penal sanctions, or if the State authority is inexistent, inoperative or inefficient. A partial approach to the consequences of the violations of human rights, merely on the basis of State responsibility, encourages such violations, as the agents, officials or persons who commit them—sometimes under orders, sometimes on their own initiative, or implementing some policy—know that if they get away with it, or if there is no judgment pronounced in the country (which is not always possible or easy), they will not be held individually and criminally liable and will thus evade all personal punishment.

19 Cançado Trindade, ‘Consolidação e Aperfeiçoamento dos Mecanismos de Proteção Internacional dos Direitos Humanos (Sistemas de Petiçoes, de Relatórios e de Investigaçoes)’, Héctor Gros Espiell. Amicorum Liber, i, 149–98.

international responsibility of the state 157 Of course, it is not easy to think of, devise and obtain the entering into force of an international conventional regime. Political, legal and psychological obstacles have to be removed. The process has already started, but it must be brought to an end. It will be necessary to adopt, by means of a multilateral treaty, within the framework of the United Nations, a code of offences against peace and humanity, to address the general situations to which we are referring. The creation of an International Criminal Court, by the Statute of Rome, with the description of offences which usually are violations of human rights is a very important step forward. However, in addition to the struggle to attain a true universality in the application of the Rome Statute, it will be necessary to generalize and systematize all issues concerning the international criminal responsibility for the violation of human rights. In present-day international law the international protection of human rights, based on State responsibility, is subsidiary to internal protection. If the State does not respect the rights of the human person and does not guarantee their free and full exercise and, in the event of violations, does not take any action conducive to the discontinuance of the violation and to the compensation for the illegal acts or facts committed, when all internal remedies have been exhausted the possibility opens up for international protection, either at the universal or regional level.20 This subsidiary character of international protection in relation to internal protection characterizes the present situation. In the case of individual criminal responsibility of an international character, on account of the offences described in the Rome Statute, international jurisdiction will be complementary to internal jurisdiction. These very criteria of subsidiarity and complementariness may serve a useful purpose in affirming international criminal responsibility: only if punishment by the State fails to occur, and if the internal remedies have been exhausted, recourse may be had to international criminal jurisdiction. Naturally, the experience resulting from the most evolved and better adapted international instruments now in use in this respect (as is the case, for example, of the American Convention on Human Rights), from the decisions of the United Nations Commission on Human Rights, of the European Court of Human Rights, and of the Inter-American Court of Human Rights, shows (as confirmed by the international doctrine) that international criminal protection is crucial when the State has not been able or has not attempted to punish criminally those persons liable for the most serious violations of human rights,

20 Id., The Application of the Rule of Exhaustion of Local Remedies in International Law (1983) and the same author’s numerous subsequent writings on this topic.

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either on account of political incapacity, of complicity, delay, omission or of the non-existence of suitable internal provisions.

5. Instruments Protecting Human Rights International law knows already several instruments that have qualified or described conducts in breach of human rights as international crimes or offences. Such is the case of the Convention on the Prevention and Punishment of the Crime of Genocide,21 and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.22 There are international instruments as well within the United Nations concerning the imprescriptible character of war crimes and crimes against humanity.23 The Rome Statute describes some forms of offensive or criminal conduct that are violations of human rights, without prejudice to punishment under internal law. Nothing more than this. It is an important advance, though, that must be complemented by a general system of international criminal responsibility for the violation of human rights. In the American regional system, the Inter-American Convention to Prevent and Punish Torture makes it mandatory for the States parties to prevent and punish torture (Articles 1 and 6), describes torture as a crime (Articles 2, 3 and 13) that the States parties must describe in their internal legal systems (Article. 9), regulates all matters regarding the legal regime concerning torture (Articles 3, 4, 5, 6, 7, 8, 10 and 11), jurisdiction (Article 12), and extradition (Articles 13 and 14), but does not institute any organ in charge of supervising the fulfilment of obligations by States Parties, with only a vague and general duty to report to the Inter-American Commission on Human Rights (Article 17).24 The Inter-American Commission does not classify torture as an international crime or offence and, of course, does not contain anything concerning the international criminal responsibility of torturers before an international jurisdiction. As to the Inter-American Convention on Forced Disappearance of Persons, the phenomenon of forced disappearances is ‘a complex form of violation of human rights’.25 Disappearances have been described as ‘an offence against humanity’, a crime of lèse humanitè.26

21

78 UNTS 277. (A/RES/39/46), 1465 UNTS 85. 23 ‘Resolution 3074 (XXVIII) of the United Nations General Assembly on Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity’, 2187th plenary meeting, 3 December 1973. 24 OAS Treaty Series, No. 67. 25 The text of the Convention is electronically available at . 26 See the Inter-American Court’s judgment in Velásquez Rodríguez, paras. 149–58. 22

international responsibility of the state 159 When the Inter-American Court of Human Rights used these expressions, in 1986, the Inter-American Convention on Forced Disappearance of Persons had not yet been drafted. No doubt, the judgments of the Court had a strong influence on the preparation, adoption, opening for signature, and ratification, of this Convention. The Convention entrusts the punishment of the authors, accomplices and accessories of this offence to the jurisdiction of the State (Article I, b), such illegal acts to be considered as offences in all States parties (Article IV), and provides an enumeration of the measures that the States parties must adopt to establish their jurisdiction (Article IV, a, b, c). Likewise, it states that this offence must not be considered a political offence allowing extradition (Articles V and VI). The criminal action against, and the punishment of, this offence cannot be subject to statutes of limitations (Article VII). The defence of superior orders is not admitted (Article VIII), and persons alleged to be responsible may only be judged by jurisdictions of ordinary law, to the exclusion of military jurisdictions (Article IX). Exceptional circumstances such as the state of war, the threat of war, or any public emergency, may not be invoked (Article X). The denunciation of forced disappearances is processed before the Inter-American Commission on Human Rights (Articles XIII and XIV). As in the case of the Convention on Torture, there is no hint at any possible international criminal jurisdiction to judge this ‘crime against humanity’. If by virtue of the non-exercise or defective exercise of internal jurisdiction the criminal or criminals remain unpunished, the only possibility left is filing a petition to the Inter-American Commission which, at best, channels the case along the way conducive to the international responsibility of the State, leaving the offenders aside and free of any criminal punishment. There are therefore intrinsic limitations within the present inter-American system.

6. Conclusion International criminal law has already started to define, although partially and with limitations, certain criminal modes of behaviour connected with peace, with war action, and with activities affecting duties to humanity, as crimes or offences entailing international criminal responsibility. This notion has today a conventional basis regarding the punishment of offences and the international agency that has to judge them. But not all violations of human rights, declared and protected as such by international law, give rise to the international criminal responsibility, individual and specific, of the persons carrying out or committing the aforementioned violations. Thus, not all violations of human rights are today susceptible of causing international criminal responsibility. It is necessary to work in order to generalize

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and complete the international criminal system against the violation of human rights. That is why, without prejudice to the assertion that there is a connection between a system of international protection of human rights, based on State responsibility, and another system, based on the international criminal responsibility of those who are the material authors of such violations, we must be conscious that such systems may coexist in parallel. In other words, not every violation of human rights gives rise to individual criminal responsibility of an international character. Conversely, it is obvious that many serious violations will entail the international responsibility of the State and also the international criminal responsibility of the persons who have committed said violations, either as officials, agents, or in any other respect, de jure or de facto. What is needed is a full appreciation of the mutual relationship and coexistence of the two systems, in light also of the developments expected from the functioning of the International Criminal Court. The political, intellectual and legal challenge created by this mutual relationship and coexistence must be duly met in order to achieve the required progress. It will require new, innovating formulas and possibly new texts, both within the universal sphere and in the regional systems. A new ethical approach to the complementarity between State responsibility and international criminal respnsibility is needed, also to leave behind the immoral impunity of the great violators of human rights.

CHAPTER FIFTEEN

THE PROTECTION OF SHAREHOLDERS UNDER INTERNATIONAL LAW: MAKING STATE RESPONSIBILITY MORE ACCESSIBLE Francisco Orrego Vicuña 1. An Historical Obstacle to the Operation of State Responsibility The most formidable obstacle raised by States to the operation of State responsibility has not been connected to substantive rules of international law, such as those governing the justification of certain unlawful acts or their excuse,1 but concerns a question of admissibility of claims, usually dealt with as a procedural matter. This question is the protection of shareholders under international law, first by excluding claims on the basis of a company lacking the nationality of the claiming State and next by preventing the jus standi of shareholders in their own right. For years it was taken for granted that the law on the matter had been firmly laid down by the International Court of Justice in the Barcelona Traction case,2 where the Court held: It is a basic characteristic of the corporate structure that the company alone, through its directors or management acting in its name, can take action, in respect of matters that are of a corporate character . . . Notwithstanding the separate corporate personality, a wrong done to the company frequently causes prejudice to its shareholders. But the mere fact that damage is sustained by both company and shareholder does not imply that both are entitled to claim compensation . . . The situation is different if the act complained of is aimed at the direct rights of the shareholder as such . . . But a distinction must be drawn between a direct infringement of the shareholder’s rights and difficulties or financial losses to which he may be exposed as the result of the situation of the company . . . Thus the legal issue is reducible to the question of whether it is legitimate to identify attack on company rights, resulting in damage to shareholders, with the violation of their direct rights.3 1 Abass, ‘Consent Precluding State Responsibility: A Critical Analysis’, 53 ICLQ (2004), 211–25, at 211. 2 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3. 3 Ibid., paras. 42, 44, 47, 48 and 52.

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The Court appears to have oversimplified the question in two respects. First, the Court believed that because international law was generally silent on the matter this had to be interpreted against the rights of the shareholder. A number of historical cases have been cited either in favour of the rights of a shareholder or against such rights, thus evidencing that in the best of cases the matter was not clearly settled.4 This is why the Court ultimately invoked rules of corporate personality under domestic law to reach its decision. The second oversimplification is that the real issue was not whether company rights can be identified with the direct rights of shareholders, but was and still is whether a shareholder entitled to some form of international protection can claim in its own right for wrongful acts of the State affecting its economic interest in the company. This means that the issue is that of identifying where the real economic interest lies. 2. Broadening Shareholders’ Right to Claim The decision of the International Court of Justice has occasionally been criticized by distinguished writers on account of having been based on the wrong assumptions.5 However, the fundamental problem with this decision was that it came at a time when the over-powerful State’s rights of the past were beginning to change in favour of an open recognition of the rights of individuals under international law. The legal consequence of this phenomenon was that the access to the operation of State responsibility was progressively broadened to include the rights of shareholders to the extent that international law is called to govern the matter. The formidable obstacle of the past began to give place to the recognition of new economic realities. In fact, it has been rightly noted that it was the very Barcelona Traction decision that brought about major changes as States and investors reacted against its adverse implications.6 This progression is evidenced by a variety of concurring legal directions. The first is found in the realm of domestic corporate law, which gradually is permeating international law. Issues such as the piercing of the corporate veil, and, above all, the admission of derivative suits by shareholders and investors’ class actions against a variety of defendants who affect the company’s rights

4 Jimenez de Aréchaga, ‘Diplomatic Protection of Shareholders in International Law’, 4 Philippine International Law Journal (1965), 71–98, at 83–93; Rousseau, Droit International Public, v (1983), 133–43. 5 Higgins, ‘Aspects of the Case Concerning the Barcelona Traction, Light and Power Company, Ltd’, 11 VJIL (1970), 327–43, at 333–42; Lillich, ‘Two Perspectives on the Barcelona Traction Case: The Rigidity of Barcelona’, 65 AJIL (1971), 522–32, at 523–6. 6 Sornarajah, ‘State Responsibility and Bilateral Investment Treaties’, 20 Journal of World Trade Law (1986), 79–98, at 87.

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and the interest of those shareholders, are evidence that again the point is that of recognizing the real interest involved and not merely observing a corporate formality.7 The economic choice of maximizing the shareholders’ wealth is the underlying rationale for these developments.8 Other developments are found specifically in the realm of international law. The protection of foreign investments under bilateral or multilateral investment treaties is perhaps the most outstanding example of this progression. Other expressions include State practice as evidenced by lump-sum agreements and negotiated settlements, the jurisprudence of international claims tribunals and commissions, notably the Iran-United States Claims Tribunal and the United Nations Compensation Commission, and the very meaning of diplomatic protection in terms of it being conceived at the service of the affected individual and not any longer exclusively at the service of the protecting State. These developments will be examined next. The fact that international law has taken direct interest in the matter also has another important consequence. It does not any longer appear to be a valid proposition to decide this kind of issues by recourse to the domestic law of a given country or even by reference to principles common to various legal systems, as was done in Barcelona Traction and is often argued by the defendant State whose responsibility is called into operation. It is a matter to be decided principally under international law itself, which now has all the necessary legal tools to do so. The International Court of Justice was not unaware of the early developments that were beginning to take shape at the time of its decision. In fact, the Court stated: in the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or special agreements directly concluded between the private investor and the State in which the investment is placed . . . States even more frequently provide for such protection, in both bilateral and multilateral relations, either by means of special instruments or within the framework of wider economic arrangements . . . Sometimes companies are themselves vested with a direct right to defend their interests against States through prescribed procedures.9

Ultimately, it was the absence of any such investment protection treaty between the parties that led the Court to decide the question under general international law. Had a treaty to this effect existed, probably the conclusion would have been different, as in fact happened two decades later in the Elettronica Sicula case involving the provisions of a Treaty of Friendship, Commerce and

7 Osugi, ‘Americanization of Stock Corporation Laws Around the World, and Shareholders’ Derivative Suits as a Forgotten Element Therein: A Caveat to Discussions on the Convergence of Corporate Laws’, 7 Zeitschrift für Japanisches Recht (2002), 29–54, at 38–43. 8 Black, ‘The Legal and Institutional Preconditions for Strong Securities Markets’, 48 UCLA Law Review (2001), 781–855, as cited in Osugi, ‘Americanization’, 31. 9 Barcelona Traction, para. 90.

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Navigation between Italy and the United States.10 In this case the International Court of Justice accepted the protection granted by the State of nationality to shareholders in a foreign company in a claim brought against the State of incorporation.

3. A Massive State Practice State practice massively points in the direction of extending protection to shareholders in affected companies. British claims against Mexico, as United States claims against Peru and Hungary, relied on a fifty percent interest of their nationals in the total corporate capital.11 The same percentage is required by the Algiers Claims Settlement Declaration12 for the determination of nationality of companies, while the right to claim is generally related to an interest of nationals enough to control the corporation, not excluding minority shareholders. The United States practice on diplomatic protection has relied on a fifty percent ownership of a corporation by its citizens, similarly to the Swiss requirement that a company be mainly owned by its citizens. It should be noted, however, that there is nothing magic in those percentages. The practice shows too that only a twenty percent ownership was required for United States claims against the former Yugoslavia.13 The Iran-United States Claims Tribunal has adjudicated claims by shareholders with a 25% interest14 and on one occasion with an interest ranging from 4% to 51%.15 Evidence of controlling interest has also been evaluated with flexibility.16 Recent studies on the meaning and extent of lump-sum agreements also evidence a broad variety of approaches and requirements, most of which tend to accommodate the affected interest with increasing flexibility.17

10

Elettronica Sicula S.p.A. (ELSI), Judgment, ICJ Reports 1989, 15. Orrego Vicuña, ‘Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement’, 15 ICSID Review—Foreign Investment Law Journal (2000), 340–61, at 355–9. 12 ‘Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (Claims Settlement Declaration, 19 January 1981)’, electronically available at . 13 Orrego Vicuña, ‘Changing Approaches’, 357. 14 American International Group, Inc., and American Life Insurance Company v. The Islamic Republic of Iran and Central Insurance of Iran (Bimeh Markazi Iran), Award, 1983, 4 Iran-United States Claims Tribunal Reports (1983, III), 96. 15 Shahin Shaine Ebrahimi, et. al. v. The Government of the Islamic Republic of Iran, Award, 1994, 30 Iran-United States Claims Tribunal Reports (1994), 170. 16 Brower and Brueschke, The Iran-United States Claims Tribunal (1998). 17 Bederman, ‘Interim Report on Lump Sum Agreements and Diplomatic Protection’, International Law Association, Committee on Diplomatic Protection of Persons and Property, Report of the Seventieth Conference (New Delhi, 2002), 230, at 253–6. 11

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The practice of the United Nations Compensation Commission is also most relevant to the understanding of current trends. Under its Rules,18 corporate claims not espoused by the State of incorporation may anyhow be submitted directly by the affected company with an explanation. If agreed, one government may claim on behalf of entities or nationals of another. Shareholders barred because of nationality may in any event claim directly for their losses in an affected corporation. Partnerships are also allowed to claim proportionately to the protected interest if otherwise ineligible to claim on their own. Trusteeship representation is also allowed. Most importantly, under Decision 123 (2001), an elaborate system is made available for claims when the real owner cannot appear as a shareholder because of domestic legal restrictions.19 The work on diplomatic protection of both the International Law Commission,20 and the International Law Association,21 has shown conclusively that the fundamental change underlying these developments is that the right being asserted through international claims is no longer that of the State of nationality but that of the affected individual. This is in essence what explains that the individual has been recognized many times a direct right of action, and even where State intervention is still necessary the claim is being increasingly de-linked from State discretionary espousal, the intervention of political interests and, above all, the right of the State to dispose of the compensation or to introduce damages different from those of the affected individual. Diplomatic protection is thus becoming a residuary mechanism. All these evolving trends have come together in the law governing the protection of foreign investments under a variety of treaties and other arrangements. It is in this context that diplomatic protection has been altogether excluded to the benefit of international arbitration, except in very specific circumstances. To this extent, whatever meaning the Barcelona Traction decision might have had it was only relevant in connection with diplomatic protection as the prevailing mechanism for international claims at the time. Two ICSID tribunals have recently found to this effect, holding that decision not to be controlling.22 Once the international legal system has moved beyond diplomatic protection other relevant principles govern the process of claims.

18

United Nations Compensation Commission, Decision of the Governing Council on Business Losses of Individuals, S/AC.26/1191/4, 23 October 1991. 19 United Nations Compensation Commission, Decision 123 (2001). 20 Bennouna, ‘Preliminary Report on Diplomatic Protection’ (Doc.A/CN.4/484), 5. 21 International Law Association, Committee on Diplomatic Protection of Persons and Property, First Report, Sixty-Ninth Conference (London, 2000), 604–54 (including the Interim Reports by Kokott and Orrego Vicuña). 22 CMS Gas Transmission Company v. Republic of Argentina, Decision on Objections to Jurisdiction, 2003 (International Centre for Settlement of Investment Disputes), 42 ILM (2003), 788, paras. 43 and 44; Azurix Corp. v. The Argentine Republic, Decision on Jurisdiction, 2003 (International Centre for Settlement of Investment Disputes), para. 72. The text of this last decision is electronically available at .

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A consistent line of decisions of ICSID, UNCITRAL and NAFTA tribunals has made plain evident that the right of shareholders to claim for their affected interest independently from the corporate entity is now upheld as a matter of law. To this extent, there is no longer an obstacle to effective State responsibility, by means of a direct right of action by those affected by the wrongful act. The principle is thus no longer that of protecting the State by invoking formal legal structures but of protecting the individual who is the real holder of an economic interest under international law. The right of action of shareholders to claim separately from the affected corporate entity has been upheld in AALP v. Sri Lanka,23 AMT v. Zaire,24 Antoine Goetz et consorts v. Republique du Burundi,25 Maffezini v. Spain,26 Lanco v. Argentina,27 Genin v. Estonia,28 the Aguas or Vivendi award29 and annulment,30 CME v. Czech Republic,31 CMS v. Argentina,32 Azurix v. Argentina33 and Enron v. Argentina,34 among other cases. This new perspective was well explained by the Tribunal in Goetz v. Burundi: le Tribunal observe que la jurisprudence antérieure du CIRDI ne limite pas la qualité pour agir aux seules persones morales directement visées par les mesures litigieuses mais l’étend aux actionnaires de ces personnes, qui sont les veritables investisseurs.35

23 AAPL v. Sri Lanka, Award, 1990 (International Centre for Settlement of Investment Disputes), 6 ICSID Review—Foreign Investment Law Journal (1991), 526. 24 American Manufacturing and Trading Inc. v. The Republic of Zaire, Award, 1997 (International Centre for Settlement of Investment Disputes), 36 ILM (1997), 1531. 25 Antoine Goetz et al. v. Republic of Burundi (ICSID Case No. ARB/95/3), Award of 10 February 1999, 15 ICSID Review—Foreign Investment Law Journal (2000), 457. 26 Emilio Agustín Maffezini v. The Kingdom of Spain, Award, 2000 (International Centre for Settlement of Investment Disputes), 16 ICSID Review—Foreign Investment Law Journal (2001), 212, at 248. 27 Lanco v. Argentina, Preliminary Decision on Jurisdiction, 1998 (International Centre for Settlement of Investment Disputes), 40 ILM (2001), 457. 28 Genin et al. v. Republic of Estonia, Award, 2001 (International Centre for Settlement of Investment Disputes), 6 ICSID Reports (2004), 236. 29 Compañía de Aguas del Aconquija et al. v. Argentina, Award, 2000 (International Centre for Settlement of Investment Disputes), 40 ILM (2001), 426. 30 Vivendi, Annulment Decision, 2002 (International Centre for Settlement of Investment Disputes), 17 ICSID Review—Foreign Investment Law Journal (2002), 168. 31 CME Czech Republic B.V. (The Netherlands) v. Czech Republic, Partial Award, 2001 (UNCITRAL Arbitration Proceedings), electronically available at . 32 See CMS Gas, cited above, footnote 22. 33 See Azurix, cited above, footnote 22. 34 Enron Corporation and Ponderosa Assets, L. P. v. The Argentine Republic, Decision on Jurisdiction, 2004 (International Centre for Settlement of Investment Disputes), electronically available at . 35 See Goetz, cited above, footnote 25, at para. 89.

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5. Minority and Non-controlling Shareholders This discussion has been recently taken a step beyond. As on not few occasions States have required foreign investors to set up locally incorporated companies to channel the investment, and not infrequently these companies participate in joint ventures or consortia with other entities, there has been a need to extend the right to claim to locally incorporated companies that will have the nationality of the defendant State. This is already standard practice under Article 25(2)(b) of the ICSID Convention36 and a number of bilateral investment treaties that provide for the right of action of locally incorporated companies under foreign control. More important is a second question that has arisen, namely whether the direct right of action extends to non-controlling or minority shareholders of the affected company. A positive answer to this question is not unprecedented in the light of the State practice noted above. However, as with most issues concerning investments, the answer is case specific, as it will depend on the actual wording of the agreement or treaty protecting the rights of the investor. The question was discussed in the ICSID case CMS v. Argentina, where the claimant owned a 29% of the company affected by the measures complained of.37 The respondent government was of the view that a shareholder could not claim separately from the affected company and that, in any event, the ICSID precedents mentioned above either dealt with cases concerning majority or controlling shareholders or the dispute was about the expropriation of the shares owned. The Tribunal dismissed the jurisdictional objection raised, partly in the light of the ICSID Convention and the specific rights established in the governing bilateral investment treaty, and partly in the light of international law. In this last respect the Tribunal, after having examined the Barcelona Traction decision and current State practice, held: The Tribunal therefore finds no bar in current international law to the concept of allowing claims by shareholders independently from those of the corporation concerned, not even if those shareholders are minority or non-controlling shareholders.38

6. The Limits of Indirect Minority Participation Yet a more complex issue arose in Enron v. Argentina, where the claimants had a controlling interest in several locally incorporated companies, which in turn

36

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, 575 UNTS 159. 37 See CMS Gas, cited above, footnote 22, at para. 19. 38 Ibid., para. 48.

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had a 35% minority shareholding in the affected company.39 The respondent government rightly raised the issue that if minority shareholders can claim independently from the affected corporation this could trigger an endless chain of claims, as any shareholder making an investment in a company that in turn invests in another company could invoke a direct right of action for measures indirectly affecting an entity at the very end of the chain. The Tribunal shared the need to establish a cut-off point beyond which claims should not be permissible as having only a remote connection to the affected company, holding that this cut-off point was determined by the extent of the consent to arbitration of the host State. If such consent covered a given investor, it could be concluded that the claim was admissible under the treaty. Otherwise the claim would fall beyond the consent and admissibility as being too remote. In the instant case, the Tribunal found that it had jurisdiction as that specific investor had actually been invited to participate in the investment and required to set up local companies.40 The issue was also discussed, although not actually decided, in the case Gruslin v. Malaysia, concerning a portfolio investment.41 Here again, the respondent government objected to jurisdiction on the ground that no investment had been made in that country and the claim had no connection with the investment treaty. The Tribunal, however, held that it lacked jurisdiction on another ground and needed not to decide the question of remote connection. Whether the claimant was the owner of the investment was also argued in the case, as there was a financial company involved in the management of the portfolio; it was pointed out by counsel that the rights of the claimant in this company were no more than rights of a contractual nature. The Barcelona Traction view was again argued in the Mondev case,42 where the United States was of the view that shareholders cannot claim for injury to a corporation and can do so only for direct injuries suffered in their capacity of shareholders. The Tribunal, however, dismissed those arguments and accepted the claimant’s standing. It must also be noted that the United States Supreme Court has held, in the context of the Foreign Sovereign Immunities Act,43 that if direct ownership of shares is envisaged in legislation this should be understood as referring to the ownership of a majority of shares, but when legislation refers to indirect ownership this signals that minority shareholders might be entitled to certain rights as well.44

39

See Enron, cited above, footnote 34, at para. 21. Ibid., paras. 50–2. 41 Philippe Gruslin v. Malaysia, Award, 2000, 5 ICSID Reports (2002), 483, paras. 10.3 and 15.1. 42 Mondev International Limited v. United States of America, Award, 2002 (International Centre for Settlement of Investment Disputes), 42 ILM (2003), 85. 43 90 Stat. 2891. 44 Dole Food Co. v. Patrickson, 123 S. Ct. 1655 (United States Supreme Court, 2003). 40

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As most bilateral investment treaties protect investment in shares and define investments broadly to include direct or indirect ownership or control, it is quite difficult for a tribunal deciding a case under those rules to ignore claims by shareholders in their own right or to exclude claims by minority shareholders. Moreover, as happened in the Mondev case, what the State of nationality of the investor might argue in a given case to which it is a party is not opposable to an investor of that nationality in a separate case to which that investor is a party. As explained by the Tribunal in Enron: This is precisely the merit of the ICSID Convention in that it overcame the deficiencies of diplomatic protection where the investor was subject to whatever political or legal determination the State of nationality would make in respect of its claim.45

7. General International Law has also Changed In the context of these developments, even if connected to specific treaty provisions, it is hardly conceivable that general international law might still be identified with the Barcelona Traction findings. General international law might not be as detailed as those treaties suggest, but certainly is not indifferent to such trends. As decided by the Tribunal in CMS, the fact is that lex specialis in this respect is so prevalent that it can now be considered the general rule, certainly in respect of foreign investments and international claims and increasingly in respect of other matters. To the extent that customary international law or generally the traditional law of international claims might have followed a different approach—a proposition that is open to debate— then that approach can be considered the exception.46

However dramatic these developments might seem, certainly as compared to the time of overpowering State privileges, they are in fact not alien to the meaning of international law. Since its inception international law has been at the service of the individual. The law of international claims was devised to allow wronged individuals to bring forth their complaints, at first through the intervention of their own State of nationality and later by means of direct right of action. State responsibility was also devised to make States accountable for wrongful acts. The fact that today States have to face direct action by individuals so as to put that responsibility into operation is just one other consequence of the evolution of international law.

45 46

Enron, cited above, footnote 34, at para. 48. CMS Gas, cited above, footnote 22, at para. 48.

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chapter fifteen francisco orrego vicuña 8. Conclusion

It can thus be concluded that to the extent that State responsibility becomes available to the truly affected, as these developments indicate, it will come to perform a true measure of justice in the international community. Procedural safeguards are necessary and justified when they contribute to due process but not when they distort justice. A major historical distortion based on the exclusion of corporate claims or their modalities stands now to be corrected.

CHAPTER SIXTEEN

THE LIMITS OF INTERNATIONAL RESPONSIBILITY IN THE PROTECTION OF FOREIGN INVESTMENTS Vratislav Pechota

1. Introduction International investment law, in particular as it developed through bilateral investment treaties, has enlarged the scope of protection of foreign investments and elevated the guarantees provided to foreign investors to an unprecedented level. The two thousand bilateral investment treaties concluded so far have created a body of primary investment rules that relegate the general international law concerning State responsibility to the status of secondary (default) principles. They seek to entrench the concept of unlimited State responsibility as the cornerstone of the system they have brought into being. They are unconcerned about detail, and their provisions are cast in ways that do not necessarily guarantee unerringness in application. They spell out general standards of treatment and protection developed by international practice whose content is not directly specified but is to be determined by reference to certain benchmarks.1 That is why they rely so heavily on international adjudication in the form of unilateral arbitration. According to their dispute settlement provisions a private investor, in order to enforce his unilateral substantive rights under the treaty, may commence arbitral proceedings against the investor State without an arbitration agreement. The award of the arbitrators is final and internationally enforceable. In a similar vein, a trilateral North America Free Trade Agreement (NAFTA) requires from its State parties to accord investors from another State party national treatment with respect to the establishment, acquisition, management, operation and disposition of investments, as well as most-favored-nation treatment which provides for nondiscrimination among investors from different countries. A NAFTA investor who alleges that a host government has breached its

1 See Sacerdoti, ‘Bilateral Treaties and Multilateral Instruments on Investment Protection’, 269 RdC (1997), 251–460, at 340.

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substantive investment obligations may, at his option, have recourse to arbitration. Characteristically, NAFTA requires that its parties apply the Agreement in the light of its objectives and in accordance with international law.2 It is worthy of notice that the evolution of the above concept of investment protection has not yet reached the level of multilateral regulation, although more than one attempt has been made. The draft Multilateral Agreement on Investment negotiated in the Organization for Economic Co-operation and Development and tentatively agreed in April 1998 sought to establish a comprehensive multilateral investment treaty containing high standards for economic liberalization, strong investment protection and a detailed dispute resolution mechanism. However, the draft was ultimately abandoned because of concerns over the alleged excessive and comprehensive nature of the multilateral system of protection and dispute settlement. The new level of investor protection has been propelled to its current prominence by the changed nature of world commerce that has altered many relationships and made irrelevant many of the assumptions that shaped the design of earlier rules and institutions. The globalization of the economy has brought into the picture the dominance of free market, free movement of investments and liberal approach toward foreign capital. The global competition has increased deregulation of national markets and thus inhibited State regulatory power. Companies operate in cross-border transactions with much greater freedom and less governmental supervision and control than before. They seek recognition as equals of the States and, in fact, as more equal in the protection of their interests. This new reality seeks expression in appropriate rules and institutions, creating temporary imbalances and challenges that need to be addressed as the process progresses. The fundamental question that touches the very purpose of any legal regime established by an international treaty is whether it creates a predictable and stable balance between competing interests that cannot be changed arbitrarily to the detriment of one interest or the other. The specific question raised by the recent developments in the area of investment protection is whether the system comprises sufficient balancing mechanisms, including procedural rules and institutions, as to enable it to apply relevant treaty obligations in a fair, even-handed and consistent way, taking into account the detailed and special circumstances of each case. The purpose of this essay is to offer some tentative answers to these questions and to suggest some ways that can be explored in the search for a more balanced and mature system of investment protection. The essay will focus, in particular, on the role of international law as a balancing factor in the process

2 See, in general, Weiler (T.), NAFTA Investment Law and Arbitration: Past Issues, Current Practice, Future Prospects (2004).

the limits of international responsibility 173 of legal regulation and on the need to improve investment arbitration so that it would become an integral part of the system of international adjudication of disputes involving State parties. 2. The Core Obligations of Host States Recent investment treaties rely on the combination of fair and equitable, minimum international, national and most favored nation standards in the matter of treatment of foreign investment, adding full security and protection.3 The exact nature and scope of these obligations remain undefined in most cases. The standard of fair and equitable treatment defies all but tautological definitions and requires for its application an evaluation based on criteria which are in part subjective or contingent.4 The related minimum international standard acquires legal meaning only by reference to secondary rules that are entirely outside the scope of the investment treaties and often enfolded in controversy.5 Perhaps only the concepts of national and most favored nation treatment have recognizable boundaries and can be applied independently and with relative ease. This is because the critical issue here is nondiscrimination, a well-established principle of international law which requires ‘equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the

3

Thus, the Dutch model of investment protection treaty of 1994 reads as follows: ‘Each Contracting Party shall ensure fair and equitable treatment of the investment of nationals of the other Contracting Party and shall not impair, by unreasonable or discriminatory measures, the operation, management, maintenance, use, enjoyment or disposal thereof by those nationals. Each contracting Party shall accord to such investments full physical security and protection’. ‘More particularly, each Contracting Party shall accord to such investments treatment which in any case shall not be less favourable than that accorded either to the investments of its own nationals or to investments of any third State, whichever is more favourable to the national concerned’. (Cited in Sacerdoti, ‘Bilateral Treaties’, 346.) 4 Ibid., 341. 5 The 2004 model bilateral investment treaty used by the United States defines in Article 5 the minimum standard of treatment as follows: ‘1. Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security. 2. For greater certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investments. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. The obligation in paragraph 1 to provide: (a) “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world; and (b) “full protection and security” requires each Party to provide the level of police protection required under customary international law’. (Model Bilateral Treaty (Government of the United States of America) Concerning the Encouragement and Reciprocal Protection of Investment. The text is electronically available at .)

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words of the law’.6 No such clear test is available to reveal the contents of the concept of full security and protection. Its inherent vagueness creates expectations that do not always find support in law, and it also encourages the widely shared view that investment protection is based on unlimited (or strict or absolute) State responsibility. In order to place it within the orbit of international law, some bilateral investment treaties expressly provide that full security and protection shall be enjoyed ‘in a manner consistent with international law’.7 The 2004 United States model bilateral investment treaty provides in Annex A that [t]he Parties confirm their shared understanding that ‘customary international law’ generally and as specifically referenced in Article 5 [Minimum Standard of Treatment] and Annex B [Expropriation] results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 5 [Minimum Standard of Treatment], the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.

Similarly, NAFTA requires to accord foreign investments treatment ‘in accordance with international law’ (Article 1105(1)). In an interpretative statement binding upon tribunals established under article 1131(2) of the Agreement, the NAFTA Free Trade Commission specified that ‘the concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens’.8 As a rebuttal to those who related the ‘full protection and security’ test to unlimited State responsibility, an ICSID tribunal clarified that ‘the standard provides a general obligation for the host State to exercise due diligence in the protection of foreign investment as opposed to creating “strict liability” which would render the host State liable for any destruction of the investment even if caused by persons whose acts could not be attributed to the State’.9

6

German Settlers in Poland, Advisory Opinion, 1923, PCIJ, Series B, No. 6, 24. See the United States-Morocco bilateral investment treaty (1985), Art. II(3): S. Treaty Doc. No. 19, 99th Cong., 2d Sess. (1986). 8 Free Trade Commission Clarifications Related to NAFTA Chapter 11, 31 July 2001. (The text is electronically available at .) 9 Asian Agricultural Products Ltd. v. Democratic Socialist Republic of Sri Lanka (ICSID Case No. ARB/87/3), Award of 27 June 1990, 30 ILM (1991), 577; 6 ICSID Review—Foreign Investment Law Journal (1991), 526. An almost identical conclusion was reached by the ad hoc tribunal in the Matter of an UNCITRAL Arbitration Between Ronald S. Lauder and the Czech Republic decided on the basis of the 1991 Treaty between the United States of America and the Czech and Slovak Federal Republic Concerning the Reciprocal Encouragement and Protection of Investment (Award of 3 September 2001, para. 77): ‘The Treaty does not oblige the Parties to protect foreign investment against any possible loss of value caused by persons whose acts could not be attributed to the State. Such protection would indeed amount to strict liability, which can not be imposed to a State absent any specific provision in the Treaty’. (The text of the award is electronically available at .) 7

the limits of international responsibility 175 3. The Balancing Role of International Law Despite an impression to the contrary, bilateral investment treaties do not create genuinely self-contained regimes. This is because there are few if any treaty rules that are permitted to operate in complete derogation from general international law. The close link between the bilateral standards of investment protection and international law arises out of the need for the unity of international standards and for the proper interpretation and application of bilateral treaty obligations. Reliance on general international law provides the treaty system of investment protection with an anchor that prevents its drifting in the sea of uncertainty and abuse. In relation to bilateral standards, which can be viewed as lex specialis, international law, being lex generalis, plays a complementary and corrective role. It fills lacunae and corrects inconsistencies and, generally, fulfills public policy functions. Moreover, international law as a body of substantive rules may be directly applicable to a particular issue where the bilateral obligation refers to standards of international law. A persuasive case can be made for the proposition that, given the close interrelation between treaty rules and general international law, treaty obligations in the field of investment protection should be applied in conjunction with the principles and rules of international law if a balanced outcome is to be obtained. Independently of the function international law plays in matters of investment protection, there is a substantial role for the host State’s domestic law in determining the scope of investor’s rights and the host State’s obligations. As the arbitral tribunal in the Antoine Goetz case observed: [the] internationalization of investment relations, be they contractual or not, surely does not lead to a radical ‘denationalization’ of the legal relations born of foreign investment, to the point that national law of the host State is totally irrelevant or inapplicable in favor of the exclusive role played by international law. It merely means that simultaneously—one could say in parallel—these relations depend on both the sovereignty of the host State on its national law and its international obligations.10

This is particularly true of ICSID arbitrations in which, unless the parties have agreed otherwise, the tribunal is required to apply the law of the host country and such rules of international law as may be applicable.11 In the Wena Hotels case, the ICSID Ad Hoc Committee affirmed that Article 42(1) of the ICSID Convention allowed for both legal orders to have a role. The law of the host State can indeed be applied in conjunction with international law if

10

Antoine Goetz et al. v. Republic of Burundi (ICSID Case No. ARB/95/3), Award of 10 February 1999, 15 ICSID Review -Foreign Investment Law Journal (2000), 457. 11 Article 42(1) of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of 18 March 1965, 575 UNTS 159.

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this is justified. So too international law can be applied by itself if the appropriate rule is found in this other ambit.12 4. The Applicable Concept of State Responsibility Invoking State responsibility in the context of investor-host State relations generally means the raising or presentation of a claim against the host State or the initiation of proceedings before an international tribunal. International law has increasingly been responsive to situations in which an individual or a nonState entity appears as a party to a relationship that is within the scope of international law. Yet the applicable basic concepts, such as State responsibility, continue to gravitate toward a traditional State-to-State model of relationship. The most recent example is the International Law Commission’s codification of the rules on the responsibility of States for internationally wrongful acts, of 2001.13 Under the draft articles adopted by the Commission, every internationally wrongful act of a State entails international responsibility (Article 1). Two elements identify an internationally wrongful act: first, when the conduct consisting of an action or omission is attributable to the State under international law and, second, when the conduct constitutes a breach of an international obligation14 of that State in force at that time (Article 2). Characteristically, fault does not constitute an element identifying an internationally wrongful act. The essence of an international wrongful act lies in the non-conformity of the State’s actual conduct with the conduct it ought to have adopted in order to comply with a particular international obligation.15 Circumstances precluding wrongfulness are also typical for State-to-State relations: consent, self-defence, countermeasures, force majeure, distress, and necessity (Articles 20–25). The International Law Commission’s rules are general in their character and encompass all types of responsibility, irrespective of whether it arises ex contractu or ex delicto. Some other restatements of the law on State responsibility address the issue of injury to aliens in a more specific manner. The 1961 revised Harvard Draft Convention on the Responsibility of States for Damage Done on Their Territory

12 Wena Hotels Ltd. v. Arab Republic of Egypt (Case No. ARB/98/4), Decision of the Ad Hoc Committee of 28 January 2002, 41 ILM (2002), 933, paras. 40 and 41; also in Gaillard and Banifatemi (eds.), Annulment of ICSID Awards (2004), 371–402. 13 See ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). The General Assembly took note of the articles and commended them to the attention of Governments in ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 14 The notion of a ‘breach of an international obligation’ corresponds to the language of Article 36(2)(c) of the Statute of the International Court of Justice. 15 Commentary on Article 12 of the draft articles (see the Report cited in footnote 13, above).

the limits of international responsibility 177 to the Person or Property of Foreigners16 stipulates that a State is internationally responsible only if the act or omission is ‘wrongful’, is ‘attributable’ to that State, and if it causes an ‘injury’ to an alien (Article 1). The contributory fault of the injured alien, or his voluntary participation in activities involving an unreasonable risk of injury, to the extent that such fault or voluntary participation bars the claim of a person under both the law of the respondent State and the principles recognized by the principal legal systems of the world, is a ‘sufficient justification’ for claiming the absence of a ‘wrongful’ act or omission (Article 4(4)). So is the actual necessity of maintaining public order, health, or morality in accordance with the laws enacted for that purpose (Article 4(2)). An injury is ‘caused’ by an act or omission if the loss or detriment suffered by the injured alien is the direct consequence of that act or omission. An injury is not ‘caused’ by an act or omission if there was no reasonable relation between the facts which made the act or omission wrongful and the loss or detriment suffered by the injured alien and if, in the case of an act or omission creating an unreasonable risk of injury, the loss or detriment suffered occurred outside the scope of the risk (Article 14(3) and (4)). As the authors of the revised Harvard Draft explain, doctrine and jurisprudence have attempted to maintain a middle course by limiting State responsibility (for a violation of a concession or contract) to those cases in which there has been a ‘denial of justice’ in litigation.17 A similar approach was adopted by the Special Rapporteur of the International Law Commission, García Amador, in his revised draft on international responsibility of the State for injuries caused in its territory to the person or property of aliens.18 Also international case law is supportive of the admissibility of exonerating and extenuating pleas in appropriate situations.19 It can be concluded that, although contemporary international law follows the objective approach to State responsibility predicating a State’s responsibility upon its committing an internationally wrongful act, it permits the State to invoke admissible grounds for excluding or mitigating its responsibility under international law. 5. A Balanced Approach to Host State’s Responsibility Sensitivies surrounding bilateral investment treaties are essentially based on the view that the regime unduly favors the foreign investor. Much of the criticism in this respect is nurtured by the change of the assumptions that were critical

16 See Sohn and Baxter, ‘Responsibility of States for Injury to the Economic Interests of Aliens’, 55 AJIL (1961), 545–84. 17 Ibid., 570. 18 García Amador, ‘International Responsibility: Sixth Report’ (Doc.A/CN.4/134 and Addendum), YILC (1961), ii, 1–54, at 46–54. 19 See Whiteman, Digest of International Law, viii (1967), 837 ff.

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to the design of earlier rules and institutions. Unlike the protection treaties of the past, which entitled the State parties to espouse the claims of their citizens, bilateral investment treaties endow private investors with the capacity and the right to pursue their claims directly and without their home State’s involvement. For procedural reasons and for the purpose of resolving a dispute between himself and the host State, the foreign investor becomes an equal party in the process, which is essentially governed by international law. To transform this new reality into newly developed rules and institutions is a challenge that remains uncompleted. The purpose of the process engendered by such new rules and institutions should be to effectuate a stable balance between competing interests that cannot be changed arbitrarily to the detriment of one interest or the other. A balanced approach to the issue of host State’s responsibility for the safety of foreign investments is contingent upon the recognition of two essential postulates: first, the host State remains free to regulate, but in a manner consistent with the rules set out in international agreements, and, second, the private investor should have the right to hold the host State to account in living up to its international commitments. In accepting these postulates, the parties agree that the determination of what acts on the part of the State charged with a wrongdoing are to be regarded as constituting the breach of obligations imposed by international law, what circumstances may preclude wrongfulness, and what elements may operate as defenses or pleas in mitigation, should be entrusted to an independent tribunal. 6. The Role of Arbitration Most investment treaties provide for the arbitral process to make redress in all matters relating to investment. The issue immediately arises whether this particular procedure promises an effective mode of doing justice. More particularly, the question is how to reconcile the public nature of investment disputes with the traditionally private nature of arbitration and how to accommodate procedurally the component of public interest present in investment arbitration.20 Investment arbitration under investment arbitration treaties constitutes a new form of compulsory arbitration against the host State at the instance of the private investor. Unlike traditional commercial arbitration, investment arbitration includes sovereign governments as one of the parties, it operates in the absence of an arbitration agreement,21 and it applies rules of international law

20 Kaufmann-Kohler, ‘Annulment of ICSID Awards in Contract and Treaty Arbitrations: Are There Differences?’ Gaillard and Banifatemi (eds.), Annulment, 189–21, at 215–18. 21 Bilateral investment treaties create a fiction of an arbitration agreement by including the express consent of the host country to arbitrate, which constitutes an open offer to the foreign investor. The investor can accept the offer by submitting a request to arbitrate, thus establishing a jurisdictional basis for the tribunal to proceed with arbitration.

the limits of international responsibility 179 as the most prominent part of applicable law. As one of the eminent practitioners of international arbitration recently observed, ‘[a]rbitrations have now helped to foster an international legal framework with a reach different from, and even wider than, that envisaged by the New York Convention 1958.’22 Clearly, the new form of arbitration raises issues which have a fundamental impact on some basic notions of private arbitration. Some tentative answers to open questions have been given by jurisprudence but, generally, investment arbitration is still intimately linked to the model of private (commercial) arbitration with its emphasis on parties’ autonomy and the finality of awards. Also frustrating is the fact that in private arbitrations the host State raising challenges to an arbitral award often becomes subject to the jurisdiction of the national courts of another sovereign State. No wonder that most investment arbitrations gravitate toward institutions like ICSID that possess sufficient authority and provide ‘a-national’ means of reviewing awards that make it unnecessary for a host State to petition the courts of another State for setting aside an award made by an international tribunal.23 In a further departure from the traditional private arbitration pattern, NAFTA provides that the failure of a member State to ensure the execution of an award may be reported to a panel established in accordance with Chapter 20 of NAFTA to solve the ensuing interstate dispute.24 7. ‘Internationalization’ of Investment Arbitration The distinct features of investment arbitration, as identified in the preceding discussion, make it essential for investment arbitration to achieve complete procedural and institutional internationalization even at the price of emancipating itself of the sway of established concepts of commercial arbitration. Apart from its treaty underpinning, investment arbitration is functionally linked to public law by its principal purpose, which is to administer international justice. The idea of justice in the modern world rests upon the notion that any adjudicatory system, in order to be equitable, must be supported by requisite procedures

22

Nariman, ‘East Meets West: Tradition, Globalization and the Future of Arbitration’, 20 Arbitration International (2004), 123–37, at 134. 23 The reference is to the annulment process under Article 52 of the ICSID Convention. ICSID annulment is not an appeal since it entails no review on the merits. An Ad Hoc Committee may annul an award on one or more following grounds: that the tribunal was not properly constituted; that the tribunal has manifestly exceeded its powers; that there was corruption on the part of a member of the tribunal; that there has been a serious departure from a fundamental rule of procedure; or that the award has failed to state the reasons on which it is based. The ICSID annulment procedure is an international alternative to the setting-aside procedure by national courts under the respective national legislation. See, in general, Gaillard and Banifatemi (eds.), Annulment. 24 Trakman, Dispute Settlement Under the NAFTA: Manual and Source Book (1997), 53.

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and mechanisms that are truly independent and are fully committed to the principles of fairness. What are the policies, procedures and mechanisms that would make the settlement of investment disputes truly international and meeting the contemporary standards of justice? Firstly, there is a need to adopt a balanced approach to investment protection under which both the rights and interests of the foreign investor and the legitimate interests of the host State would be safeguarded. This cannot be achieved by bilateral investment treaties alone, which display a major concern for the protection of investors and tend to marginalize the host country‘s interests. The burden of maintaining the balance is consequently laid upon the shoulders of independent arbitrators who must show the genius for consistency in using universal concepts and methods in the conduct of arbitration and applying universally recognized standards of international law. The arbitral tribunals adjudicating investment disputes ought therefore to be composed of international lawyers of recognized competence. Less experienced parties (including State parties) should enjoy the benefit of advice in selecting qualified arbitrators. After the constitution of an arbitral tribunal, the arbitrators should become subject to special rules guaranteeing independence and impartiality, including the prohibition of ex parte communication and the disbursement of their uniformly determined fees through a third party. Secondly, it is advisable to detach investment arbitration from the existing framework of international commercial arbitration and to create a separate legal framework for the settlement of investment disputes. The core component of the new framework would be the ICSID institutional and procedural setup as complemented by the procedural alternative based on the UNCITRAL Arbitration Rules.25 However, as it is widely recognized, the UNCITRAL Arbitration Rules now seem outdated and require a fundamental revision.26 Perhaps the United Nations Commission on International Trade Law (UNCITRAL), in engaging in such a revision, should give consideration to the drafting of two separate sets of rules, one applicable to commercial arbitration and the other to investment arbitration. The latter rules should take into account the specific nature of investment disputes and incorporate the developments in the field that have taken place since the time of the adoption of the UNCITRAL Arbitration Rules in 1976. They should be accompanied by an optional institutional framework enabling the parties to resort to assistance in selecting arbitrators and obtain other support in the course of arbitral proceedings.

25

The text of the UNCITRAL Arbitration Rules is electronically available at . 26 See Paulsson, ‘Memorandum on the Revision of the UNCITRAL Arbitration Rules’, Kaufmann-Kohler and Stucki (eds.), The Swiss Rules of International Arbitration (2004), 285–8.

the limits of international responsibility 181 Thirdly, there is a need to narrow the difference between institutional arbitration under the auspices of ICSID and ad hoc arbitration under the UNCITRAL Arbitration Rules as regards the scrutiny of arbitral awards. Under the ICSID system, such a scrutiny is done by an Ad Hoc Committee the competence of which extends to annulment based on one or the other of the grounds expressly set out in Article 52 of the ICSID Convention. The ICSID annulment procedure is truly international and applies rules that are developed in the context of investment arbitration. Conversely, ad hoc arbitration employs national courts of the country of the venue as instances where a party decides to attack an award made against it. The procedures for court applications to set aside arbitral awards in investment cases can vary significantly. Apart from the lack of uniformity in the approaches of national courts to the grounds on which an award may be set aside, the national courts are influenced by the criteria they developed while reviewing the outcomes of typical awards that come to their attention, i.e. awards of commercial arbitrations. It would conduce to a more equitable decision-making if the procedure for scrutinizing investment awards could be unified at the level of institutionally supported international practice, preferably by using the ICSID annulment procedure also in ad hoc arbitrations following the agreement of the parties. A partial solution of the issue was initiated by the United States in the Trade Act of 2002, enacted in August 2002.27 Among other things, the Act sets forth as a negotiation objective the creation of an appellate mechanism for investment disputes under free trade agreements ‘to provide coherence to the interpretations of investment provisions in trade agreements’. The legislation does not answer the question of how to integrate such an appellate mechanism into the existing setup of international treaties and national regulations. However, the 2004 model bilateral investment treaty drafted by the United States envisages, in Article 28, the use of an international appellate mechanism in conjunction with investment arbitrations initiated under a bilateral treaty.28 A bolder approach (albeit for commercial arbitration) was suggested by Judges Holtzman and Schwebel. They envisage the creation of an International Court of Arbitral Awards that would decide upon challenges to the validity of international commercial arbitral awards.29 The idea would be even more appropriate for investment

27

P.L. No. 107–210, 116 Stat. 933 (2002). Article 28(10) of this model states: ‘If a separate multilateral agreement enters into force as between the Parties that establishes an appellate body for purposes of reviewing awards rendered by tribunals constituted pursuant to international trade or investment arrangements to hear investment disputes, the Parties shall strive to agree that such appellate body will review awards rendered under Article 34 of this Section in arbitrations commenced after the multilateral agreement enters into force as between the Parties’. 29 Holtzmann, ‘A Task for the 21st Century: Creating a New International Court for Resolving Disputes on the Enforceability of Arbitral Awards’, and Schwebel, ‘The Creation and Operation of an International Court of Arbitral Awards’, both in Hunter et al. (eds.), The Internationalisation of International Arbitration. The LCIA Centenary Conference (1995), 109–14 and 115–23, respectively. 28

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arbitration, provided the Court would have jurisdiction to suspend or annul arbitral awards for disregard or error of international law.30 As defined by a United States court, ‘[t]he error must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Moreover, the term “disregard” implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it’.31 The inclusion of this particular ground for suspension or annulment of arbitral awards would ensure that investment dispute outcomes conflicting with the recognized standards of international law be tempered. However, as some other steps suggested in this section, the idea of inclusion of ‘disregard or error of international law’ among the grounds for annulment of investment awards must be regarded as a proposal de lege ferenda, since existing international agreements, such as the New York Convention on the Recognition and Enforcement of Arbitral Awards of 1958,32 or the ICSID Convention of 1965, do not contemplate such an option.

30 ‘Manifest disregard of law’, as a ground for setting aside arbitral awards, has successfully been incorporated into American arbitral jurisprudence. See Rubins, ‘“Manifest Disregard of the Law” and Vacatur of Arbitral Awards in the United States’, 12 American Review of International Arbitration (2001), 363–86. 31 United States Court of Appeals, Second Circuit, in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930, at 933–4 (1990). 32 330 UNTS 38.

CHAPTER SEVENTEEN

INTERNATIONAL RESPONSIBILITY AND COOPERATION FOR DEVELOPMENT Jorge Peirano

1. Introduction Every time in history poses its own challenges and every epoch is like a crossroads: depending on which path we choose to follow, our ideals of justice and peace will become the seeds of a fruitful reality or will just remain as programmatic statements with no chance of realization in any specific place or at any particular time. Our third millennium society is paradoxical: on the one hand, we are witnesses to the most important scientific and technological advances in the history of mankind—which have given us solid grounds to speak of a global knowledge society—and yet, on the other hand, we have not been able to make any progress, not even at a minimum scale, towards the solution of political, economic, social and cultural problems of vast areas of the planet. Undoubtedly, the solution of these problems will always be a goal of the international community, but we might well ask ourselves whether we could have done ‘more and better’ and whether we are responsible for not achieving our minimum objectives. We are not referring to a moral kind of responsibility, which, to a greater or lesser extent and depending upon the circumstances, is certainly present, but to an international legal responsibility. Many people, many times even whole populations, live in extreme poverty conditions. In spite of the undeniable advances of mankind, inequality and injustice are present in many countries in Europe, Africa, Asia and America, and even in the more economically developed nations. ‘Those living in poverty can wait no longer: they need help now and so have a right to receive immediately what they need’.1 This is why it is so important to make an in-depth

1 ‘Message of His Holiness Pope John Paul II for the Celebration of the World Day of Peace, 1 January 1998. From the Justice of Each Comes Peace for All’, para. 8. (Emphasis in the original.) The text of the message is electronically available at .

Maurizio Ragazzi (ed.), International Responsibility Today, 183–195. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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analysis of the responsibility that individuals, peoples, nations and the international community as a whole have in this respect. On 4 December 1986, the United Nations General Assembly adopted a ‘Declaration on the Right to Development’,2 which defines said right as an inalienable human right by virtue of which every human person is entitled to participate in, contribute to, and enjoy economic, social, cultural and political development. This right was reaffirmed by the Second World Conference on Human Rights (Vienna, 1993), as a ‘universal and inalienable’ right, concluding that ‘while development facilitates the enjoyment of all human rights, lack of development may not be invoked to justify the abridgement of internationally recognized human rights’.3 For the purposes of this essay, we consider that all human rights, i.e. first generation rights (civil and political), second generation rights (economic, social and cultural), as well as third generation rights, such as the right to development, are in themselves the core of the cooperation for development; an area which projects itself as the driving force of contemporary international law. Thus, while peace in the past meant the absence of war, at present we understand peace as the result of promoting development by means of cooperation, based on solidarity and justice. 2. The International Community as a TOTUS ORBIS At the crossroads of our time, we find ourselves immersed in one of those fascinating moments in the history of mankind, a transition of eras; the passing of the world we used to know and the advent of a new world. As we all know, this transition can occur through the cataclysm of war and terror at a huge scale, to which no nation on earth shall be alien; or it can occur peacefully, as the result of work, study and research, as the result of the determined search for truth which, in the end, is always fruitful in terms of works and realizations. The latter is the road chosen by the founders of international law, which nowadays is more modern and prevailing than ever. We are witnesses to the revival and the return of the original idea of a universal international community, focused on the nature and purpose of human beings. Certainly, this return is not intended to anchor ourselves to the past, but to look for benchmarks which have implied an advance for mankind and an improvement in the achievement of its target: human beings, who are, ultimately, the intended

2 ‘Declaration on the Right to Development. Annex to United Nations General Assembly Resolution 41/128 (adopted on 4 Dec. 1986)’ (A/RES/41/128). The text of the Declaration is electronically available at . 3 See Díez de Velasco, Instituciones de Derecho Internacional Público (14th edn., 2003), 592 and 599–600.

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beneficiaries of all legal systems, either national or international. In fact, the advance of contemporary international law is based on questioning State voluntarism and the revival of a universal community, a concept created by the founders of international law. Upon an in-depth analysis, the most important achievements of the last decades, i.e. the decolonization process, the nations’ acknowledgement of certain principles and values which must be respected beyond the States’ will to safeguard the international community as a whole, the international status of human rights, etc., are, all of them, just corollaries of the notion of an international community (totus orbis), which our modern legal thought has recovered from the origins of international law. The notion of ‘totus orbis’ or of an international community belonging to all human beings and politically organized peoples, irrespective of their degree of social evolution (which necessarily leads to the notion of an equally universal international law), is the legacy left to us by the founders of international law (a legacy which nowadays illuminates our future more than ever before). By analyzing the texts of those times from an exegetical viewpoint, we notice that the notion of an international community goes far beyond the notion of a society of States, which was the legal thought of these last centuries.4 Indeed, the eighteenth and nineteenth centuries were impregnated with State voluntarism, as a consequence of the major alliances of the then great powers to guarantee international order. The Congress of Vienna and the Holy Alliance attempted to set up a new European order based on the collective hegemony of the great powers. Based on their dictates, an international society of socalled ‘civilized nations’ was constituted, a society in which States are the only subjects of international law, the only main figures. Thus, an international order was formed under the rule of absolute State supremacy, which, sadly as it is to say so, ended up in the two world wars of last century, which deeply moved the collective conscience. At the end of the First World War, mankind tried to constitute a society of nations and failed. It failed because it was grounded only on the States’ will and, when the latter failed, so did the Pact of the League of Nations. At the end of the Second World War, another attempt was made, which resulted in the creation of the United Nations. In spite of the achievements in its almost six decades of existence, State voluntarism still prevails and nowadays we witness a reality which seriously questions the effectiveness of the basic principles of the world organization. 4 Francisco de Vitoria, Relectio de Indis. Corpus Hispanorum de Pace (Consejo Superior de Investigaciones Científicas, 1967 edn.), 78: ‘The ius gentium is what natural reason has established among all nations’. (De Indis, from tit. legit. I 3.1.) Ibid. 82: ‘Indeed there are many things in this connection which issue from the ius gentium, which because it has a sufficient derivation from natural law, is clearly capable of conferring rights and creating obligations’. (De Indis, from tit. legit. I 3.3.) Ibid. 81: ‘As the Digest law states, nature has created certain similarities between men, and, therefore, it is against natural law that one person should hate another one with no reason, since man is not “a wolf to man”, as Plauto says, but man’. (De Indis, from tit. legit. I 3.2.)

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And, again, it is the classic authors of international law who inspire us to go ahead with the progressive development of international law. Vitoria’s maxim still echoes: ‘it is not permissible for one country to refuse to be bound by international law’.5 It is evident that this view, which marks the origin of international law and which continues to be a goal to reach, differs significantly from that State voluntarism-focused thought, which prevailed in the eighteenth and nineteenth centuries and in the first half of the twentieth century and which preceded our present international structure. The distinction between ‘civilized humankind’ and ‘uncivilized humankind’ was the subject of extensive debate in the sixteenth and seventeenth centuries. And it was resolved that all human beings and all peoples (not only the European peoples) were part of the international community, the totus orbis, i.e. the entire world. Since nations were only a form of organization halfway in between humankind and human beings, the international community was not only formed by nations, but also by human beings. It was a community capable of acknowledging international law; an international law which governs everything and which is not only originated by virtue of an agreement among the member States, but which is founded on the very nature of things. An international law which nowadays has made it possible for us to turn the process of decolonization, as well as human rights protection and promotion, into a global scale reality, all of which is of extreme importance to the subject under discussion. 3. Responsibility for Acts or Omissions in the Cooperation for Development As Gros Espiell has put it so well, ‘[t]o affirm the right of people to self-determination while denying the other human rights in fact and in practice and while disregarding personal freedom, freedom of thought, of movement, of assembly and of association and all the other civil, political, economic, social and cultural rights would be an absurd, tragic and deplorable contradiction that is quite unacceptable’.6 It is interesting to point out that the possible responsibility for acts or omissions in the cooperation for development is grounded in the principle of peo-

5 Id., Relecciones Teológicas (Editorial Enero, 1946 edn.), 353: ‘International law has not only the force of a pact and agreement among men, but also the force of a law; for the world as a whole, being in a way one a universal republic, has the power to create laws that are just and fitting for all persons as are the rules of ius gentium . . . it is not permissible for one kingdom to refuse to be bound by international law’. (De Potestate Civile 21.) 6 ‘Report on the Implementation of United Nations Resolutions Relating to the Right of People under Colonial and Alien Domination to Self-determination’ (Doc.E/CN.4/Sub.2/390), 110. (Report prepared by Héctor Gros Espiell as Special Rapporteur of the Sub-Commission for Prevention of Discrimination and Protection of Minorities, in 1977.)

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ples’ self-determination and in human rights protection and promotion, especially economic, social and cultural rights. As regards said principle and the human rights in question, each specific case must be analyzed and possible violations must be determined. Such violations may refer to duties to achieve a given result or to duties of behaviour; they may be serious or minor, and therefore they may be liable to international responsibility. For the subject under discussion and in the present status of international law development, most cases are probably about violations of duties of behaviour, with all the difficulty implied in determining whether a violation has occurred, how serious it is and what relief should be granted. But this circumstance does not hinder us from going into this issue in greater depth. The principle of equal rights and self-determination of peoples, the true driving force of the decolonization process in the second half of last century, marked the political, economic, social and cultural reality of the nearly two hundred States which nowadays, at the dawn of the third millennium, play an important role in international law and relations. From its very beginning, in the Charter of the United Nations, this principle was directly and firmly related to economic and social international cooperation. Thus, Article 1, paragraph 2, of the Charter of the United Nations emphasizes the aim ‘[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace’;7 Article 55 provides that the United Nations shall promote ‘higher standards of living’, ‘solutions of international economic, social, health and related problems; and international cultural and educational cooperation; and universal respect for, and observance of human rights and fundamental freedoms for all’.8 Article 56 states: ‘All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55’.9 The preamble of Resolution 1514 (XV) of the United Nations General Assembly, the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, confirms this view, when pointing out that the United Nations General Assembly is convinced that ‘the continued existence of colonialism prevents the development of international economic cooperation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace’ and affirms that ‘peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon

7

Charter of the United Nations, Chapter I (Purposes and Principles), Article 1, para. 2. The text of the Charter is electronically available at . 8 Ibid., Chapter IX (International Economic and Social Co-operation), Article 55. 9 Ibid., Article 56.

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the principle of mutual benefit and international law’.10 Participating States in the World Conference on Human Rights (Vienna, 1993) recognized that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis’;11 and ‘[d]emocracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing’.12 It has been precisely the indivisibility and interdependence of human rights, enhanced by the principle of peoples’ self-determination, which has generated the conviction that, what were merely programmatic provisions not long ago, nowadays constitute compulsory rules of international law, either rooted in customary norms or conventions or originated from unilateral acts. The work of the World Trade Organization (WTO) is so important to the legal, economic and social international order, that we must necessarily mention it here. One can be in favour or against globalization, but reality tells us that, when the growth of world trade is genuine and occurs from developed to underdeveloped countries and vice versa, and when governments plan their policies seriously and consistently, it favours the growth of nations and increases the standard and quality of life of peoples. The intentions are good, but the results have not been as expected. The Doha development agenda of WTO, set forth in the Ministerial Declaration of 14 November 2001, has come to a deadlock. The Fifth WTO Ministerial Conference, held in Cancun, Mexico, from 10 to 14 September 2003, was a failure. Dr. Rana, Deputy Director-General of WTO, said that one reason for such a failure was that a large group of developing countries, including many African countries, felt that many developed countries were unwilling to liberalize agricultural trade, in particular through the reduction of subsidies. Another reason, in his opinion, was the unwillingness of underdeveloped countries to accept the proposals of developed countries regarding improvements in investment, competition policy, transparency in government procurement, and domestic trade facilitation in the former. He added that we cannot talk about a North-South opposition, since there are different standpoints between developed countries as well as between less developed countries in a range of issues.13 These declarations agree with those of Mike Moore, then WTO DirectorGeneral, at the Ministerial Conference of Seattle of November 1999, when he acknowledged that his proposal to eliminate all obstacles to imports from the

10 ‘Declaration on the Granting of Independence to Colonial Countries and Peoples. Resolution 1514 (XV) of the United Nations General Assembly (adopted on 14 Dec. 1960)’. The text of the Declaration is electronically available at . 11 ‘Vienna Declaration and Programme of Action (World Conference on Human Rights, Vienna 1993)’, Part I, para. 5. The text is in 32 ILM (1993), 1661. 12 Ibid., Part I, para. 8. 13 Termes, La apertura del comercio internacional y los países en vías de desarrollo (2003), 15.

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least developed countries had not had the necessary support because of political difficulties in eliminating protectionist obstacles in sectors such as agriculture, textiles and the shoe industry. Indeed, when the United Nations asks the developed countries to contribute 0.7% of their GDP to poor countries, as Rafael Termes observed, everybody seems to agree and, in spite of being a vacuous assistance, NGOs organize campaigns to make every government comply with this goal. However, when poor countries show a sincere willingness to be part of the world market and to adopt an open economic system and commercial regime, developed countries are just deaf to their request to open the markets.14 On 25 April 2004, the World Bank and the International Monetary Fund asked rich countries really to contribute 0.7% of their GDP to foreign assistance and to eliminate subsidies on agriculture and other sectors. The World Bank has estimated that, in order to achieve all goals, foreign assistance should amount to at least fifty billion United States dollars a year. Currently, while rich countries spend 11% of their GDP on defence issues, they donate 0.23% to poor nations, a percentage that is still far from 0.7% (a total of firty-eight billion dollars a year). At the end of the World Bank-International Monetary Fund semi-annual meetings, their joint Development Committee issued a communiqué, which states that, if current trends continue, most development goals will not be met by most developing countries. This is not the first time these objectives and goals have been proposed, nor have they emerged spontaneously, but they have always been part of the history of the United Nations. The Year 2000 Millennium Summit, which was attended by 189 presidents and heads of State, included certain goals for the year 2015, such as reducing poverty by 50%, ensuring that all children complete primary education, and reducing infant mortality by two thirds. Developed countries committed themselves to contributing the necessary amount of money for these goals to come true, provided poor countries designed good and transparent programs for various key areas. However, at the semi-annual meetings referred to above, it was obvious that developed countries have not complied with their commitments. The World Bank President, after observing that defence expenses amount to nearly 900 billion dollars a year, whereas only 60 billion dollars are devoted to assistance, said: ‘I think this is the most pointless thing one can ever imagine’.15 In view of such a worrying situation, we might well ask ourselves what steps should be taken. As expected, the answer to this question is a complex one, since it covers various political, economic, social, cultural and legal aspects of today’s national and international scenarios. However, progress is being made

14

Ibid., 14. El Observador (Montevideo, Uruguay), 26 April 2004, 11; and 11 April 2004, 8 and 9; El País (Montevideo, Uruguay), 26 April 2004, 9. 15

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as we work in each of these areas. The analysis of the issue leads to the conclusion that, in many situations, we could be dealing with cases of international responsibility. 4. Invocation of Responsibility Any internationally unlawful deed of a State, which makes that State internationally responsible, implies one or more than one act or failure to act or a combination of both conducts. As we all know, some unlawful deeds imply the responsibility of the State which commits them, not only towards the injured country, but also towards many States or towards the entire international community. In this sense, the International Court of Justice expressed its opinion in the Barcelona Traction case, when it stated: ‘An essential distinction should be drawn between the obligations of a State towards the international community as a whole and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.16 Confirming this criterion, the accompanying comments on Article 48 of the draft articles on State responsibility, adopted by the United Nations International Law Commission at its fifty-third session, in the year 2001, deal with the invocation of responsibility by a State other than an injured State for the protection of a collective interest. Pursuant to sub-paragraph (b) of paragraph 1 of said article, any State other than an injured State is entitled to invoke the responsibility of another State if the breached obligation ‘is owed to the international community as a whole’.17 The International Court of Justice itself has given some guidelines as to what circumstances would define this kind of situations. Thus, in its decision of 1970 in the Barcelona Traction case, it gave, inter alia, the example of ‘the principles and rules concerning the basic rights of human beings’, which obviously (one may argue) comprise not only the violations of civil and political rights, but also of economic, social and cultural rights.18 In its decision in the East Timor case, the Court referred for example to the peoples’ right to self-determination.19 Therefore, when these principles are violated, the injured State and also any other State can invoke the responsibility of the wrong-doer for an internationally illegal act. 16 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3, at 32, para. 34. 17 The text of the draft articles, and the Commission’s commentary on them, are in ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). 18 ICJ Reports 1970, 3, at 32, para. 34. 19 East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, 90, at 102, para. 29.

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At the dawn of the third millennium, it could be argued that a clear failure to cooperate in development does not merely belong to the realm of a State’s good will, but is a violation of a legal obligation, the breach of which constitutes an internationally wrongful act. Nowadays, nobody questions the fact that the principles of international law on friendly relations and cooperation among States in accordance with the Charter of the United Nations, set forth in the General Assembly Resolution 2625 (XXV), are the same principles which serve as the basis for the international legal order.20 Due to their significance for the topic under discussion, we would like to highlight the following principles: the obligation of States to cooperate with each other, the principle of equal rights and self-determination of peoples, the principle of sovereign equality of States and the principle that States shall comply in good faith with the obligations undertaken under the Charter. Likewise, it is also interesting to address what happened with one of the General Assembly’s resolutions that has caused more discussions and disagreements regarding its legal value. We are referring to the Charter of Economic Rights and Duties of States, which was adopted on 12 December 1974.21 Although most of this Charter’s provisions were programmatic, intended to generate customary rules to govern economic relations among States and the necessary consensus to effect them has not been achieved until today’s date,22 some of the Charter’s provisions are well established customary rules of international law. Thus, Article 1 states the right of every State to choose its economic, political, social and cultural system; Article 4 acknowledges the right of every State to engage in international trade, and Article 12 refers to the right to participate in regional cooperation. This kind of resolutions of the General Assembly are firmly set within the legal frame of Articles 55 and 56 of the Charter of the United Nations, which set forth the pledge of the member States to ‘take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55’. As Eduardo Jiménez de Aréchaga has expressed so convincingly, ‘the General Assembly resolutions, intended to implement the generic objectives of Article 55—self-determination, human rights, economic and social cooperation—, have a special legal consistency, which is higher than in other resolutions, for example, the ones concerning peace-keeping and security. The reason for this is that 20 ‘Declaration on Principles of International Law Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations (Annex to Resolution 2625 (XXV) adopted on 24 Oct. 1970)’, Gen. Ass. Off. Recs., Twenty-fifth Session, Supp. 28 (Doc.A/8028). 21 ‘Charter of Economic Rights and Duties of States. Resolution 3281 (XXIX) of the United Nations General Assembly (adopted on 12 Dec. 1974)’. The text of the Charter is electronically available at . 22 Ibid. Article 34 establishes a permanent mechanism to carry out ‘a systematic and comprehensive consideration of the implementation of the Charter’.

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Article 56 implies, at least, the obligation not to do any act to hinder the achievement of said purposes or individually take steps contrary to the ones recommended by the General Assembly. Among the purposes set forth by Article 55, there is not only the self-determination of peoples and the universal respect for human rights, but also the promotion of higher standards of living, full employment for everyone and conditions of economic and social progress as well as the solution of international economic, social and health problems’.23 Based on the above, we can say that the breach of these obligations, either by act or omission, may, under certain circumstances, be the subject of international responsibility. Therefore, we shall analyze each specific case and study the instances to be addressed and the steps to be taken. It is true that, as regards the cooperation for development and the economic, social and cultural rights, the so-called second and third generation human rights, we are generally dealing with States’ behavioural duties. Thus, paragraph 1 of Article 2 of the Covenant on Economic, Social and Cultural Rights establishes that: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’.24 It would be interesting to analyze whether, as of the effective date of the Covenant, on 30 January 1976, and considering the developments in international cooperation law, States have ‘taken measures’ in the last decades or whether they could be liable for any act or failure to act in this respect. Given the present international situation, considering all that needs to be done in the field of cooperation for development and all the related implications, in many situations there has certainly been responsibility for failure to act. This has been so not only in the case of behavioural duties, as the ones set forth by the provision referred to above, but also in the case of duties to achieve a given result, as in the case of a formal and unilateral pledge to contribute a minimum percentage of the GDP as assistance to poor countries. International obligations may be established by a treaty, by a general principle of international law, by a customary rule or by a unilateral act, e.g. when France unilaterally undertook not to carry out nuclear tests in the atmosphere.25 Naturally, the breach of these obligations may be more or less serious. The responsibility of States can originate from the breach of bilateral obligations, either towards other States or towards the entire international community. We may find relatively minor infringements or very serious breaches of peremp-

23 24 25

Jiménez de Aréchaga, El derecho internacional contemporáneo (1980), 44 ff. International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3. Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, 253, at 457.

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tory norms of international law. An example of the latter, as we have already pointed out, would be the cases in which some fundamental principles have been at stake, such as the principle of peoples’ self-determination, the obligation of States to cooperate with each other, which includes the principle of cooperation for development and the deeply rooted principle of the right of every State to engage in international trade without any kind of discrimination.26 In this respect, it should be pointed out that the integration of developing countries in international trade poses various complex problems. These problems include the tariffs fixed by developed countries or by developing countries themselves, which also have significantly high tariffs. Apart from tariffs, export assistance and grants to agriculture, there are also more subtle ways to hinder international trade, such as contingents and anti-dumping measures. An eloquent example of this is what happened between Cambodia and the United States a few years ago. The two countries entered into a textile export agreement. Cambodia undertook to improve labour conditions in this sector to avoid producing at very low costs as a consequence of not observing basic labour rights, thus incurring into what is considered to be unfair competition. In exchange for this, the United States would increase the textile import quota of Cambodian companies by 14%, which implied an increase of 50 million dollars in the trade between the two countries. Pursuant to this agreement, Cambodian textile workers organized themselves into unions and chose their representatives, nineteen-day paid holidays were granted, etc. The prospects of increasing exports to the United States favoured the creation of new companies, which took on labour, especially female labour. The United States government acknowledged that very important labour improvements had been achieved in a very short period. However, the United States textile union objected to the increase in the quota of Cambodian fabric imports, upon the argument that Cambodia still breached internationally recognized rules. In the end, the United States government gave in to this pressure and did not comply with the quota increase. As a consequence of this decision, eighteen textile factories were closed in Cambodia, many workers lost their jobs and income and, which is even worse, this experience left them so disappointed that they gave up hope in any possible future solution to their difficulties.27 This kind of circumstances shows us how difficult it is sometimes to determine whether we are dealing with a violation of principles and rules of international law or not. But, once such violation has been confirmed, there can be no doubt that we are dealing with a case of international responsibility. Serious violations may affect obligations arising out of peremptory rules of general international law, i.e. those rules which prohibit everything implying a

26 See the ‘Declaration on Principles of International Law Friendly Relations’ and the ‘Charter of Economic Rights’ (Article 4), cited above. 27 Termes, La apertura, 11.

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threat to the survival of States and their peoples and to the most fundamental human values, such as the subject under discussion, including the rules to which we have referred above, protecting and promoting peoples’ self-determination, cooperation among States, and the engagement in international trade with no kind of discrimination whatsoever.

5. Conclusion In the present stage of the evolution of international law, upon any flagrant violation of second or third generation human rights concerning the development of international cooperation, we must reflect on whether control mechanisms should actually be limited to political mechanisms (United Nations, Organization for Security and Co-operation in Europe, European Union, Organization of American States, African Union, and other organizations) or whether legal mechanisms should also be improved. We must necessarily highlight the work of WTO and its precise controversysolving system, which is, undoubtedly, one of the mainstays of international law. As Mohammed Bedjaoui has written: ‘Development is in fact a multidimensional phenomenon. It is for everybody an for all dimensions of human being’.28 We are immersed in such a complex and pressing reality that no resources should be spared in order to progress towards the solution of underdevelopment. This is why legal mechanisms should be applied whenever circumstances so deserve, not only upon clear breaches of obligations undertaken by States in the promotion and development of civil and political rights, but also, and not less emphatically, upon violations of economic, social and cultural rights. In this sense, it is extremely important to determine which States may be considered injured States. Obviously, this is not easy to determine and clearly difficult to prove, especially when addressing violations of second and third generation human rights. As Oscar Schachter has pointed out, this is important when considering the jus standi of injured States and resorting to the present mechanisms for the settlement of disputes, including arbitration tribunals and the International Court of Justice.29 We believe that the International Court must play a fundamental role in international responsibility and cooperation for development. In the last decades, there has been great progress on the codification of human rights, cooperation for development, mechanisms to control these realities and international responsibility. In this respect, it is quite obvious that

28 Bedjaoui, ‘Quelques considérations sur les perspectives de paix et de développement à l’aube de l’an 2000’, Héctor Gros Espiell. Amicorum Liber (1997), i, 93–104, at 101. 29 Schachter, International Law in Theory and Practice (1991), 206–10.

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contemporary international law implies an improvement on classic international law. But it is also true that we still have much work to do, and that, at the dawn of the twenty-first century, future developments in international law should seek to consolidate the procedural legal structure of cooperation for development. In a way, as we pointed out at the beginning of this essay, it is a matter of returning to the fundamentals of international law and rescue the constant values which must inspire, promote and enlighten our actions in the years to come. Today, as always, it is a matter of founding international institutions on those principles which have brought the ‘totus orbis community’ to life, a community which is not less than the globalized international community of our days, where international responsibility in the cooperation for development shall be one more sign of the globalization of solidarity, the key to establish justice and peace in our world.

CHAPTER EIGHTEEN

ITALY’S NON-BELLIGERENCY DURING THE IRAQI WAR Natalino Ronzitti 1. Neutrality and Non-belligerency According to traditional international law, when a conflict erupts States may choose to remain neutral or to join a belligerent party and, consequently, become belligerent in turn. Neutrality imposes three main duties on the neutral State: abstention, prevention and impartiality. Quoting Tucker, these duties are described as follows in the United States Commander’s Handbook on the Law of Naval Operations: Abstention is the neutral’s duty to abstain from furnishing belligerents with certain goods or services . . . Prevention [is the] duty to prevent the commission of certain acts by anyone within its jurisdiction, e.g., to prevent belligerent acts of hostility in neutral waters, or the use of neutral ports and waters as a base of operation . . . Impartiality obligates neutral nations to fulfil their duties and to exercise their rights in an equal (i.e., impartial or non-discriminatory) manner toward all belligerents, without regard to its differing effect on individual belligerents.1

The duties stemming from neutral status are detailed in the 1907 Hague Conventions Nos. V and XIII, which regulate neutrality in land and sea warfare, respectively, and are generally regarded as a codification of customary international law.2 Air warfare has not yet been the subject of any codification, apart from the scant provisions of Protocol I of 1977 additional to the 1949 Geneva Conventions.3 The 1923 Hague Rules of Aerial Warfare,4 drafted by

1 Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations (1997), 7.2, note 12. 2 Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague, V), Treaty Series 540; Convention Concerning the Rights and Duties of Neutral Powers in Maritime War (Hague, XIII), Treaty Series 545. The texts of these conventions are electronically available at . 3 Additional Protocol I to the Geneva Conventions, 1125 UNTS 3. 4 The text of the Hague Rules is electronically available at .

Maurizio Ragazzi (ed.), International Responsibility Today, 197–207. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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a Commission of Jurists, contain a chapter dedicated to air neutrality, which a number of authorities consider as declaratory of customary international law.5 Non-belligerency (or qualified neutrality) is an intermediate status between neutrality and belligerency.6 A non-belligerent State is allowed to deviate from the duties of abstention, prevention and impartiality and, this notwithstanding, is not regarded as a party to the conflict. For instance, a non-belligerent State can help a party to the conflict by channelling to it war material and other strategic supplies. It may also furnish logistic support, such as warship refuelling or repair, beyond the limits set forth by the 1907 Hague Convention No. XIII, or allowing belligerent aircraft to land on and take off from its territory, contrary to the rules of neutrality which require their internment. A formula encapsulating non-belligerency is that the non-belligerent is entitled to aid the belligerent, bar armed intervention at its side. Unlike neutrality, nonbelligerency is not codified by the law relating to armed conflict. The only provisions in which a distinction is made between neutrals and States not parties to the conflict are those of the 1949 Geneva Convention III and Protocol I of 1977. Article 4.B.(2) of Convention III,7 in addressing the status of persons to be interned in a third country, makes a distinction between ‘neutral or nonbelligerent Powers’, whereas Article 1(c) of Protocol I, in defining the term ‘Protecting Power’, affirms that it means ‘a neutral or other State not party to the conflict’. During the Iraq-Iran war (1980–1988), Security Council resolutions employed both qualifications to distinguish third States from those at war: ‘States non parties to hostilities’ (for instance, Resolution 552 of 1984) and ships belonging to ‘neutral States’ (for instance, Resolution 582 of 1986).8 As recent practice shows, neutrality still holds good in international law, notwithstanding the entry into force of the United Nations Charter. During the Kosovo war (1999), for instance, Austria and Switzerland denied the overflight of their airspace to NATO aircraft. The same happened during the Iraqi war (2003). While there are time-honoured examples of neutrality in State practice, nonbelligerency is more recent. It was inaugurated at the beginning of World War

5 See, for instance, Bierzanek, ‘Commentary to the 1923 Hague Rules for Aerial Warfare in The Law of Naval Warfare’, Ronzitti (ed.), The Law of Naval Warfare (1988), 396–408, at 404–6. Others, however, affirm that the Hague Rules are ‘non-binding’: for example, Dinstein, ‘Legitimate Military Objectives under the Current Jus in Bello’, Wall (ed.), Legal and Ethical Lessons of NATO’s Kosovo Campaign (2002), 139–72, at 168. 6 See generally Schindler, ‘Aspects contemporains de la neutralité’, 121 RdC (1967), 221–322; Id., ‘Transformation in the Law of Neutrality Since 1945’, Delissen and Tanja (eds.), Humanitarian Law of Armed Conflict. Challenges Ahead. Essays in Honour of Frits Kalshoven (1991), 367–86, at 378–9; Gioia, ‘Neutrality and Non-Belligerency’, Post (ed.), International Economic Law and Armed Conflict (1994), 76–107. 7 Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 UNTS 135. The text of the convention is electronically available at . 8 The texts of these resolutions are electronically available at .

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II by Italy, which proclaimed its non-belligerency in 1939, before entering the conflict at Germany’s side. The United States held a policy of non-belligerency before Pearl Harbour, helping the United Kingdom in several respects. The same is true of Norway in 1939.9 Sweden allowed a brigade of volunteers to aid Finland against the Soviet aggression. Spain took a pro-Axis stance without entering the conflict. After World War II, non-belligerency did not disappear. During the FalklandsMalvinas war in 1982, the United States supported the United Kingdom by providing intelligence data and allowing the repair and refuelling of its destroyers.10 During the Iran-Iraq war, most third States (including France and the Soviet Union) took a policy of non-belligerency furnishing aid to Iraq in many respects.11 During the coalition war against Iraq for the invasion of Kuwait, Sweden said that it could not remain neutral and took a posture of nonbelligerency.12 Non-belligerency allows a State to derogate from the strict rules of neutrality. What is not possible is intervention at the side of the belligerents; in that case, the State becomes a party to the armed conflict. A policy of non-belligerency may serve several purposes. In particular: – it signals that the non-belligerent State is not insensitive to the reasons of the warring party it is helping; – it can be used as a temporary posture, to be changed subsequently into participation in the conflict (as Italy did during World War II); – it may be a useful expedient for a State, following a policy of neutrality in time of peace (permanent neutrality), to maintain its status even though it takes a stance against a belligerent subject to an embargo by the United Nations; and – it is an obligatory policy for a State having foreign bases and belligerent soldiers on its territory since a policy of strict neutrality would demand freezing belligerent assets and interning belligerent troops. It is a moot point whether non-belligerency is only a political posture or a status bearing rights and duties. It is also questionable whether non-belligerency is a violation of the law of neutrality, allowing the aggrieved belligerent to take countermeasures entailing the use of force against the non-belligerent. Much depends on whether relations between neutrals and belligerents are disciplined

9

See Walker, The Tanker War, 1980–88: Law and Policy (2000), 183. See ibid., 185. 11 De Guttry and Ronzitti (eds.), The Iran-Iraq War (1980–1988) and the Law of Naval Warfare (1993), 13–14. 12 Bring, ‘The Changing Law of Neutrality’, Id. and Mahmoudi (eds.), Current International Law Issues, Nordic Perspectives, Essays in Honour of Jerzy Sztucki (1994), 25–50, at 37. 10

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by the law of peace13 or, as we believe, by the law of armed conflict. If, however, the Security Council has determined who is the aggressor and who is the victim of aggression, non-belligerency at the side of the victim is undoubtedly lawful, regardless of whether neutrality is a policy that can be maintained when the Security Council has taken action against the aggressor. 2. Italy’s Proclamation of Non-Belligerency Italy hosts foreign bases on its territory. They are part of the NATO system and are under the NATO integrated command. NATO bases also contain United States assets under American control. American soldiers are stationed in Italy, mainly as a part of the NATO integrated system. When the United States and the United Kingdom attacked Iraq on the night between 19 and 20 March 2003, the Italian government declared itself in favour of the legality of the Anglo-American intervention. Even though there was no formal authorization by the Security Council, the intervening States relied on the three landmark resolutions, i.e. 678 (1990), 687 (1991) and 1441 (2002), which, according to them, made it possible to take forceful measures against Iraq since it was in ‘material breach’ of the duties imposed at the time of cessation of hostilities.14 The Anglo-American intervention was not to be considered a measure short of war, but a real war, at least in the material sense, because of the scale of hostility. The traditional choice for a third State is to remain neutral or to enter the conflict at the side of one of the belligerent. For Italy, and other NATO allies, the problem was how to deal with the assets and soldiers present in their territory and whether or not to permit transit and overflight. The Iraqi war was not covered by either the North Atlantic Treaty15 or the 1999 new NATO strategic doctrine, adopted at the Washington D.C. Summit, which allows NATO to take action even if a member has not been the target of an armed attack.16 Moreover, a number of bilateral agreements and memoranda of understanding concluded between Italy and the United States, such as the 1954 Bilateral Infrastructure Agreement or the 1995 Shell Agreement, regulated the granting of facilities and transportation between the two countries. It would have been impossible to follow a strict policy of neutrality since it would have implied freezing NATO assets and interning American soldiers! 13 See Rule 1.3 drafted by the Committee on Maritime Neutrality: International Law Association, Report of the Sixty-Seventh Conference (1996). 14 See, for instance, Taft and Buchwald, ‘Preemption, Iraq, and International Law’, 97 AJIL (2003), 557–63, at 562–3; Roberts, ‘Law and the Use of Force After Iraq’, 45 Survival (Summer 2003), 31–53, at 40–5. 15 The text of the North Atlantic Treaty, 34 UNTS 243, is electronically available at . 16 The web site of the NATO summit in Washington, D.C., is at .

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This unpleasant dilemma was overcome by a declaration of non-belligerency. A formal proclamation was made on 19 March 2003 by the Italian Supreme Defence Council defining the terms of Italy’s non-belligerency.17 It stated that the Italian government would conform to the following policy: (1) no Italian soldiers would participate in warlike operations; (2) no armaments and military means of any kind would be supplied or put at disposal; (3) no military structures would be made available as a base for a direct attack on Iraqi objectives; (4) Italian policy would be qualified as non-belligerent; (5) bases could be used for transit, refuelling and maintenance of means of transport and authorization would be given to overfly the national air space; and (6) protection of military bases would be reinforced. Italy’s non-belligerency was conceived in a very restrictive manner; for instance, the prohibition to supply armaments and military means. As practice shows, the supply of weapons is not inconsistent with non-belligerency. On the other hand, Italian practice went beyond the traditional policy of non-belligerency: Italian intelligence supported the Anglo-American military action, since Italy helped the coalition select targets on Iraqi soil. One of the rules enacted by the Italian Supreme Defence Council was not to permit the use of military structures on Italian territory as a base of attack against Iraq. However, United States military personnel belonging to the 173rd Brigade near Vicenza, in Northern Italy, took off from Italian territory and were parachuted into Kurdistan, an operation considered ‘one of the largest paratroop drops since the Second World War’.18 In the Italian Parliament, the opposition challenged the government stating that the episode was a violation of the above rule No. 3, according to which no direct attack should be carried out from bases on Italian territory. But a different reading is possible. Rule No. 3 of Italy’s non-belligerency forbade the use of Italian territory as a base for a ‘direct attack’ on Iraqi targets. This means that the rule prohibited the taking off, from the Italian territory, of aircraft tasked to bomb Iraq. Rule No. 3 did not forbid the taking off, from the Italian soil, of troops not immediately engaged in combat activity. The personnel of the 173rd Brigade was parachuted into northern Iraq, a region controlled by the Kurds. The troops can be considered a ‘stabilization force’ rather than a force engaged in combat activities. 17

See ‘Comunicato della Presidenza della Repubblica sulla riunione del Consiglio Supremo di difesa del 19 marzo 2003’, 86 RDI (2003), 904. 18 Murphy, ‘Contemporary Practice of the United States Relating to International Law. Use of Force and Arms Control. Use of Military Force to Disarm Iraq’, 97 AJIL (2003), 419–32, at 426.

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Italy was the only country that officially proclaimed a policy of non-belligerency. In effect, neutrality can be declared or undeclared. Other NATO countries permitted the overflight of their territory (France) or the transit of personnel and material and overflight (Germany), notwithstanding that both these States were contrary to the intervention in Iraq. Germany also allowed use of its Awacs aircraft to monitor the border between Iraq and Turkey.19 Turkey did not consent to the use of its territory as a base for attack on Iraq, but it did allow overflight of its territory. That posture should be compared with the one upheld by Austria and Switzerland, which denied overflight and strictly abided by their permanent neutral status. Italy’s distance from the theatre of war did not pose any problem of possible reactions by Iraq for claimed violations of neutral duties. This was, on the contrary, a problem Turkey had to face, even though an Iraqi attack never materialized. Kuwait, which together with Jordan and Saudi Arabia allowed its territory to be utilized as a base for hostile operations, was targeted with missiles launched by Iraq. 3. Non-belligerency and Constitutional Constraints Non-belligerency could be an appropriate policy in those legal orders in which constitutional constraints limit the possibility of going to war. Non-belligerency makes it possible to provide political and material support to a belligerent without entering the conflict. Article 11 of the Italian Constitution, which is reminiscent of the Kellogg-Briand Pact, states that ‘Italy repudiates war as an instrument of offence to the freedom of other peoples and as a means to settle international controversies’.20 Thus, the only war admissible, according to a narrow interpretation of that provision, is a war in self-defence or a war declared by the United Nations. According to a broader interpretation, the only war forbidden is a war of aggression. Article 11 is also a powerful constraint on those actions which, although they do not qualify as war in the technical sense, are nevertheless measures short of war. It seems, however, that this second prohibition stems from both customary international law and the Charter of the United Nations incorporated into the Italian legal order, rather than from Article 11 of the Italian Constitution. It was claimed that any logistic support to the coalition, even in the form of a policy of non-belligerency, would have been contrary to the Italian 19

Bothe, ‘Der Irak-Krieg und das völkerrechtliche Gewaltverbot’, 41 AV (2003), 255–71, at 267–8. 20 An English translation of the Constitution of the Republic of Italy is electronically available at .

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Constitution, since the Iraqi war was not authorized by the Security Council. This view does not take into account that Article 11 of the Italian Constitution forbids a war of aggression started by Italy or a war in which Italy takes part. Participation in the form of political or logistic support is not directly envisaged. Moreover, the Iraqi war was never qualified as a war of aggression by the Security Council and Italy’s logistic support was limited to transit and overflight, while the use of bases for a direct attack was prohibited. 4. Non-Belligerency and Occupation The United States President proclaimed the end of hostilities on 1 May 2003. However, after a brief period following the cessation of hostilities, the coalition forces were the target of intense guerrilla warfare carried out by elements from within and outside the country. In the post-conflict situation, Italy, together with other countries which did not take active part in the hostilities, sent military personnel to Iraq. The position of the warring coalition should be kept distinct from that of the countries that sent troops to Iraq at the end of hostilities. The United States and the United Kingdom were qualified as occupying powers by Security Council resolutions 1483 and 1511, passed in 2003.21 The former, in the preamble, states that these two States are ‘occupying authorities’; the latter reiterates the provisions of Resolution 1483. The position of the other countries that sent troops to Iraq is different: Resolution 1483 qualifies those States as ‘non-occupying powers’ and welcomes the willingness of United Nations member States to contribute to the stability and security of Iraq by contributing personnel (preamble); Resolution 1511 authorizes a multinational force to take the necessary measures to ensure Iraq’s security and stability and urges member States to contribute assistance, including military forces (paras. 13–14). Hence, Italy’s military presence in Iraq is justified as a dispatch of troops authorized by the United Nations Security Council. Italy’s official position is that the troops are tasked with protecting personnel sent for humanitarian purposes and with the reconstruction of Iraq. Hence, the mission is one of post-conflict peace building rather than participation in the occupation of a vanquished State. For the purpose of the application of humanitarian law, Resolution 1483 does not make a distinction between occupying and non-occupying States. In para. 5, the resolution calls upon ‘all concerned’ to comply with the Geneva Convention of 1949 and the Hague Regulations of 1907. Military occupation, far from being a peaceful activity, implies the use of force by the occupying powers to maintain law and order. In occupied Iraq, the coalition was openly challenged by guerrillas and much force was employed to defeat it and affirm 21

The texts of these resolutions are electronically available at .

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the authority of the institutions created by the occupying powers. As has been pointed out, it is difficult to qualify the post-conflict situation in Iraq as a classical one of military occupation because the aim of the coalition was to transform Iraqi society and to build ‘a new State’, possibly with the blessing of the United Nations.22 Even though it was a member of the Coalition Provisional Authority (CPA), i.e the body administering Iraq, Italy wanted to keep its position separate from that of the occupying powers. Italy not only affirmed that its troops were dispatched to Iraq as a peace-keeping force, but also stressed its position as a non-belligerent in the face of military occupation. A meeting of the Italian Supreme Defence Council was convened on 14 April 2004 under the chairmanship of the President of the Italian Republic. The meeting reaffirmed the line of action taken on 19 March 2003, when the policy of non-belligerency was first announced. This policy was reflected in the tasks assigned to the Italian mission and its rules of engagement. The Italian contingent was armed with light weapons and fire was to be opened only in self-defence. Once again, constitutional constraints, i.e. Article 11 of the Italian Constitution, were considered an obstacle and prevented Italy from playing a more active role, for instance joining the coalition as an occupying power. The International Committee of the Red Cross (ICRC) also seemed to make a distinction between the occupying powers and those States which sent members of their armed forces to Iraq. However, as done by Resolution 1483, for the purposes of the application of humanitarian law, ICRC did not differentiate between the two categories. Both categories had to abide by the IV Geneva Convention of 1949, relative to the protection of civilian persons in time of war, and the Regulations attached to the 1907 Hague Convention No. IV. 5. Non-Belligerency and State Responsibility Non-belligerency is an intermediate position between belligerency and neutrality. As seen, non-belligerency has also been affirmed in the framework of an occupation, when both occupying armies and non-belligerent contingents are stationed on foreign territory. Supposing that the war is illegal, being contrary to international law, or that the warring States commit a violation of international law during the conduct of hostilities or occupation, is the non-belligerent responsible for the wrongful act which it did not materially commit? This is a moot point and there is little practice to help find a solution. The problem should be viewed in the framework of the law on State responsibility,

22

See Scheffer, ‘Beyond Occupation Law’, 97 AJIL (2003), 842–60, at 842–3.

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particularly in light of the ‘responsibility of a State in connection with the act of another State’, a chapter of the final draft articles on State responsibility adopted by the International Law Commission. Article 16 addresses complicity in the following terms: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.

It is necessary to distinguish between jus ad bellum and jus in bello.23 In the perspective of jus ad bellum, assisting and facilitating might consist, first of all, in allowing State territory to be used as a base for attack against another State. Activity of this kind might even constitute an act of aggression according to Article 3(f ) of the 1974 Definition of Aggression, which qualifies as an act of aggression ‘the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State’.24 This was not the case of Italy, since it was made clear that military structures on Italian territory were not to be used as a base for a direct attack against Iraqi objectives. The complicity of a State might also be involved if weapons or military equipment are supplied. Again this was excluded by Italy’s non-belligerency. Nevertheless, supplying intelligence and giving sensitive information for targeting clearly falls within the category of ‘aid’. Transit through the territory of the non-belligerent State and its overflight qualify as ‘facilitating’ the commission of a wrongful act. If the United States—United Kingdom invasion of Iraq cannot be considered a lawful action justified under Security Council resolutions 678 (1990), 687 (1991) and 1441 (2002) or on other grounds, Italy’s non-belligerency should be considered as ‘aid or assistance in the commission of an internationally wrongful act’ according to the terms of Article 16 of the International Law Commission’s draft articles on State responsibility. Non-belligerency can also involve responsibilities under jus in bello. For instance, if prohibited weapons are shipped to the belligerent. This, of course, was not the case of Italy during the Iraqi war.

23 On complicity for violation of obligations related to the use of force see the comment by the International Law Commission on Article 16 of the draft articles on State responsibility, in ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), 157–8. 24 ‘Resolution 3314 (XXIX) of the United Nations General Assembly on the Definition of Aggression (adopted on 14 Dec. 1974)’, Gen. Ass. Off. Recs., Twenty-ninth Session, Supp. 31 (A/9631), 142.

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Supplying intelligence for assistance in targeting might bear responsibility for the non-belligerent if the objective selected and hit is an unlawful target. However, if the belligerent commits a violation of jus in bello without the nonbelligerent’s knowledge ‘of the circumstances making the conduct of the assisted State internationally wrongful’, the non-belligerent has no responsibility. Non-belligerency in the occupation was meant by Italy as non-participation in the occupation. The legal justification for the Italian presence on Iraqi territory can be found in Resolutions 1483 and 1511. Since Italian troops were stationed in the area under the responsibility of the United Kingdom, an occupant power, Italy’s responsibility for any violation of the law of belligerent occupation would be engaged only if Italy assisted or facilitated the commission of the wrongful act, with the knowledge that the conduct of the United Kingdom would be wrongful. Italy’s participation in the CPA does not seem to imply wider responsibility in this connection, since military deployment was the primary business of the two occupying powers. For the transfer of protected persons, Article 45 of the IV Geneva Convention—which applies to both the occupants and the other States present in Iraq, as can be inferred from para. 5 of Resolution 1483—states that the detaining Power should verify the willingness and ability of the transferee Power to apply the IV Geneva Convention. After the knowledge of abuses perpetrated by the occupants, mainly the United States,25 Italy concluded a Memorandum of Understanding with the United Kingdom to ensure that persons in the custody of Italian troops and transferred to the British occupation forces are treated according to the relevant provisions of international humanitarian law.26 Apart from the treatment of prisoners and the civilian population, participation in the CPA might imply Italian responsibility for those acts rendered necessary for discharging the civil administration of the territory and which were performed with the participation and knowledge of the Italian members of the CPA.

6. Conclusion Roberto Ago, in the lectures he delivered at the University of Milan during the academic year 1939–1940, when Italy proclaimed its non-belligerency, pointed out that non-belligerency did not mean that the non-belligerent State was not interested in the outcome of the conflict. On the contrary, the nonbelligerent, by taking a position different from neutrality, signalled its interest in being present when the peace was re-established.27 25 See Sadat, ‘International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces’ (May 2004), electronically available at . 26 The Italian Parliament was briefed of the contents of the Memorandum of Understanding by the Italian Minister of Defence on 13 May 2004. 27 Ago, Diritto internazionale della neutralità (Corso di Lezioni, Anno Accademico 1939–40), 7.

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Italy’s political support for the coalition intervention in Iraq confirms the validity of Ago’s statement. Indeed, in some respects it is applicable to Iraq, as is shown by the dispatch of armed forces to that country after its debellatio and by the efforts made to influence the contents of Resolution 1546 (2004), even though Italy was not, at the moment of its adoption, a member of the Security Council.28 The policy of non-belligerency was also dictated by the limits imposed by Article 11 of the Constitution on Italy’s involvement in hostile activities. Hence, non-belligerency was an expedient to demonstrate political and material support for the coalition without infringing constitutional dictates. As was stated at the beginning, non-belligerency is a moot point in international law: on the one hand, there are authorities who hold that it is only a political notion and even a violation of international law, since there is no intermediate state between peace and war; on the other, there are those who believe that non-belligerency is consistent with the international law of armed conflict. It was not the aim of this essay to take a position between these two contending views.29 The aim was to point out that Italy’s non-belligerency in the Iraqi war is an important piece of practice, contributing to the development of customary international law of armed conflict.

28 Resolution 1546 (electronically available at ) established the end of occupation by 30 June 2004 (para. 2 of the resolution), which in fact took place two days earlier. The armed forces of the United Kingdom and the United States, stationed in Iraq, are no longer occupation forces and have become, together with the other troops, a multinational force present in Iraq with the consent of the Iraqi government and under United Nations mandate. The task of the multinational force is to promote the maintenance of security and stability in Iraq to be carried out in accordance with international law, ‘including obligations under international humanitarian law’ (preamble of the resolution). In an exchange of letters between the Prime Minister of the Interim Government of Iraq and the United States Secretary of State, annexed to the resolution, it was stated that the multinational force would abide by ‘the law of armed conflict, including the Geneva Conventions’. The law of occupation and the pertinent provisions of the 1907 Hague Regulations were not mentioned. It is obvious that Italy’s policy of non-belligerency terminated with the end of occupation. 29 For a critical appraisal of Italy’s non-belligerency, see Sciso, ‘La risoluzione 1511 del Consiglio di sicurezza: verso una “sanatoria” dell’intervento contro l’Iraq?’, 87 RDI (2004), 171–80, at 174.

CHAPTER NINETEEN

SOME REMARKS ON INTERNATIONAL RESPONSIBILITY IN THE FIELD OF ENVIRONMENTAL PROTECTION Tullio Scovazzi

1. Introduction In principle, the rules of international law governing responsibility, as set forth in the draft articles on responsibility of States for internationally wrongful acts adopted in 2001 by the International Law Commission,1 do apply also to the field of protection of the environment. This is also the position taken in the resolution on responsibility and liability under international law for environmental damage, adopted by the Institut de Droit International on 4 September 1997.2 The subject involves a number of specific questions. Some of them are addressed in this essay.3 2. Content of the Rules on the Protection of the Environment The International Law Commission based its work on the distinction between the obligation which is breached (primary obligation) and the obligation arising from the breach (secondary obligation). A wrongful act of a State occurs

1 The text of the draft articles and the Commission’s commentary on them are in ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). The General Assembly took note of the draft at the end of 2001: ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). See Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’, 96 AJIL (2002), 874–90. 2 The text of the ‘Resolution on Responsibility and Liability under International Law for Environmental Damage’ is in 67 Annuaire (1998), ii, 486–513. See Orrego Vicuña, ‘Final Report on Responsibility and Liability under International Law for Environmental Damage (December 1996)’, ibid., i, 312–46. 3 This essay does not consider the so-called non-compliance procedure set forth in several environmental treaties with the objective of preventing potential disputes.

Maurizio Ragazzi (ed.), International Responsibility Today, 209–222. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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if a conduct attributable to a State and consisting of an action or omission ‘constitutes a breach of an international obligation of the State’ (the so-called objective element of an internationally wrongful act, Article 2(b) of the Commission’s draft), irrespective of the substantive content of the obligation which is breached. However, a number of complexities linked to international responsibility in the field of environmental protection derive from the fact that the very content of some primary obligations is far from being clear. Several environmental treaty rules are drafted in such a soft manner that it is questionable whether they are capable to entail any obligations at all. For example, Article 5 of the Convention on Biological Diversity (Rio de Janeiro, 1992) provides for an obligation of cooperation drafted in very vague terms: Each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.4

However, the doubts on some environmental rules go beyond a mere question of the wording of treaty provisions and also relate to the content of well known customary rules. Some instances are presented below. A. Transboundary Damage The customary rule of international law which prohibits States from causing transboundary damage to the environment of other States is confirmed by many elements of international practice, such as the award of 11 March 1941 in the Trail Smelter case (United States v. Canada)5 and the advisory opinion given on 8 July 1996 by the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons.6 But what is the precise content of the rule? Does it relate to the damage itself or to certain activities that can determine injurious consequences? If the transboundary damage is itself prohibited, the nature of the activity that causes it becomes irrelevant. Damage from whatever source must be compensated under the (secondary) rule that ‘the State responsible for an international wrongful act is under an obligation to compensate the damage caused thereby’ (Article 36(1) of the Commission’s draft). If, on the contrary, emphasis is put on whether a specific activity is allowed or prohibited, the question of how to ensure compensation for harm arising out of activities not prohibited by international law

4

Note should be taken of the formula ‘as far as possible and as appropriate’, immediately followed by another ‘where appropriate’, which seems a masterpiece of hortatory wording. 5 RIAA, iii, 1905. 6 ICJ Reports 1996, 226, at para. 29.

some remarks on international responsibility 211 needs to be further addressed, leading to complex discussions on the theoretical basis on which this should be founded.7 The first alternative seems preferable as it is simpler and more in conformity with the growing need to ensure adequate protection to the environment.8 Many activities are neither prohibited nor specifically regulated by international law. Other activities, such as the transboundary movement of hazardous wastes or mining in Antarctica, are restricted or prohibited for a variety of reasons by specific rules of international law. But the regime of an activity has little to do with the rule on transboundary damage which has a different scope and focuses on the damage, from whatever activity it may originate. While damage determined by a wrongful activity is necessarily also wrongful, a wrongful damage may also derive from a lawful activity. If the rule applies to the damage, rather than to the activity, then the fact that a specific activity is hazardous or ultra-hazardous has no bearing on the existence of an obligation to provide reparation. But the character of the activity becomes important in the process of evaluating the conduct that a State is bound to take in fulfilling its obligation to prevent damage.9 Almost by definition, ultra-hazardous activities require to be carried out through the adoption of measures of ‘ultra-prevention’ of damage. The issue of prevention leads to another interesting question with respect to the content of the general rule prohibiting transboundary damage to the environment. Is the relevant obligation breached only if the prohibited damage results (so-called obligation of result) or is it breached for the mere fact that a

7 In 1997, the Commission decided to proceed with its work on the topic ‘International liability for injurious consequences arising out of acts not prohibited by international law’ dealing first with the issue of ‘prevention of transboundary damage from hazardous activities’ (see the draft articles adopted by the Commission in ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), 370). At the end of 2001, the General Assembly requested the Commission to resume its consideration of the liability aspects of the topic: ‘Resolution of the United Nations General Assembly on the Report of the International Law Commission on the Work of its Fifty-third Session (adopted on 12 December 2001)’ (A/RES/56/82). For the most recent developments, see Rao, ‘Second Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law (International Liability in Case of Loss from Transboundary Harm Arising out of Hazardous Activities)’ (Doc.A/CN.4/540). 8 ‘Nous sommes, je crois, unanimes à penser que, vu l’accroissement des atteintes à notre environnement, et étant donné la prise de conscience des dangers progressifs qu’ils répresentent, il est devenu indispensable de multiplier les garde-fous. A mon avis, la tâche principale à remplir consiste, à cette fin, à transférer grand nombre de situations du domaine vague de la responsabilité dite pour dommages causés par des faits demeurés licites au domaine plus précis de la responsabilité pour des préjudices causés par des faits internationalement illicites’. (Ago, ‘Conclusions du Colloque “Responsabilité des Etats pour les dommages à l’environnement”’, Francioni and Scovazzi (eds.), International Responsibility for Environmental Harm (1991), 493–9, at 496.) 9 In this regard, the concept of due diligence is often evoked as a test to evaluate the conduct required. Article 3(1) of the resolution of the Institut de Droit International provides that ‘when due diligence is utilized as a test for engaging responsibility it is appropriate that it be measured in accordance with objective standards relating to the conduct to be expected from a good government and detached from subjectivity’.

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State fails to take the required conduct, irrespective of whether damage results (so-called obligation of conduct)? Does the word ‘damage’ have a broad meaning10 that includes the ‘risk of damage’? If, for example, an ultra-hazardous activity is carried out without any precaution by a State in a locality close to the boundary with another State, does the latter need to wait for the occurrence of a serious accident and the suffering of the consequent damage before it may invoke the responsibility of the former? The preferable solution is based on the consideration that the proper objective of the international rules on the environment is to prevent damage rather than merely provide the victim with an entitlement to receive compensation.11 As the idea of prevention is itself integrated in the primary rule on the prohibition of transboundary damage, this rule is breached merely by the occurrence of a conduct that creates a serious risk of damage. Of course, if damage does not occur, the responsible State is under no obligation to pay compensation. It however incurs other consequences of an internationally wrongful act, such as the obligations to cease the wrongful conduct (Article 30(a) of the Commission’s draft), to offer appropriate assurances and guarantees of nonrepetition (Article 30(b)), to re-establish the situation that existed before the wrongful act was committed (Article 35), to give satisfaction in the form of acknowledgment of the breach, expression of regret, formal apology or other appropriate modality (Article 37). In this regard, the Convention on the Law of Non-navigational Uses of International Watercourses (New York, 1997) is quite clear in distinguishing between the obligation to take all appropriate measures to prevent the causing of significant harm to other watercourse States (Article 7(1)) and the obligation, if harm has nevertheless occurred, to take appropriate measures to eliminate or mitigate it and discuss the question of compensation (Article 7(2)). Both obligations fall under the provision on the ‘obligation not to cause significant harm’ (Article 7).12

10 The concept of ‘damage’ itself needs some clarification. Almost every human activity entails an alteration of natural elements. As legal provisions on the environment do not aim at stopping the progress of mankind or reverting human society to a pre-industrial stage, a threshold of gravity must be assumed. While the precise threshold is difficult to assess, impacts which are minor, sporadic or transitory should not determine international responsibility. Several treaties make use of the notion of ‘serious’ or ‘significant’ damage or harm. 11 ‘Regulation should be directed to action to avert or minimize risks before harms occurs. “Risk” is a probabilistic concept that takes account of the uncertainties of future events as well as the variations in severity of effects. A duty to prevent and minimize risk is legally distinct from a duty to act to contain and minimize harmful effects that have already occurred’. (Schachter, International Law in Theory and Practice (1991), 367.) 12 Doc.A/51/869. The text of the Convention is electronically available at .

some remarks on international responsibility 213 B. Global Concerns Today, international environmental law is not limited to traditional instances of transboundary harm where a polluting substance crosses the border between two or more States. As explained in 1987 in the report Our Common Future by the World Commission on Environment and Development,13 present international law must also address global risks which threaten the maintenance of equilibria indispensable for the survival of life on earth. The concept of pollution must be broadly understood. It also includes possible damage to interests that are fundamental to humankind and can originate from unsustainable patterns of increasing production and consumption (so-called global concerns, such as the depletion of the ozone layer, global warming, desertification, extinction of species of fauna and flora, destruction of ecosystems). The Brundtland report also highlights the vicious circle that exists between questions of economic development and political stability, on the one hand, and environmental questions, on the other. Not only is it true that development beyond natural limits impairs the environment, but it is also true that a polluted environment prevents development. Not only is it true that conflicts, be they internal or international, destroy the environment, but it is also true that a destroyed environment generates conflicts. With respect to global concerns, the usual schemes of State responsibility prove to be of little use, if any. These new kinds of harm entail multiplication of, and confusion between, ‘wrong-doers’ and ‘victims’. To a certain extent, every State contributes to the potential harm and every State would be affected by it. Here, the very idea of compensation becomes meaningless, as the damage, if it really occurred, would exceed any capacity to provide remedies. In the case of global concerns, the obligation to co-operate for the prevention of damage, which applies also in ordinary cases of transboundary harm, becomes the only sensible way to face the risk. Several of the principles embodied in the 1992 Rio Declaration on Environment and Development and re-stated in subsequent environmental instruments relating to global concerns have such a broad content that they can be considered as guidelines which should inspire co-operation among States for the drawing up of more specific regimes (this can be said of the principles of sustainable development, intergenerational equity, precautionary approach, common but differentiated responsibilities). It may be difficult to determine in what cases the duty to co-operate for the implementation of such broad principles has been fulfilled and, if the answer is negative, whether this entails responsibility for an internationally wrongful act.

13

Also known as the ‘Brundtland report’ (Doc.A/42/427).

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For instance, the crucial principle of common but differentiated responsibilities14 has been understood by some as implying a true legal obligation of developed countries to provide to developing countries additional financial resources and environmentally sound technologies on preferential terms. This obligation would be based upon the main historical and current responsibility of the former for global environmental degradation and their capability to address common concerns.15 Yet others have understood the same principle as not implying any new legal obligations of developed countries and any diminution in the responsibility of developing countries.16 Both positions, however radical they are, are tenable. In this field of international law, where broad principles have not yet been sufficiently specified through more precise legal provisions, definite conclusions based on the schemes of international responsibility for wrongful acts would be premature. What is important, at this stage, is that States representing different positions pursue their co-operation with the aim to achieving reasonable solutions adapted to the specific instances.17 If this is the case, the position of a State basing its conduct on the sole objective to pursue its own interest seems hardly compatible with the obligation to co-operate in facing environmental concerns.18 A notable instance in this respect is the negative attitude taken by the United States towards the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate

14 ‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command’ (Principle 7 of the Rio Declaration). The text of the Rio Declaration on Environment and Development (Doc.A/Conf.151/5/Rev.1) is reproduced in 31 ILM (1992), 874. 15 See the position taken at the Rio Conference by the Group of 77 and China: Mickelson, ‘South, North, International Environmental Law, and International Environmental Lawyers’, 11 Yearbook of International Environmental Law (2000), 52–81, at 70. 16 ‘The United States does not accept any interpretation of principle 7 that would imply a recognition or acceptance by the United States of any international obligations or liabilities, or any diminution in the responsibilities of developing countries’ (‘Report of the United Nations Conference of Environment and Development’ (United Nations, 1993), ii, 18). 17 For example, the Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (London, 1990) (30 ILM (1991), 537) established a link between the capacity of developing countries to fulfil their obligations to turn to substitutes for controlled substances and the effective implementation of the provision on financial co-operation by industrialized countries. The text of the Montreal Protocol, as either adjusted and/or amended, is electronically available at . 18 As regards the content of the obligation to co-operate, the International Court of Justice remarked that ‘the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation . . . they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it’ (North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3, at para. 85.)

some remarks on international responsibility 215 Change.19 Is this attitude selfishly rooted in the protection of ‘legitimate U.S. interests’ and the fact that ‘the treaty is not workable for the United States’?20 Or is the attitude in question based on other and broader considerations which can support the statement that the United States Administration ‘takes the issue of climate change very seriously’ and will not abdicate its responsibilities?21 Time will tell. 3. Reluctance of States to Challenge Each Other It is a matter of fact that States are rather reluctant to challenge each other in the field of international responsibility for environmental harm. This attitude is so rooted that it sometimes happens that States affected by environmental harm refrain from making claims of international responsibility because of the doubts about the success of such a step and, perhaps, because of the concern to establish a precedent that could play against them in future cases. The States affected by the accident of Chernobyl, where transboundary harm was produced as a consequence of an activity carried out by a State economic entity, abstained from asking for compensation from the Soviet Union. They preferred to negotiate and conclude new multilateral treaties that are expected to prevent the occurrence of similar events or reduce the damage if it occurs.22 It may be added that in several cases, although not in all cases, transboundary harm to the environment is caused by activities carried out by private entities. A conduct can be attributed to a State under international law and leads to the international responsibility of that State if it is carried out by a State organ, whatever position it holds in the organization of the State (so-called subjective element of an internationally wrongful act; Article 2(a) of the Commission’s draft).23 This rule implies a contrario that a conduct carried out by private individuals or corporations does not determine the responsibility of a State, unless

19 Under the Kyoto Protocol, industrialized countries have a legally binding commitment to reduce their collective greenhouse gas emissions by at least 5% compared to 1990 levels by the period 2008–2012. (Kyoto Protocol to the United Nations Framework Convention on Climate Change (FCCC/CP/1997/L.7/Add.1), 37 ILM (1998), 22.) 20 See the statement made by the United States at the 2001 resumed session of the Fifth Conference of the Parties to the Convention: Murphy (ed.), ‘Contemporary Practice of the United States Relating to International Law. Environmental, Science, and Health Affairs. U.S. Rejection of Kyoto Protocol Process’, 95 AJIL (2001), 647–50, at 649. 21 Ibid., 650. 22 Namely the Convention on Early Notification of a Nuclear Accident (Vienna, 1986), 1439 UNTS 275, and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Vienna, 1986), 1457 UNTS 133. The text of both Conventions is electronically available at the site of the International Atomic Energy Agency: . 23 Unless a special regime applies, the attribution to a State of responsibility for wrongful acts is generally based on fault, that is on the assumption that the conduct of a State organ is carried out intentionally (dolus) or negligently (culpa) in violation of international rules. While rare,

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an organ of that State was under an obligation to prevent the conduct and failed to abide by this obligation.24 It follows that, once it has been determined that a private entity has failed to exercise due diligence in carrying out a harmful activity, it still needs to be determined whether a State organ omitted to exercise due diligence in controlling that private entity. Again, States are rather reluctant to claim or to accept international responsibility for a conduct which is not taken directly by their organs. A few examples are sufficient in this regard. The 1982 United Nations Convention on the Law of the Sea provides that there must be a genuine link between a State and a ship entitled to fly its flag (Article 91(1)). It also provides that every State must take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to construction, equipment, seaworthiness and manning of ships, labour conditions and training of crews, use of signals, maintenance of communications and prevention of collisions (Article 94(3) and (4)).25 Today, the globalization of shipping increases the use of flags of open registry (or flags of convenience), which are granted without the exercise of effective control by the nominal flag State. Although the flag State could be considered responsible for ensuring that a ship is navigated safely, no coastal State which suffered environmental damage has ever made a direct claim against a flag State based on the latter State’s failure to exercise substantial control on a privately-owned ship that has caused an accident.26 The States of origin of transnational corporations have hardly accepted any international responsibility for serious harm caused to human health and the natural environment arising from activities carried out by corporate subsidiaries in foreign countries. The reluctance of States in applying in the field of environmental harm the traditional schemes of State responsibility has resulted in the conclusion of a cases of intentional damage to the environment sometimes occur. During the invasion and occupation by Iraq of Kuwait, the fires resulting from the ignition of hundreds of oil wells by Iraqi forces caused serious environmental damage and destruction of natural resources. 24 For instance, the wrongful conduct in the Trail Smelter case lies in the fact that the organs of a State (Canada) permitted a private corporation to use the Canadian territory in such a manner as to cause injury by fumes to the territory of another State (the United States). 25 The concept of genuine link tends to be related more to ensuring the requirements of safety of navigation and protection of the marine environment than to promoting clarity as regards the ownership or economic control of a ship. 26 ‘States parties to UNCLOS dissatisfied with the performance of a flag State that appears not to have fulfilled its obligations under UNCLOS could make use of Part XV to seek compulsory and binding third-party settlement before the International Tribunal for the Law of the Sea, the International Court of Justice, or general or specialized ad hoc tribunals. Yet despite a fairly high level of dissatisfaction among States at the deficiencies in the performance of some other States, there has been no rush to litigation to rectify the problems adumbrated in the various contributions to the present report . . . The most likely reason for the lack of litigation is an extreme reluctance of States to challenge each other in adversial cases in court, coupled with the high cost of doing so’. (Consultative Group on Flag State Implementation, ‘Report to the Secretary-General’ (Doc.A/59/63), para. 219.)

some remarks on international responsibility 217 number of treaties establishing special regimes on liability and compensation for damage resulting from certain activities,27 such as the exploitation of atomic energy, shipping and carriage of dangerous goods or the transboundary trade of hazardous wastes. These treaties provide for the establishment of uniform civil liability regimes that apply in the relationship between the operator of the activity (who can be either private subjects or States) and the victims of damage (who can also be either private subjects or States).28 They show the willingness of States parties to ensure that compensation is effectively paid to the victims, irrespective of any questions of public international law involved in the case. The practical result is that the existence of a special treaty regime of uniform civil law on liability and compensation very often prevents the raising of the issue of responsibility to the level of general international law. However, the special treaty regimes may exclude the application of general international law only to the extent that they exist and are in fact applicable to the specific case (see Article 55 of the Commission’s draft).29 Even in the case of existing treaty regimes, the fact that compensation has already been paid to the victims does not wipe out the general obligation of the responsible State to offer appropriate assurances and guarantees of non-repetition of the wrongful act (Article 30(b) of the Commission’s draft). 4. Determination of the Responsible State According to the International Law Commission’s draft, ‘where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act’ (Article 47(1)).30 It is however doubtful whether this provision is adequate to address cases of gradual

27 See Churchill, ‘Facilitating (Transnational) Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems, Prospects’, 12 Yearbook of International Environmental Law (2001), 3–41. 28 For instance, the International Convention on Civil Liability for Oil Pollution Damage (Brussels, 1969), 973 UNTS 3 (electronically available at ), amended by subsequent protocols, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Brussels, 1971), 1110 UNTS 57 (electronically available at ), amended by subsequent protocols), establish a special regime based on strict liability (instead of fault-based liability), the channeling of liability on the shipowner, the shipowner’s right to limit liability to a predetermined amount, the shipowner’s obligation to maintain an insurance or other financial security, the creation of a international fund to provide compensation if the protection already afforded is inadequate. 29 For instance, no treaty regime exists as regards transboundary damage produced by industrial accidents, including those involving chemical plants. 30 Under para. 2 of Article 47, ‘paragraph 1: (a) does not permit any injured State to recover, by way of compensation, more than the damage it has suffered; (b) is without prejudice to any right of recourse against the other responsible States’.

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and cumulative pollution arising from numerous sources that are located in different States. This kind of pollution happens if natural elements, such as the sea, international rivers or the atmosphere are polluted by land-based sources. As the contribution of every single source of pollution is extremely difficult to assess, it would be inequitable to require that the injured party prove a causal nexus between a specific activity undertaken and the ensuing damage. It is also reasonable to think that certain polluters (such as industrialized countries or, in the case of marine pollution, States where the basins of major rivers are located) carry a wider ‘share’ of responsibility than others. According to the resolution of the Institut de Droit International that has already been mentioned, presumptions of causality that exclude the burden of proving a causal nexus can be established in the case of ‘hazardous activities or cumulative damage or long-standing damages not attributable to a single entity but to a sector or type of activity’ (Article 7). It follows that ‘apportionment of liability under environmental regimes should include all entities that legitimately may be required to participate in the payment of compensation so as to ensure full reparation of damage. To this end, in addition to primary and subsidiary liability, forms of several and joint liability should also be considered’ (Article 11(1)). The resolution provides useful suggestions in dealing with the problem of the assessment and apportionment of responsibility or liability among a number of gradual polluters. However, this problem still needs to be tackled under both the general rules on State responsibility and the special treaty regimes. 5. Determination of the Injured State The customary rule on the prohibition of transboundary harm also applies if spaces beyond the limit of national jurisdiction, such as the high seas, outer space or Antarctica,31 are polluted. In these cases, as no State is directly affected, the question of the determination of the injured State, if any, has to be addressed. The International Law Commission’s draft starts from the premise that the obligations of the responsible State may be owed to another State, to several States (erga omnes partes) or to the international community as a whole (erga omnes),32 depending on the character and content of the international obligation 31 At least for those countries that do not recognize the claims of sovereignty made by seven States with regard to portions of the Antarctic continent and the relevant coastal waters. But there is still an Antarctic sector which is not claimed by any State (terra nullius). 32 ‘In some cases, environmental obligations are regarded as erga omnes, owed to all States. In consequence, any State whether or not directly injured, would have the right to take countermeasures, including reprisals otherwise illegal. It is generally considered that such erga omnes obligations would apply to protection of the global commons, such as the high seas and very probably the ozone layer. It may be extended as a concept to the global climate but probably this would only come about if the obligations of States were clarified by international agreement’. (Schachter,

some remarks on international responsibility 219 and on the circumstances of the breach (Article 33(1)). Where no State can be singled out as the State directly injured, several States or all States in general are entitled to invoke the international responsibility, depending on whether the obligation breached is owed to a group of States and is established for the protection of the collective interest of the group or is owed to the international community as a whole (Article 48(1)). States entitled to invoke responsibility may demand that the responsible State cease the internationally wrongful act and guarantee non-repetition, as well as other forms of reparation, such as restitution, compensation and satisfaction, ‘in the interest of the injured State or of the beneficiaries of the obligation breached’ (Article 48(2)). The rules elaborated by the International Law Commission are sufficient to cover almost all the problems posed by harm to spaces beyond the limits of national juridisdiction. If, for example, a transboundary accident affects an area of high seas and leads to the depletion of a commercially exploited species of fish, responsibility may be invoked by a State which is directly injured because ships flying its flag used to fish in the area. This State is entitled to receive reparation in the form of compensation for the damage it has suffered (loss of profits, increased costs to move fishing vessels to other areas). Furthermore, as the obligation breached is owed to the international community as a whole, responsibility may also be invoked by States which are not directly injured, since they did not fish in the area, and also with respect to depletion of species which are devoid of any commercial interest. In this case, reparation by the responsible State cannot consist in compensation, since no damage was directly suffered by a State that is not directly injured. Instead, it will primarily take the form of restitution, that is the re-establishment of the situation which existed before the wrongful act was committed. The only instance where the ordinary scheme of State responsibility for wrongful acts present a flaw occurs if restitution is materially impossible and reparation necessarily takes the form of compensation (sadly enough, not only has a certain species devoid of commercial interest disappeared from a high seas area, but it has become extinct altogether). Given the fact that no State is directly injured, which State or other subject should be compensated?33 A way to get out of the deadlock is that suggested by the resolution of the Institut de Droit International mentioned above, which calls for the establishment or identification of entities entrusted with the right to receive compensation for environmental harm to spaces beyond the limits of national jurisdiction: ‘environmental regimes should identify entities that would be entitled to make claims and to receive compensation in the absence of a direct legal interest if appropriate. Institutions established under such regimes, including ombudsmen and International Law, 381). See, in general, Ragazzi, The Concept of International Obligations Erga Omnes (1997). 33 It should also be considered that the responsible State cannot be asked to pay double or multiple compensations.

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funds, might be empowered to this end. A High Commissioner for the Environment might also be envisaged to act on behalf or in the interests of the international community’ (Article 28). No such institutions have yet been established. 6. Assessment of Damage Under the rules on responsibility for internationally wrongful acts, ‘compensation shall cover any financially assessable damage including loss of profits insofar as it is established’ (Article 36 of the Commission’s draft). The assumption that compensation is limited to what affects health or property and is financially or economically assessable can also be found in a number of special treaty regimes. For example, under Article 22 of Annex III to the Convention on the Law of the Sea, liability of a contractor ‘in every case shall be for the actual amount of damage’. The already quoted convention on civil liability for oil pollution damage, as amended in 1984, defines pollution damage as ‘(a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; (b) the costs of preventive measures and further loss or damage caused by preventive measures’ (Article 1(6)). Under the Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 1999), the concept of damage includes loss of life or personal injury, loss or damage to property, loss of income deriving from an economic interest in any use of the environment, the costs of measures of reinstatement of the impaired environment, the costs of preventive measures (see Article 2(2)(c)).34 A broader approach can be found in Decision 7, adopted by the Governing Council of the United Nations Compensation Commission for Iraq in 1991, that provides detailed guidance on what constitutes ‘direct environmental damage and depletion of natural resources’.35 This includes losses or expenses resulting from:

34 The text of the Protocol is electronically available at . 35 By Resolution 687 of 3 April 1991, the United Nations Security Council affirmed inter alia that Iraq ‘is liable under international law for any direct loss, damage—including environmental damage and the depletion of natural resources—. . . as a result of its unlawful invasion and occupation of Kuwait’ (para. 16), and established an ad hoc compensation Commission. For the report and recommendations on claims for direct environmental damage and depletion of natural resources see ‘United Nations Compensation Commission Governing Council, Report and

some remarks on international responsibility 221 (a) Abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters; (b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and (e) Depletion of or damage to natural resources. However, rules of customary international do not address the problems posed by the so-called ecological damage, that is the damage which affects the quality of the environment in itself ( per se) and cannot be precisely assessed and quantified in financial terms. This kind of damage is taken into account, although to a varying extent, by the legislation of some States and has been granted by some national decisions. However, other domestic legal systems and decisions take a contrary view. In this field it would be difficult to think that some general principles of law, in the sense of Article 38(1)(c), of the Statute of the International Court of Justice, have already developed. The resolution of the Institut de Droit International takes a rather advanced position in assuming that ‘environmental regimes should provide for reparation of damage to the environment as such separately from or in addition to the reparation of damage relating to death, personal injury or loss of property or economic value. The specific type of damage envisaged shall depend on the purpose and nature of the regime’ (Article 23). As it is inequitable to exempt from compensation irreparable or unquantifiable damage, ‘an entity which causes environmental damage of an irreparable nature must not end up in a possibly more favorable condition than other entities causing damage that allows for quantification’ (Article 25(1)). This implies that ‘where damage is irreparable for physical, technical or economic reasons, additional criteria should be made available for the assessment of damage. Impairment of use, aesthetic and other non-use value, domestic or international guidelines, intergenerational equity, and generally equitable assessment should be considered as alternative criteria for establishing a measure of compensation’ (Article 25(2)).36 The innovative Recommendations Made by the Panel of Commissioners Concerning the Third Instalment of “F4” Claims’ (Doc.S/AC.26/2003/31), 43 ILM (2004), 704. 36 While advocating compensation for environmental damage, the resolution rightly remarks that ‘full reparation of environmental damage should not result in the assessment of excessive, exemplary or punitive damages’ (Article 25(3)).

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approach of the resolution could pave the way to further steps in the progressive development of general rules applying to ecological damage.37 7. Environmental Harm and Peremptory Norms of International Law The present International Law Commssion’s draft does not make use of the concept of the international crime of a State as being something different from, and more serious than, an ordinary wrongful act. Nor does it point out that an international crime may be consist in, inter alia, ‘a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas’, as it had been provided for in the draft adopted on first reading by the Commission in 1976. While avoiding the highly controversial notion of international crime, the present draft has retained the category of ‘serious breaches of obligations under peremptory norms of general international law’ (Articles 40 and 41 of the Commission’s draft). These kinds of breaches can also implicitly include gross or systematic failures to fulfil the obligations arising from the rules on the protection of the environment, especially if global concerns are at stake. The Commission’s draft also provides that countermeasures cannot affect, inter alia, obligations under peremptory norms of general international law (Article 50(1)). Forms of countermeasures involving a serious pollution of the environment, or a corresponding risk, are to be considered unlawful.

8. Conclusion Only some of the questions linked to international responsibility for environmental harm have been examined in this essay, as it would have been impossible to deal with all the peculiarities of the subject. A very general conclusion can however be drawn. The mere fact that States rarely invoke international responsibility in cases of environmental harm is not a sufficient reason to prevent the elaboration and development of the relevant rules of international law. Also as a consequence of the present process of codification, the regime applying to responsibility for environmental harm needs to be further clarified and strengthened. It is up to the States themselves to develop this body of international law to cope with the demands arising from current environmental concerns.

37 ‘The rules of international law relating to reparation for environmental damage remain undeveloped, as evidenced by the lack of precedents’. (Sands, Principles of International Environmental Law (2nd edn. 2003), 884.)

CHAPTER TWENTY

THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY AND THE SETTLEMENT OF DISPUTES Tullio Treves 1. Articles in a Non-treaty Form and Settlement of Disputes In discussing in 1994 the proposal made by Gaetano Arangio-Ruiz, the then International Law Commission’s Special Rapporteur on State responsibility, to condition on dispute settlement measures the lawfulness of countermeasures, Oscar Schachter made the following remarks: We might bear in mind that the articles on State responsibility are unlikely to end up as a codifying convention on the pattern followed in the various Vienna codification treaties. The scope, complexity and detail of the texts (with more to come) would present a daunting task for an international conference of States. However, whether or not a treaty remains a goal, the Commission’s product in the form of reports, commentary and the articles approved by it will stand as a monumental contribution to the law . . . We can be quite sure that the articles and commentary will acquire added authority through their practical application and the accompanying accretion of opinio juris even if in some cases they might be modified (or overridden) as a consequence of practice.1

In making these remarks, Schachter was in full consonance with those, made in 1992, in examining the prospects of the codification effort on State responsibility, by Roberto Ago, who had been the first Special Rapporteur on the subject: ‘in the present situation will it be wise and prudent to insist, on a subject as essential for the life of the international community, on the path of replacing by an international Convention the existing customary rules that today are better defined by the patient work of the International Law Commission?’ After describing the risks inherent in a diplomatic conference and in the process of ratification and entry into force of the treaty subsequent to it, Ago stated that it was ‘perhaps preferable that the codification action on the subject stop

1 Schachter, ‘Dispute Settlement and Countermeasures in the International Law Commission’, 88 AJIL (1994), 471–7, at 477.

Maurizio Ragazzi (ed.), International Responsibility Today, 223–234. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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at a phase preceding that of the elaboration of a treaty . . . [I]t might be preferable that a project elaborated by a technical body such as the International Law Commission remain as a term of reference, so that arbitration tribunals and the International Law Commission can apply it to specific cases, as they have already started doing’.2 Once the articles on State responsibility (renamed ‘articles on responsibility of States for internationally wrongful acts’)3 came close to completion in the International Law Commission, the Commission engaged in a discussion concerning the form to be given to the final result of its work. Arguments in favour of proposing the holding of a diplomatic conference in order to adopt a convention were opposed by arguments against, many of which reminiscent of those of Schachter and Ago.4 The latter position prevailed at the end, though with some concession to the contrary view. The Commission proposed that the General Assembly take note of the articles, and so did the Assembly in 2001 through a resolution reproducing in annex the articles. In taking note of the articles, the General Assembly commended them ‘to the attention of Governments’. Following a suggestion of the Commission, it added that this was ‘without prejudice to the question of their future adoption or other appropriate action’, and decided to include the subject in the agenda of its 2004 session.5 This opening to a different outcome for the future seems more a formal concession to the views in favour of a diplomatic conference than an indication of a serious willingness of the General Assembly to move beyond ‘taking note’ of the articles on State responsibility and commending them ‘to the attention of Governments’. The reasoned forecast by Schachter would thus seem to have proven correct. In the remarks that follow, I assume that no steps are taken (at least in the near future) towards transforming the Commission’s articles into conventional law. Were my assumption to be wrong, my remarks would still apply to the articles as they are in the time frame between their adoption and transformation into a binding instrument and even, beyond that time, for those States that will not be parties to (and will therefore not be bound by) that instrument. In the discussions within the International Law Commission and the Sixth Committee of the United Nations General Assembly, as well as in scholarly

2 Ago, ‘Riflessioni sulla codificazione del diritto internazionale’, 19–20 Comunicazioni e Studi (1992), 1–28, at 24 ff. (The translation from the Italian text is mine.) 3 See ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), para. 68. 4 The debate in the Commission is summarized ibid., paras 61–7. See also Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 58–60. 5 ‘Resolution of the United Nations General Assembly on the Report of the International Law Commission on the Work of its Fifty-third Session (adopted on 12 December 2001)’ (A/RES/56/82), paras. 3 and 4. At the 2004 Session, the Sixth Committee decided that the item would be included in the provisional agenda of its 2007 session. (A/RES/59/35.)

the ilc articles on state responsibility 225 comments,6 the basic arguments in favour and against the transformation of the articles into a convention are those already canvassed by Schachter and Ago. The risks for the integrity of the draft and for its authoritative status consequent to a diplomatic conference and the ensuing treaty are foremost among the arguments in favour of adopting the articles as such, together with the argument that in so doing the law could more easily adapt to new needs and to the changing opinio juris of States. On the other side, ‘certainty, reliability and binding force’7 are listed among the main advantages of a binding instrument. There are nonetheless two respects in which the two sides of the discussion coincide. One is something that both sides said, the other is something that both sides omitted to say, at least in connection with the question of form. The opposite views converge in that a non-binding text, be it (for the supporters of the non-treaty option) the Commission’s articles adopted in a nonbinding form, or (for the supporters of the opposite option) an unratified treaty, would play an important role in the determination of the contents of the law.8 This common view is confirmed by a recent scholarly comment on the above mentioned decisions of the General Assembly. In this comment the point is made that, even in their non-binding form, because of their treaty-like drafting (‘a treatise written as though it were a treaty’) and of the Commission’s authority, the articles might have an exaggerated and undue influence. International arbitrators and judges might be tempted to apply uncritically a rule because it is conveniently drafted and because it belongs to the Commission’s articles and not because they have directly verified that such a rule corresponds to existing customary law.9 The non-expressed coincidence concerns the settlement of disputes. Neither side has made the point that a choice for a convention permits (although of course does not require) the adoption of binding rules on the settlement of disputes, while a choice for a non-binding instrument excludes by definition such rules, which cannot serve a practical purpose unless they are binding. There was no indication that the possibility (or the loss of the possibility) of rules on the settlement of disputes would be an advantage or a disadvantage of either solution. 6 See in particular, Zemanek, ‘Appropriate Instruments for Codification, Reflections on the ILC Draft on State Responsibility’, Studi di Diritto Internazionale in Onore di Gaetano Arangio-Ruiz (2004), 897–918. 7 Doc.A/56/10, para. 62. 8 The view of the proponents of the adoption of a convention is summarized in the 2001 Commission’s Report as follows: ‘The fact that customary rules were included in a convention did not per se mean that they would cease to enjoy such status if the convention were to remain unratified. Indeed, unratified conventions continued to play an important role’ (Doc.A/56/10, para. 52). The summary of the views of those opposing the adoption of a convention reports that, according to these views, ‘a convention was not strictly necessary since the draft articles adopted on second reading were bound to be influential’ (ibid., para. 63). 9 Caron, ‘The ILC Articles on State Responsibility, the Paradoxical Relationship between Form and Authority’, 96 AJIL (2002), 857–73.

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In the conclusions it drew from a discussion, separate from that on the ‘form of the draft articles’, in which it considered in general terms the problem of adopting provisions on the settlement of disputes, the Commission ‘reached the understanding that it would not include provisions for a dispute settlement machinery’ while leaving it ‘to the General Assembly to consider whether and what form of provisions for dispute settlement could include in the event that the Assembly should decide to elaborate a Convention’.10 James Crawford, the last Special Rapporteur of the International Law Commission on the subject, has expressed the view that the debates within the Commission and the comments received from States indicate that, even if a convention were to be adopted, there would not be sufficient support for a general rule on compulsory jurisdiction. In light of the progress of compulsory dispute settlement in other recent treaties (such as the Law of the Sea Convention of 1982 and the WTO Understanding on the settlement of disputes of 1995), accepting a noncompulsory form of dispute settlement would be ‘retrogressive’.11 Starting from the assumption that no further steps are likely to be taken in the near future, it seems interesting to try to answer the question whether much has been lost because the adoption of the Commission’s articles in a non-conventional form entails that no mechanisms for the settlement of disputes are directly attached to them. 2. General Rules on Dispute Settlement Concerning the Interpretation and Application of the Articles The International Law Commission had planned that Part II of the draft articles, on the ‘Content, Forms and Degrees of International Responsibility’, would be followed by a Part III, on the ‘Settlement of Disputes’. Indeed, the articles adopted on first reading in 199612 contained such a part, even though no decision had been taken as to the final form of the articles. The assumption seemed nevertheless to be—among other reasons, because Part III had been included— that the final form would be that of a convention. It must be stressed that a general mechanism for the settlement of disputes in a convention on international responsibility would have very radical implications if it were to be a mechanism of compulsory settlement applying to all disputes concerning the interpretation or application of the convention. As the law of international responsibility—and the envisaged convention—concern wrongful acts that constitute ‘a breach of an international obligation of the

10

Doc.A/56/10, para. 60. Crawford, The International Law Commission’s Articles, 57 ff. 12 ‘Report of the International Law Commission on the Work of its Forty-eighth Session’, Gen. Ass. Off. Recs., Fifty-first Session, Supp. No. 10 (Doc.A/51/10), Chapter III, Part D. 11

the ilc articles on state responsibility 227 State’,13 any dispute concerning such a breach would fall under the dispute settlement mechanism. In other words, as disputes in most cases are based on the contested allegation that one State is in breach of an obligation under international law, such a mechanism would make it possible to submit to settlement procedures all or most disputes arising under international law. Against this view it could be argued that the disputes envisaged would only encompass the interpretation or application of the rules of the convention, namely the secondary rules on international responsibility, and not the primary rule, the breach of which would be the subject of the claim of responsibility. This view would however be unduly restrictive, as the primary and the secondary rules are in most cases inseparable. The consequences of a breach—the main subject of the articles—cannot in most concrete disputes be determined without ascertaining whether there has been a breach, namely without considering the primary rule.14 The broad scope and implications of general provisions on the settlement of disputes, which has just been mentioned, had been addressed in debates held when the first reading of the articles was conducted. In 1985, Willem Riphagen, Special Rapporteur at the time, considered in his sixth report the argument that ‘to provide for a new (and possibly separate) third-party dispute-settlement procedure for the implementation of State responsibility in this case would amount to the creation of a multilateral compulsory dispute-settlement procedure relating to all (primary) obligations, present and future, under international law of States becoming parties to the future convention on State responsibility’.15 In the same vein, Gaetano Arangio-Ruiz, in his fifth report in 1993, underlined that ‘the insertion of dispute settlement provisions in a draft concerning the consequences of the infringement of international obligations would cover a wide range of matters by providing for a duty to submit to binding third-party procedures the initiation of which would depend on a unilateral decision of either party’.16 This would, in his view, ‘necessarily enhance the observance of any rule of international law, including any past or future codification convention’.17 While this consequence was, for some, a good enough reason for discarding the idea, Arangio-Ruiz held the view that its acceptance would entail a decisive step in the direction of the progressive development of international law and that it was the duty of the International Law Commission to challenge States to make it.18

13

Article 2(b) of the Commission’s articles of 2001. See Crawford, The International Law Commission’s Articles, 10. 15 Riphagen, ‘Sixth Report on (1) the Content, Forms and Degrees of State Responsibility, and (2) the “Implementation” (Mise en Œuvre) of International Responsibility and the Settlement of Disputes’ (Doc.A/CN.4/389), para. 8. 16 Arangio-Ruiz, ‘Fifth Report on State Responsibility’ (Doc.A/CN.4/453), para. 88. 17 Ibid., para. 90. (Emphasis added.) 18 Ibid., paras. 87–95. 14

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In 1996, the Commission adopted a set of general rules on the settlement of disputes ‘regarding the interpretation or application’ of the articles. It provided, in particular, for conciliation at the request of any party (so-called compulsory conciliation) and for arbitration by agreement of the parties.19 While the scope of the mechanism, for the reasons mentioned above, was very wide, its compulsory aspects, limited as they were to the unilateral submission to conciliation,20 were very modest. Drawing a conclusion from this consideration of the evolution preceding the decision to adopt the articles in a non-treaty form, it can be said that, after this decision, not much has been lost because the general clauses on the settlement of disputes concerning the ‘interpretation and application’ of the articles of the 1996 draft cannot apply to the draft of 2001. While the loss of consensual arbitration is not a real loss (States are always free to agree to go to arbitration), compulsory conciliation has in fact been lost in the process. In light of the broad scope—and the lack of binding results—of such a procedure as applied to disputes regarding the interpretation and application of what would have been a convention on State responsibility, it may be wondered whether introducing such a procedure into practically every conceivable dispute would have been a good idea. The possibility to resort to compulsory conciliation, which has been introduced in a number of codification conventions, starting with the Vienna Convention on the Law of Treaties,21 has never been utilized by States.22 It is moreover interesting to note that Arangio-Ruiz, who, as was mentioned above, had eloquently invited States to make the bold step of adopting compulsory general dispute settlement provisions, in the articles he submitted to the Commission had proposed such clauses only in a rather oblique way, as applicable only after the taking of countermeasures.23 Perhaps he had realized that the end result acceptable to the Commission (not to say to States) could not be better than the modest one that in fact the Commission reached with respect to the provisions adopted in its 1996 draft.

19

Articles 56 and 58 of the Commission’s 1996 draft articles. See below for the provision on unilateral submission to arbitration of disputes in case countermeasures have been taken (Article 58(2)). 21 See Article 66(b) and the annex to the Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS 331. 22 See Treves, ‘“Compulsory” Conciliation in the Law of the Sea Convention’, Götz, Selmer and Wolfrum (eds.), Liber amicorum Guenther Jaenicke: zum 85. Geburtstag (1998), 611–29; Id., Le controversie internazionali, nuove tendenze, nuovi tribunali (1999), 171–93. 23 See addendum 1 to Arangio-Ruiz’s Fifth Report (Doc.A/CN.4/453/Add.1 and corr 1), 28 May 1993, Articles 1 and 3, in light of Articles 2(1)(a) and 4 and of paras. 64–6. The task of the Conciliation Commission and of the Arbitral Tribunal (‘examine any question of fact or law which may be relevant for the settlement of the dispute under any Part [‘any provision’ in Article 4] of the present articles’), proposed in Articles 2(2)(a) and 4 seems broader than what is needed for settling a dispute as defined in Article 1, unless the reference therein to a dispute ‘following the adoption by the allegedly injured State of countermeasures against the allegedly law-breaking State’ is read as having a purely chronological meaning. 20

the ilc articles on state responsibility 229 3. Specific Rules on Disputes Involving Countermeasures The inclusion of general provisions on the settlement of disputes concerning the interpretation and application of the articles was not, however, the main focus of attention of the International Law Commission regarding dispute settlement mechanisms. This focus was twofold: the role of dispute settlement mechanisms with respect to countermeasures and the existence of an international crime. On these two aspects, both of high political sensitivity, the role of dispute settlement mechanisms was envisaged as an aspect of the balancing of different interests in the fine-tuning of the substantive rules. Regarding countermeasures, Arangio-Ruiz explained clearly that third party dispute settlement ‘would . . . bring an essential correctif to the most unpalatable features of countermeasures, such correctif being the only equitable and effective way to ensure that an injured State, whatever its power, comply with all the conditions and limitations placed by the draft upon its faculté of unilateral reaction’.24 Consistently with this view, he proposed that disputes arising ‘following the adoption by the allegedly injured State of any countermeasures against the allegedly law-breaking State’ could be submitted by either party to a complex mechanism which included submission by either party, without special agreement, to arbitration or (in case of failure of this procedure) to the International Court of Justice.25 As is well known, this proposal was met with objections in the International Law Commission and in the General Assembly. While it was clear, as it appears from the passage quoted above, that the intended purpose and function of Arangio-Ruiz’s proposal was to protect the State against which countermeasures are directed from abusive actions by the allegedly injured State, the draft provision he submitted was couched in terms that put in the same position the injured State resorting to countermeasures and the State affected by the countermeasures. The correctif was even better ensured by the provision set out in Arangio-Ruiz’s proposed articles on countermeasures, according to which an injured party could take countermeasures only after ‘the exhaustion of all amicable settlement procedures available under general international law, the United Nations Charter or any other dispute settlement instrument to which it is a party’.26 The provisions adopted by the International Law Commission in 199627 started a shift towards a different policy, that was achieved in 2001, moving away from the protection of the State against which countermeasures are taken.

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Doc.A/CN.4/453, para. 90. Doc.A/CN.4/453/Add.1, para. 96. 26 Arangio-Ruiz, ‘Fourth Report on State Responsibility’ (Doc.A/CN.4/444), 12 May 1992, para. 52, proposed Article 12(1). 27 On the complicated path followed by the articles on countermeasures and the settlement of disputes between Arangio-Ruiz’s proposals and the Commission’s 1996 draft articles, see Gianelli, Adempimenti preventivi all’adozione di contromisure internazionali (1997), 65–90. 25

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The obligation to exhaust available mechanisms for the settlement of disputes had been the subject of intense scholarly debate,28 in which Schachter too participated.29 In 1996, the Commission eliminated it after the criticisms of those States that felt that it was too constraining. It replaced it with a provision containing only an obligation to negotiate before resorting to countermeasures and the rule that existing obligations on the settlement of disputes would remain binding, in other terms that countermeasures could not consist in not abiding by such obligations.30 However, the 1996 draft articles reserved exclusively to the State against which the countermeasures are taken the right to submit the dispute to arbitration in case of a dispute between States one of which has taken countermeasures.31 This formulation too was subject to criticism. It was argued that it favoured the State responsible of the wrongful act. In light of this criticism, it was decided not to include it in the final version of the Commission’s articles. Compulsory settlement of disputes arising from countermeasures was thus eliminated. Proceedings for the settlement of disputes between the allegedly injured State and the State that allegedly has committed the wrongful act have nonetheless a role under the Commission’s articles. Article 52(3) provides that: ‘Countermeasures may not be taken, and if already taken must be suspended without undue delay if: (a) The internationally wrongful act has ceased; and (b) The dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties’.32 The pending proceedings are based on obligations under treaties in force between the parties, and thus not incompatible with a set of articles which are not binding. The requirement concerning these proceedings works, together with the obligation of prior notification set out in paragraph 1 of the same article, as a limiting condition to the taking or maintaining of countermeasures. They might be seen as what is left of the correctif invoked by Arangio-Ruiz. Has much been lost regarding countermeasures, as there is no compulsory dispute-settlement rule applicable to the provisions of the Commission’s articles? No regret should be had for the unbalanced provisions of the 1996 draft articles, while the system proposed by Arangio-Ruiz may still be indicated as an attractive model, although unrealistic and not entirely clear. But what about rules providing for compulsory settlement of disputes concerning countermeasures in a convention on State responsibility which would repeat the Commission’s

28 See ‘Symposium: Counter-measures and Dispute Settlement: the Current Debate within the ILC’, 5 EJIL (1994), 20–119 (articles by Arangio-Ruiz, Vereshchetin, Bennouna, Crawford, Tomuschat, Bowett, Simma and Condorelli, with an Appendix). 29 See Schachter, ‘Dispute Settlement’. 30 1996 draft Article 48(2). See the Commentary in YILC (1996), ii, Part Two, 68–70. 31 1996 draft Article 58(2). 32 This provision is a modification of Article 48 of the 1996 draft articles. See the comments by Bederman, ‘Counterintuiting Countermeasures’, 96 AJIL (2002), 817–32, at 825 ff.

the ilc articles on state responsibility 231 articles? Of course, the possibility of such rules being adopted is doubtful, even if it were decided to give the Commission’s articles the form of a convention. It remains nevertheless certain that the chapter on countermeasures is one of those in which the Commission has engaged most clearly in the ‘progressive development’ of international law. The possibility of submitting to a judge or arbitrator the fulfilment of the finely-tuned conditions and limitations to the right to take countermeasures would certainly have a deterrent function to prevent abuse and a sanctioning effect against any abuse when committed. 4. Specific Rules on Disputes Involving International Crimes and Peremptory Norms As to international crimes, Arangio-Ruiz had proposed that the notion, set out in Article 19 of the 1996 draft articles, should be retained. In light of the gravity of this kind of wrongful act, and in order to prevent abuse, the Special Rapporteur suggested, however, that the General Assembly or the Security Council and the International Court of Justice should be involved in the determination of the existence of an international crime. Any State party to the convention on State responsibility could submit ‘a claim that an international crime has been or is being committed’ to the General Assembly or the Security Council in accordance with Chapter VI of the Charter. The General Assembly or the Security Council should determine whether ‘the allegation is sufficiently substantiated as to justify the grave concern of the international community’. Any State party to the convention on State responsibility, including the State against which the claim was made, could ‘bring the matter to the International Court of Justice by unilateral application for the Court to decide by a judgment whether the alleged international crime has been or is being committed by the accused State’.33 Before the consequences of the crime could be envisaged, the above mentioned political and jurisdictional hurdles should be overcome. It must be stressed that the jurisdiction of the International Court of Justice would extend beyond the question of the existence of an international crime. The Court—seized by a kind of actio popularis by any State party to the convention on State responsibility—would also decide on the attribution of the crime, whether it could be imputed to the accused State. As to the legal consequences of the crime, if a dispute concerning them arose between any States, it could be submitted unilaterally by either party to arbitration or, failing such referral within four months, to the International Court of Justice. The Court’s competence would

33 Article 19 of Part II, as proposed in Arangio-Ruiz, ‘Seventh Report on State Responsibility— Addendum 1’ (Doc.A/CN.4/469/Add.1), 24 May 1995, para. 139.

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extend to all issues of fact or law under the articles ‘other than the question of existence and attribution previously decided’ by the Court.34 It is not necessary to discuss here the complexities of this system, such as, for instance, those concerning the relationship between the two envisaged decisions of the International Court of Justice, or the relationship between the procedures set out in the proposals by the Special Rapporteur and the possible involvement of the Court under other international instruments. For the present purposes, the main point is that in 1996 the International Law Commission, while retaining the notion of international crime, decided not to accept the provisions relating to the political and judiciary machinery concerning the determination of the existence and the attribution of such a crime. Under the stewardship of its last Special Rapporteur, James Crawford, the Commission later continued in the same direction by deciding not to retain the concept of international crime in its Articles.35 The provisions involving dispute settlement bodies envisaged to provide sufficient guarantees against the unilateral abuse of the notion of international crime, already deleted in 1996, became unnecessary at their very root. As is well known, the International Law Commission, while expunging from its articles the notion of international crime, decided to include, in Part Two of the articles, Chapter III concerning ‘serious breaches of obligations under peremptory norms of general international law’. For such breaches, Article 41 of the Commission’s articles indicates particular consequences additional to those ensuing from other wrongful acts. The problematic terminology and the notion of ‘crime’ was thus eliminated, but the idea of specific consequences for wrongful acts of particular gravity was retained, and it was retained by utilizing the notion of ‘peremptory norms of international law’ ( jus cogens). This notion had been introduced in the Vienna Convention on the Law of Treaties in 1969. At the time it was very controversial, and its inclusion was made acceptable to the overwhelming majority of the Conference (although France voted against) by permitting submission, at the request of either party, of disputes concerning peremptory norms to the compulsory jurisdiction of the International Court of Justice.36 These were the only disputes under the convention for which submission to adjudication at the request of one party was provided. Similarly to those proposed by Arangio-Ruiz with respect to inter-

34 Article 7 of Part III, as proposed in Arangio-Ruiz, ‘Seventh Report on State Responsibility— Addendum 2’ (Doc.A/CN.4/469/Add.2), 29 May 1995, para. 146. 35 See, in brief, Crawford, The International Law Commission’s Articles, 16–20. 36 Article 66 (a) of the Vienna Convention on the Law of Treaties. Under this provision, any party may submit to the International Court of Justice ‘a dispute concerning the application or the interpretation’ of Article 53 (‘Treaties conflicting with a peremptory norm of general international law ( jus cogens)’) or 64 (‘Emergence of a new peremptory norm of general international law ( jus cogens)’).

the ilc articles on state responsibility 233 national crimes, the provisions on the settlement of disputes regarding peremptory norms of the Vienna Convention served a substantive more than a procedural purpose. Their aim was to prevent abuse of a new and untested notion. The end result is that the Commission’s articles utilize the notion of peremptory norms, without defining them and without it being possible to resort unilaterally to adjudication for disputes involving them. This seems to be a negative consequence of the adoption of the articles in a non-binding form. There is an unbalance in codified international law. Peremptory norms fall under the compulsory jurisdiction of the International Court of Justice if their notion and consequences are questioned in a dispute concerning the law of treaties, while they are not subject to such jurisdiction if the dispute concerns international responsibility. This does not mean, however, that disputes concerning the consequences of serious breaches of peremptory norms will never be decided by the International Court of Justice or by another international court or tribunal, as other compulsory jurisdiction clauses may be applicable. 5. Conclusion: Regarding Dispute Settlement, has much been Lost because of the Non-binding Form of the Articles? To conclude, from the point of view of the settlement of disputes the main consequence of the adoption, in a non-treaty form, of the Commission’s articles is that mechanisms for the settlement of disputes could not be used for substantive purposes in such sensitive fields as countermeasures or peremptory norms. As regard the latter, the lack of symmetry that results from a comparison with the Vienna Convention on the Law of Treaties may be regretted. The fact that general rules on compulsory settlement of disputes cannot apply to disputes concerning the interpretation and application of the articles may be regretted as a missed opportunity for an unprecedented broadening of compulsory adjudication. To regret that a step that States are not ready to take, and that it would perhaps not be opportune to take indirectly within the context of international responsibility, would be purely academic. It must, however, be considered that, whenever a dispute is going to be brought before a court or tribunal concerning a specific question regarding a wrongful act, the court or tribunal will necessarily look at the Commission’s articles. This is the consequence of the authority of the articles, the result of over forty years of work by the Commission. Such authority, as mentioned, is at present unchallenged. Courts and tribunals will, hopefully, determine how far the provisions invoked correspond to customary law. Perhaps they will consider a priori that they do, at least unless given sufficient reasons for holding the opposite view. Whatever conclusion they may reach on this question, they will have to interpret the provisions of the Commission’s articles thus clarifying their meaning and scope. If, in their opinion, the invoked provision has a

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customary status, perhaps because it has acquired such a status through a crystallization process facilitated by its inclusion in the Commission’s articles, courts and tribunals will apply it as if it were a treaty provision in force, with the added advantage that whether the States concerned are or are not bound by the treaty would be irrelevant.

CHAPTER TWENTY-ONE

HUMANITARIAN INTERVENTION AND INTERNATIONAL RESPONSIBILITY Budislav Vukas

1. Introduction If there is anything constant in the history of mankind, it is its ardent enthusiasm with waging wars. Foreign territories, natural resources, differences of race, religion, language or ideology, are the main reasons which have motivated tribes, peoples, monarchs, political parties, States, alliances, to hate other people, and to use arms against them. For the time being, the climax has been reached in the two world wars in the 20th century. Since then, everything has been undertaken in the scientific research, military industry, organization of armies, military alliances, to make the next world war the conclusive event in the history of the human race. However, sometimes there are also elements of unusual, humanitarian reasons for waging wars: the wish to help groups of individuals within the borders of another State. Thus, for example, the European Powers, from time to time, intervened against the Turkish Empire under the excuse of protecting/saving some parts of its Christian population. However, as Beyerlin correctly stated, ‘only a few of these cases . . . upon closer examination really prove to be genuine examples of humanitarian intervention.’1 This was probably the main reason that not all the writers, even before the general prohibition of the use of force, accepted humanitarian intervention as an institution permitted under international law. Anyhow, there was more sympathy for considering lawful an intervention in third States in order to protect the lives of the intervening State’s citizens.2 Be that as it may, ‘humanitarian intervention’ has always been defined as the use of armed forces by a State against another State for the purpose of protecting the inhabitants of the latter State from inhuman treatment. The life 1 Beyerlin, ‘Humanitarian Intervention’, Bernhardt (ed.), Encyclopedia of Public International Law, ii, 926–33, at 927. 2 Oppenheim’s International Law. Peace, i (9th edn. Jennings and Watts, 1992) 439–42.

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and liberty of people in such cases could have been endangered by the authorities of their State themselves, or by any other perpetrator the acts of which these authorities could not control. Various means of interference, sometimes even armed force, have often been used in order to provide some specific political goals in respect of a third State. In this brief contribution, we will deal with ‘humanitarian intervention’ as defined above. We must avoid linking it with other types of intervention which have been topical from time to time: intervention for socialism, intervention to support self-determination, pro-democratic intervention, etc.3 On the other hand, we will avoid to deal with ‘humanitarian assistance’, which is a broader concept or institution having some links with humanitarian intervention, but, in the majority of its aspects and problems, less controversial than humanitarian intervention.4 2. Humanitarian Intervention and the United Nations Charter Although the rules on humanitarian intervention per definitionem should belong to the field of international humanitarian law, the cases when this institution has been invoked, and the dilemmas concerning its permissibility under international law, require an analysis of the relevant international principles in the constitution of the contemporary international community—the Charter of the United Nations. We find them in Chapter I of the Charter (‘purposes and principles’). First of all, there are two relevant principles in Article 2 of the Charter. According to paragraph 4, ‘[a]ll members shall refrain in their international relations from the threat or use of force . . . in any . . . manner inconsistent with the Purposes of the United Nations’. (Emphasis added.) The second relevant principle is contained in paragraph 7 of Article 2, which reads: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state . . .5 (Emphasis added.)

3 Henkin, ‘International Law: Politics, Values and Functions. General Course on Public International Law’, 216 RdC (1989), 9–416, at 150–4. 4 At its 70th session, held in Bruges in September 2003, the Institut de Droit International adopted a resolution on humanitarian assistance; see the Provisional Report ( June 2002) and the Final Report (February 2003) on that subject, by the author, in 70 Annuaire (2002–2003), 457–90 and 541–69. (Oscar Schachter was a member of the sixteenth commission of the Institut working on this topic; see his replies of 28 August and 3 September 2002, ibid., 521–5.) 5 The inadmissibility of intervention has been elaborated further in several resolutions adopted by the General Assembly; see Oppenheim’s, 429–30.

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In interpreting these two principles for the sake of discussing the legality of humanitarian intervention, we must check the list of purposes of the United Nations, and we have to assess whether the protection of human rights is a matter ‘essentially within the jurisdiction’ of a State. The relevant purpose for our subject is contained in paragraph 3 of Article 1 of the Charter. According to this provision, one of the purposes of the United Nations is to achieve international co-operation ‘in promoting and encouraging respect for human rights and fundamental freedoms for all’. The record of the United Nations in implementing this purpose, particularly at the normative level, is rather impressive. A great number of international instruments have been adopted, and many of them contain important monitoring systems. The United Nations system of organizations has also in various other manners contributed to the promotion of human rights in practice. For all these reasons, there is a dominant view today that the respect for human rights (both of nationals as well as foreigners) cannot be considered as a matter which is ‘essentially within the domestic jurisdiction of any state’. The protection of human rights does not belong any more to the domaine réservé of States. This is particularly clear in States where there is no central Government, or the Government is engaged in a civil war. Many African States are today faced with such situations. The development of international law on the basis of the United Nations Charter compels us also to conclude that the rules on the protection of fundamental human rights are not only part of general customary international law, but that they also have the character of peremptory law ( jus cogens). 3. A Duty of Humanitarian Intervention? An early indication of the evolution of the United Nations in respect of its role concerning the gross violations of fundamental human rights can be found in the Convention on the Prevention and Punishment of the Crime of Genocide, concluded already in 1948.6 It enables the United Nations, upon the initiative of any party to the Convention, ‘to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide’ (Article VIII). Thus, every action, including the use of force, can be undertaken on the basis of a decision of the Security Council or the General Assembly, in order to prevent and suppress genocide. Unfortunately, the United Nations often are not acting in accordance with this provision. It suffices to mention the two cases of genocide happening at the time

6 ‘Resolution 260A(III) of the United Nations General Assembly on the Convention on the Prevention and Punishment of the Crime of Genocide (adopted on 9 Dec. 1948)’, Gen. Ass. Off. Recs., Third Session, 174 (Doc.A/810).

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of the writing of this text. Notwithstanding the ongoing genocide of the population of the Darfur region in Sudan, the United Nations are not even considering an efficient action which would stop what the Security Council called ‘the world’s worst current humanitarian disaster’.7 Sometimes, even if there is a United Nations mission present in an area, it is not able to prevent acts of genocide. Nine years after the massacre of the Bosniac population in Srebrenica, in the presence of United Nations forces, the United Nations Operation in Burundi (ONUB) was unable to prevent the massacre committed by the Hutus of the Banyamulenge (Tutsi) refugees in the Gatumba transit camp. In such a situation, one has to answer the question whether individual States, their alliances or regional international organizations are entitled to intervene in order to prevent genocide and other crimes against humanity, or to punish the perpetrators of such crimes. Although the majority of the authors addressing this question are very cautious, and they do not confirm the development of such a right, in my view one should not hesitate today, sixty years after the adoption of the Charter, to give priority to the protection of fundamental human rights over all other interests and rules. One has, therefore, to agree with Daillier and Pellet that the Constitution of the African Union (Article 4(h)),8 which proclaims the right of the Union to intervene in a Member State in cases of war crimes, genocide or crimes against humanity is a ‘remarkable achievement’.9 However, these appalling crimes, which are contrary to the essence of humanity and the raison d’être of international law, are a valid reason to insist that there should be recognized not only the right of States and their groupings to intervene in such cases, but also a duty to do so. In pleading for the recognition of a duty to intervene in cases of extreme danger for the people in a third State, we are aware of two major problems. The first is the fact that in many of such cases the majority of States will have no adequate means to react promptly in order to prevent or stop the sufferings of peoples in another State. Even the majority of international organizations are not sufficiently equipped for such situations. Thus, for example, after many months of suffering of the population of Darfur, the African Union sent only 150 soldiers to this region on 14 August 2004, and promised another 150 Nigerian soldiers for the 25th of August. But even these minimal African forces are not entrusted with the protection of the civilian population endangered by the Janjaweed Militia, but with protecting the international observes of the truce proclaimed some time ago!10 However, in the tragedy of the people in 7 See ‘UN envoy urges Sudan to open access to Darfur camp closed to aid workers’, electronically available at . 8 The text of the Constitution is electronically available at . 9 Nguyen Quoc Dinh, Daillier and Pellet, Droit international public (7th edn., 2002), 449–50. 10 Jutarnji list (Zagreb), 16 August 2004.

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Darfur, it is difficult to understand that 200 French soldiers, deployed on the Sudan—Chad border, and some 1000 professional soldiers belonging to the French Foreign Legion (Légion étrangère) in Chad, are passively observing the genocide in Sudan.11 On the other hand, there is a constant opposition to humanitarian intervention because of the numerous cases in which the protection of human rights was only the excuse for achieving political goals. Unfortunately, some events in the last years can be quoted as arguments for such a criticism. Nobody was intervening against the Taliban regime in Afghanistan, notwithstanding its cruelties and the objectionable attitude towards women. In my view, many years ago the international community or the neighboring States should have used all the available means to eliminate this inhuman regime. But the Talibans were attacked only after the September 11 events, when the United States hoped to find in Afghanistan the leaders of al-Qaeda. On the other hand, the United States and its allies, acting in the area after Saddam’s aggression on Kuwait, could have easily eliminated this tyrant for his repeated acts of genocide and crimes against humanity undertaken against the Kurds and the Shiites in Iraq. However, his regime was attacked only in the spring of 2003, when the Administration of the United States considered it appropriate, taking into account political, strategic and similar considerations. 4. The Unwanted Consequences of Humanitarian Intervention Anyhow, the developments in Iraq since the attack of the United States demonstrate all the dangers of intervention. Even if there are serious humanitarian reasons which motivate an intervention, one must be aware of the fact that sometimes by undertaking an intervention more sufferings could be caused than lives saved. The ongoing war in Iraq is the last example of such ‘side effect’. Similarly, the NATO attack on Serbia in 1999 has caused much more sufferings to all the ethnic groups in Serbia than it has helped the Albanians in Kosovo. The danger of the unwanted consequences of humanitarian intervention should be considered and evaluated in a similar manner as in the exercise of the right of self-defence. Although clearly entitled to self-defence at the moment of the aggression of Hitler, not all the European States considered to be in their national interest to exercise this right. Therefore, although I am pleading for the recognition of the general right and duty to engage in humanitarian intervention, a great latitude should be left to States and international organizations in undertaking humanitarian intervention in each particular case.

11 Butorac, ‘UN priprema stvaranje Srebrenice u Darfuru’, Nedjeljni vjesnik (Zagreb), 14/15 August 2004.

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States and organizations engaged in a real humanitarian intervention cannot be considered to commit an ‘internationally wrongful act’. On the other hand, I am aware that the majority of the commentators would not accept the claim that there already exists a duty to provide humanitarian assistance. However, de lege ferenda, in some cases the international community should consider a passive attitude towards gross violations of human rights as constituting an ‘internationally wrongful act’. A State or an international organization which is the only one in a position to undertake action to save human lives, without any danger to its own interests, should be considered as internationally responsible if it does not act.

PART THREE

STATE RESPONSIBILITY AND THE COURTS

CHAPTER TWENTY-TWO

JUST SATISFACTION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS Rudolf Bernhardt

1. Introduction International responsibility is a topic which has many aspects and facets and which is therefore especially suited to reflect the wide and manifold interests of the late Oscar Schachter. The responsibility of States for violations of human rights is one part of the law of State responsibility, and a part with quite peculiar features. At stake is not an inter-State responsibility, but responsibility for deficiencies in the internal practice and legal order of a State vis-à-vis—not only but mainly—its own citizens. Potential victims are individuals (and legal persons), and the State can be held responsible on the international level for the violation of individual rights. International courts can decide that a State is in breach of its duties under international human rights conventions. This is possible at least under the European and the Inter-American systems for the protection of human rights. These systems give the respective courts the competence to decide with binding force whether a State has violated either the European Convention on Human Rights,1 or the American Convention on Human Rights.2 The two Conventions not only contain catalogues of human rights which are protected, but also establish institutions for deciding human rights disputes. The Inter-American Court of Human Rights and the European Court of Human Rights have the final word in controversies about the violation of the rights guaranteed in the Conventions. They can ‘find’ that certain provisions of the Conventions have been or have not been violated in concrete cases by a State; and they do so in binding judgments. The normal consequence of such a decision is that the State concerned has the duty to eliminate as far as possible the consequences of the ‘illegal’ act or behaviour. A

1

213 UNTS 221. The European Convention was adopted on 4 November 1950. O.A.S. Official Records, OEA/Ser.K/XVI/1.1 Doc. 65, Rev. 1, Corr. 1 (7 January 1970). The American Convention was adopted on 22 November 1969. 2

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restitutio in integrum is in principle the most adequate solution. But such a restitution is not always possible, and, in addition, the sources of a violation within the internal legal order may need reform in order to prevent further violations of the Conventions. The two Conventions contain relatively short articles dealing with this problem. The American Convention provides in Article 63(1): If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.

The Inter-American Court has made extensive use of this provision.3 It has ordered that a State should take certain legal and administrative measures in order to exclude human rights violations in the future, etc. As I cannot discuss all these practices in this modest contribution, I will concentrate here on the European system and the European experiences. Article 50 of the European Convention on Human Rights contained the following provision: If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.

This provision was shortened and simplified by the Eleventh Additional Protocol to the Convention, which came into force on 1 November 1998. We now read in Article 41: If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.4

The new version does not introduce substantive changes to the former rules. Therefore, the jurisprudence of the Court under the old and the new system can be viewed and discussed together.

3 See, for one important area, Saul, ‘Compensation for Unlawful Death in International Law: A Focus on the Inter-American Court of Human Rights’, 19 American University International Law Review (2004), 523–85 (also with references to the case-law of the European Court of Human Rights). 4 The text of the Convention, as amended, is electronically available at .

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2. Conditions for Just Satisfaction The first condition for just satisfaction under the European Convention is that the Court finds one or more violations of the provisions protecting human rights. A person may have lost his life, an individual may have been tortured, proceedings before national courts may have been unfair, the presumption of innocence may have been neglected by State organs, the correspondence, the home, the family life, the private life of individuals have possibly been violated by the actions of a State or by the fact that the State has not taken the necessary positive measures for protecting such rights. Several times in the past, applicants did not only ask the European Court to find a violation of a Convention right, but also to order further steps on the part of the State concerned, e.g. to annul a court decision, to change the relevant law, etc. Over a long period, the European Court of Human Rights always refused to order such measures, invoking its more limited competence, namely only to find whether a Convention right has been breached in the concrete case. At the end of this essay, I will mention new developments which indicate a new practice. For more than forty years the European Court confined the operative part of its judgment to the statement that a State had breached (or not breached) a Convention right. One reason for this reluctance to go further has always been the provision in the Convention that it is not the Court itself, but the Committee of Ministers of the Council of Europe, which has to supervise the execution of the judgements (Article 54 in the original version, now Article 46(2) in the revised text). The fact that the Inter-American Court of Human Rights went further could be explained by the different wording of the relevant provisions (quoted above). The second condition for awarding just satisfaction under the European Convention is, according to the terms of Article 41 (and the former Article 50), that the internal law of the State allows no or only partial reparation. This implies that a restitutio in integrum is in principle adequate and necessary, but it may not always be possible or appropriate. The internal law, and also the factual situation, may not permit a restitution and a return to the status quo ante. Unfair court proceedings, the killing of a person and many other events cannot be made undone. The European Court in its practice, over several decades, has not invested much time in the investigation whether the internal law of a State allows full, partial or no reparation.5 It has concentrated, instead, on the question whether

5 In its early decisions, the Court normally reserved the question of compensation to a later and additional judgment, with the words: the Court ‘[r]eserves for the applicants the right, should the occasion arise, to apply for such satisfaction’. This wording is taken from De Wilde, Ooms and Versyp (‘Vagrancy’) v. Belgium, Judgment (Merits). The text of the judgment, of 18 June 1971, is electronically available at .

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at the time of the adoption of a judgment it seems possible to award just satisfaction. It can happen that the possible reparation needs further investigations and negotiations, and in this case the Court reserves and postpones its decision under Article 41. This is especially the case when property rights are concerned and a restitution as well as a compensation appear possible. Later, a second judgment is in principle necessary to decide the just satisfaction question. If the Court considers the just satisfaction question to be ripe for decision, it may afford just satisfaction. In this respect, the Court has always insisted on its competence to decide whether such satisfaction is necessary, and it has underlined that ‘just satisfaction’ means that also the extent and amount of compensation can vary and depends upon the circumstances of each case. In a number of cases the Court has declared that the finding of a violation already constitutes adequate just satisfaction and no additional financial compensation is necessary. It is undeniable that the discretion claimed by the Court cannot exclude some arbitrariness, and it can also not be denied that on closer scrutiny the case-law may not be entirely satisfactory and coherent. But it is impossible to survey here the practice in hundreds of cases and decisions. Several years ago, I expressed the view that the application of Article 41 deserves a more coherent practice,6 but it must also be admitted that discretion and ‘just’ satisfaction hardly permit rigid rules and practices. 3. Three Categories of Just Satisfaction Over a long period of time, the European Court of Human Rights has developed and accepted three categories of just satisfaction which can be afforded to the injured party,7 under Article 50 (original version) of the Convention, namely (a) compensation for material damage, (b) compensation for moral damage, and (c) remuneration for costs and fees. Only a few remarks can be made in explaining these categories and some problems connected therewith. The remarks are based on some personal experience and the contents of judgments of the Court over several decades. (a) Compensation for material damage If a breach of Convention rights for which a State is responsible has occurred, and if this breach has caused material damage to an individual, it can hardly

6

Symposium on the European System for the Protection of Human Rights, Achievements and Prospects, Strasbourg, Address on 2 November 1998. 7 See also Wildhaber, ‘Reparations for Internationally Wrongful Acts of States’, 3 Baltic Yearbook of International Law (2003), 1–18.

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be disputed that either restitution of the property concerned or compensation is the only adequate consequence—this was at least always the opinion of the Court. De jure or de facto expropriation, which is incompatible with Article 1 of the First Additional Protocol to the Convention, requires in principle full compensation. But this is not the only situation where material damage requires compensation. In a civil suit before national courts a person can be the victim of procedural deficiencies with adverse consequences for his property or income; in criminal proceedings violations of the fair trial requirements may have occurred, with financial consequences for the victim. These and many other situations may have led to material damage. If such damage is proved or at least plausible, the Court awards just satisfaction. But two questions are often controversial and require answers: the amount of the damage to be compensated and the causality of the breach of the Convention for the damage. To begin with the second question: the causal link between a breach of the Convention and the material consequences for the victim is by no means always clear. The fault of a national court when taking evidence, or other procedural deficiencies in civil or criminal matters, do not necessarily invalidate the result, i.e. the final judgement. The damage the victim may have experienced is in such cases not caused by the violation of the Convention. Therefore no compensation is granted. A standard phrase in judgements of the Court reads: The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention and this may, where appropriate, include compensation in respect of loss of earnings or other sources of income.8

Some speculation is often involved here: the Court must connect the violation of the Convention with the consideration whether, without that violation, material consequences would not have occurred. Only in this case is compensation for material damage required. If this is answered in the affirmative, the amount of the compensation remains to be fixed. In this respect, the victim must prove his claims. (b) Compensation for moral damage Financial compensation for moral damage has often been awarded under the former Article 50 and the present Article 41 of the European Convention. It is not obvious that the texts of these articles permit such compensation, but the practice of the Court and the acquiescence of the States parties to the Convention leave no doubt that such compensation can and should be awarded. The violation of human rights may have caused considerable suffering to an

8 Hutchison Reid v. The United Kingdom, Judgment (Merits and Just Satisfaction). The text of the judgment, of 20 February 2003, is electronically available at .

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individual; he may have been tortured in police custody, may have spent months or years in prison despite his innocence, a mother may have lost her son by police brutality, or a family member may have disappeared after having been arrested. Such and many other cases have been submitted and are still being submitted to the European Court of Human Rights, and the Court often, but not always, awards compensation for moral damage. Here again, discretion of the Court plays a considerable role, in two directions: the Court must determine whether compensation is required, and, if so, the amount of compensation must be fixed. Since the personal situation, the suffering of the victim and other concrete circumstances are of great importance, general guidelines and principles cannot easily be developed. One of several problems concerns the question whether the amount of compensation depends also on the living conditions in the country or the region where the victim lives. Is it appropriate to award a higher amount to a victim living in a western European country than to a victim in the south-eastern part of Turkey, in view of the different living costs? Is it really cynical to allow a distinction according to the standards prevailing in different regions, or is it necessary in order to achieve the result that individual victims receive not numerically but in reality equal or similar compensation? Awarding the same amount of compensation to persons living in different regions could have the result that in the final outcome the equality that is sought may not be achieved, or only inadequately, or may even be unjust. In addition, it is in the end the taxpayer, the community, which has to pay the compensation. (c) Remuneration for costs and fees Finally, costs and expenses can be reimbursed under Article 41. Three kinds of expenses come under this head: the personal expenses of the victim, e.g. for taking part in Strasbourg proceedings; the costs and fees in connection with domestic proceedings, especially before national courts; and the costs and fees incurred in applying to the European Court of Human Rights. For the purposes of reimbursement of all these expenses certain principles have been developed. The expenses must have been necessary, and the amount must be reasonable. A standard formula of the Court may be quoted: According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they are actually incurred, were necessarily incurred and were also reasonable as to quantum. In addition, legal costs are only recoverable insofar as they relate to the violation found.9

9 The example is taken from para. 81 of a recent judgment: Sidabras and D≥iautas v. Lithuania, Judgment (Merits and Just Satisfaction). The text of the judgment, of 27 July 2004, is electronically available at .

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Again, the problem of different standards for the same services arises. Lawyer’s fees vary considerably in Europe. Does it play a role if a poor Turkish peasant is represented in Strasbourg by an expensive British lawyer (with the assistance of a non-governmental human rights organization)? I can only raise this question without providing a clear answer. A uniform code could also in this respect be helpful, but would it also be just, given the great variety of factors and conditions prevailing between Gibraltar and Vladivostok? 4. Execution of Judgments Article 46(2) of the European Convention (as amended) provides: The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

The same rule (without the word ‘final’) was contained in Article 54 of the earlier text, which was valid until 31 October 1998. This provision was very effective in the past. It indicates a clear division of responsibility. The Court decides whether the law (the Convention) has been violated. The Committee of Ministers—in reality the Deputies of the Ministers with the cooperation of the Legal Division of the Council of Europe—supervises the execution. According to a long-standing practice, a State which has been found in breach of the Convention must explain what it has done in order to make good the violation which has occurred. The file is closed only if the Committee is satisfied that the necessary steps have been taken. In practice, control was not confined to the execution of the judgment in the concrete case, but often went further. If a breach of the Convention had its source in deficiencies in the internal legal order of a State, and if changes in the law were considered to be necessary to exclude further and similar breaches of the Convention, the Committee of Ministers also insisted on further steps to be taken by the country concerned. According to the available information, this system worked for a long period quite well in practice, and the States executed judgments of the Court normally without great difficulties (even if sometimes changes to the law came rather late). In recent years, more problems may have arisen, but these cannot be discussed here. What is important, for the purposes of this essay, is the fact that the Court did not play an active role in the execution of its judgments, and confined its decision to the eventual finding of a breach of the Convention. In this respect, the year 2004 may be the starting point of a new practice.10

10 See Breuer, ‘Zur Anordnung konkreter Abhilfemaßnahmen durch den EGMR’, Europäische Grundrechte Zeitschrift (2004), 257–63, at 257.

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In a judgment of 8 July 2004, adopted by a Grand Chamber, the Court held, in paragraph 22 of the operative provisions: Unanimously that the respondent States are to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release.11

This finding may be due to the unique features of the case insofar as the release of the still detained applicants was the absolutely necessary consequence of the breach of the Convention. Nevertheless, the Court in the two judgments mentioned in footnote 11 probably for the first time declared which steps must be taken for the execution of a judgment. Another problem has a more general character, concerning the still increasing workload of the European Court of Human Rights and the fact that this workload comprises ‘repetitive’ cases. Such cases have the same ‘systemic’ cause, namely deficiencies in the internal legal order of a State. The length of court proceedings, inadequate procedural rules, participation of judges lacking the required impartiality, non-execution of national judgments, lack of compensation rules for far-reaching property restrictions or even expropriations, violation of equal protection requirements on a large scale, these and other examples of ‘systemic’ problems have contributed to the extremely high number of applications under the European Convention. The individual case and the particular judgment of the European Court is in such situations only one example of a more general problem, and many other applications, either already pending or to be expected, must necessarily result in new condemnations of the State concerned (and possibly other States with similar deficiencies). To reduce the number of repetitive cases and therewith the workload of the Court, the Committee of Ministers of the Council of Europe, in a resolution of 12 May 2004, invited the Court: 1. As far as possible, to identify in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of the problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments.12

11 Ila{cu and others v. Moldova and Russia, Judgment (Merits and Just Satisfaction). The text of the judgment is electronically available at . Three months earlier, in a Judgment of 8 April 2004, the Court (again by a Grand Chamber and unanimously) had decided ‘that the respondent State must secure the applicant’s release at the earliest possible date’. (See Assanidze v. Georgia, Judgment (Merits and Just Satisfaction), para. 14(a) of the operative provisions. The text of the judgment is electronically available at .) 12 Resolution 3 (2004), Council of Europe, Committee of Ministers; see also Recommendation 6 (2004) of the Committee of Ministers. Both documents are electronically available at .

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This ‘invitation’ found a positive response from the Court in a judgment of 22 June 2004, in the case of Broniowski v. Poland. The Court found that the State had recognized certain rights of its citizens to receive compensation for lost property, but that the non-implementation of this obligation violated Article 1 of the First Additional Protocol to the Convention. The Court held in addition (in paragraphs 3 and 4 of the operative provisions): that the above violation has originated in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the ‘right to credit’ of the Bug river claimants . . . that the respondent State must, through appropriate legal measures and administrative practices, secure the implementation of the property rights in question in respect of the remaining Bug river claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1.13

Such formulas in the operative part of a judgment go beyond the normal content of judicial decisions and connect the decision in the concrete case with general directives ordering what the State has to do in order to avoid other and further violations of Convention rights. Whether such pronouncements belong to the proper function of a court of law can be doubted. On the other hand, the representatives of the States in the Committee of Ministers have expressly asked or invited the Court to make such pronouncements. One must also take into account that the pronouncements should help to avoid additional breaches of human rights and should give the States the possibility to change their internal law and practices. If one tries to weigh these different factors, the result is probably that the new practice of the Court serves its primary task, namely to protect human rights effectively and whenever they are endangered. ‘Systemic’ deficiencies can thus be removed.

5. Conclusion Just satisfaction for violations of human rights is a difficult area of the law of State responsibility. Restitutio in integrum should be the rule; as far as possible, the consequences of human rights violations found by an international court should be wiped out. Financial compensation is only a subsidiary remedy. The European Court of Human Rights has accepted three categories of compensation, regarding material damage, moral damage, and the reimbursement of costs and expenses. Only the first and the third categories may seem to permit

13 Broniowski v. Poland, Judgment (Merits and Just Satisfaction). The text of the judgment is electronically available at .

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a clear numerical quantification of the amounts to be paid, but even this is often not possible. If, for instance, several violations of Convention rights are alleged, but only a smaller part or number of them is accepted by the Court, some weighing of different factors is unavoidable. Compensation should be just and equitable. Considerable elements of equity must be taken into account; clear rules would be difficult to formulate, but reasonable guidelines should reduce inconsistencies, and guarantee a certain coherent practice.

CHAPTER TWENTY-THREE

COMPLEMENTARITY BETWEEN STATE RESPONSIBILITY AND INDIVIDUAL RESPONSIBILITY FOR GRAVE VIOLATIONS OF HUMAN RIGHTS: THE CRIME OF STATE REVISITED Antônio Augusto Cançado Trindade

1. Introduction Two cases recently decided by the Inter-American Court of Human Rights bring to the fore the recurring theme of the co-existence of the international responsibility of the State and the international criminal responsibility of the individual. In both cases I have presented separate opinions, the contents of which—expressing my views on the matter—I shall summarize in this short article. I deem it fit to do so in the present tribute to Oscar Schachter, a distinguished scholar of international law. In addition to his outstanding contribution to the discipline (such as to the law of the United Nations), reflected in his writings (among which his lectures at The Hague Academy of International Law), I keep a good memory of his kindness in our meetings and conversations, in particular during my stay in 1998 at Columbia University in New York as Tinker Visiting Professor, and during successive sessions of the Institut de Droit International. The subject examined in this brief paper has gained momentum in the light of recent developments in the law on the international responsibility of the State as well as in international criminal law. In addressing the issue of the co-existence and complementarity of the international responsibility of States and the international criminal responsibility of individuals, I shall also refer to the trend towards the criminalization of grave violations of human rights and the relationship between State responsibility and the struggle against impunity and the endeavours towards the realization of justice. I shall then dwell upon the notion of crime of State, its configuration and the relationship of that notion with the superior interests of the international community. After considering the juridical consequences of the crime of State, I shall present my conclusions.

Maurizio Ragazzi (ed.), International Responsibility Today, 253–269. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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Two cases recently resolved by the Inter-American Court of Human Rights have a direct bearing on the subject under study: they are the cases of Myrna Mack-Chang (2003) and of the Plan de Sánchez Massacre (2004), both concerning Guatemala. May I begin by referring to the facts of those two cases, which should not pass unnoticed in the examination of the theme of the co-existence and complementarity of the international responsibility of States and the international criminal responsibility of individuals. (a) The Case of Myrna Mack-Chang (2003) In its judgment on the merits and reparations in the Case of Myrna Mack-Chang, of 25 November 2003,1 the Inter-American Court of Human Rights established that the violation of the right to life of Myrna Mack-Chang occurred in aggravating circumstances, as it resulted from ‘a covered-up operation of military intelligence undertaken by the Presidential Office (Estado Mayor) and tolerated by several authorities and institutions’, amidst ‘a pattern of selective extrajudicial executions launched and tolerated by the State itself ’, and a ‘climate of impunity’.2 Moreover, the Court established that the aforementioned operation of military intelligence of the Presidential Office (Estado Mayor) ‘sought the hiding of the facts and the impunity of those responsible for them, and, to that end, under the tolerance of the State, resorted to all types of measures, among which were found hostilities, threats and murders of those who collaborated with justice’, affecting the independence of the judiciary.3 That this case was one of aggravated international responsibility of the State was further evidenced by the aforementioned facts and the abusive invocation of the so-called ‘secret of State’ leading to an obstruction of justice.4 (b) The Case of the Plan de Sánchez Massacre (2004) In the recent Case of the Plan de Sánchez Massacre, the Inter-American Court of Human Rights, in its judgment of 29 April 2004,5 established Guatemala’s responsibility for grave human rights violations under the American Convention

1 Series C No. 101. The text of the judgment is electronically available at . 2 See paras. 138–9, 150, 154 and 157 of the judgment. 3 Para. 215 of the judgment. 4 See paras. 174–81 of the judgment. 5 Series C No. 105. The text of the judgment is electronically available at .

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on Human Rights.6 As demonstrated in the case, the crimes committed in the course of the execution, by military operations, of a State policy of tierra arrasada, including the massacre of Plan de Sánchez perpetrated on 18 July 1982, were intended to destroy wholly or in part the members of indigenous Maya communities. The respondent State accepted its international responsibility under the American Convention for the grave human rights violations resulting from the massacre of Plan de Sánchez. In its judgment, the Inter-American Court determined that those violations ‘gravely affected the members of the maya-achí people in their identity and values’, and, insofar as they occurred within a ‘pattern of massacres’, they had ‘an aggravated impact’ in the establishment of the international responsibility of the State.7 Earlier on, the Guatemalan Truth Commission, in its report Memoria del Silencio, had established the occurrence of 626 massacres committed by the forces of the State during the armed conflict, mainly the Army, supported by paramilitary structures; 95% of them had been perpetrated between 1978 and 1984 (with violence intensified in 1981–1983), and in this period 90% had been executed in areas inhabited predominantly by the Maya people. The acts of extreme violence, in the assessment of that Commission, disclosed the characteristics of ‘acts of genocide’.8 In the view of the Guatemalan Truth Commission, the grave and massive human rights violations engaged both the individual responsibility of the ‘intellectual or material authors’ of the ‘acts of genocide’ as well as the ‘responsibility of the State’, as most of those acts were the product of a State ‘policy preestablished by a superior command to its material authors’.9 3. State Responsibility, Criminalization of Grave Violations of Human Rights, and Realization of Justice The process of criminalization of grave violations of human rights and humanitarian law10 has effectively accompanied pari passu the evolution of contemporary

6 O.A.S. Official Records, OEA/Ser.K/XVI/1.1 Doc. 65, Rev. 1, Corr. 1 (7 January 1970). The American Convention was adopted on 22 November 1969. 7 Para. 51 of the judgment. 8 Specifically against members of the peoples maya-ixil, maya-achi, maya-k’iche’, maya-chuj and maya-q’anjob’al, in four regions of the country. Guatemala, Memoria del Silencio—Informe de la Comisión para el Esclarecimiento Histórico (1999), iii, 316–18, 358, 375–6, 393, 416, and 417–23. The text of the report is electronically available at . 9 Ibid., 422. 10 See Abi-Saab, ‘The Concept of “International Crimes” and its Place in Contemporary International Law’, Weiler, Cassese and Spinedi (eds.), International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (1989), 141–50; Graefrath, ‘International Crimes— A Specific Regime of International Responsibility of States and its Legal Consequences’, ibid., 161–9; Dupuy (P.M.), ‘Implications of the Institutionalization of International Crimes of States’, ibid., 170–85; Gounelle, ‘Quelques remarques sur la notion de “crime international” et sur

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international law: the establishment of an international criminal jurisdiction11 is regarded in our days as an element which strengthens international law, overcoming a basic lack and its insufficiencies of the past as to the incapacity to judge and punish those responsible for grave violations of human rights and of international humanitarian law.12 In fact, the travaux préparatoires of the Statute of the International Criminal Court led to the prompt acknowledgment, in the ambit of its application,13 of the international criminal responsibility of the individual for the most serious international crimes. Such initiative has given a new impetus to the struggle of the international community against impunity, as a violation per se of human rights;14 by means of the affirmation and crystallization of the international criminal responsibility of the individual for international crimes, it has thus sought to prevent future crimes.15 In the ambit of the inter-American system of human rights, in the Case of ‘Panel Blanca’ (Paniagua-Morales et al.), the Inter-American Court of Human Rights had the occasion to formulate a clear warning as to the duty of the State to fight impunity.16 The Court affirmed the duty of the State, l’évolution de la responsabilité internationale de l’État’, Mélanges offerts à Paul Reuter —Le droit international: unité et diversité (1981), 315–26; Green, ‘Crimes under the I.L.C. 1991 Draft Code’, 24 Israel Yearbook on Human Rights (1994), 19–39. 11 Comprising the decisions of the United Nations Security Council to establish the ad hoc tribunals for the former Yugoslavia in 1993, and for Rwanda in 1994. See, on the former, Lescure, Le Tribunal Pénal International pour l’ex-Yougoslavie (1994), 15–133; Cassese, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’, 2 European Human Rights Law Review (1997), 329–52. On the latter, see Lee, ‘The Rwanda Tribunal’, 9 LJIL (1996), 37–61; Harhoff et al., ‘The Rwanda Tribunal: Its Role in the African Context’, 37 International Review of the Red Cross (1997), 665–715. 12 In particular, by acts of genocide, war crimes, and crimes against humanity. See Broms, ‘The Establishment of an International Criminal Court’, 24 Israel Yearbook on Human Rights (1994), 135–48, at 145–6. 13 Attention is to be drawn to the superior universal values which underlie the whole theme of the creation of an international criminal jurisdiction, on a permanent basis. It may be recalled that the Statute of the International Criminal Court (A/RES/49/59, Annex) succeeded in setting forth general principles of criminal law (nullum crimen sine lege, nulla poena sine lege, irretroactivity ratione personae, individual penal responsibility, exclusion of minors of 18 years of age from the competence of the Tribunal, irrelevance of the official rank, responsibility of the hierarchically superiors, imprescriptibility—non-applicability of ‘statutes of limitations’—, element of intentionality, circumstances excluding penal responsibility, errors of fact or of law, superior orders and legal provisions), notwithstanding the conceptual differences between the delegations of countries of droit civil and those of countries of common law. 14 Schabas, ‘Sentencing by International Tribunals: A Human Rights Approach’, 7 Duke Journal of Comparative and International Law (1997), 461–517. 15 See, on the matter, e.g., Thiam, ‘Responsabilité internationale de l’individu en matière criminelle’, International Law on the Eve of the Twenty-First Century: Views from the International Law Commission (1997), 329–37. Furthermore, the criminalization of grave violations of human rights and international humanitarian law has found expression in the establishment, in our time, of the principle of universal jurisdiction; see the author’s Tratado de Direito Internacional dos Direitos Humanos, ii (1999), 385–400 and 404–12; iii (2003), 413. 16 In its judgment on the merits of 8 March 1998, the Court conceptualized impunity as ‘the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention, in view of the fact that the State has the obligation to use all the legal means at its disposal to combat that situation, since

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under Article 1(1) of the American Convention, ‘to organize the public authorities to guarantee persons subject to its jurisdiction the free and full exercise of human rights’, a duty which (the Court significantly added) ‘applies whether those responsible for the violations of those rights are members of the public authorities, private individuals, or groups’.17 The recognition of a State’s duty to fight impunity nowadays finds expression in the jurisprudence constante of the Inter-American Court.18 While an international tribunal of human rights (such as the European and Inter-American Courts, and, in the future, the African Court) cannot determine the international criminal responsibility of the individual, and an international criminal tribunal (such as the Ad Hoc International Tribunals for the former Yugoslavia and for Rwanda, and the International Criminal Court) cannot determine the responsibility of the State, impunity is most likely bound to persist, being only partially sanctioned by one and the other. The international responsibility of the State contains elements of both a civil and a penal nature, in the present stage of evolution of international law. Such responsibility of the State is neither exclusively civil (as suggested by the duty of reparation for damage), nor exclusively penal (as suggested by the legitimacy of a sanction). It appears as a unified (civil and penal) responsibility of the State, accompanied by the international criminal responsibility of the individual. Reparations, as will be seen later, can be endowed with a sanctioning or repressive character,19 so as to secure the realization of justice and put an end to impunity. The fulfilment of the exemplary or dissuasive purposes can—and must—be sought by means not only of indemnizations, but also of other (non pecuniary) forms of reparation. Moreover, one ought to keep in mind that, while the (material and moral) reparation benefits directly the injured party, the sanction (or repressive action against the transgressing State), in its turn, benefits the international community as a whole; not to admit this would amount to consenting that the State responsible for the violation may be exempted from the application of the law.20 impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives’ (Series C No. 37, para. 173). The text of the judgment is electronically available at . 17 Ibid., para. 174. 18 Those considerations by the Court were reiterated in obiter dicta in the judgments on reparations in the cases of Loayza-Tamayo (Series C No. 42, of 27 November 1998, para. 170), CastilloPáez (Series C No. 43, of 27 November 1998, para. 107), Blake (Series C No. 48, of 22 January 1999, para. 64), ‘Street Children’ (Villagrán-Morales et al.) (Series C No. 77, of 26 May 2001, para. 100), Cesti-Hurtado (Series C No. 78, of 31 May 2001, para. 63), Cantoral-Benavides (Series C No. 88, of 3 December 2001, para. 69), Bámaca-Velásquez (Series C No. 91, of 22 February 2002, para. 64), Trujillo-Oroza (Series C No. 92, of 27 February 2002, para. 97), to which other obiter dicta in the same sense may be added from its more recent judgments in the cases of Juan Humberto Sánchez (Series C No. 99, of 7 June 2003, para. 143) and Bulacio (Series C No. 100, of 22 September 2003, para. 120). 19 Gounelle, ‘Quelques remarques’, 317–18. 20 Lauterpacht, ‘Règles générales du droit de la paix’, 62 RdC (1937), 95–422, at 355–7.

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Already by the middle of the 20th century, there was doctrinal support for the co-existence of the international responsibility of individuals (physical persons) with that of States ( juridical persons), as international law binds them all (as their subjects). In the case of the States, their responsibility is collective, and Kelsen, for example, admitted that a State, in committing a grave violation of international law, commits a delict or a crime.21 In warning that the individual responsible for such a violation acted in the name of the State, Kelsen also admitted that the responsibility of the State can be both objective and absolute, as, in given circumstances, it can also have as a basis fault or culpa.22 In fact, even if one admits the principle of the objective or absolute responsibility of the State, this does not mean that the responsibility based on fault or guilt is entirely dismissed in every and any hypothesis or circumstance. There are cases,—such as the aforementioned cases of Myrna Mack-Chang and of the Plan de Sánchez Massacre—in which the intention of the State to cause the damage or its negligence in avoiding it can be demonstrated; the fault or guilt becomes, here, the indispensable basis of the responsibility of the State,23 aggravated by this circumstance. 4. Complementarity between the International Responsibility of States and the International Criminal Responsibility of Individuals The international responsibility of the State and the international criminal responsibility of the individual are not mutually exclusive, but rather complement each other. This is so because a public agent operates on behalf of the State, and both the State and its agent answer for the acts or omissions imputable to both. The international courts of human rights pronounce on the international responsibility of the State, and the ad hoc international criminal tribunals (for the former Yugoslavia and for Rwanda), and in the future the International Criminal Court, on that of the individual. Neither the former, nor the latter, encompass the totality of the matter in its present stage of evolution. Yet, there does not appear to be any juridical impediment for the concomitant determination of the international responsibility of the State and the international criminal responsibility of the individual, despite the insufficient development of the matter, reflected in the persistent compartmentalized approach to the international responsibility of the State and the international criminal responsibility of individuals. The evolution of the law on international responsibility should not yield to the rigid compartmentalization between civil and criminal responsibility found

21 22 23

Kelsen, Principles of International Law (1952), 9, 11–13, 97–100, 104–5, 107 and 114–17. Ibid., 122–3. See, in this sense, Lauterpacht, ‘Règles générales’, 359–61 and 364.

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in the national legal systems. Nothing seems to impede that it contain elements of one and the other, both conforming to international responsibility. This latter is endowed with a specificity of its own. A State can be internationally responsible for a crime, imputable both to its agents who committed it, and to the State itself as a juridical person of international law. To deny this would be to create an obstacle to the development of the law of international responsibility. Even those who sustain that criminal responsibility falls only upon the individuals who commit the crimes and not upon the collective persons (the States), as societas delinquere non potest, admit, nevertheless, the existence and evolution nowadays of forms of criminal responsibility of juridical persons in the domestic law of various countries.24 The engagement of the criminal responsibility of the juridical person (e.g., in environmental protection) results from the very capacity to act and the necessity to preserve superior social and common values. The State, as a juridical person and an international legal subject, has rights and duties under international law; its conduct is directly and effectively foreseen by the law of nations (droit des gens).25 Thus, the State and its agents ought to be accountable for the consequences of their acts or omissions. In a situation such as the one aforementioned, the determination of the international criminal responsibility of the individual is not, thus, sufficient, as the State, in whose name its agents committed a crime, contributed itself, as a juridical person of international law, to the perpetration or occurrence of such a crime. In the recent cases of Myrna Mack-Chang and of the Plan de Sánchez Massacre, the crimes of State were materialized both by the execution (planned by the highest rank of the public power) of the crimes, as well as by the subsequent cover-up of the facts, the prolongued obstruction of justice, and the impunity of those responsible for it, thus generating an aggravated responsibility. At a conceptual level, it is surely difficult not to admit the occurrence of a crime of State in general international law, above all insofar as there is intention (fault or guilt), or tolerance, acquiescence, negligence, or omission, on the part of the State in relation to grave violations of human rights and of international humanitarian law perpetrated by its agents, in pursuance of a State policy. In such circumstances, societas delinquere potest. In the domain of law, every person constitutes a centre or unity of imputation. In the case of the physical person, one is before the concrete and living unit of each human being, while the juridical person, which is a creation or construction of law, also constitutes a centre or unit of imputation for conducts attributed to individuals who act on its behalf, and for the consequences for which the juridical person itself, as well as its agents, ought to be accountable. In sum, the juridical personality of a collective entity (such as the State)

24

See Barboza, ‘International Criminal Law’, 278 RdC (1999), 9–199, at 82 and 96. See, e.g., Arangio-Ruiz, Diritto internazionale e personalità giuridica (1972), 9–19; Barberis, Los Sujetos del Derecho Internacional Actual (1984), 26–35. 25

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is a legal construction, and constitutes a unit of imputation of its conducts, undertaken by the individuals who compose this collective entity and act on its behalf; thus, both the juridical person as well as those individuals ought to be accountable for the consequences of their acts or omissions,26 particularly when they bring about grave violations of human rights and of international humanitarian law. In my view, the international responsibility of the State and the international criminal responsibility of the individual do not exclude each other, but, quite on the contrary, they appear complementary to each other and ineluctably intertwined. 5. Configuration of the Crime of State This leads me to the consideration of the typology of culpability, and, in the framework of this latter, of the configuration of the crime of State. In his masterly monograph on the problem of guilt, the jusphilosopher Karl Jaspers distinguished four types of culpability, namely, the criminal, political, moral and metaphysical ones.27 After addressing the distinct consequences of those modalities of culpability,28 Jaspers persuasively concluded: There are crimes of State, which are always and at the same time crimes of given individuals . . . Who . . . orders or comits the crime is—such is the idea—judged always as a person by the community of States of the world. Under such a threat the peace of the world would be secured. Humanity would be united in an ethos comprehensible to all. What we have ourselves suffered would no longer be repeated: that men, whom their own State had deprived of their dignity, had violated their human rights, who were marginalized or murdered, did not find protection in the superior community of States.29

In the same line of thinking, another jusphilosopher, Paul Ricoeur, in evoking the thought of Karl Jaspers, has referred likewise to the culpability for State

26

In this sense, see Recaséns Siches, Tratado General de Filosofía del Derecho (16th. edn., 2002),

272. 27 He thus distinguished four types of culpability: (a) the criminal one resulted from acts which objectively breached unequivocal laws, and which were demonstrable before a tribunal; (b) the political one resulted from actions of the governors, of the State, of which the governed ones were co-responsible, as ‘every person is co-responsible of how he is governed’; (c) the moral one resulted from the actions of each individual, having by judge the conscience itself; and (d) the metaphysical one deserved the following comment by him: ‘there is a solidarity between men as such which makes each one responsible for all offences and all injustice of the world, especially for the crimes which take place in their presence or with their knowledge. If I do nothing that I can to impede them, I am also guilty’. Jaspers, El Problema de la Culpa (Spanish trans. 1965, new edn. 1998), 53–4. 28 Namely: the criminal one leads to sanction or punishment; the political one to responsibility; the moral one to regret and renovation; and the metaphysical one to ‘a transformation of the human conscience of himself before God’ (ibid., 57). 29 Ibid., 131.

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policies of criminal responsibility, and has expressly utilized the term ‘crime of State’.30 Also in the more lucid doctrine of international law one can find elements conducive to the configuration of the crime of State. Thus, already in 1937, Hersch Lauterpacht warned that the traditional respect for State sovereignty refrained the development of the law of international responsibility, particularly regarding the consequences of responsibility. Thus, the traditional theory limited responsibility only to the reparation for damage (material and moral), without it being possible for States, as a result of their sovereignty, to be punished. This vision, however, in exempting the State from the consequences of its own violations of the law, appeared entirely arbitrary, limiting the action of justice at the international level.31 This being so, Lauterpacht argued with vehemence and against the then prevailing doctrine, la violation du droit international peut être telle qu’elle nécessite, dans l’intérêt de la justice, une expression de désapprobation dépassant la réparation matérielle. Limiter la responsabilité à l’intérieur de l’État à la restitutio in integrum serait abolir le droit criminel et une partie importante de la loi en matière de tort. Abolir ces aspects de la responsabilité entre les États serait adopter, du fait de leur souveraineté, un principe que répugne à la justice et qui porte en lui-même un encouragement à l’illegalité. Ce serait permettre aux individus, associés sous la forme d’État, d’acquérir, quant aux actes criminels commis . . . un degré d’immunité qu’ils ne possèdent pas agissant isolément; c’est une immunité couvrant des actes qui, parce qu’ils sont collectifs et aidés par la puissance presque infinie de l’État moderne, jouissent d’un pouvoir de destruction virtuellement illimité. C’est la personnification courante de l’État, impliquant une distinction artificielle entre l’association et les membres qui la composent, qui a contribué a suggérer ce principe anarchique d’irresponsabilité morale et juridique . . . Il ne peut guère y avoir d’espoir pour le droit international et la morale si l’individu, agissant comme l’organe de l’État peut, en violant le droit international, s’abriter effectivement derrière l’État impersonnel et métaphysique; et si l’État, en cette capacité, peut éviter le châtiment en invoquant l’injustice de la punition collective.32

As well pointed out by Eustathiades in a substantial and pioneering study half a century ago, States and individuals are subjects of international law, and one cannot pretend that the international criminal responsibility of the individual replaces or ‘eliminates’ that of the State; the responsibility of this latter can

30 Ricoeur, La mémoire, l’histoire, l’oubli (2000), 423, 434 and 609. Such political culpability ‘résulte de l’appartenance de fait des citoyens au corps politique au nom duquel les crimes ont été commis . . . Cette sorte de culpabilité engage les membres de la communauté politique indépendamment de leurs actes individuels ou de leur degré d’acquiescement à la politique de l’État. Qui a bénéficié des bienfaits de l’ordre public doit d’une certaine façon répondre des maux créés par l’État dont il fait partie . . . Des institutions n’ont pas de conscience morale et . . . ce sont leurs représentants qui, parlant en leur nom, leur confèrent quelque chose comme un nom propre et avec celui-ci une culpabilité historique’ (ibid., 615 and 620). 31 Lauterpacht, ‘Règles générales’, 339 and 349–50. 32 Ibid., 350–2.

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also be engaged by an international delict, bringing about sanctions in international law which have a ‘repressive function’.33 The individual and the State responsibility can perfectly cumulate.34 6. The Crime of State in Relation to the Fundamental or Superior Interests of the International Community There is another aspect to be singled out in relation to the configuration of the crime of State, linked to the protection of the fundamental or superior interests of the international community as a whole.35 Thus, from this perspective, the crime of State appears as a grave violation of peremptory international law ( jus cogens), which affects directly its principles and foundations, and which concerns the international community as a whole, not having to be dealt with by analogy with categories of domestic criminal law. In any case, the concept of crime of State ought to be studied in depth, and not to be avoided. The crime of State appears, in sum, as a particularly grave violation of international law bringing about an aggravated responsibility (amidst aggravating circumstances, thus evoking a category of criminal law); the gravity of the violation affects directly the fundamental values of the international community as a whole.36 The detractors of the concept of crime of State, instead of keeping in mind such values, related that concept with a mistaken analogy with criminal law, in the sense of domestic law. It was necessary to wait for years for new doctrinal developments to pave the way for a certain ‘criminalization’ of the relationship of responsibility, reducing the space occupied earlier by State voluntarism. Ago, a former Special Rapporteur of the International Law Commission on State responsibility, established, beyond the previous theoretical schemes, a gradation of violations of State obligations, therefrom advancing, in 1976, his well-known proposal of what would become draft Article 19 in the Commission’s report, incorporating the concept of ‘international’ crime and distinguishing it from ‘international delict’.37 The acts of ‘particularly serious nature’ would correspond to ‘inter-

33 Eustathiades, ‘Les sujets du droit international et la responsabilité internationale. Nouvelles tendances’, 84 RdC (1953), 397–634, at 415, 417, 448, 604 and 607–8. 34 Ibid., 603. 35 See, e.g., Barboza, ‘International Criminal Law’, 97; Quigley, ‘The International Law Commission’s Crime-Delict Distinction: A Toothless Tiger?’, 66 Revue de droit international de sciences diplimatiques et politiques (1988), 117–61, at 119–20. 36 Pellet, ‘Can a State Commit a Crime? Definitely, Yes!’, 10 EJIL (1999), 425–34, at 426–7; Tomuschat, ‘International Crimes by States: An Endangered Species?’, Wellens (ed.), International Law: Theory and Practice. Essays in Honour of Eric Suy (1998), 253–74, at 253 and 265. 37 See Ago, ‘Fifth Report on State Responsibility’ (Doc.A/CN.4/291 and ADD.1 and 2), YILC (1976), ii, Part One, 3–54, at 24–54. The International Law Commission, in its report, com-

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national crimes’ affecting the fundamental values of the international community, and the others—not revealing the same degree of gravity—whould amount to ‘international delicts’.38 A new vision of the law on international responsibility began to emerge, taking into account the basic values and the needs of the international community as a whole. Nevertheless, the advances in this area have taken place not in a steady way, but rather—as it often so occurs—moving back and forth, like a pendulum. The fact that the final draft articles on State responsibility, adopted by the Commission in 2001, provide details on the so-called ‘countermeasures’ (which reflect what is most primitive in international law, namely the use of reprisals in a new version),39 and address, somewhat lightly, the concept of international crime or ‘crime of State’, is a reflection of the world in which we live: ubi societas, ibi jus. The relatively summary treatment (essentially in Articles 40–41)40 dedicated to grave violations—and their consequences—of obligations under peremptory norms of general international law reveals the insufficient conceptual development of the matter until our days, in an international community which is still in search of a greater degree of cohesion and solidarity. As well recalled by Abi-Saab, an analogy with domestic criminal law was not what Ago had in mind when advancing in 1976 the concept of international crime or crime of State in draft Article 19. The distorted analogy with domestic criminal law ignores the specificity of the crime of State in international law, and regrettably minimizes the recognition of the fundamental or superior interests of the international community, the emergence—in its wide dimension—of jus cogens in the domain of the international responsability of States, and the necessity to establish an aggravated regime of State responsibility.41 And the main purpose of this regime is precisely to defend the normative integrity of the legal system itself against patterns of behaviour which go against its most fundamental principles and thus undermine its regular functioning and credibility . . . It can legitimately be feared that setting

pared the adoption of the formulation which recognized the distinction between the two concepts (international crimes and delicts) in the codification of the law on State responsibility to the setting forth of the category of jus cogens in the law of treaties. (‘Report of the International Law Commission on the Work of its Twenty-eighth Session’ (Doc.A/31/10), YILC (1976), ii, Part Two, 1–169, at 122, para. (73).) With the proposed Article 19, two regimes of responsibility would be formed: one for non-compliance with obligations of fundamental importance to the international community as a whole, and another for non-compliance with obligations of minor or less general importance. 38 Ibid., 95–122. 39 This new version of reprisals—the so-called ‘countermeasures’—integrates the chapter on the use (even though legal) of force, but countermeasures should not be considered as an ineluctable feature of the regime of ‘legal liability’. See Allott, ‘State Responsibility and the Unmaking of International Law’, 29 HILJ (1988), 1–26, at 22–3. 40 Cf. the comments in Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 242–53. 41 The establishment of this regime was precisely the purpose of draft Article 19: Abi-Saab, ‘The Uses of Article 19’, 10 EJIL (1999), 339–51.

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chapter twenty-three antônio augusto cançado trindade aside the dual regime of responsibility would be widely perceived as a reversal of the evolution of general international law from a community-oriented system back to a purely intersubjective one.42

The reaction to the grave and systematic violations of human rights and of international humanitarian law has become in our days a legitimate concern of the international community as a whole.43 This is so even more forcefully when the victims are vulnerable and defenceless (as in the two aforementioned cases concerning Guatemala), and when the structure of public power is distorted and comes to be utilized to breach the rights inherent in the human person. From the very moment when the international community starts to profess certain fundamental and superior values, one has to accept the consequence of the establishment of a special regime of aggravated responsibility (corresponding to the crime of State) whenever there is an attack against those values or a violation of the norms which protect them.44 The fundamental or superior interests of the international community have led to the configuration of the crime of State, endowed with a specificity of its own in international law. 7. Juridical Consequences of the Crime of State Aggravated responsibility is, precisely, that which corresponds to a crime of State. The crime of State becomes evident when the State’s intention (fault or culpa) to cause the damage, or its negligence to avoid it, can be demonstrated, as in the aforementioned recent cases of Myrna Mack-Chang and of the Plan de Sánchez Massacre; the responsibility of the State is aggravated by that circumstance. Draft Article 19, of 1976, precisely reflected the need for the establishment of an aggravated degree of responsibility, for certain violations of international law.45 It was not at all meant to imply an analogy with categories of domestic criminal law. Once accepted the aggravated responsibility, one ought to determine its juridical consequences. Already in 1939, long before his reports on State responsibility, Ago had pondered that one same material fact can be apprehended by distinct rules of the same legal order, attributing to it also distinct legal consequences, generating an obligation to repair or legitimizing the application of a sanction.46 Therefore, either the obligation of reparation or the application of a sanction, or both at the same time, can be conformed; to Ago, ‘sanction and repara-

42

Ibid., 350–1. See the author’s Tratado de Direito Internacional dos Direitos Humanos, i (2nd edn., 2003), 244; and ibid., iii, 415. 44 Abi-Saab, ‘The Concept’, 144–5. 45 Sinclair, ‘State Responsibility: Lex Ferenda and Crimes of State’, Weiler, Cassese and Spinedi (eds.), International Crimes, 240–2, at 242. 46 Ago, ‘Le délit international’, 68 RdC (1939), 415–554, at 424 and 426. 43

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tion can thus subsist one beside the other, as consequences of the same delict’.47 The same legal fact can, thus, generate distinct consequences, such as reparation and sanction. For a particularly grave wrongfulness (e.g., a grave violation of human rights or of international humanitarian law), compensatory reparation (for the victim or her relatives) may not be sufficient, punitive reparation (e.g., the investigation of the facts and the punishment of those responsible for them) being also necessary. Both may appear necessary for the realization of justice. In 1958, the Cuban jurist García Amador, at the time Special Rapporteur of the International Law Commission on State responsibility, observed that certain forms of reparation have a clear and distinctly punitive purpose ( punitive damages/dommages-intérêts punitifs), implying the imputation of responsibility of a penal character to the State for violation of certain international obligations— in particular, grave violations of fundamental human rights, similarly to the crimes against humanity.48 Thus, the duty ‘to provide reparation’ (with a connotation initially of civil law) varies in accordance with ‘the character and role of the reparation’ in given cases; in this way, reparation not always assumes the same form, and not always has the same purpose, and, insofar as punitive damages are concerned, contains a penal element of responsibility.49 The subject of reparation for violations of human rights requires a greater conceptual and jurisprudential development, starting from the recognition of the close relationship between the right to reparation and the right to justice. Such development is imperative, particularly in face of the grave and systematic violations of human rights, which, in turn, require a firm disapproval of the illicit conduct of the State, and reparation of a dissuasive character, so as to guarantee the non-repetition of the harmful acts, bearing in mind both the expectations of the relatives of the victim as well as the superior needs and interests of the social milieu. In fact, one cannot deny the close link between reparation and the struggle against impunity, as well as the guarantee of non-repetition of the harmful acts, always and necessarily from the perspective of the victims. True reparatio, linked to the realization of justice, requires overcoming the hindering of the duties of investigation and sanctioning those responsible for the facts, and the end to the impunity. That is, reparation can certainly be endowed with a compensatory and punitive character, with the purpose of putting an end to impunity and of securing the realization of justice, this being perfectly in accordance with the current stage of evolution of international law.50

47

Ibid., 428–9. García Amador, ‘State Responsibility. Some New Problems’, 94 RdC (1958), 365–492, at 396–8. 49 Ibid., 409. 50 The terms of Article 63(1) of the American Convention on Human Rights, e.g., have in fact opened to the Inter-American Court of Human Rights a wide horizon in the matter of 48

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Reparation with exemplary or dissuasive purposes, corresponding to an aggravated responsibility, can assist in the guarantee of non-repetition of the harmful facts, and in the struggle against impunity. In my several years of experience as a judge of the Inter-American Court, I have been able to verify that States have less difficulty in complying with pecuniary reparation than with reparation pertaining to the duty of investigating and sanctioning those responsible for the violations of human rights, that is, ultimately, to the realization of justice. Non-pecuniary reparation is often much more important than what one could prima facie assume, even for putting an end to the violations and removing their consequences,51 in the terms of Article 63(1) of the American Convention. Although the figure of ‘punitive damages’ is no stranger to national caselaw, nor to international arbitral case-law,52 it is not my purpose here to invoke it in the sense in which it has been utilized in other contexts, namely as exemplary reparation of a necessarily pecuniary character (implying considerable amounts and bringing about the risk of ‘commercializing’ justice). Far from it. In the present context of protection, endowed with a specificity of its own, other forms of reparation, of a non-pecuniary character, have commonly been identified as ‘obligations of doing’, once again suggesting a reductionist analogy with solutions proper to civil law. These forms of reparation53 can be regarded as being endowed with a character at a time compensatory and punitive (containing elements of both a civil and a penal nature). They have exemplary or dissuasive purposes, in the sense of preserving the memory of the violations occurred, of providing satisfaction (a sense of realization of justice) to the relatives of the victim, and of contributing to guaranteeing the non-repetition of those violations (also by means of education and training in human rights). ‘Punitive damages’ can also be conceived in this sense, resembling ‘obligations of doing’ of both a compensatory and a punitive character (thus overcoming the dichotomy between civil and penal, proper to the regime of responsibility in domestic law). Reparation of this kind has effectively at one time a punitive and a compensatory character; thus understood, ‘punitive damages’ in reality have already been applied, for a long time, in the domain of

reparation. Article 63(1) provides that: ‘If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party’. 51 See the joint concurring opinion of Judges Cançado Trindade and Abreu-Burelli in the Case of Loayza-Tamayo, paras. 6–8, 10–11, 14 and 17. 52 See, e.g., Hodgin and Veitch, ‘Punitive Damages Reassessed’, 21 ICLQ (1972), 119–32; Gotanda, ‘Awarding Punitive Damages in International Commercial Arbitrations’, 38 HILJ (1997), 59–105. See also examples of the (national and international) practice in Shelton, Remedies in International Human Rights Law (2000), 74–5 and 288–9. 53 Such as those contemplated in resolutory points 6, 7, 8, 9, 10 and 11 of the judgment in the Case of Myrna Mack-Chang.

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the international protection of human rights,54 a practice evoking the expression of the well-known character in Molière, Monsieur Jourdain, qui parlait la prose sans le savoir.55 In the evolving contemporary international law, ‘punitive damages’ lato sensu (beyond the purely pecuniary outlook inadequately attributed to them)56 can appear as an appropriate response or reaction of the legal order against the crime of State.57

8. Conclusion The reaction to grave and systematic violations of human rights and of international humanitarian law constitutes nowadays a legitimate concern of the international community as a whole; this reaction imposes itself even more forcefully when the victims are vulnerable and defenceless (as in the recent cases of Myrna Mack-Chang and of the Plan de Sánchez Massacre), and the structure of public power is deformed and put at the service of repression and not of the search for the common good. The international criminal responsibility of the individual does not exempt that of the State; the two co-exist, an acknowledgement of this being of crucial importance to the eradication of impunity. Both the State and its agents are the direct addressees of norms of contemporary international law; the conduct of both is foreseen and regulated by it; thus, both the State and its agents ought to be accountable for the consequences of their acts and ommissions. 54 The Inter-American Court has a rich case-law in the matter of reparation. For example, in the Case of Aloeboetoe et al. (Series C No. 15, Judgment of 10 September 1993), the Court ordered the reopening of a school and the creation of a foundation to assist the beneficiaries. In the Case of the ‘Street Children’, the Court ordered the designation of an educative centre with a name referring to the victims of the case; likewise, in the Case of Trujillo-Oroza, the Court again ordered the designation of an educative centre with the name of the victim. In the case of Cantoral Benavides, the Court ordered the State to provide a scholarship for university studies to the victim. In the Case of Barrios Altos (Series C No. 87, Judgment of 30 November 2001), the Court ordered reparations in educative services and the payment of expenses for health services. And in the Case of Durand and Ugarte (Series C No. 89, Judgment of 3 December 2001), the Court again ordered the payment of expenses for health assistance or services and psychological support. 55 ‘Il y a plus de quarante ans que je dis de la prose, sans que j’en susse rien, et je vous suis le plus obligé du monde de m’avoir appris cela’. Molière, Oeuvres Complètes (Le bourgeois gentilhomme, 1670, act II, scene V) (1962 edn.), 515. 56 The Declaration adopted in 2001 by the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, in foreseeing measures of reparation, compensation, indemnization and of other kinds for the human sufferings and the ‘tragedies of the past’ (paras. 98–106), and the corresponding Programme of Action, in providing for reparations and indemnizations (paras. 165–6), utilize a language which discloses affinities with the concept of ‘punitive damages’ lato sensu. The texts of the Declaration and Programme of Action are in the ‘Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban 31 August–8 September 2001)’ (Doc.A/CONF.189/12), eletronically available at . 57 See Jørgensen, The Responsibility of States for International Crimes (2003), 231 and 280.

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All of us who have had the experience and responsibility to work with dedication in the international contentieux of human rights know that crimes of State effectively do exist, and we know what that means. The international criminal responsibility of the individual does not exempt that of the State. We are still in the beginnings of a long process of evolution in this area, in which the recent establishment of the International Criminal Court constitutes a point of major relevance in the struggle against impunity, but not the culminating point in what pertains to the international responsibility of the State. This latter falls outside its scope; its determination rather belongs to the competence of the international tribunals of human rights, which, in their turn, cannot determine the international criminal responsibility of individuals. This compartmentalized conception of international responsibility—of States and of individuals—leads, in one case and the other, to the eradication of impunity only in a partial way. For this latter to be total, integral, one ought to affirm and determine, concomitantly, the responsibility both of the State and of the individual (the State agent), complementary as they are. The crime of State is much more than a possibility, it is a reality, as disclosed by the facts of the two aforementioned cases. The contemporary doctrine of international law should not keep on attempting to elude the question. If the expression ‘crime of State’ may appear to many international lawyers (apparently petrified by the spectre of State sovereignty) objectionable for suggesting an inadequate analogy with juridical categories of domestic criminal law, this does not mean that the crime of State does not exist. The facts of the aforementioned recent cases of Myrna Mack-Chang and of the Plan de Sánchez Massacre provide a clear evidence that it does indeed exist. Even if one keeps on searching for it another denomination, this does not thereby mean that the crime of State ceases to exist. While it keeps on intending to elude the question, the contemporary doctrine of international law will be succumbing to the spectre of State sovereignty and withholding the evolution itself of the law of nations in the present domain in our days. While it keeps on denying the existence of the crime of State, it will be depriving the human person, ultimate titulaire of the rights inherent in her, and which precede, and are superior to, the State, of the safeguard and the exercise of such rights, starting with the right to justice; it will, moreover, be depriving the human person of the proper reparations for the violations of those rights. While the existence of the crime of State keeps on being denied by the contemporary doctrine of international law, this latter will be depriving the State— hostage of a deformed structure of repression and impunity—of its proper end, the realization of the common good. While it keeps on denying the existence of the crime of State, amidst an empty semantic imbroglio (which deviates the attention from the central question of the need to secure the primacy of justice in concrete cases), it will be depriving the law itself of its ultimate end, precisely the realization of justice. While it keeps on intending to elude the

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question, the treatment dispensed to the central chapter of the law on the international responsibility of the State will keep on being juridically unconvincing and conceptually incomplete. It will thereby be regrettably postponing the construction and consolidation of a true rule of law (Estado de derecho, État de droit) and, in the framework of this latter, of a true right to law, that is, the right to a legal order which effectively safeguards the fundamental rights of the human person.

CHAPTER TWENTY-FOUR

THE INTERNATIONAL COURT OF JUSTICE: SELECTED ISSUES OF STATE RESPONSIBILITY Rosalyn Higgins

1. Introduction Issues of State responsibility have engaged the attention of both the Permanent Court of International Justice and the International Court of Justice (the ‘Court’). Every law student knows that the phrase ‘State responsibility’ in an exam question requires reference to the Factory at Chorzów case1 in the answer. Issues of State responsibility before the Court may be said to have fallen into several broad categories. First, do the actions concerned actually engage the responsibility of the State concerned? Second, if the respondent State is responsible for an international wrong, what is the appropriate remedy? Third, does jurisdiction ratione materiae also entail jurisdiction so far as remedies specified in the law of State responsibility are concerned? Fourth—and it is a more recent manifestation—what is the relationship between the law of State responsibility and other applicable substantive law in the particular case? On 10 October 2002, in the Court’s judgment in the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) case,2 a fifth aspect of the law of State responsibility came very much into focus, namely, what is the place of the law of responsibility in a case principally concerning territorial title. This essay will touch on each of these themes. Before doing so, there is a general observation to make: since the early 1970s, the periodic findings on State responsibility that the Court has had occasion to make have been pronouncements handed down against the background of intermittent work by the International Law Commission on State responsibility,3 recently culminating, of 1 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, PCIJ, Series A, No. 9; Factory at Chorzów, Merits, Judgment No. 138, 1928, PCIJ, Series A, No. 17. 2 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening), Judgment, Merits, ICJ Reports 2002, 303. 3 For the text of the articles and a commentary, see Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). See also the earlier work of Rosenne (ed.), The International Law Commission’s Draft Articles on State Responsibility (1991).

Maurizio Ragazzi (ed.), International Responsibility Today, 271–286. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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course, in the final impressive and scholarly push to the articles which were the subject of a General Assembly Resolution adopted on 12 December 2001.4 Whether there is a symbiotic relationship to be traced is for others to decide. 2. Attribution of Conduct to the State Certain cases have focused on attribution of conduct to the State. On 4 November 1979, the United States Embassy in Tehran was occupied by what the Court termed ‘militants’.5 The United States alleged violations by Iran of both the Consular Convention6 and the Treaty of Amity of 1955.7 The Court found that, although the attack on the Embassy and on Consulates the following day ‘cannot be considered as in itself imputable to the Iranian State’, Iran was however in violation of its own obligations under the Diplomatic8 and Consular Conventions, in particular to take all appropriate steps to protect the premises.9 In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),10 the Court had imposed the test of effective control to determine whether the activities of the Contras were attributable to the United States. (This is the test effectively not followed by the International Criminal Tribunal for the Former Yugoslavia in the TadiÆ case.)11 Another example of this first category of State responsibility issues in the jurisprudence of the Court is to be found in the Cumaraswamy case.12 The Court cited the rule enunciated in the then draft articles of the International Law Commission that ‘the conduct of any organ of a State must be regarded as an act of that State’, and categorized it as a customary rule of international law.13 It applied the rule to the failure of the Malaysian courts to deal with the immunity issues in limine litis, that is, at the outset.

4 ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 5 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3, at 12 (para. 17). 6 Vienna Convention on Consular Relations, 596 UNTS 261. The Convention, done at Vienna on 24 April 1963, entered into force on 19 March 1967. 7 Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran, 284 UNTS 93. The Treaty, done at Tehran on 15 August 1955, entered into force on 16 June 1957. 8 Vienna Convention on Diplomatic Relations, 500 UNTS 95. The Convention, done at Vienna on 18 April 1961, entered into force on 24 April 1964. 9 ICJ Reports 1980, 3, at 29–30 (especially para. 61). 10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, at 65 (para. 115); see also 62 (para. 109). 11 Prosecutor v. Dusko TadiÆ (Appeals Chamber—ICTY), Judgment (15 July 1999), paras. 115–45, . 12 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, 62. 13 Ibid., 87 (para. 62).

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In the Avena case14 issues of classical attributability arose in several different ways. There remained unresolved the problem highlighted by the Court in the earlier case of LaGrand,15 relating to the procedural default rule. By virtue of this domestic law rule a defendant who could have raised, but failed to raise, a legal issue at trial will usually not be permitted to raise it on appeal or in a petition for a writ of habeas corpus. The Court had in the LaGrand case stated that, while the rule did not violate the Vienna Convention on Consular Relations, a problem arose when it operated to prevent a detained individual from challenging conviction and/or sentence in circumstances where the competent national authorities themselves had failed to comply with their obligations to notify the individual of his rights under Article 36 of the Vienna Convention.16 In the Avena case the Court noted that this rule had not been revised. At the same time, some United States courts, implicitly appreciating that what they did in applying United States law engaged the international responsibility of the United States, had after the LaGrand ruling of the International Court found ways of avoiding the application of the procedural default rule in the problematic circumstances described above.17 The Court also had occasion to make clear that, although the notification of consular authorities, as envisaged under Article 36(1)(b) of the Convention on Consular Relations, was performed by persons whose conduct might be attributable to the United States (as public officials), this did not of itself comply with the specific requirements of Article 36(1)(b), which required such notification to be made by the detaining authorities.18 Particularly interesting contentions relating to attributability of responsibility have arisen in the cases concerning Legality of Use of Force, brought by Serbia and Montenegro19 against various States which, as members of NATO, participated in the bombing of Kosovo in 1999. In the hearing on provisional measures, Canada had already advanced the contention that a State was not responsible for actions taken by an international organization of which it was a member.20 This aspect was further developed during the oral hearings on preliminary objections and admissibility, especially by the applicant and by Portugal. 14 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12. 15 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at 497–8, paras. 90–1. 16 Ibid., 497 (para. 90). 17 Avena, Judgment, para. 113. And see Madej v. Schomig, United States District Court, N.D. Illinois, Eastern Division, 2002, U.S. Dist. Lexis 17996, Sept. 24, 2002. 18 See, for example, Covarrubias, Case No. 6 (notification by Court appointed interpreter); Reyes, Case No. 34 (notification by District Attorney); Loza, Case No. 52 (notification by Ohio prosecutors): Avena, Judgment, paras. 95–6. 19 Originally commenced in 1999 by the former Federal Republic of Yugoslavia, now Serbia and Montenegro. 20 ICJ Pleadings, Legality of Use of Force (Serbia and Montenegro v. Canada), Provisional Measures,

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Serbia and Montenegro accepted the conclusion of the provisional report prepared for the Institut de Droit International, namely ‘that, by reference to accepted sources of international law, there is no norm which stipulates that member states bear a legal liability to third parties’.21 However, in the view of Serbia and Montenegro, this case was not about such a principle—it was about the responsibility of States for their own acts. To this end, Serbia and Montenegro sought to show that Article 5 of the North Atlantic Treaty,22 and statements made by various of the respondent governments at the time of the military action in Kosovo, made clear that the pertinent decisions were being made by national governments. Thus, in Serbia and Montenegro’s view, the responsibility was theirs alone. Portugal, also basing itself on the conclusion of the Institut report cited by Serbia and Montenegro, contended that ‘even where there is a relationship of agency, or leadership and control by one or more of the members, the organization does not cease to be responsible’. Counsel for Portugal, making an interesting linkage back to the jurisdictional questions being dealt with by the Court, then added: In any event, and from the perspective of the Monetary Gold principle, there should always be a preliminary ruling on the responsibility of the international organization . . . on the question whether the acts are attributable thereto as a preliminary indication of the possible responsibility of member States without NATO having consented to jurisdiction.23

In the Oil Platforms case the Court had before it an allegation by the United States that one of its flag vessels, the Sea Isle City, had been hit by a missile fired by Iranian forces,24 and a response by Iran that the missile in question had been fired by Iraq.25 The Court chose to deal with the attribution issue through the route of burden of proof as regards evidence. Thus it stated that it ‘does not have to attribute responsibility for firing the missile that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq; if at the end of the day the evidence is insufficient to establish that the mis-

CR/99/27 (12 May 1999), . This special question of responsibility is not addressed by the International Law Commission’s draft articles on State responsibility. Neither Article 5 (conduct of persons or entities exercising elements of governmental authority) nor Article 8 (conduct directed or controlled by a State) covers the topic. 21 See the author’s ‘Provisional Report (August 1993)’ (‘The Legal Consequences for Member States of the Non-Fulfilment by International Organizations of their Obligations Towards Third Parties’), 66 Annuaire (1995), i, 373–420, at 415, para. 113. 22 The Treaty, done at Washington, D.C., on 4 April 1949, entered into force on 24 August 1949. Its text is at 34 UNTS 243. 23 M. Miguel Galvão Teles, Oral Pleadings in Legality of the Use of Force (Serbia and Montenegro v. Portugal), 22 April 2004 at 11.45 a.m., Verbatim Record CR 2004/18, 20, para. 4.7 (original in French), . 24 Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment 6 November 2003, ICJ Reports 2003, 161, at 185, paras. 48–50. 25 Ibid., 188, para. 55.

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sile was fired by Iran, then the necessary burden of proof has not been discharged by the United States’.26 Here ‘attribution’ was used in the lay sense— that is to say, it was a question of ‘who (which State) did it’, and should thus assume responsibility. However, the question of ‘attribution of conduct to a State’27 is different, in that the questions being asked are not questions of evidence or burden of proof, but rather whether the unlawful conduct was carried out by an organ of State,28 or by entities exercising elements of governmental authority,29 or by persons involved in an insurrection movement whose conduct is adopted by the State as its own.30 It was equally the case that, when the Court was dealing, in the same litigation, with the mining of the USS Samuel B. Roberts, the term ‘responsibility’ was again used31 in the sense of ‘the State that performed the act’, no more and no less. 3. The Relationship of State Responsibility to the Jurisdictional Basis for the Dispute Everyone knows the celebrated dictum of the Permanent Court in the Factory at Chorzów case that ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.32 What is less well recalled is that in that case the Permanent Court also stated, in a phrase later alluded to in the following statement in the LaGrand case: where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation.33

Nonetheless, the point was pleaded again by the United States in the LaGrand case,34 where it contended that the Court’s jurisdiction flowed only from the Consular Convention, whereas the guarantees and assurances of non-repetition sought by Germany lay in the law of State responsibility. The Court again

26

Ibid., 189, para. 57. This is the title of Chapter II of Part One of the draft articles on State responsibility, adopted by the International Law Commission in 2001. The text of the draft articles is available as an extract from the ‘Report of the International Law Commission on the work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). 28 Ibid., Article 4. 29 Ibid., Article 5. 30 Ibid., Articles 10 and 11. 31 ICJ Reports 2003, 161, at 195, para. 71. 32 Factory at Chorzów, Merits, 29. 33 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at para. 48 citing Factory at Chorzów, Jurisdiction, 22. 34 Ibid. 27

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confirmed that no separate basis of jurisdiction was required for it to consider the appropriate remedy for a particular breach of the Consular Convention. 4. The Relationship of State Responsibility to Substantive Law The third category of case—the substantive (as opposed to jurisdictional) relationship between an applicable norm and the law of State responsibility—was very much in play in the Gab‘íkovo-Nagymaros Project (Hungary/Slovakia) case.35 There the question arose whether a treaty may lawfully be terminated or suspended only through application of the substantive rules governing the law of treaties; or whether the State responsibility provisions on non-wrongfulness of conduct (for example, a state of necessity)36 also excuse termination or suspension of a treaty. If these questions received no clear answer from the Court in that case, nor do they from the International Law Commission in its draft articles. The matter is still open.37 In the General Assembly, on 20 October 2003, Israel described ‘the fence’ that it was building as ‘a measure wholly consistent with the right of States to self-defence enshrined in Article 51 of the Charter’. It observed that Security Council resolutions ‘have clearly recognized the right of States to use force in self-defence against terrorist attacks’ and stated that it must ‘therefore surely recognize the right to use non-forcible measures to that end’.38 This opened the door to counsel appearing in the Advisory Opinion case on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory to fashion their arguments on self-defence within the parameters of the law of State responsibility generally and of countermeasures specifically. The Court simply ruled that Article 51 concerns an inherent right of self-defence in case of armed attack by one State against another State,39 and added: ‘However, Israel does not claim that the attacks against it are imputable to a foreign State’.40 The present writer doubted the pertinence—or the realism—of this observation, observ-

35

Gab‘íkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7. See Chapter V of Part One of the Commission’s draft articles dealing with ‘Circumstances precluding wrongfulness’. 37 See the views of Crawford that, ‘[u]nless otherwise provided, they [the ILC non-wrongfulness of conduct provisions] apply to any internationally wrongful act whether it involves the breach by a State of an obligation arising under a rule of general international law, a treaty . . . or from any other source. They do not annul or terminate the obligation; rather they provide a justification or excuse for non-performance while the circumstance in question subsists’. (Crawford, The International Law Commission’s Articles, 160.) Crawford notes this point was emphasised by the Court in the Gab‘íkovo-Nagymaros Project (Hungary/Slovakia). (Ibid.) 38 A/ES-10/PV. 21, 6. 39 Para. 139 of the advisory opinion, the text of which is electronically available at . (The writer’s disagreement with this finding may be seen in her Separate Opinion at para. 33.) 40 Ibid. 36

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ing that ‘[t]he question is surely where responsibility lies for the sending of groups and persons who act against Israeli civilians’.41 The Court then squarely looked at the same subject matter as a matter of State responsibility, and considered whether Israel could rely on a state of necessity that would preclude the wrongfulness of the construction of the wall. It put the following interesting question (reminiscent of, even if not identical to, the issue it had been faced with in the Gab‘íkovo-Nagymaros case, described above). Having observed that the applicable humanitarian law conventions contain their own derogation or qualification clauses to deal with exceptional circumstances, it then asked whether a state of necessity as recognized in customary international law could be invoked with regard to those treaties as a ground for precluding the wrongfulness of the measures or decisions being challenged.42

Again, the Court did not answer the question of principle, satisfying itself with observing that Article 25 of the International Law Commission’s draft required a state of necessity to be ‘the only way for a State to safeguard an essential interest against a grave and imminent peril’.43 And the Court thought that the construction of the wall along the route chosen did not meet that test. 5. State Responsibility and the Designation of Appropriate Remedies for a Breach A difficult issue is whether the law of State responsibility identifies, in a comprehensive manner, available remedies for a breach of an international obligation or whether the appropriate remedy must always be located in the primary obligation itself. In the LaGrand case, brought by Germany against the United States to the International Court, the issue came in the following form:44 by what test is it determined whether a primary obligation carries with it its own required consequence for responsibility for violation, thus precluding a tribunal from fashioning its own remedy within the framework of what is laid out in Part Two of the Commission’s draft articles? The United States suggested that the test was to look at the practice under the primary obligation concerned to see what the parties intended. Concerning the Vienna Convention on Consular Relations, the United States argued, the usual

41

Ibid., Separate Opinion, para. 34. Ibid., para. 140. 43 Ibid. 44 The ensuing four paragraphs draw on some elements in the essay written by the author in the forthcoming volume edited by Crawford and Pellet, Paris-X Nanterre/LRCIL Handbook on the Law of International Responsibility. The remaining uncertainties in the Commission’s articles are elaborated further in this essay. 42

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practice was simply an apology after violation.45 This approach leads one to comment on the sampling technique for deployment evidence of violations and remedies: unless the character of the violation of the norm is explained in each and every case with some precision, it cannot be seen exactly what type of violation of the primary obligation is occasioning which remedy. The length of time that passed before notification, its relationship to the trial process and, indeed, whether a person detained without notification was or was not released before trial, are all relevant variables. Moreover, the examples of apology in the indicated practice under the Vienna Convention on Consular Relations were not examples arising in situations comparable to the situation of the LaGrand case. As the Court said, in some circumstances an apology might indeed suffice to provide reparation for the injury caused by a violation of the primary obligation. But: an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under Article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties.46

The Court thus saw no remedy required as the sole remedy by virtue of the primary obligation itself. It saw rather a primary obligation under a treaty and a remedy which it, having competence over the entirety of the problem, was free to fashion to meet the particular exigencies. Naturally, that distinction would have to be exercised within the parameters of remedies that were cognizable under the law of State responsibility. In fact, the Court had to fashion, because of its substantive findings in the case, a remedy for a violation of the rights of Germany and a remedy for a violation of the individual rights it found were held by LaGrand by virtue of Article 36 of the Convention. It fashioned remedies that were both efficacious in terms of meeting the purpose of Article 36 and non-intrusive so far as United States criminal law was concerned.47 In the Avena case, the remedy that the Court had itself designated in LaGrand— review and reconsideration of conviction and sentence by the United States courts in cases where there had been a breach of Article 36, paragraph 1, of the Vienna Convention—48 needed further analysis. The Court needed to make crystal clear that the review and reconsideration that it had specified were not

45 At the same time, the United States contended that the remedy of apology was ‘political and not legal’. Assurances of non-repetition, in the view of the United States were ‘exceptional even as a non-legal undertaking in State practice’. LaGrand (Germany v. United States of America), Judgment, para. 19. 46 Ibid., para. 123. 47 See para. 128 (the dispositif ). 48 ICJ Reports 2001, 466, at 513–14, para. 125. ‘Review and Reconsideration’ could be viewed either as a reiteration of a primary obligation, or as a remedy for breach.

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by reference to United States constitutional law, but by reference to the obligations under the Consular Convention.49 There also arose the interesting question whether such review and reconsideration had to be by a court of law, or whether it could occur in the context of the clemency procedures. This latter question was far from easy, because of the special role that the clemency procedure plays in the United States criminal justice system, and the Court’s response was nuanced and detailed.50 In fact, broader remedies had been sought by Germany. In its Application to the Court in the LaGrand case, Germany asked that ‘the United States should provide Germany with a guarantee of non-repetition of the illegal acts’.51 What was in the Application formulated as a guarantee was in Germany’s fourth submission termed ‘an assurance that it [the United States] will not repeat its unlawful acts’. Elsewhere, Germany referred to ‘assurances and guarantees of non-repetition’.52 No particular distinction was made in the oral pleadings. It would seem that neither LaGrand nor the adopted draft articles of the International Law Commission fully resolve all the difficulties associated with assurances and guarantees. In the draft articles, the question of assurances and guarantees is ultimately located in Part Two, under the heading of ‘Cessation and Non-Repetition’. The Commentary states that ‘[t]here are several reasons for treating cessation as more than simply a function of the duty to comply with the primary obligation’ and also notes that sometimes it may seem almost ‘indistinguishable from restitution’.53 The practical problems associated with the characteristics of assurances and guarantees also merit mention. As the Special Rapporteur says, these remedies have the ‘characteristics of being future-looking’ and concerned with ‘other potential breaches’.54 This raises, it seems to me, major evidentiary problems for a court, which is told not that a specific violation of an ‘obligation’ is continuing (‘continuing breach’), but rather that a breach has occurred in the past and it is highly likely more such breaches will occur. But what evidence is sufficient to show this? From whom should it emanate? By when, in the timetable of the litigation, should it be produced and to what tests of examination should it be subjected? Must it relate to the nationals of the applicant State in the case in issue? And can all of this be ‘piggy-backed’ on to the initial case in which the applicant claims an unsatisfied violation against itself and its national?

49

Avena, Judgment, para. 139. Ibid., paras. 138–43. 51 Ibid., para. 10. 52 Ibid., para. 118. 53 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), 218, paras. (6) and (7). 54 Ibid., 219, para. (9). 50

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The problems of jurisdiction, of quality of evidence, and of sound administration of judicial proceedings, suggest to this writer that assurances and guarantees should be approached with the greatest caution. The Court had to come back to this question in the Avena case. In its eighth submission, Mexico asked the Court to adjudge and declare: [t]hat the United States of America shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36(1) and to ensure compliance with Article 36(2).55

The view of Mexico was that the failure of the United States authorities, and the continuing examples of violations of Article 36(1) of the Vienna Convention on Consular Relations, together make such remedies necessary. The Court, while acknowledging there were a substantial number of cases of non-compliance with Consular Convention obligations, nonetheless noted that the United States had been making considerable efforts, through particular programmes, to implement the obligations incumbent upon it under Article 36(1), and, further, that it did not perceive a general pattern of violation. Moreover, an assurance of non-repetition would not be ordered, for the same reasons as already indicated in the LaGrand case—namely, that ‘no State could give such a guarantee’.56 The requests for these remedies were therefore denied.57 In the Cameroon v. Nigeria case, the Court had also declined to order guarantees of non-repetition, albeit for different reasons. The case had concerned territorial title. Each side had claimed that its military was lawfully present in the Bakassi Peninsula. With the clarification by the Court of where title lay, the Court was not prepared to ‘envisage a situation where either Party, after withdrawing its military and police forces and administration from the other’s territory, would fail to respect the territorial sovereignty of that Party’.58 The Court also rejected Mexico’s submission in the Avena case that the appropriate remedy for a conviction against the background of a violation of Article 36(1) of the Vienna Convention was annulment. It claimed that this met the restitutio in integrum entitlement enunciated in the Chorzów Factory case.59 Further, Mexico claimed annulment of illegal acts was the normal remedy. In that regard, it cited the judgment of the Court in the Arrest Warrant case60 in which the Court ordered the cancellation of the arrest warrant issued by the Belgian judiciary. But, the Court explained, the two cases were not the same:

55

Avena, Judgment, para. 14. ICJ Reports 2001, 466, at 512–13, para. 124. 57 Avena, Judgment, para. 150. 58 Land and Maritime Boundary between Cameroon and Nigeria, Judgment, 303, at 452, para. 318. 59 Factory at Chorzów, Merits, 47. 60 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment 14 February 2002, ICJ Reports 2002, 3. 56

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However . . . [in the Arrest Warrant] case, the question of the legality under international law of the act of issuing the arrest warrant against the Congolese Minister for Foreign Affairs by the Belgian judicial authorities was itself the subject-matter of the dispute. Since the Court found that act to be in violation of international law relating to immunity, the proper legal consequence was for the Court to order the cancellation of the arrest warrant in question (I.C.J. Reports 2002, p. 33). By contrast, in the present [Avena] case, it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded them.61

It was therefore not to be presumed that partial or total annulment of conviction or sentence was the appropriate remedy. Finally, it may be noted that, although advisory opinions must not be contentious cases in disguise, the Court has not hesitated, in such cases, where findings of illegal conduct have occurred, to indicate the appropriate remedies.62 Here the concepts of ‘legal consequences’ (the formula used in the questions put to the Court) and of remedies virtually merge. Of course, because there is no ‘applicant’, no ‘remedy’ for the wrong done to an applicant may be sought. But the ‘legal consequence’ of unlawful conduct is still that it be reversed and/or63 reparations paid.64 Indeed, such ‘legal consequences’—and here lies the distinction with remedies in contentious cases—may even be incumbent upon third parties.65 6. Requests for Separate Findings of State Responsibility as a Consequence of Findings of Illegal Conduct66 In the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) case, the Court was faced with requests that it should make findings in the field of State responsibility.67 The foundation of these requests developed and 61

Avena, Judgment, para. 123. 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, 16, at 58, para. 133; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 163. 63 ‘The continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory.’ ICJ Reports 1971, 16, at 58, para. 133. 64 ‘Israel . . . is under an obligation to cease forthwith the works of construction . . . to dismantle forthwith the structure . . . and to repeal or render ineffective all legislative and regulatory acts relating thereto’; ‘Israel is under an obligation to make reparation for all damage caused by the construction of the wall’. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 163. 65 ICJ Reports 1971, 16, at 58, para. 133(2) and (3); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 163(c). 66 The ensuing paragraphs draw on the author’s, ‘Issues of State Responsibility before the International Court of Justice’, Fitzmaurice (M.) and Sarooshi (eds.), Issues of State Responsibility before International Judicial Institutions (2004), 1–9. 67 The Pleadings and the Applications are electronically available at . 62

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changed through the Application, Additional Application, and Final Submissions. And they were somewhat unusual requests, because they assumed particular findings that the Court was not in terms asked to make. Let me explain each of these observations. At issue in the case was title to the Bakassi Peninsula in the south, the location of the international boundary in Lake Chad in the north, and the correct line on the long land boundary in between. In its Application, Cameroon did not ask the Court to adjudge and declare that Nigeria had invaded the Bakassi Peninsula and in so doing had violated Article 2(4) of the Charter. Rather, Cameroon asked the Court to adjudge and declare that Bakassi belonged to Cameroon. It did ask the Court to find that, by the use of force and by military occupation, Nigeria was violating obligations incumbent on it. Cameroon asked the Court to find that these ‘internationally unlawful acts . . . involve the responsibility of Nigeria’. (In fairness, the French text says that ‘la responsibilité du Nigeria est engagée par . . .’)68 Further grounds of Nigerian responsibility were invoked. The Court was also asked to find that Nigeria was in violation of the ‘fundamental principle’ of uti possidetis juris —69 a principle that is usually advanced as a legal reason for an argued-for outcome, rather than characterized as an international obligation the violation of which ‘involves’ international legal responsibility. And in another clause the Court was asked to adjudge and declare that Nigeria must immediately and unconditionally withdraw from Nigeria—understandable as a consequence of a finding of title, but in Cameroon’s Application this stated duty itself was among the numbered clauses characterized as ‘an internationally unlawful act’ that ‘involved’ the responsibility of Nigeria.70 In the Additional Application by Cameroon, comparable requests were made in respect of a disputed area on the bed of Lake Chad—namely that sovereignty belonged to Cameroon,71 that Nigeria had violated uti possidetis juris,72 that occupation was illegal,73 and that Nigeria had the duty to withdraw—74 and that all these were internationally unlawful acts involving Nigerian responsibility.75 The Court was asked to ‘specify definitively’ the frontier from Lake Chad to the sea because of ‘repeated incursions of Nigerian groups and armed forces . . . all along the frontier’.76 Although no claim that Nigeria’s responsi-

68

Application, para. 20(e), Memorial, 670 (para. 9.1(g)). Application, para. 20(b). 70 Application, para. 20(e). 71 Application Additional to the Application instituting proceedings brought by the Republic of Cameroon, para. 17(a). 72 Ibid., para. 17(b). 73 Ibid., para. 17(c). 74 Ibid., para. 17(d). 75 Ibid., para. 17(e). 76 Ibid., para. 17(f ). 69

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bility was engaged was initially made in respect of this long land frontier, by the time of Cameroon’s Reply these alleged incursions were included among the ‘internationally wrongful acts . . . [that] engage the responsibility of Nigeria’. So the formulation of the responsibility requests put to the Court was somewhat complex and decidedly unusual. Nigeria entered Counter Claims, particularly as regards Bakassi and the land frontier, and in turn asked the Court to ‘adjudge and declare that Cameroon bears responsibility to Nigeria in respect of those claims’.77 It should finally be explained that both Cameroon and Nigeria, in respect of these claims, envisaged possible further hearings to determine the question of reparations due. These Claims and Counter Claims raised many questions for the Court. Let me start with the most fundamental. 7. Claims of State Responsibility in Territorial Disputes What place do claims of State responsibility have in cases brought to determine legal title to territory? Looking back over cases whose main object was to determine title to territory, one can see that separate and distinct findings of State responsibility are not usual. It has not been regarded as necessary, either by the parties concerned or indeed by the Court, to have a ‘stepping stone’ of formal findings that the respondent State’s ‘responsibility is engaged’. Generally, States have felt it sufficient to ask for findings of law and then to ask that the Court find, as a consequence of a finding of violation of legal obligation, that certain remedies must follow (whether compensation or otherwise). This is the clear practice in, for example, the following cases: Gab‘íkovoNagymaros Project (Hungary/Slovakia);78 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland);79 Minquiers and Echrehos;80 Norwegian Fisheries;81 Territorial Dispute (Libyan Arab Jamahiriya/Chad)82 (where Libya had been in occupation for 14 years); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)83 (even though Qatar claimed that Bahrain had ‘seized territory’); Kasikili/Sedudu Island (Botswana/Namibia);84 Frontier Dispute (Burkina Faso/Republic of Mali)85 (although the provisional measures order had referred to ‘grave incidents’ 77

Counter-Memorial of Nigeria, 834–5, Submissions of Nigeria, para. 7. ICJ Reports 1997, 7. 79 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973, 49, and Merits, Judgment, ICJ Reports 1974, 175. 80 Minquiers and Ecrehos, Judgment, ICJ Reports 1953, 47. 81 Fisheries, Judgment, ICJ Reports 1951, 116. 82 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, 6. 83 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment 1 July 1994, ICJ Reports 1994, 112; Jurisdiction and Admissibility, Judgment 15 February 1995, ICJ Reports 1995, 6; and Merits, Judgment 16 March 2001, ICJ Reports 2001, 40. 84 Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999, 1045. 85 Frontier Dispute, Judgment, ICJ Reports 1986, 554. 78

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having occurred); and also in Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)86 (though Indonesia regarded Malaysia as in illegal occupation of these islands). All of this is consistent with what the Court said in the Temple of Preah Vihear case,87 when explaining that no separate jurisdictional basis was needed for a finding of restitution. In that case, the Court found that a request for an order of restitution is ‘implicit in, and consequential on, the claim of sovereignty itself ’.88 Neither a separate jurisdictional basis nor a separate finding of the engagement of responsibility is needed for the Court to order a remedy—once it has determined conduct to be illegal.

8. When

SHOULD

a Distinct Finding on Responsibility be Requested?

In another recent case, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),89 the Court also declined to make a separate finding of ‘responsibility’. No such finding was needed for the order that the arrest warrant be withdrawn. The determination that Belgium was not entitled to issue the international arrest warrant was enough. The same has been true in advisory opinion cases. Although the Court was very specific on remedies in both the Namibia and the Wall advisory opinions, findings of responsibility did not precede the specification of remedies. The findings of unlawful behaviour was enough.90 When, then, is it more usual, and perhaps necessary, for a distinct finding on responsibility to be requested? The answer would seem to be in those cases where the violations of obligations are raised as the central issue—and sometimes in these cases the attribution of unlawful conduct to a government is also a key issue. The obvious example is the Corfu Channel case,91 where attribution of the illegal mine laying was a key element. But even in this category of cases, often concerned with the use of force, the more usual pattern of practice has been to ask for a finding of a breach of a specific obligation and to couple that with a request for compensation or other remedy. The LaGrand case;92 the Elettronica Sicula S.p.A. (ELSI) case;93 the Military and Paramilitary Activities in and against

86 Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/Malaysia), Application of the Philippines to Intervene, Judgment 23 October 2001, ICJ Report 2001, 575. 87 Temple of Preah Vihear, Merits, Judgment, ICJ Reports 1962, 6. 88 Ibid., 36. 89 Arrest Warrant, Judgment, para. 75. 90 Legal Consequences for States of the Continued Presence of South Africa in Namibia, at 58, para. 133; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 163. 91 Corfu Channel, Merits, Judgment, ICJ Reports 1949, 4. 92 ICJ Reports 2001, 466. 93 Elettronica Sicula S.p.A. (ELSI), Judgment, ICJ Reports 1989, 15.

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Nicaragua case;94 the Nuclear Tests cases;95 the pending Genocide cases;96 the Kosovo cases;97 the Ahmadou Sadio Diallo case;98 and the Oil Platforms case99 are all examples. The focus in these cases is on the substantive law, and not on any free-standing finding that State responsibility is incurred as a consequence of such breach. 9. Summary and Conclusion 1. It is not unusual, in cases where the law of obligations is at the centre of things, to ask for findings of illegality and also to ask for compensation or other remedies (or to reserve the right to do so later). 2. Only rarely, even in this category of cases, is a separate finding on responsibility sought—it is usually treated as implicit. 3. The Court has never yet made a finding that a State’s responsibility is engaged in a case whose main focus is territorial title. Is a finding of illegal conduct really the same as a request for a finding of responsibility? The answer is yes, and no. Yes, in that findings of illegal conduct and the fashioning of remedies are all, in our modern way of looking at substantive obligations and remedies for breach, ‘part of the law of responsibility’. No, in that no separate pleadings, with prolonged excursions into the law of responsibility and the work of the International Law Commission, are needed on this issue. Given the heavy docket of the Court, and the absence of need for a ‘stepping stone’ between illegality and remedy, this is not unimportant. As the Court’s handling of the responsibility claims in the Cameroon v. Nigeria case, for the Court it was clear that title to Bakassi belonged to Cameroon. But the evidence presented by Cameroon, which bore the burden of proving

94 Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, 392, and Merits, ICJ Reports 1986, 14. 95 Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, 253; Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, 457. 96 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v. Serbia and Montenegro), pending; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia and Montenegro), pending. 97 Legality of Use of Force (Serbia and Montenegro v. Belgium); Legality of Use of Force (Serbia and Montenegro v. Canada); Legality of Use of Force (Serbia and Montenegro v. France); Legality of Use of Force (Serbia and Montenegro v. Germany); Legality of Use of Force (Serbia and Montenegro v. Italy); Legality of Use of Force (Serbia and Montenegro v. Netherlands); Legality of Use of Force (Serbia and Montenegro v. Portugal); Legality of Use of Force (Serbia and Montenegro v. United Kingdom). 98 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), pending. 99 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, ICJ Reports 1996, 803; Counter-Claim, Order 10 March 1998, ICJ Reports 1998, 190; Merits, Judgment 6 November 2003, ICJ Reports 2003, 161, electronically available at , where the pleadings of the parties can also be found.

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the facts it had alleged, did not allow the Court to form ‘a clear and precise picture’ of the sequence of events on the ground in Bakassi.100 Accordingly, the Court rejected Cameroon’s claims on responsibility. The responsibility counterclaims by Nigeria in relation to Bakassi were rejected for comparable reasons.101 The specification of the long land frontier between Cameroon and Nigeria largely favoured the arguments that had been advanced by Nigeria. The Court was not prepared to deal with Cameroon’s request for a responsibility finding in respect of incidents along the land boundary ‘as a whole’, Cameroon having decided not to deal with them incident by incident. The Court found again that it had not been presented with sufficient evidence to make such a global finding. The Court found in favour of Cameroon over title to the disputed areas in Lake Chad,102 but again made no separate responsibility finding. After these findings the Court immediately stated that the parties are under an obligation to withdraw with all expedition from the areas the Court has found not to belong to them; and rejected all other submissions of Cameroon regarding the State responsibility of Nigeria and rejected the Counter Claims of responsibility by Nigeria. Counsel pondering the formulation of future Applications to the Court will no doubt notice that the voting on these provisions was unanimous.

100

Land and Maritime Boundary between Cameroon and Nigeria, Judgment, Merits, para. 322. Ibid., para. 324. 102 The maritime delimitation effected by the Court falls beyond the scope of the theme of this essay. 101

CHAPTER TWENTY-FIVE

REGISTRATION OF FOREIGN JUDGMENTS UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS AND THE LAW OF INTERNATIONAL RESPONSIBILITY Laura Picchio Forlati

1. Introduction The recent Opinions of the Lords of Appeal for judgment in the case Government of the United States of America (Respondent) v. Barnette and another (Appellants)1 denies to the decision in the Pellegrini case2 by the European Court of Human Rights any authority as a precedent. The ground for such a denial is that the decision in question should have been ‘dependent on the particular effect’ and ‘on the particular requirements of the Concordat’, rather than on international commitments weighing on Italy under Article 6 of the European Convention on Human Rights.3 In the Pellegrini judgment, Italy had been found in breach of the European Convention for having registered and executed a judgment of the Roman Rota (the ‘ordinary tribunal established by the Roman Pontiff to receive appeals’)4 that had declared the marriage between Ms. Pellegrini and Mr. Gigliozzi null and void. According to the European Court, that judgment resulted from proceedings that had not ensured to Ms. Pellegrini a fair trial within the meaning of Article 6 of the European Convention. The Court was well aware of the fact that the Holy See is not a party to the Convention, but drew from the European Convention a prohibition for the parties to it to cooperate in the execution of a foreign judgment of whatever origin which does not meet the same standards as those ensuing from that article. The reasoning of the Lords of Appeal, in rejecting any precedential value

1 [2004] UKHL 37. The text of the Opinions is electronically available at . 2 Pellegrini v. Italy, Judgment (Merits and Just Satisfaction). The text of the judgment, of 20 July 2001, is electronically available at . 3 213 UNTS 221. The European Convention was adopted on 4 November 1950. 4 See Canon 1443 of the Code of Canon law for the Latin Church. (An English translation

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to this decision, runs as follows. Firstly, outside the reach of the particular effect and requirements of the Concordat between Italy and the Holy See, the obligation for the registering State are limited to checking that the foreign procedure passes the flagrant denial test upheld by the European Court in its case-law. The registering State does not need to meet the more punctual commitments spelled out by the European Court in the Pellegrini case. These commitments were imposed on Italy by its special legal links with the Holy See, not by the European Convention itself or the law of international responsibility. Secondly, according to the Lords of Appeal, Italy complied with Article 6 of the European Convention because of the implementing order given to the same Convention by Law No. 848 of 4 August 1955, and Article 111 of the Italian Constitution. Under the first paragraph of this last provision, ‘justice must be administered by fair trials defined by law’.5 The purpose of this essay is to show that, irrespective of the assessment of the strength (or lack thereof ) of the Pellegrini judgment on its merits, the attempt by the Lords of Appeal to undermine its potential impact on subsequent practice is far from persuasive. Firstly, existing legal links between Italy and the Holy See have little bearing, if any, on the stand taken by the European Court, and certainly not on the authority of the Pellegrini judgment as a precedent. Those links are treatyrelations between independent Powers, one of which (Italy), is a party to the European Convention. Owing to their limited subjective scope, those relations may not affect the relations between such a State and the other parties to the European Convention (and even non-parties, should certain requirements of the European Convention be regarded as codifying general international law).6 The assumption implied in the Opinions of the Lords of Appeal in the Barnette case seems instead to be that the Holy See fills such a separate place in international relations, that even the judgment rendered by the European Court against Italy following its registration and execution of a canon law judgment remains separate from the same Court’s case-law at large. Secondly, international responsibility arises where international rules are violated, whatever the status of the violator’s domestic law.7 Article 6 of the European Convention, for example, is violated by judicial or administrative acts or omissions. Domestic legislation and even constitutional rules consistent with that article may certainly favour compliance, but are not sufficient, in themselves, to avoid the risk of violations. As a matter of principle, and quite of the Code is electronically available at .) The Roman Rota is not an Italian civil court, as wrongly held in para. 19 of the Opinions in the Barnette case. 5 An English translation of the Italian Constitution is electronically available at . 6 Cf. Articles 30 and 41 of the Vienna Convention on the Law of Treaties 1969 (1155 UNTS 331). 7 See Article 27 of the same Convention, according to which ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.

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irrespective of the circumstances of the Pellegrini decision and its evaluation on the merits, this is also true of the relations between Italy and the Holy See. 2. The Holy See as an International Legal Person The Italian State was established, as the Kingdom of Italy, at the expense of the territorial domain of the Papal States. The forcible annexation by the Kingdom of Italy of the Papal States (Rome included) became internationally known as the ‘Roman Question’ which remained open for several decades, until 1929, when Italy and the Holy See8 signed the Lateran Pacts (comprising a Treaty, a Financial Convention and a Concordat).9 These Pacts put an end to the policy of non-cooperation pursued by Catholic faithful, a stand to stigmatize the way in which the unification of Italy had been accomplished. Today there are stable international relations between the Holy See, as an independent entity enjoying international personality,10 and what was before the Kingdom of Italy and is now, as a result of the referendum of 2 June 1946, the Republic of Italy. Its Constitution, which entered into force on 1 January 1948, solemnly proclaims, in Article 7, the principle according to which the relations between the Church and the State are governed by agreements and, further, that any such agreement may be amended only by the consent of the two parties. Conversely, a unilateral modification of the agreed rules would require a constitutional amendment. Article 7 thus provides a constitutional umbrella for the Lateran Pacts, which were already in force between the two parties in 1948, and for any subsequent consensual revisions thereof (such as those embodied in the Agreement to Amend the 1929 Lateran Concordat, with Additional Protocol, done at Rome on 18 February 1984, with the exchange of ratifications on 3 June 1985).11 The international character of these agreements is implicitly recognized also by the opening paragraph of the same constitutional

8 Pursuant to Canon 361, in the Code of Canon law the term Apostolic See or Holy See ‘refers not only to the Roman Pontiff but also to the Secretariat of State, the Council for the Public Affairs of the Church, and other institutes of the Roman Curia, unless it is otherwise apparent from the nature of the matter or the context of the words’. 9 An English translation of the Lateran Pacts is electronically available at . 10 In favour of the Catholic Church’s international personality see, conclusively, Arangio-Ruiz, ‘L’Etat dans le sens du droit international et la notion du droit international’, 26 ÖZöR (1975), 3–63 and 265–406, at 39–44; Id., ‘On the Nature of the Legal Personality of the Holy See’, 29 RBDI (1996), 354–69. 11 For an English translation of the Agreement and the Additional Protocol, see ‘Italy-The Holy See: Agreement to Amend the 1929 Lateran Concordat’, 24 ILM (1985), 1589–97. As noted by Ragazzi in his Introductory Note to this English translation, the Agreement of revision, ‘concluded between two sovereign-independent entities, is an international agreement and the Italian law (No. 121 of March 25, 1985) authorizing the ratification of this agreement was approved by a wide majority of the Italian Parliament’ (ibid., 1589).

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provision, according to which ‘Church and State are, each in its own order, sovereign and independent’. In actual fact, evidence of the Holy See taking part in international relations as an international person is bulky: it exercises the right of active and passive legation, enjoys sovereign and diplomatic immunities, resorts to a sort of diplomatic protection of its faithful that is independent of citizenship and tends to cover human beings at large. What matters most, the Holy See has maintained these prerogatives even through the decades (1870–1929) during which it had lost any territorial domain. Moreover, through the Holy See, the Catholic Church still makes full use of its capacity to conclude treaties by participating in many international conferences and in various international organizations. It also attends proceedings of United Nations bodies and, in so doing, enjoys the status of a governmental observer.12 In the Church internal affairs, judicial activities are of a considerable size, with cases being submitted to the Rota from all over the world (1,700 between 1991 and 2002, 150 among them concerning due process and the right to a fair trial and most of them coming from the United States).13 Italian practice is fully consistent with the pattern of relations regarding the Holy See that has just been described. This is also the case of judicial practice, which consistently refers to the Catholic Church as a foreign Power from the point of view of the Italian legal system. Some judgments by the Italian Court of Cassation are clear evidence of this.14 Even more revealing, in this sense, is treaty practice. Already the Treaty that opens the Lateran Pacts includes recurring references to international law.15 The very content of that Treaty also provides deci12 The Holy See has been a Permanent Observer State at the United Nations since 1964. On 1 July 2004, the General Assembly adopted, by consensus, a resolution expanding the participation of the Holy See in its work and in United Nations international conferences: A/RES/58/314, electronically available at . 13 See Lobell, ‘Note per una valutazione canonistica della sentenza pronunciata dalla Corte Europea in data 20.7.2001 (Pellegrini c. Italia)’, Il principio del contraddittorio tra l’ordinamento della Chiesa e gli ordinamenti statali (2003), 21–140, at 24–6. 14 See, for example, Judgment No. 1824 of 13 February 1993, where the Holy See is characterized as enjoying ‘legal personality of international law comparable to that of sovereign States’, Foro italiano (1994), i, 537. 15 Article 7(2): ‘In accordance with the provisions of International Law, it shall be forbidden for aircraft of any kind whatsoever to fly over Vatican territory’; Article 9: ‘In accordance with the provisions of International Law, all persons having a permanent residence within the Vatican City shall be subject to the sovereignty of the Holy See’; Article 12: ‘Italy recognizes the right of the Holy See to passive and active Legation, according to the general rules of International Law’, while officials accredited by foreign governments to the Holy See shall not only continue to enjoy in Italy ‘all the prerogatives of immunity enjoyed by diplomatic agents under International Law’, but may also expect for their headquarters in Italian territory ‘the immunity due to them under International Law, even in the event of their State not having diplomatic relations with Italy’ (emphasis added); conversely, ‘the diplomats accredited by the Holy See and the diplomatic couriers dispatched in the name of the Supreme Pontiff, shall enjoy within Italian territory, even in time of war, the same treatment as that enjoyed by diplomatic personages and couriers of other for-

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sive evidence that the relations between the State and the Holy See are international legal relations. Articles 17 (tax exemptions) and 19 (passports accompanied by visa issued by Papal representatives abroad) are worth mentioning in this respect, together with Article 20 on the transit over the Italian territory, ‘free of payment of any customs or octroi dues’, of goods arriving from abroad for destinations within the Vatican City, or outside its boundaries for institutions or offices of the Holy See. Not to speak of the neutralized status of the Vatican City under Article 24, or of judicial cooperation in criminal matters pursuant to Article 22, requiring the handing-over of persons charged with the commission of a criminal act in the Italian territory, and present in the Vatican City, only if the act in question is regarded as a crime under the laws of both Parties. Last but not least, Article 23 reads as follows: The relevant norms of international law shall apply to the execution, within the Kingdom of Italy, of the judgments pronounced by the tribunals of the Vatican City. All the judgments and measures emanating from ecclesiastical authorities and officially communicated to the civil authorities, regarding ecclesiastical or religious persons and concerning spiritual or disciplinary matters, shall have full legal force, even for all civil purposes in Italy.

Hence ecclesiastical judgments are included among such measures, but only when they concern spiritual or disciplinary matters involving ecclesiastical or religious persons, not matrimonial matters. Judgments on these maters are subject instead to the Concordat. 3. Registration and Execution of Foreign Judgments In the Lateran Pacts, only the Concordat governed the relations between Church and State concerning, among other aspects deemed to pertain to the condition of religion and the Church in Italy,16 the registration and execution of ecclesiastical judgments on ‘Concordat marriages’ (matrimoni concordatari ). The obligation of Italy to register and execute such judgments was then complementary to the exclusive jurisdiction of Church tribunals administering canon law on the validity of acts of marriage: jurisdiction on nullity included.17 Any matter concerning the relations ensuing from such acts was left instead for the

eign Governments, according to the provisions of International Law’; and Article 15: the areas reserved to the Holy See within the Italian territory ‘shall enjoy the immunity granted by International Law to the headquarters of the diplomatic agents of foreign States’. 16 Spiritual assistance to the military, to detainees and people in hospitals; Catholic schools and universities; religious education in public schools; ecclesiastical property and corporations; etc. 17 See Article 34 of the Concordat before its revision.

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State courts to adjudicate. This was specifically the case regarding separation (in those days divorce was not allowed in Italy). In 1984, the Concordat was amended. As divorce was now allowed, the State felt it necessary to have it applied also to matrimoni concordatari as far as their civil effects were concerned. As a result, the Agreement amending the Concordat—and its implementing legislation—turned the formerly exclusive ecclesiastical jurisdiction on the validity or not of those marriages into merely concurrent jurisdiction vis-à-vis the Italian courts. The latter are now empowered to declare matrimoni concordatari null and void ex tunc.18 These courts may also ‘put an end to the civil effects of marriage’, according to the formula used in divorce cases affecting matrimoni concordatari. This, however, is something a Church tribunal would never do, in consideration of the constant Catholic teaching on indissolubility as a natural element or essential property of marriage.19 Regarding the decision in the Pellegrini case, what is relevant for the purposes of this essay is that, as in the past, the Italian legal system still treats the jurisdiction of Church tribunals (whether exclusive or not)20 like that of a foreign Power. It may be activated by both or either of the two spouses. In turn, within the same system, any interested party may claim civil effects for a Church judgment establishing the validity or nullity of a matrimonio concordatario. As before the amending Agreement of 1984, the competence to register and execute such a judgment is vested in the Italian court of appeals of the place where the ecclesiastical tribunal having delivered a final judgment on any such issue sits. By providing for such a procedure the Concordat, and the Agreement of 1984 as well, are reminiscent of the long Italian tradition to have exequatur proceedings of foreign judgments reserved to courts of appeals, rather than left to courts of first instance.21 At the same time, these proceedings give evidence of the fact that, in the Italian legal system, Catholic Church judgments are basically treated in the same way as foreign judgments. As was seen before, up to 1995 the procedure for the registration and execution of Church and foreign judgments at large was basically the same, applications for registration and execution having to be brought before courts of appeals. The ground for such a procedure is found, for Church matrimonial judgments, in Article 8 of the Agreement revising the Concordat, and, for foreign judgments in general, in the conventions on jurisdiction and/or registra-

18 See the judgment by the Padua Tribunal, dated 7 January 1995, reported in 106 Diritto ecclesiatico (1995), 497–508. 19 Canon 1056 of the Code of Canon law reads as follows: ‘The essential properties of marriage are unity and indissolubility, which in Christian marriage obtain a special firmness by reason of the sacrament’. 20 See, for example, the judgment of the first section of the Court of Cassation, No. 251 of 3 February 1971, reported in Giustizia civile (1971), i, 385–8. 21 The reason for this peculiar feature of Italian civil procedure (underlying also Article 34 of the Concordat before its revision) is that foreign judicial decisions, and Church judicial decisions among them, are already judgments: open, as such, to review, not to double process.

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tion of judicial decisions (possibly replaced by European regulations as between members of the European Union) or in Italian norms of general scope and application. At the time that Agreement entered into force in 1985, these rules, namely the provisions governing judicial recognition (delibazione) of foreign judgments by the courts of appeal, were embodied in Articles 796 to 799 of the Italian Code of civil procedure. The tight anchorage of the revised regime to these provisions emerges from both the Additional Protocol to the 1984 Agreement between Italy and the Holy See, and an authoritative judicial pronouncement. Paragraph 4(b) of the Additional Protocol, in relation to Article 8 of the Agreement, reads: With reference to Paragraph (2), in view of the application of Articles 796 and 797 of the Italian Code of Civil Procedure, the specificity of the canon legal system, that governs the bond of matrimony which had its origin therein, shall be taken into account.22 (Emphasis added.)

On the other hand, it had been for the Italian Constitutional Court to draw the most stringent parallel between Church judgments and foreign judgments from the point of view of the Italian legal system. The question put before the Court concerned Article 17(2) of the statute that had incorporated the Concordat into Italian law. The Court held that article to be unconstitutional in that it did not spell out, for the registration and execution of Church judgments, the conditions pertaining to the right to a fair trial and public policy under Article 797 of the Code of civil procedure. According to the Constitutional Court, Article 12 thus ‘missed two basic needs that registration and execution proceedings should satisfy before opening the doors of our legal system to judgments rendered by judicial authorities foreign to it’.23 (Emphasis added.) According to Article 2 of the law reforming the Italian system of private international law,24 rules of international conventional origin take precedence over any other provision of that same law. The Lateran Pacts and subsequent revisions would thus prevail. In principle, ecclesiastical judgments enjoy automatic recognition under Article 23 of the Lateran Treaty but, as it was already stressed, judgments on the validity or not of acts of marriage still need registration and execution by the Italian courts of appeal. Foreign State judgments and Church judgments meet again, at any rate, after the 1984 revision of the Concordat (and also after the 1995 revision of 22 The provision in question further reads: ‘In particular: (1) it shall be taken into consideration that the references made by Italian law to the place where the judicial proceedings have taken place shall be understood as relating to canon law; (2) final judgment shall be considered to be a judgment that is enforceable according to canon law; (3) it is understood that, in any case, the merits shall not be re-examined’. 23 See Constitutional Court Judgment No. 16 of 2 February 1982, the text of which is electronically available at . 24 Law No. 218 of 31 May 1995. For the text and a commentary on the law (by several authors), see ‘Riforma del sistema italiano di diritto internazionale privato. Legge 31 maggio 1995 N. 218. Commentario’, 31 Rivista di diritto internazionale privato e processuale (1995), 905–1279.

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the Italian system of private international law), in that the Italian State is entitled, and its courts of appeal bound, to refuse registration and execution25 of both foreign and Church judgments whenever the right to a fair trial has been transgressed in the proceedings. This similarity is helpful in assessing the precedential authority of the Pellegrini decision, irrespective of any consideration of its merits. It actually proves that the Concordat subjects registration and execution of Church judgments to exactly the same requirements as those applicable to foreign judgments. In turn, by envisaging non-recognition of judgments as a means to ensure the right to a fair trial, the Italian State proves to have been fully aware in the 1980s, when negotiating the amendments to the 1929 Concordat, of the need to secure those rights to anybody under its jurisdiction, and to do so to comply with the European Convention and with its own Constitution as well.26 In the 1990s, the perception of the same need led the Italian Parliament to bar recognition of foreign judicial decisions where the right to a fair trial had been violated (Articles 64 to 66 of the law reforming the system of private international law). From this angle, foreign decisions (be they from foreign States or from the Catholic Church as a foreign independent Power) end up receiving a similar treatment. 4. Treaty Relations and International Responsibility Lastly, what is the connection, if any, between the Pellegrini decision and the general law of international responsibility? This body of law was codified by the International Law Commission in its draft articles, which were considered by the General Assembly of the United Nations in 2001.27 Under the rules reflected in these draft articles, the special treaty relations between the Holy See and Italy do not affect the potential weight of that judgment as a precedent, at least not in the sense of denying it precedential value whatsoever. In the law of international responsibility, treaty relations may be relevant in indicating which States, other than the directly injured State, are entitled to invoke the responsibility of another State.28 But a treaty, in my view, cannot have the effect that the Lords of Appeal seem to suggest, in the Barnette decision: namely that of raising the standards of com25

For foreign States’ judgments, see Articles 64 to 67 of Law No. 218. See Article 24 of the Italian Constitution, as applied by the Constitutional Court Judgment No. 16 of 1982, and now supplemented by the new text of Article 111 of the Constitution. 27 See ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 28 Draft Article 48 reads, in part, as follows: ‘1. Any State other than an injured State is entitled to invoke the responsibility of another State . . . if: (a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group’. 26

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pliance with the obligations imposed on one of the parties by other treaties in force with other States. In the Pellegrini judgment, the European Court assessed the behaviour of Italy according to the standards provided for in the European Convention and the ensuing practice, and not according to the Agreement revising the Concordat between Italy and the Holy See. It was rather for the European Convention to have an indirect impact on the implementation of the Agreement, not vice versa.

5. A Lasting Lesson Some underlying features of the international legal system have therefore been brought to the forefront in the Pellegrini decision. Firstly, pacta tertiis neque nocent neque prosunt: treaty relations between Italy and the Holy See may not have had an impact on the standards to be complied with in implementing Article 6 of the European Convention. Secondly, the only requirement on the basis of which international subjects enjoy legal personality is their independence. This is one of the lasting lessons given by a prominent Italian scholar, Gaetano Arangio-Ruiz.29 This lesson holds true whatever the material sources and collective motivations lying at the roots of that independence. After all, in spite of their sharp differences as factual entities, the Holy See and the United States ( just to make an example) are not legally different subjects in international law. The judicial activities of, or pertaining to, the Catholic Church are therefore as much relevant to international practice as those concerning any other subject of international law. Likewise, the Concordat does not confer a special international status on the Church; it is, rather, a mere manifestation of the independence and international subjectivity of the Holy See. The Pellegrini decision implicitly reaffirms this important truth. It is thus as solid a precedent (for parties and non-parties to the European Convention) as any other belonging to the European Court’s case-law.

29

See the references at footnote 10, above.

CHAPTER TWENTY-SIX

DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE AND THE NEW LAW OF STATE RESPONSIBILITY Shabtai Rosenne

1. Introduction The purpose of this essay, dedicated to the memory of my friend of long standing, Oscar Schachter, is to draw attention to what may become a central feature of the impact on the decisions of the International Court of Justice of the new law of State responsibility. The draft articles on the international responsibility of States for internationally wrongful acts adopted by the International Law Commission in 2001 embody that new statement of the law.1 The governing provision on the obligation of compliance with decisions of the International Court is Article 94(1) of the Charter of the United Nations, which reads: ‘Each Member of the United Nations undertakes to comply with the decision [“s’engage à se conformer à la décision”] of the International Court of Justice in any case to which it is a party’. This is extended by other arrangements to all States appearing before the Court in a contentious case, except perhaps that curiosity, the non-party intervener. It will not escape the reader that Article 94(1) is couched in very broad language. The undertaking to comply with the decision of the Court is very general. To whom is it addressed? To the other party or parties to the case? To the other members of the United Nations or, more fully, to the other States that are party to the Statute under Article 93(2) of the Charter? Or even to the United Nations itself ? Article 59

1 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), Chapter IV, reproduced in Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), also available in French: Crawford, Les articles de la C.D.I. sur la responsabilité de l’Etat. Introduction, texte et commentaires (2003). Those articles refer only to the international responsibility of a State, and not of any other entity that is an actor on the international plane. The Commission has currently under study international responsibility of international intergovernmental organizations. On compliance with decisions of the International Court, see in particular Azar, L’Exécution des décisions de la Cour internationale de Justice (2003); Paulson, ‘Compliance with Final Judgments of the International Court of Justice since 1957’, 98 AJIL (2004), 434–61.

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of the Court’s Statute (annexed to the Charter) has to be added to this. By that provision, ‘[t]he decision of the Court has no binding force except between the parties and in respect of that particular case’. By the Statute, the final and binding quality of a judgment is relative. Article 60, after laying down that the judgment is final and without appeal, goes on to provide that, in the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.2 Anticipating the possibility that the implementation of the decision may encounter unexpected obstacles, the very provision that lays down that the judgment is final and without appeal goes on to accept that this finality and unappealableness can be subject to further judicial consideration. Article 61 immediately follows this and provides for the revision of a judgment in the circumstances there laid down. That procedure is available for a period of ten years from the date of the judgment.3 The new approach to responsibility adopted by the International Law Commission replaces the traditional notions of fault and damage with a concept of absolute responsibility arising from any breach of an international obligation of the responsible State. This includes deliberate non-compliance with such a rule. Chapter I (Articles 1 and 2) of those draft articles formulates this approach, as follows: Article 1 Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that State. Article 2 Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State.

2 For examples, see, in the Permanent Court of International Justice, Interpretation of Judgment No. 3, Judgment No. 4, 1925, PCIJ, Series A, No. 4 (Chamber of Summary Procedure) and, in the International Court of Justice, Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, Judgment, ICJ Reports 1950, 395; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, ICJ Reports 1985, 192; Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, ICJ Reports 1999, 31. 3 For examples, see Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, ICJ Reports 1985, 192; Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, ICJ Reports 2003, 7; Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (El Salvador v. Honduras), Judgment, ICJ Reports 2003, 392 (before a Chamber).

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Those articles express the essence of what is hoped will be accepted as the modern law of the international responsibility of States, based on the objective criterion that the act (or omission) of a State per se constitutes an internationally wrongful act if it is a breach of an international obligation of that State. At the time of writing, however, there is no certainty that this concept of absolute responsibility, independent of fault and of damage caused by the act (or omission), will be accepted as today’s lex lata. The Commission’s 2001 report omits the customary phrase that its work on the topic constitutes both codification and progressive development of international law in the sense in which those words are defined in Article 15 of the Commission’s statute. The Commission recommended that in due course the General Assembly consider convening a diplomatic conference to examine the matter. The General Assembly accepted that recommendation. In resolution 56/83, 12 December 2001, adopted without a vote, it commended the articles, which were annexed to the resolution, to the attention of Governments ‘without prejudice to their future adoption or other appropriate action’. A debate on the topic took place at the fifty-ninth session of the General Assembly in 2004. It showed little enthusiasm for further action in a conference of plenipotentiaries.4 However, should such a conference be convened, it will also have to consider whether a system of compulsory settlement of disputes is to be included in any final text that it adopts.5 Whatever the future of the draft articles, with or without change, there is no doubt that the concept of absolute responsibility, at all events for certain types of unlawful acts, is now implanted in international law. Whatever the attitude of Governments—and in the final resort only a widely accepted international convention, State practice, or judicial decisions, can consolidate this new conception of international responsibility—it is certain that this approach will enjoy powerful backing from the most qualified publicists of the various nations (in the words of Article 38(1)(d ) of the Statute of the International Court).6 For that reason, this essay will examine the relation that can exist between compliance or non-compliance with a binding decision of the International Court and those draft articles as they were adopted in 2001.

4

On 2 December 2004, the General Assembly commended the articles on State responsibility to the attention of governments ‘without prejudice to the question of their future adoption or other appropriate action’, and decided to include this item in the provisional agenda of its 62nd Session in 2007. (A/RES/59/35.) 5 In that connection it might be noted that, when this question was discussed in the 1930 Codification Conference of the League of Nations, the Third Committee (responsibility of States for damage done in their territory to the persons or property of foreigners) in its draft report seemed to recognize the importance of judicial settlement of disputes in claims of that type. League of Nations, Doc.C.351(c).M.145(c).1930.V., reproduced in Rosenne (ed.), League of Nations Conference for the Codification of International Law (1930) (1975), iv, 1660. 6 See, for instance, Meron, ‘International Law in the Age of Human Rights. General Course on Public International Law’, 301 RdC (2003), 9–490, at 249.

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2. Compliance with Court Decisions By Article 12, a breach of an international obligation occurs when an act of the State is not in conformity with what is required of it by that obligation, regardless of its [the obligation’s] origin or character. Paragraph (3) of the Commentary on Article 12 specifically mentions a judgment of the Court or of some other tribunal as such an obligation. The time from which a decision of the Court is binding is not clearly set out in the governing texts. This could be a matter of significance since, by Article 13 of the draft articles, for an act to be internationally wrongful, the State concerned must have been bound by the international obligation in question at the time the act occurs. Article 94(1) of the Rules of Court requires notice to be given to the parties of the date of the reading of the judgment. By paragraph 2 of that article, a judgment has to be read at a public session of the Court ‘and shall become binding on the parties on the day of the reading’. Although not specifically laid down, we can presume that the same practice applies to orders indicating provisional measures (not necessarily to orders dismissing such requests). Clearly, the assumption is that the notification to the parties of the date of the reading of the decision (a process that might take an hour or more) is sufficient to give the decision binding force as between the parties. This notwithstanding, it would appear that reasonable allowance must be made for the full text of the decision to reach each of the capitals during working hours in order to determine the terminus a quo it becomes binding, and when the process of compliance should commence.7 The time at which the decision becomes binding is not necessarily the same as the time from which it can be established that a party is not acting in compliance with its obligations under the decision, so as to bring the law of responsibility into play. That is clearly a question of fact and of appreciation. While it could be said that Albania was not acting in accordance with the final judgment in the Corfu Channel case so long as it had not made any serious attempt to pay the sum awarded to the United Kingdom or at least part of it, the United Kingdom took no serious action to secure payment of the judgment debt until the general relations between the two countries made it possible to reach a mutual settlement of all outstanding claims and counter-claims.8 The 7 For my observations on the requirement of the Rules and the imprecision of the term ‘day’, see Rosenne, Provisional Measures in International Law: the International Court of Justice and the International Tribunal for the Law of the Sea (2005), 153. For an interpretation of a special agreement in light of Article 94 and the relevant provisions of the Statute and Rules, see Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, 18, at 39, para. 29. In a piece of circular reasoning, the Court said that the judgment to be given ‘will have . . . the effect and the force attributed to it under Article 94 of the Charter . . . and the said provisions of the Statute and Rules of the Court’. However, the substantive question today is: what is that effect and force? If the non-compliance is continuing, it would come within the scope of Article 14 of the draft articles, on the extension in time of the breach of an international obligation. 8 For the final settlement of this claim on 8 May 1992, by way of set-off against an Albanian

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Court has held that, in a case of alleged non-compliance with an order indicating provisional measures of protection (as in other cases), it is the litigant who is seeking to establish a fact who bears the burden of proving it and, where evidence may not be forthcoming, a submission may be rejected as unproved.9 The decisions of the International Court relevant to this essay fall into three categories: (1) decisions, usually in the form of an order made under Article 48 of the Statute, relating to the organization of the proceedings; (2) decisions, which may be in the form of an order or a judgment (creating a res judicata) dealing with different interlocutory or derivative matters, such as an indication of provisional measures of protection under Article 41 of the Statute,10 or with the Court’s jurisdiction under Article 36(6), or on the admissibility of a request for the revision of a judgment under Article 61, or on a request for permission to intervene under Article 63 of the Statute, and on the admissibility of a counter-claim under Article 80 of the Rules of Court (as revised in 2000); and (3) the decision on the merits of the claim brought before the Court, including a subsidiary decision determining the reparation due in an appropriate case.11 Of these decisions, only those indicating provisional measures of protection and final judgments on the merits (including the determination of claim against the United Kingdom, see Marston (ed.), ‘United Kingdom Materials on International Law 1992’, 63 BYIL (1992), 615–841, at 781. The United Kingdom, as a member of the Tripartite Commission on the Restitution of Monetary Gold under the Final Act of the Paris Conference on Reparations of 1946, retained in a vault in London a quantity of Monetary Gold, to which Albania had a claim. The final settlement required the consent of the other States members of the Tripartite Commission, France and the United States of America. Both Albania and Italy had independent claims to that gold, while the claim of the United Kingdom was against Albania’s share (if any) of that gold. Before the final settlement of the Corfu Channel case, there had been one arbitration and one judgment of the International Court of Justice dealing with those claims, an indication of possible complications in what would superficially appear as a simple case of non-compliance with a decision. On Albania’s claim to a portion of that gold, see the Gold belonging to the National Bank of Albania arbitration, RIAA, xii, 35 (SauserHall, arbitrator, 20 February 1953), and, in the International Court, see Monetary Gold Removed from Rome in 1943, Judgment, ICJ Reports 1954, 19. In the Wimbledon case (S.S. “Wimbledon”, Judgments, 1923, PCIJ, Series A, No. 1), Germany was required to pay a sum of money to France. However, the Reparations Commission, of which France was a member, forbad that payment, which was never made. Germany was not in default on that judgment, or, if it was, the case came within the concept of circumstances precluding wrongfulness. 9 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening), Judgment, Merits, ICJ Reports 2002, 303, at 453, para. 321. 10 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466; confirmed in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening), Judgment, Merits, see previous note, para. 321. That settled a controversy that had raged since the establishment of the Permanent Court, whether an indication of provisional measures created binding obligations for the parties. 11 Since the establishment of the Permanent Court of International Justice in 1921, two judgments have awarded a liquidated sum of money to the applicant: the Wimbledon case and the Corfu Channel case (Assessment of Amount of Compensation, Judgment, ICJ Reports 1949, 244). As was seen in footnote 8, above, in both cases there were difficulties over payment, and the judgment creditor was a member of the competent international organ which had to authorize the payment out of relevant funds.

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reparation due) create obligations on the judgment debtor and are considered here. The scope of all other decisions, whatever their form, is limited to the constitution and organization of the proceedings and does not go beyond that. Consequently, there are two forms of decision that have an effect going beyond the organization of the proceedings and related matters and for which an obligation of compliance can arise—a decision indicating (in the words of the Statute) provisional measures of protection and a judgment on the merits including a derivative decision determining the reparation due in the circumstances. An indication of provisional measures has a built-in clausula rebus sic stantibus, emphasized by the statement, now common in those orders, that the Court remains seised of the matter. What is meant by ‘comply’ and ‘compliance’ with a decision? This is not as simple as it looks. Based on the Oxford English Dictionary, compliance implies acting in accordance with a direction, in specie acting in accordance with what is required under the decision of the Court. Paulson goes further, and for the purpose of his article, compliance with ICJ final judgments consists of acceptance of the judgment as final and reasonable performance in good faith of any binding obligation. Compliance in good faith includes a duty to give effect to the judgment with a view to avoiding its superficial implementation or otherwise circumventing it.12

However, that must be taken with care. Although a judgment is final and binding (on both parties), often some measure of mutual agreement (or acquiescence) as to the method of compliance will be required, that agreement linking compliance with the decision to the initial agreement to have recourse to the Court. In this respect, there is nothing to prevent the parties from agreeing to settle the dispute otherwise than what is laid down in the binding judgment. The Maritime Delimitation in the Area between Greenland and Jan Mayen case furnishes a striking illustration of this.13 In that judgment, the Court decided how the delimitation line was to be drawn and ‘for the information of the parties’ included in paragraph 93 the co-ordinates of the various points mentioned in the judgment. The final and binding judgment constituted the point of departure for further negotiations between the parties leading to a formal agreement on the delimitation line, different from that calculated by the Court.14 That agreement finally settled the dispute. This illustrates the impossibility of treating all judgments as automatically laying down the conduct of the States concerned without further ado. Compliance must refer to action in which both parties concur, in that way settling the dispute. This in turn calls for care before applying the abstract law of State responsibility as set out in the draft articles. 12 13 14

Paulson, ‘Compliance’, 454. ICJ Reports 1993, 38. Agreement of 18 December 1995, 31 Law of the Sea Bulletin (1996), 59.

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Against that background, the question arises: what is binding in a decision of the International Court, whether an order indicating provisional measures or a judgment on the merits? Article 95 of the Rules lays down what a judgment should contain. This includes a statement of the facts, the reasons in point of law, and the operative provisions (dispositif ) of the judgment. There is thus a differentiation between the reasons in point of law and the operative provisions of a judgment. While the reasons may well set out the conditions of international legality that should exist in the relations between the parties, as such they do not directly call for further action, although failure of a State to conduct itself in accordance with the authoritative statement of the law in a judgment creating a res judicata may give rise to an instance of international responsibility. The dispositif is the executory part of the judgment, if compliance with it requires some action or inaction. The dispositif states in peremptory language what (if anything) each party is required to do, how it is to act, so that the obligation of compliance prescribed in Article 94 of the Charter relates essentially to the actions required by the dispositif. As has been recently explained: ‘The obligation to comply with a decision relates to the operative part of the decision. The reasons which point out the ratio decidendi support, explain, and interpret the operative part of the decision and are, to that extent, part of the decision’.15 In the words of the Court, the reasons ‘constitute the necessary steps to the dispositif ’.16 Although there are no positive texts regulating the matter when what is involved is an order indicating provisional measures of protection, it is assumed, in the absence of further decision, that the same principles apply. 3. Obligation of Compliance and Invocation of State Responsibility It is here that the draft articles on the responsibility of States for internationally wrongful acts may have introduced major complications. The principal questions relating to the obligations of compliance arise today out of the structure of the International Law Commission’s articles, in particular Part Three, Chapter I, Articles 42 to 48, on the invocation of the responsibility of a State. While the dispute as brought before the Court may be a bilateral one, that does not necessarily mean that the judgment is without consequence for other States, apart from the possible impact of Article 94(1) of the Charter. If the case is a dispute over the interpretation and application of a multilateral treaty, and leaving aside the entitlement of any third State a party to that treaty to intervene under Article 63 of the Statute, the Court has made it plain that its 15

Simma (ed.), The Charter of the United Nations. A Commentary (2nd edn., 2002), 1175 (commentary by Mosler and Oellers-Frahm). 16 Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/Malaysia), Application of the Philippines for Permission to Intervene, Judgment, ICJ Reports 2001, 575, at 596, para. 47.

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interpretation of a provision in a multilateral treaty in a bilateral dispute without any intervention creates an obligation on one of the parties to the case, yet at the same time ‘there can be no question of applying an a contrario interpretation to that paragraph’.17 The problem arises out of Articles 42 and 48 of the draft articles. Article 42, entitled ‘Invocation of responsibility by an injured State’, includes as an injured State entitled to invoke the responsibility of another State not only the individual State directly harmed by the violation, but also a group of States, including that State, or the international community as a whole, if the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the States or all the other States to which the obligation is owed with respect to the further performance of that obligation. Article 48 on the ‘Invocation of responsibility by a State other than an injured State’ completes that provision. It allows any State other than an injured State to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. By paragraph 2: Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) Cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) Performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.

The expression ‘the international community as a whole’ is not a term of art. Apparently, it is designed to embrace two by no means identical types of international obligation: an obligation arising out of a jus cogens norm; and an obligation arising out of a rule that is addressed erga omnes to all States, but which is not itself a norm of jus cogens such as was encountered in the LaGrand and Avena cases. It appears several times in the draft articles, in Article 25(1) on necessity as a circumstance precluding wrongfulness, in Article 33 on the scope of international obligations set out in Part One on the internationally wrongful act of a State, in Article 42(b) on the invocation of responsibility by an injured State and in article 48(1)(b) on the invocation of responsibility by a State other than the injured State. It owes its origin to the Court’s much quoted obiter dictum in the Barcelona Traction case (assuming that an obiter dictum is possible in a judgment of the International Court):

17 Declaration of President Guillaume in LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at 517; repeated by the Court in Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12, at 69, para. 151.

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[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.18

The Court went on to explain that such obligations derive for example in contemporary international law from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. ‘Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character’.19 Since that case, the Court has added the right of peoples to self-determination to that list of obligations erga omnes.20 The expression ‘international community as a whole’ differs significantly from the language of Article 53 of the Vienna Convention on the Law of Treaties21 on jus cogens. After difficult negotiations, the Vienna Conference on the Law of Treaties accepted the expression ‘the international community of States as a whole’. It is not clear why the Court, in ‘nailing down’ something which some judges thought required ‘nailing down’ in the Barcelona Traction judgment, departed from the carefully negotiated language of the Vienna Convention, and thereby instead of nailing anything down only served to increase unnecessary confusion. The Commission gave a rather lame explanation for this in paragraph (18) of the Commentary on Article 25, begging the question by basing itself on the dictum of the Court in Barcelona Traction and its use in a number of treaties. 18 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3, at 32, para. 33. That passage was not essential to the Court’s reasoning, and it has been authoritatively stated that the passage ‘was not necessary in the judgment, but it was a good opportunity to nail down certain provisions of the law and to indicate where states are obliged to act vis-à-vis the international community as a whole’. ( Judge Lachs, who was a member of the Court in 1970, quoted in Shahabuddeen, Precedent in the World Court (1996), 159.) On the background and circumstances of the Court’s obiter dictum, see Ragazzi, The Concept of International Obligations Erga Omnes (1997), 7–12. It is not within the Court’s functions to ‘nail down’ propositions of law, and certainly not in a passage that was unnecessary in a judgment. The passage itself is confused, and its confusion has led to endless difficulties since. The expression ‘the entire international community’ was also used by the Court in United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3, at 43, para. 92, cited by the International Law Commission in para. (9) of its Commentary on draft Article 42. ‘Legal interest’ in that sense is not necessarily the same as locus standi in judicio. See further Mbaye, ‘L’intérêt pour agir devant la Cour internationale de Justice’, 209 RdC (1988), 223–346, at 231. 19 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3, at 32, para. 34; and see para. 35 for limits on the extent of diplomatic protection in relation to the performance of such obligations. 20 East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, 90, at 102, para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 156, . 21 1155 UNTS 331.

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Those provisions also have to be read in conjunction with Article 60 of the Convention on the Law of Treaties, with which they do not entirely coincide. Article 60, on breach of treaty, only deals with what it terms a ‘material breach’, the more general questions of the international responsibility of a State being reserved by Article 75.22 For the purposes of this essay, it is assumed that deliberate refusal of a party to comply with a decision of the International Court (if proved) would be a material breach of Article 94 of the Charter as well as of any other relevant treaty or treaties, since deliberate non-compliance would strike at the major object and purpose both of Article 94 and of any treaty conferring jurisdiction on the Court in respect of that particular dispute. Article 60 of the Convention on the Law of Treaties reads: (1) A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. (2) A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State, or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. (3) A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object and purpose of the treaty. (4) The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. (5) Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

22

Rosenne, Breach of Treaty (1983).

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The real seat of the potential difficulties is found in Article 42, paragraph (b)(ii), and in Article 48, paragraph 1(b), of the Commission’s draft articles. They raise the question whether any State other than the parties to the judgment in question have any cause of action in the event that non-compliance with the terms of the judgment is established. However, at this stage, and before the question of the settlement of disputes arising out of the Commission’s draft articles is resolved, any attempt to answer those questions would be purely speculative. It is accordingly sufficient here to draw attention to this matter. In addition to that, Part One, Chapter V (Articles 20 to 27), sets out at length the circumstances precluding wrongfulness, and they would be applicable in any case of alleged non-compliance with a decision of the Court. It is more productive to look at the position of the other party in a straight instance of bilateral litigation. Here there is a difference between a claim arising from non-compliance with an indication of provisional measures, and a claim arising from non-compliance with a judgment on the merits. In a claim arising out of non-compliance with provisional measures, the first requirement is that the Court’s jurisdiction over the merits is fully established. Very frequently, the Court indicates provisional measures after finding that it has prima facie jurisdiction over the merits—a provisional finding requiring confirmation in the merits phase.23 In LaGrand, the Court first explained that, where it has jurisdiction to decide a case, it also has jurisdiction to deal with submissions requesting it to determine that an order indicating measures which seeks to preserve the rights of the parties to the dispute had not been complied with and the applicant was entitled to challenge the alleged failure of the respondent to comply with the order.24 After it had established that it had jurisdiction over the case and that the indication of provisional measures was ‘not a mere exhortation’, the Court went on to say very specifically: ‘The Order was consequently binding in character and created a legal obligation for the United States’.25 From this it follows that, if the State considers that it has been injured by the other State’s failure to comply with the order on provisional measures, it may in the next appropriate pleading, whether written or oral, include an appropriate submission. That would not lead to a change in the nature of the case. In LaGrand the Court included in the dispositif of its judgment a finding that the respondent had ‘breached the obligation incumbent upon it’ under the provisional measures order.26

23

Rosenne, Provisional Measures, 85. LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at 484 (para. 45), 487 (para. 56). For the provisional measures Order in that case, see ICJ Reports 1999, 9. 25 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at 506, para. 110. 26 Ibid. 516, para. 128(5). 24

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Under the new law of responsibility, non-compliance with a judgment on the merits, if established, could be a cause of action. The subject matter of that case would not be identical with the subject matter of the case in which the relevant judgment was delivered, but would be a new case altogether. Accordingly, possible questions of jurisdiction and admissibility would have to be resolved following the normal procedure. The Court has had experience of dealing with a claim itself relating to another court or tribunal. For example, in the Ambatielos case, which concerned the arbitrability of a dispute, the Court was careful to limit its decisions to that question alone without entering on the merits of the dispute, which later went to arbitration.27 No less to the point is the Arbitral Award of 31 July 1989 case.28 Here the claim concerned the existence and the validity of an arbitral award between the two countries. The request for provisional measures concerned the rights of the parties in the ‘disputed areas’, namely the area of ocean space to which the arbitral award referred. In its decision on the request for provisional measures, reached after the Court had found that it might have prima facie jurisdiction over the merits, the Court found that the request did not relate to the claim before the Court, but to claims in respect of the disputed maritime delimitation, and it therefore dismissed the request for provisional measures. On the merits, it found that the impugned arbitral award was valid and binding on both parties, ‘which have the obligation to apply it’. These cases show that, when the claim relates to something done or to be done by another tribunal, the Court will be careful to limit its actions to the case actually before it, and not prejudice the actions of that other tribunal in another case. I submit that, as the law now stands, the same principle would apply to a claim arising out of non-compliance with a judgment between the two parties. However, if in the future it is decided to include without reservation provisions for the settlement of dispute in the articles on State responsibility for internationally wrongful acts, that could open up new possibilities for judicial control over compliance with final judgments on the merits of a case.

27 Ambatielos, Preliminary Objection, Judgment, ICJ Reports 1952, 28; Ambatielos, Merits, Judgment, ICJ Reports 1953, 10. For the arbitral award, see ‘Award of the Commission of Arbitration Established by the Agreement Concluded on 24th February 1955 between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Greece for the Arbitration of the Ambatielos Claim together with the Annexes to the Award, 6 March, 1951’, RIAA, xii, 91. 28 Arbitral Award of 31 July 1989, Provisional Measures, Order 2 March 1990, ICJ Reports 1990, 64; Arbitral Award of 31 July 1989, Judgment, ICJ Reports 1991, 53. For the arbitral award, see ‘Case Concerning the delimitation of maritime boundary between Guinea-Bissau and Senegal. Decision of 31 July 1989’, RIAA, xx, 119.

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4. Conclusion It is clear that, whatever be the ultimate disposition of the International Law Commission’s draft articles, by bringing compliance with a binding decision of the International Court clearly within the scope of international responsibility they will enhance the general standing of the judicial settlement of international disputes, and perhaps open the way to stronger judicial control over the process of compliance.

CHAPTER TWENTY-SEVEN

INJURED AND NON-INJURED STATES BEFORE THE INTERNATIONAL COURT OF JUSTICE Hugh Thirlway

1. Introduction The purpose of the present brief study (which claims to offer no more than prolegomena) is to consider the implications in the procedure of the International Court of Justice of the distinction in the draft articles on the responsibility of States, adopted by the International Law Commission, in relation to the breach of an international legal obligation, between the ‘injured State’ of Article 42 and the ‘State other than an injured State’ (which we may for convenience reduce to a ‘non-injured State’) of Article 48.1 That distinction of course derives from the concept of international obligations erga omnes, although the Commission, for the reasons explained in the commentary,2 preferred to avoid using that term. The existence of obligations erga omnes in international law is now an article of faith, though what perhaps still has to be demonstrated is its presence in State practice, in the sense of an actual impact of the assertion of such an obligation in a legal dispute, or in a judicial decision, as distinct from an invocation of the concept either without reliance upon it to advance the argument,3 or without significance for the relations of the States concerned. 1 My attention was drawn to these issues by the article of Brown Weiss, ‘Invoking State Responsibility in the Twenty-First Century’, 96 AJIL (2002), 798–816 (published in a Symposium on the Commission’s articles on State responsibility), in particular the section on ‘Standing Before International Tribunals’ at 805–8, an article I found very stimulating even though I differ from some of the views there expressed. 2 Commentary to Article 48, para. (9). (‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10).) 3 Apart from the admitted obiter dictum in Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, 3, at 32 (paras. 33–4), we may note the statement in the East Timor decision that the right of self-determination is a right erga omnes, a statement without effect on the decision or the motivation (East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, 90, at 102 (para. 29)); and the passage devoted to the concept in the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which leads up to little more, in the operative clause, than a duty of non-recognition, and a special conventional

Maurizio Ragazzi (ed.), International Responsibility Today, 311–328. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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Obligations erga omnes were born, we may say, in 1970, with the famous observation in the Barcelona Traction case.4 The only subsequent occasion on which the International Court has been asked to uphold a claim which was essentially a reliance on an obligation erga omnes was in the Nuclear Tests cases in 1974.5 Australia asked the Court for a declaratory judgment to the effect that the pursuit of the French atmospheric nuclear tests in the Pacific ‘is not consistent with applicable rules of international law’.6 In support of this, it asserted that the tests would violate, inter alia, ‘[t]he right of Australia and its people, in common with other States and their peoples, to be free from atmospheric nuclear weapon tests’,7 as well as through ‘interference with ships and aircraft on the high seas and in the superjacent airspace, and the pollution of the high seas by radio-active fall-out’ constituting ‘infringement of the freedom of the high seas’.8 In view of the Court’s well-known finding that the case had become moot as a result of the official statements made on behalf of France, the Court never ruled on these claims; but they were dealt with in the dissenting opinion of Judge de Castro, whose views merit being recalled in the present context. Judge de Castro considered that the Australian claims, insofar as they went beyond the claim of injury to its own territory and population, were both inadmissible in principle, and outside the terms of the jurisdictional instrument (the 1928 General Act): the Applicant is not entitled to ask the Court to declare that atmospheric nuclear tests are unlawful. The Applicant does not have its own material legal interest, still less a right, which has been disputed by the other Party . . . The Court has no jurisdiction to declare that all atmospheric nuclear tests are unlawful . . .9

duty on parties to the Geneva Conventions of 1949. In the latter decision, a dictum in the 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons concerning ‘intransgressible principles’ (whatever they may be), found in conventions and binding on States non-parties thereto (and thus on that basis matters of general customary law, no more), is relied on to show that these also ‘incorporate’ obligations erga omnes (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 157, electronically available at .) 4 See the previous footnote. The weakness of the Barcelona Traction dictum at the time was that so little State practice could be observed that would confirm the existence of any of the obligations mentioned as examples of obligations of an erga omnes nature; and there are formidable theoretical problems in establishing the necessary opinio juris for an obligation of the kind. 5 The question of compliance with alleged obligations erga omnes was raised in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, but as noted above (footnote 3) that advisory opinion has not clarified the matter. 6 Application of Australia, ICJ Pleadings, Nuclear Tests, i, 14–15. Similarly, New Zealand in its Application claimed breaches of a number of ‘rights of all members of the international community, including New Zealand’: ibid., ii, 8. For discussion of the claims of both States, see Ragazzi, The Concept of International Obigations Erga Omnes (1997), 173–81. 7 ICJ Pleadings, Nuclear Tests, i, 14, para. 49(i) (emphasis added). 8 Ibid., 14, para. 49(iii). 9 Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, 253, at 388. In the joint dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, this question is referred to as one which would have had to be determined at the stage of the merits, and as involving a determination whether the asserted rule of law ‘confers a right on

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As regards the claim for infringement of the freedom of the high seas: The Applicant has no legal title authorizing it to act as spokesman for the international community and ask the Court to condemn France’s conduct. The Court cannot go beyond its judicial functions and determine in a general way what France’s duties are with regard to the freedoms of the sea.10

Judge de Castro did not of course overlook the dictum in Barcelona Traction, given four years earlier, but adopted a somewhat sceptical attitude towards it. After quoting the passage, he continued: These remarks, which have been described as progressive and have been regarded as worthy of sympathetic consideration, should be taken cum grano salis. It seems to me that the obiter reasoning expressed therein should not be regarded as amounting to recognition of the actio popularis in international law; it should be interpreted more in conformity with the general practice accepted as law.11

A similar attitude of scepticism is, it is suggested, still consistent with the situation in State practice and consequent customary law; but for the purposes of the present study the question of whether or to what extent the articles adopted by the International Law Commission are, in this respect, a codification or a progressive development will be left aside, and they will be treated as they were presented, as a coherent system. The context of the Barcelona Traction dictum was a discussion of what is usually seen as Belgium’s jus standi to claim against Spain for the injury done to the Canadian company in which Belgian nationals were shareholders. The matter was however not in fact a procedural one: the question was, in more modern terms, whether the action of the Spanish courts constituted a breach of an international legal obligation owed to Belgium. It was recognized that, if the facts were as claimed, there had been a breach of an obligation owed to Canada as national State of the company. When the Court in 1970 suggested that Belgium would have been in no difficulty if it had been relying on an obligation erga omnes, it apparently contemplated that Belgium, on that hypothesis, would have been able not merely to ‘invoke’ the obligation before the Court, but to obtain reparation for the injury done to its nationals. It will be recalled that the Court in that case drew a sharp distinction between ‘the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection’.12 The practical effect that it attributed to that distinction was, first, that ‘in order to bring a claim in respect of a breach of such an obligation’, that is, a non-

every State individually to prosecute a claim to secure respect for the rule’ (ibid., 370, and, in the New Zealand case, ibid., 521). It is at least suggestive that the authors of the opinion seem to have preferred a periphrasis to the term ‘obligation erga omnes’. 10 Ibid., 390. 11 Ibid., 387. 12 ICJ Reports 1970, 3, at 32, para. 33.

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erga-omnes obligation, ‘a State must first establish its right to do so’.13 One would suppose that this was equally true in the case of an obligation erga omnes, in the sense that the applicant State would at least have to show that such an obligation existed, and that it was one of the omnes. However, the Court pursued by explaining that what it meant was that, to establish Belgium’s right, it was essential to establish whether the losses allegedly suffered by Belgian shareholders in Barcelona Traction were the consequence of the violation of obligations of which they were the beneficiaries. In other words: has a right of Belgium been violated on account of its nationals’ having suffered infringement of their rights as shareholders in a company not of Belgian nationality?14

Insofar as the Court’s distinction turns on the presence of damage to the claimant State, it has been overtaken by developments in the theory of State responsibility. Since in the scheme of the International Law Commission’s articles damage is not a constitutive element of international responsibility in any event, it is not the distinguishing mark of a claim based on an obligation erga omnes that a breach is actionable without proof of damage. What then is the distinguishing criterion? It remains the case that, while all States can ‘invoke’ responsibility for the breach of an obligation erga omnes, they are not all of necessity ‘non-injured States’. According to Article 42(b)(i), a State may invoke responsibility for such a breach, but as an ‘injured State’, if the breach ‘specially affects that State’. The commentary on this provision avoids stating directly that a prime example of a ‘specially affected’ State would be a State that has suffered actual damage; but that is an implication.15 No reparation is due to a State claiming simply as the beneficiary of an obligation erga omnes. While an injured State, including one claiming as ‘specially affected’ by a breach of an obligation erga omnes, may claim all the remedies listed in Articles 30 to 39, a non-injured State can only ask for cessation of the breach and guarantees of non-repetition in accordance with Article 30, unless it is seeking enforcement of the reparation due to the injured State.16 There must of course be a link between the notion of jus standi in a procedural sense and the underlying substantive right.17 This relationship is in fact 13

Ibid., para. 35. Ibid., 32–3, para. 35. 15 Cf. the recognition, in para. (12) of the commentary to Article 48, that ‘it may well be that there is no State which is individually injured by the breach’, so as to seek reparation (emphasis added). 16 It will be assumed throughout that, even when an obligation erga omnes is invoked by a non-injured State, there will also be at least one State ‘specially affected’ by the breach of the obligation so as to qualify as an ‘injured State’. 17 It has in fact been powerfully argued (by Judge Morelli in his separate opinion appended to the judgment in the Northern Cameroons case) that the emphasis in international procedural law on the need to show the existence of a dispute renders inapplicable the concept of an ‘interest’, in a procedural sense, required in municipal systems to support a right of action (Northern Cameroons, Judgment, ICJ Reports 1963, 3, at 132–3). 14

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historically at the root of the whole concept of obligations erga omnes, in relation to which the problem of the definition of the ‘injured State’ has arisen. The dictum in the Barcelona Traction case is generally held to have been prompted by a desire to signal a revirement de jurisprudence in relation to the 1966 decision in the South West Africa case,18 in which the claim of Ethiopia and Liberia was dismissed on the ground that ‘the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claim’.19 The terminology throughout that judgment is that of the rights or interests of the applicant States, rather than the existence of obligations of South Africa as mandatory in relation to them, in their own right or as members either of the League of Nations or of the international community, but at least in the legal philosophy inspiring the decision, these must be regarded as the two sides of the coin. The Court clearly adverted to the link between the possession of substantive rights and locus standi to seise the Court, in the sense that it rejected the notion that individual members of the League could only enforce the obligations of the mandatory by Court action:20 any such right to sue ‘would have availed nothing unless the members of the League had individually possessed substantive rights regarding the carrying out of the mandates which they could make good before the Court’.21 With this may be compared the concept of the ‘invocation of responsibility’ in the articles and commentary of the International Law Commission, explained as signifying ‘taking measures of a relatively formal character, for example . . . the commencement of proceedings before an international court or tribunal’;22 in this context also the right to institute proceedings implies the existence of a substantive right vested in the complainant (or, which is the same thing, the benefit of a substantive obligation owed to the complainant).

18

The present writer has indicated elsewhere why, in his view, even on that basis it was misconceived: see Thirlway, ‘The role of the International Court of Justice in the Development of International Law’, African Society of International Law, Proceedings of the Seventh Annual Conference (1995), 103–44, at 138 ff. 19 South West Africa, Second Phase, Judgment, ICJ Reports 1966, 6, at 51, para. 99. 20 A right to sue without a right to enforce by any other means, or without an underlying substantive right, might seem something of a legal chimaera, but it was argued that the individual members of the League merely had a right to enforce mandate obligations by Court action if the constitutional checks through the League Council failed: see ICJ Reports 1966, 6, at 31, para. 42. 21 Ibid. 22 Commentary to Article 42, para. (2).

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chapter twenty-seven hugh thirlway 2. The ‘Non-injured State’ as Applicant

If therefore the possession of the substantive right to enforce, to some degree, an obligation as an obligation erga omnes carries with it the procedural right to present a claim before a tribunal, it seems undeniable that, on the basis of the Commission’s Article 48, a non-injured State can in principle institute proceedings before the International Court alleging violation of an obligation of the kind envisaged in that article. There is of course another necessary element: the applicant State must be able to invoke a title of jurisdiction, i.e. it must be able to show that the State named as respondent has consented in some way to the Court exercising jurisdiction over the claim, or over a class of disputes into which the claim falls. It may well occur that the sole ‘injured’ State does not have such a ‘jurisdictional link’23 with the State allegedly responsible for the wrongdoing, while one or more of the States in the category contemplated by Article 48 do have such links. For the purposes of discussion, let it be assumed that a claim is brought by a ‘non-injured State’ under Article 48, and that jurisdictional requirements are satisfied, e.g. that both the applicant and the intended respondent have made declarations under the optional clause of Article 36 of the Statute of the International Court of Justice, containing no relevant reservations.24 It is clear that, if a claim were brought before the Court on the basis of an obligation erga omnes solely by such a State, proceeding simply as a member of the international community to which the obligation was owed, and not as an injured State, the proceedings would lack the presence of the most interested State— a performance of Hamlet without the Prince of Denmark. Would this be a bar to the consideration of the case by the Court? In other words, does the fact that the applicant State is a ‘non-injured State’, that is to say not the State which was the direct victim of the violation complained of, affect the matter? There would presumably be a ‘dispute’ between the non-injured State and the alleged wrongdoing State, at least if this had manifested itself (for example) in protest and rejection of protest; but would this be sufficient? Rosenne, taking his point of departure within the general framework of settlement of disputes, suggests that

23 This expression is much used in the jurisprudence and literature relating to intervention under Article 63 of the Statute of the International Court; it signifies a relationship between two States involving the existence of some treaty-instrument or declaration on the basis of which the one of them would be entitled to bring a claim of a specified nature (or generally) against the other before the International Court. 24 Under paragraph 2 of Article 36, such a declaration could apply to disputes concerning, inter alia, ‘any question of international law’ or ‘the existence of any fact which, if established, would constitute a breach of an international obligation’.

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the applicant State must be able to show some direct concern in the outcome of the case, it must be a real and not merely a theoretical party to the dispute, even if that concern cannot be neatly reduced to precise categories of protection of the rights or of the interests of that State.25

According to the International Law Commission: a State invoking responsibility under article 48 and claiming anything more than a declaratory remedy and cessation may be called upon to establish that it is acting in the interest of the injured party. Where the injured party is a State, its government will be able authoritatively to represent that interest.26

On this basis, a distinction that has been suggested is between the case in which the applicant seeks reparation for the damage suffered, and that in which it seeks only a declaratory judgment, finding that the act complained of was unlawful:27 the first claim would not be admissible unless the State directly injured gave its consent and participated in the procedure, while the second would be admissible as an independent proceeding. The privilege of third States to take action to seek reparation in the case of violation of an obligation erga omnes is, it is observed, merely accessory to the claim of the directly injured State. Thus the presence of the injured State as a party to the proceedings might not be required in any case instituted by a non-injured State, but merely in the event that a non-injured State sought to enforce, on behalf of the injured State, the obligation of reparation, as contemplated by Article 48(2)(b) of the articles adopted by the International Law Commission. However, in a series of cases the question has been raised whether the Court can exercise jurisdiction over a claim which puts in question the rights or obligations of another State, not before the Court, and not consenting to the exercise by the Court of such jurisdiction. The principle was laid down in the Monetary Gold case, in which the Court noted that, in order to decide the question before it, whether Italy was entitled to receive the disputed gold, ‘it is necessary to determine whether Albania has committed any international wrong against Italy’, so that ‘[t]o go into the merits of such questions would be to decide a dispute between Italy and Albania’.28 But Albania was not a party to the proceedings, and had not consented to the settlement of such a dispute, with the consequence, the Court held, that it could not exercise jurisdiction.

25

Rosenne, The Law and Practice of the International Court, 1920–1996 (3rd edn., 1997), iii, 1213. Commentary to Article 48, para. (12). 27 Villalpando, L’émergence de la communauté internationale dans la responsabilité des États, thesis, University of Geneva (No. 659, 2003), section III.2.3, 339. He also distinguishes the case where the applicant State seeks to recover for damage caused to collective assets, not assignable to a particular State, but we shall leave this case aside as not directly relevant to the present study. 28 Monetary Gold Removed from Rome in 1943, Judgment, ICJ Reports 1954, 19, at 32. 26

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It was pointed out that Albania would not receive the gold in any event: under the Washington Agreement by which the Court was seised, it would go either to Italy or to the United Kingdom in settlement of the damages ordered by the Court in the Corfu Channel case. Therefore, it was suggested, Albania’s consent to jurisdiction was not needed; but the Court did not accept this ‘oversimplification of the problem’.29 To rule, on the application of State A (a non-injured State), on the question whether State B had committed a breach of an obligation erga omnes of which the direct victim (the injured State) was State C, would necessarily involve determining whether State B had committed an international wrong against State C; it would involve ruling on the respective rights and obligations of States B and C. In the East Timor case, the Court was asked to say that Australia had infringed the principle of self-determination by entering into a treaty with Indonesia disposing of submarine resources belonging, it was said, to the people of East Timor; but the illegality of the treaty pre-supposed the illegality of Indonesia’s occupation of East Timor, and Indonesia was not before the Court. In its decision declining to exercise jurisdiction the Court stated the ‘fundamental principle’ applicable as being ‘that it cannot decide a dispute between States without the consent of those States to its jurisdiction’30—that is to say, both States. The consent of State B (the wrongdoing State), in the sense of an acceptance of jurisdiction extending to cover the specific dispute, we are taking as established. The injured State might well be quite happy to see the matter litigated, without going so far as to join in the proceedings as intervener (a possibility considered below); there is thus here a question whether it is sufficient, to meet the Monetary Gold/East Timor criterion, that the Court is reliably informed of the absence of objection of the absent State, or whether the presence of that State as a party, or at least as an intervener, is necessary.31 Nor will it necessarily be the case that State C (the injured State) will be agreeable to the matter being dealt with by the Court at the instance of a noninjured State: there may be political reasons why State C would prefer the matter not to be pressed to a judicial determination (e.g., bilateral negotiations between States C and B toward reparation might be prejudiced by the action of a third State). The evident difference from the situation in the Monetary Gold case would be that the absent State would not be the (allegedly) wrongdoing State, but the State (allegedly) directly injured by the wrongdoing. Does this, or should this,

29

Ibid., 31. ICJ Reports 1995, 90, at 101, para. 26. 31 In the Monetary Gold case the Court mentioned that it had not been contended ‘that Albania has given her consent in this case either expressly or by implication’, which suggests that a consent given ‘from outside the case’, as it were, would be sufficient: ICJ Reports 1954, 19, at 32 (emphasis added). 30

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make a difference? It might be said that the absent State (State C) could only benefit from the Court’s determination of the dispute between States A and B, since a dismissal of State A’s action would only constitute res judicata between States A and B; and on the other hand a finding that State B had committed a breach of an obligation erga omnes to the detriment of State C, while still not a matter of res judicata in relation to State C, could only strengthen its position in seeking reparation from State B. The initial hypothesis is that the only reason why State C as injured State does not bring proceedings of its own against State B is because of the absence of any jurisdictional link between itself and State C. There is a certain artificiality in permitting State A to take advantage of the fortuitous existence of such a link to fight the quarrel of State C; such a possibility is of course the essence of the concept of the obligation erga omnes, but that concept itself may look somewhat artificial, seen in this light. Furthermore, as noted above, the absence of a jurisdictional title may not be the reason, or the sole reason, for the absence of any judicial proceedings brought by State C: that State may not in fact desire a judicial handling of the matter. The problem would be more acute if State B asserted that its actions were justified by one of the ‘circumstances precluding wrongfulness’, or that its responsibility could not be invoked because the injured State (State C) had ‘validly waived the claim’ or was ‘to be considered as having, by reason of its conduct, validly acquiesced in the lapse of its claim’, as contemplated by the Commission’s Article 45. Assuming that the obligation erga omnes allegedly breached were also a matter of jus cogens, the consent of the direct victim would be irrelevant; but how if the alleged breach were an aggressive use of force, and State B claimed that it was acting in self-defence? At that moment, the question whether it had committed an internationally wrongful act could not be determined without ruling on the question whether the absent State had acted in such a way as to entitle State B to invoke self-defence, and the Monetary Gold test would be applicable. 3. Intervention of a Third State before the International Court One evident scenario in which the essentially bilateral relationship of active and passive litigants is varied is that in which a third State seeks, and is authorized, to intervene in proceedings before the Court by virtue of Article 62 of the Court’s Statute, or is entitled to file a declaration of intervention under Article 63. The criterion for intervention under Article 62 is that the intending intervener should have ‘an interest of a legal nature which may be affected by the decision in the case’. How does this criterion relate to the position of a noninjured State in relation to proceedings brought by an injured State against

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the wrongdoer; or, for that matter, the position of an injured State in relation to proceedings brought by a non-injured State? The first hypothesis is that a case is brought, on the basis of alleged violation of an obligation erga omnes, by the State claiming that it is a State ‘specially affected’ by such violation; the most important instance of this is, as we have seen, that the State is the direct victim of the violation, and has suffered damage from it. An example is in fact afforded by the cases concerning Legality of the Use of Force brought by Serbia and Montenegro against member States of NATO, alleging commission of acts of genocide of which the nationals of Serbia and Montenegro were the victims. Another State, not itself directly concerned except as one of the beneficiaries of the obligation erga omnes not to commit genocide, might seek to intervene in these cases. One can imagine two possible purposes of such an intervention: first, to press the claim that a violation of an obligation erga omnes, in casu genocide, had been committed (by supplying evidence not available, for some reason, to the applicant State, or simply by argument as to the applicability of the concept of genocide), and secondly to seek one of the remedies recognized by the International Law Commission’s Article 48 as available to a non-injured State. Such State might thus ask for a judgment directing cessation of the wrongful acts, and guarantees of non-repetition (Article 48(2)(a)); it could hardly ask for performance of the obligation of reparation ‘in the interest of the injured State or the beneficiaries of the obligation breached’ (Article 48(2)(b)), since by definition the injured State would already be before the Court and (presumably) seeking reparation. The nature and conditions of intervention under Article 62 of the Statute were for a considerable period unclear and controversial, partly as a result of apparently inconsistent decisions of the International Court in cases in which intervention was sought in matters of maritime delimitation.32 The decision of a Chamber of the Court in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) in 1990 clarified the position by establishing that there are in fact two different types of intervention possible under Article 62: intervention as a party and intervention as a non-party. The two forms of intervention differ as to their purpose, and thus what can be achieved by the intervening State; there is also the important difference that for the one kind of intervention a jurisdictional link is necessary, and for the other it is not. As the Chamber of the Court observed, [i]t . . . follows from the juridical nature and from the purposes of intervention that the existence of a valid link of jurisdiction between the would-be intervener and the parties is not a requirement for the success of the application [for permission to intervene]. On the contrary, the procedure of intervention is to ensure

32 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, ICJ Reports 1981, 3; Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, ICJ Reports 1984, 3.

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that a State with possibly affected interests may be permitted to intervene even though there is no jurisdictional link and it therefore cannot become a party.33

The Chamber had also explained that [i]t is . . . clear that a State which is allowed to intervene in a case, does not, by reason only of being an intervener, become also a party to the case. It is true, conversely, that, provided that there be the necessary consent by the parties to the case, the intervener is not prevented by reason of that status from itself becoming a party to the case.34

Assuming that the injured State has commenced proceedings against the wrongdoing State, claiming (inter alia) reparation, the non-injured State might seek to intervene in the proceedings, claiming, as contemplated by Article 48(2)(a) of the International Law Commission’s articles, cessation of the wrongful conduct and assurances of non-repetition. In order to do so, would it have to intervene as a party, or would it be sufficient (and possible) to intervene as a non-party? Speaking of intervention as a non-party, the Chamber stated that [i]ntervention under Article 62 of the Statute is for the purpose of protecting a State’s ‘interest of a legal nature’ that might be affected by a decision in an existing case already established between other States, namely the parties to the case. It is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court. A case with a new party, and new issues to be decided, would be a new case. The difference between an intervention under Article 62, and the joining of a new party to a case, is not only a difference in degree; it is a difference in kind.35

The question is thus whether the action of the non-injured State is to be treated as ‘tacking on a new case’, involving the status of party, and therefore requiring the existence of a jurisdictional link between the non-injured State and the wrongdoing State.36 It might be observed that the intervening (non-injured) State would be asking the Court to find the existence of exactly the same wrongful act as the applicant (injured) State; the only difference would be the nature of the remedies asked for, those requested by the intervener being ‘weaker’ than those available to the applicant State. However, this may not be sufficient to avoid

33 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, ICJ Reports 1990, 92, at 135, para. 100. 34 Ibid., 134–5, para. 99. 35 Ibid., 133–4, para. 97. 36 The jurisprudence on the requirement for the jurisdictional link is not entirely clear on the question whether this must exist between the intervening State and both parties to the case, or merely between the intervening State and the respondent State—assuming, that is, that one of the parties can be regarded as the respondent State: in the Land, Island and Maritime Delimitation case, brought by special agreement, neither State was exclusively applicant or exclusively respondent, and the pleadings of each party were filed simultaneously.

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the conclusion that a ‘new case’ is involved. When Australia and New Zealand brought proceedings against France seeking the cessation of atmospheric nuclear tests at Mururoa, Fiji sought to intervene under Article 62. The wrongful action alleged, and the injury claimed to have been incurred, were identical in the Applicants’ claims and in Fiji’s intended claims; nevertheless, when Fiji’s application was removed from the list following the judgements on the Applicants’ claims, several judges in separate opinions recorded their conviction that Fiji’s intervention would have required the existence of a jurisdictional link between Fiji and France.37 It may however be asked whether there would be any point in an intervention as a non-party by a non-injured State in proceedings instituted by the injured State. This raises the question of the purpose of non-party intervention. If it is established that, in the absence of a jurisdictional link and a consequent claim as a party, the non-injured State cannot seek an order for cessation or assurances of non-repetition, there seem little usefulness left in an intervention; all that the non-injured State can do is lend its support to the injured State in the interests of establishing the legal position, without asking for a remedy. The question of the proper purpose of intervention has been the subject of a number of dicta by the International Court, which are not easy to interpret or to reconcile. However, the Chamber in the Land, Island and Maritime Delimitation case made one aspect clear: when Nicaragua offered as a consideration supporting its assertion of a legal interest the ‘essential character of the legal principles’ that would have to be applied in deciding the case between the parties, the Chamber explained that it ‘does not however consider that an interest of a third State in the general legal rules and principles likely to be applied by the decision [in the case] can justify an intervention.’38 4. Intervention under Article 63 of the Statute Article 63 of the Statute authorizes a third State to intervene in the proceedings, as of right, ‘whenever the construction of a convention to which States other than those concerned in the case are parties’, and the intervening State is such a party. The object of the provision is to enable third States to argue in favour of a particular interpretation of the convention—or possibly rather in order to argue against a particular interpretation regarded by that State as incorrect, inimical to its interests, but sufficiently seductive to be likely to commend itself to the Court. There is no need for the intending intervener to have

37

See Nuclear Tests (Australia v. France), Application to Intervene, Order of 20 December 1974, ICJ Reports 1974, 530, at 531–3; Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 20 December 1974, ICJ Reports 1974, 535, at 536–8. 38 ICJ Reports 1990, 92, at 124, para. 76.

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any interest of its own in the subject-matter of the dispute before the Court, or to be involved in any subsisting dispute on the interpretation of the convention, with one or other of the parties to the case, or even with any other party to the convention. It suffices that the intending intervener wishes to guard against a particular interpretation being sanctioned by the Court, in case that interpretation might in some future dispute be asserted against it, with the authority of a pronouncement of the Court, though in a different case. The downside of the right of intervention is that the interpretation of the convention by the Court is binding on the intervener equally with the parties;39 probably for this reason, the right to intervene under Article 63 has been very little used, States apparently preferring to sit on the fence, and if necessary argue later that the Court’s interpretation is res inter alios acta. There is therefore no evident parallel with the situation of third States in relation to a problem of State responsibility, detached from judicial proceedings. Yet the application of Article 63 throws up an unexpected effect of a philosophical choice made by the International Law Commission at an early stage in the drafting of the articles, namely the fundamental concept, introduced by Ago, of the distinction between the primary and the secondary obligation. Subject to the over-riding principle that a particular primary obligation may involve consequences other than what one might be called the ‘standard set’, the consequences of an internationally wrongful act, and of the invocation of State responsibility, are determined by the secondary obligation; specifically by the provisions of Part Two of the articles. The alternative approach, advanced against the primary/secondary distinction, but no longer maintained by scholars, is that that distinction is artificial and unnecessary, that there is in all cases a single obligation imposed by international law, which carries within itself the definition of the consequences of its breach. The recent case of Avena and other Mexican Nationals, brought by Mexico against the United States, involved the construction of provisions of the Vienna Convention on Consular Relations40 relating to the obligation of the receiving State to inform nationals of the sending State of their right to consular assistance in the event of arrest or detention. In view of the widespread acceptance of the Convention, and the increasingly common situation of the presence in one country, party to the Convention, of large numbers of nationals of another party, some of whom inevitably will have brushes with the law of their country of residence, the interpretation of the Convention by the Court could well

39 Whether this means simply as between the intervener and the parties, or generally between the intervener and any other State, is unclear: cf. Guyomar, Commentaire du règlement de la Cour internationale de justice adopté le 14 Avril 1978, interprétation et pratique (1983), 535. Generally on the applicable procedure and the effects of intervention, see the present writer’s ‘The Law and Procedure of the International Court of Justice 1960–1989 (Part Thirteen)’, 74 BYIL (2003), 7–114, at 24 ff. 40 596 UNTS 261.

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have material significance beyond the relationship between Mexico and the United States.41 No other State did in fact exercise its right to intervene under Article 63, possibly for the reasons outlined above. The United States did not dispute that, at least in some of the cases complained of, the provisions of the Convention had not been complied with. The real issue between the parties was not the determination, on the basis of the text of the Convention, whether what the United States authorities had done or not done constituted a breach of the obligations of the United States as receiving State. It was the consequences of the admitted breaches that the Court had to determine, in face of the two competing contentions of the parties. In particular, Mexico claimed that in every case where a Mexican had not been informed of his right to consular assistance, the criminal proceedings against him had to be treated as a nullity, and the conviction and sentence set aside.42 It also contended that, in any subsequent criminal proceedings against the same defendants, statements and confessions obtained from them prior to consular notification should be excluded.43 The Court dealt with these questions as governed by the general law on reparation;44 in other words, it applied the secondary rules of State responsibility, rather than any lex specialis deriving from the express or implied terms of the Vienna Convention on Consular Relations. This was an issue potentially of great interest to other States parties to the Convention, which might have contemplated intervening under Article 63. Had they done so, however, their right to be heard would have been limited to questions of interpretation of the Convention,45 to the exclusion of questions of the general law of State responsibility, and thus to the exclusion of the question whether failure to inform foreign nationals of their consular rights involved nullity of subsequent criminal proceedings. If however this last question were regarded as a question of the application and interpretation of the Convention, that is to say as an element, or an implication, of the primary, conventional, obligation, then intervention under Article

41 The Court in fact referred to this aspect in the penultimate paragraph of its reasoning, regarding it as ‘a point of importance’ to stress that the Court had been addressing issues of principle in its judgment, and that ‘there can be no question of making an a contrario argument in respect of any of the Court’s findings in the present Judgment’. (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, 12, at para. 151. 42 Ibid., paras. 116–17. 43 Ibid., para. 126. 44 Ibid., para. 119, citing the Factory at Chorzów case: Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, PCIJ, Series A, No. 9, at 21; Factory at Chorzów, Merits, Judgment No. 138, 1928, PCIJ, Series A, No. 17, at 47. 45 It is clear from the decision in the Haya de la Torre case that an intervener under Article 63 can only contribute to the debate within strict limits, defined by the questions of interpretation of the relevant convention which are before the Court in the dispute between the parties: see Haya de la Torre, Judgment, ICJ Reports 1951, 71, at 77.

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63 would have been a means of addressing argument to the Court on the issue that was the most controversial in the case, and therefore the most interesting to other States parties to the Convention.

5. Provisional Measures If it is in the interests of respect for international law that a non-injured State should be able to invoke responsibility for a breach of an obligation erga omnes, and should for that purpose have jus standi to bring a claim before the International Court against the wrongdoer, it would seem equally desirable that in such proceedings a request might be made for the indication of provisional measures. On the hypothesis that the injured State is unable to bring proceedings itself for lack of a jurisdictional title, a non-injured State that can rely on such a title might usefully act in order to obtain the assistance of the Court by way of a summary order to desist from the breach. The decision in the LaGrand case,46 that provisional measures impose a binding obligation on the State to which they are addressed, reinforces this consideration.47 The purpose of provisional measures, as defined by Article 41 of the Court’s Statute is ‘to preserve the respective rights of either party’; the Court has glossed this by adding that the power to indicate measures ‘presupposes that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings’, and that ‘such measures are only justified if there is urgency’.48 In another decision it explained the concept of urgency as ‘in the sense that action prejudicial to the rights of either party is likely to be taken before [the] final decision [in the case] is given’.49 If the non-injured State is merely asserting its right to seek cessation and assurances of non-repetition, as contemplated by Article 48(2)(a) of the International Law Commission’s articles, will these requirements be satisfied? Measures can be requested even if the applicant State is asking for a declaratory judgment and not for reparation,50 but there must be a threat of irreversible prejudice. Thus when the applicant State is itself claiming as a ‘non-injured’ State, that is to say that it is merely representing the interest of the international community in respect

46 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, 466, at 501–6, paras. 98–109. 47 That decision is however controversial: see the present writer’s criticisms in ‘The Law and Procedure of the International Court of Justice 1960–1989 (Part Twelve)’, 72 BYIL (2001), 37–181, at 111 ff. 48 Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order 15 March 1996, ICJ Reports 1996, 13, at 21, para. 35, repeating a standard formula used in numerous previous cases. 49 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order 29 July 1991, ICJ Reports 1991, 12, at 17, para. 23. 50 As in the Passage through the Great Belt case.

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for the relevant obligation, can it be said that any ‘irreparable prejudice’ will be or may be caused to its rights?51 Provisional measures must be related to the rights claimed in the main proceedings: in the case of the Arbitral Award of 31 July 1989, the Court declined to indicate the measures requested because ‘the alleged rights sought to be made the subject of provisional measures are not the subject of the proceedings before the Court on the merits of the case’.52 The rights of the international community will not be the subject of any injury, irreversible or not, by the continuation of the wrongful act: it is only the direct beneficiary of the obligation whose rights and interests will or may be prejudiced. As the Court observed in the case of Passage through the Great Belt, no action taken pendente lite by a State engaged in a dispute before the Court with another State ‘can have any effect whatever as regards the legal situation which the Court is called upon to define’ (Legal Status of the South-Eastern Territory of Greenland, P.C.I.J. Series A/B. No. 48, p. 287), and such action cannot improve its legal position vis-à-vis that other State . . .53

There must therefore, it is suggested, be a serious doubt whether the Court could grant provisional measures on the application of a ‘non-injured’ State in proceedings commenced by that State in the absence of the ‘injured’ State. 6. Injured and Non-injured States in Advisory Proceedings When the Court is seised of a request for an advisory opinion related to a dispute, or a pending legal question, between two or more States, it is well established that its competence to give the opinion does not depend on the consent of those States; but that does not mean that their lack of consent, or the opposition, is wholly irrelevant to the Court’s discharge of its advisory functions. As the Court stated in the Western Sahara advisory opinion: lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion . . . In certain circumstances, therefore, the lack of consent of an interested State may render the giving of an advisory

51 It has been argued that, rather than distinguishing between ‘injured’ and ‘non-injured’ States, the International Law Commission should have relied on a concept of ‘juridical prejudice’ or ‘moral damage’, whereby the infringement of an obligation would, necessarily and automatically, be held to have caused prejudice to the beneficiary of the obligation: see Combacau and Sur, Droit international public (5th edn., 2001), 531; Stern, ‘Et si on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responabilité des États’, 47 AFDI (2001), 3–44, particularly at 25–8. 52 Arbitral Award of 31 July 1989, Provisional Measures, Order 2 March 1990, ICJ Reports 1990, 64, at 70, para. 26. 53 ICJ Reports 1991, 12, at 19, para. 32.

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opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.54

This dictum has been referred to in a number of subsequent cases,55 but up to now the Court has never refused to give an opinion on the grounds that the consent principle might be circumvented. If the International Court were to be asked for an advisory opinion on the question whether a given State had committed a breach of an obligation erga omnes—as indeed was the situation in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory—the Court would be obliged to consider the question of the consent of the ‘interested States’.56 Clearly these would include the alleged wrongdoer, and the State ‘specially affected’; but would the attitude of other States, entitled under Article 48 of the Commission’s text to invoke the responsibility of the wrongdoer, also have to be taken into account? The hypothesis is not all that far-fetched: in the case of the Construction of a Wall, a number of influential States were unenthusiastic, to say the least, about referring the matter to the Court, and some went so far as to suggest that the Court should decline to give an opinion, though not on the ground of absence of their own consent in the capacity of interested States (as distinct from the lack of consent of Israel).57 It is assumed, in this scenario, that the alleged wrongdoer refuses consent, and that the State ‘specially affected’ gives it. Thus, so far as the dispute is bilateral, the Court only has to consider whether the circumstances justify refusing an opinion because of the attitude of the alleged wrongdoer. But there are at the same time a whole set of parallel disputes, between the alleged wrongdoer and the States entitled to invoke the obligation erga omnes; for a number of these, we may conceive, both parties to the dispute would be refusing their consent, and, semble, advancing the view that to give an opinion would amount to a circumvention of the consent principle. In all probability the circumstances would be such that the key question would be whether the principle risked being circumvented in relation to the State that was the alleged wrongdoer, and the attitude of the non-injured States

54

Western Sahara, Advisory Opinion, ICJ Reports 1975, 12, at 25, paras. 32–3. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, 177; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, electronically available at < http://www.icj-cij.org>. 56 The handling of the question in the Construction of a Wall case suggests that, if the matter is regarded as sufficiently important for the General Assembly, the Court will be very reluctant to see any objection on the basis that the principle of consent is being circumvented: see paras. 46–50 of the advisory opinion. 57 See, for example, Written Statements of Australia, paras. 8–16; Canada, final paragraph; Germany, section IV(3); Italy, paras. 3–4; United Kingdom, paras. 3.31 to 3.35; United States, paras. 3.8 to 3.10; and the doubts expressed by, for example, Norway and the Russian Federation. 55

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would not add much weight to the balance. This is, however, a perhaps unexpected procedural complication arising out of the concept of obligations erga omnes, with the consequent recognition of the existence of parallel obligations peripheral to the essential bilateral relationship of individual complainant and individual respondent.

CHAPTER TWENTY-EIGHT

THE OIL PLATFORMS CASE BEFORE THE INTERNATIONAL COURT OF JUSTICE: A NON-CASE OF INTERNATIONAL RESPONSIBILITY Prosper Weil and Daphné Richemond 1

1. Introduction What an odd case-study the Oil Platforms case2 will be for generations of students of international law! Iran alleged the United States had violated its obligations under the Iran-United States Treaty of Amity of 1955;3 and the United States—relying upon the same Treaty—argued that it had not. The International Court of Justice, however, judged the case on the basis of the law governing the use of force and self-defence, without using the words ‘international responsibility’, without referring to the law relating thereto, and without even mentioning the work of the International Law Commission on this topic. As a result, the Oil Platforms case will be remembered not for what it was—a case on international responsibility—but for what it was not and has become: a case on the use of force and self-defence. The discrepancy between the dispute presented to the Court and the grounds on which the Court chose to resolve it is the distinctive feature of this case. The Court undeniably has a discretionary power to determine the grounds on which it wishes to resolve a dispute brought before it. However, for the Court to alter so fundamentally the nature of a dispute is a significant departure from its usual exercise of such discretionary power. In the future, governments will have to take this extension of the Court’s power into account when accepting jurisdiction with respect to a particular conflict or category of conflicts. 1 Prosper Weil was Counsel for the United States. Daphné Richemond provided assistance during the oral hearings. 2 Judgment of 12 December 1996 on Iran’s Preliminary Objection (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, ICJ Reports 1996, 803, hereafter referred to as: Preliminary Objection). Judgment of 6 November 2003 on the merits (Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment 6 November 2003, ICJ Reports 2003, 161, hereafter referred to as: Merits). 3 Treaty of Amity, Economic Relations, and Consular Rights between the United States of America and Iran, 284 UNTS 93 (signed 15 August 1955 and entered into force 16 June 1957).

Maurizio Ragazzi (ed.), International Responsibility Today, 329–340. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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2. Two Different Perspectives on the Case The dispute arose out of military action taken by the United States Navy against three Iranian offshore oil production complexes in 1987 and 1988, during the Iran-Iraq war.4 The oil platforms, operated by the National Iranian Oil Company for commercial purposes, were destroyed as a result. Iran contended that the attacks were carried out in breach of Article X of the IranUnited States Treaty of Amity of 1955, and that the United States bore responsibility for its actions under international law. Article X provides, inter alia, that ‘[b]etween the territories of the two High Contracting Parties there shall be freedom of commerce and navigation’. In its final submissions, Iran requested the Court to adjudge and declare: (1) That in attacking and destroying on 19 October 1987 and 18 April 1988 the oil platforms [of the National Iranian Oil Company] the United States breached its obligations to Iran under Article X, paragraph 1, of the Treaty of Amity, and that the United States bears responsibility for the attacks; and (2) That the United States is accordingly under an obligation to make full reparation to Iran for the violation of its international obligations and the injury thus caused . . .5 The United States responded that it had not violated Article X and thus could not be held responsible under the Treaty. It asked the Court to adjudge and declare: (1) That the United States did not breach its obligations to the Islamic Republic of Iran under Article X, paragraph 1, of the 1955 Treaty between the United States and Iran; and (2) That the claims of the Islamic Republic of Iran are accordingly dismissed.6 It is important to read these submissions in context. During the jurisdictional phase of the proceedings, the United States had argued that the Court was without jurisdiction because, inter alia, Iran’s claims raised issues relating to the use of force, which, in the United States’ view, did not fall within the ambit of the 1955 Treaty.7 Rejecting this argument, the Court held in its 1996 Judgment on the Preliminary Objection that:

4 5 6 7

Merits, para. 1. CR 2003/16, 36, para. 12. CR 2003/18, 36, para. 29.30. Preliminary Objection, 810, para. 18.

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The Treaty of 1955 imposes on each of the Parties various obligations on a variety of matters. Any action by one of the Parties that is incompatible with those obligations is unlawful, regardless of the means by which it is brought about.8

Thus, in the eyes of the Court, the obligations of the parties and its own jurisdiction were defined by the 1955 Treaty and their legality was to be assessed vis-à-vis the Treaty. Having framed its jurisdiction strictly in the terms of the Treaty of Amity in its Judgment on the Preliminary Objection, the question before the Court at the Merits phase was the following: had the United States violated the freedom of commerce and navigation protected by Article X of the bilateral Treaty of Amity? The answer to this question should have been straightforward— either the United States had violated Article X or it had not. However, this answer depended on the Court’s reading of another provision of the Treaty, Article XX, which provided that each Party could take measures ‘necessary to protect its essential security interests’. The United States relied on Article XX to establish that it had not violated Article X, maintaining that its actions against the oil platforms had been necessary to protect its essential security interests. Article XX, the United States further argued, is ‘a substantive provision which, concurrently and concomitantly with Article X, determines, defines and delimits the obligations of the parties’.9 The United States viewed Articles X and XX as an ‘indivisible whole’; the two being ‘constituent elements of the rights and obligations as determined by the parties’.10 In other words, as the Court explained, the United States regarded Article XX as ‘determinative of the question of the existence of a breach of the obligation under Article X’. The Court summarized the position of the United States as follows: It is the contention of the United States that the actions complained of by Iran were measures necessary to protect the essential security interests of the United States, and that accordingly, if those actions would otherwise have been breaches of Article X, paragraph 1, of the Treaty, which the United States denies, the effect of Article XX, paragraph 1 (d), is that they are justified under the terms of the Treaty itself, and thus do not constitute breaches of it.11

In its 1996 Judgment on the Preliminary Objection, the Court had held that Article XX affords the parties ‘a possible defence on the merits’.12 It recalled this finding in its 2003 Judgment as well, concluding that:

8 9 10 11 12

Ibid., 811–12, para. 21. CR 2003/12, 6, para. 17.10. Ibid. Merits, para. 32. Preliminary Objection, 811, para. 20.

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If . . . the Court is satisfied by the argument of the United States that the actions against the oil platforms were, in the circumstances of the case, ‘measures . . . necessary to protect [t]he essential security interests’ of the United States, within the meaning of Article XX, paragraph 1 (d), of the 1955 Treaty, it must hold that no breach of Article X, paragraph 1, of the Treaty has been established.13

Since Iran brought the case on the ground that the United States had breached a provision of the Treaty of Amity, the United States analyzed the dispute as one of international responsibility involving the concepts of ‘internationally wrongful act’ and ‘circumstances precluding wrongfulness’. During the oral hearings, the United States repeatedly referred to these concepts and discussed the case in light of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts,14 parts of which the Court had in previous cases declared customary international law.15 The United States pointed out that the relationship between the concepts of ‘internationally wrongful acts’ and ‘circumstances precluding wrongfulness’ had been addressed as early as in 1973 by Roberto Ago, then Special Rapporteur of the International Law Commission, who had emphasized that circumstances precluding wrongfulness do not excuse an act that is otherwise wrongful, but render the act internationally lawful.16 This analysis, which was adopted by the Commission,17 has also been embraced by arbitral tribunals.18 The United States referred to a recently published book by Crawford,19 where he explains that ‘[t]he existence in a given case of a circumstance precluding wrongfulness . . . provides a shield against an otherwise well-founded claim for the breach of an international obligation’.20 In other words, a circumstance precluding wrongfulness does not merely allow a State to avoid international responsibility (namely, the obligation to compensate) while maintaining the illegality of the

13 Merits, paras. 33 and 34. Jurisdiction was not discussed by the Parties, and not addressed by the Court, at the Merits stage of the proceedings since it had already been decided in 1996, in the Court’s decision on the United States’ preliminary objection, that ‘there exists between the Parties a dispute as to the interpretation and the application of Article X, paragraph 1, of the Treaty of 1955; that this dispute falls within the scope of the compromissory clause in Article XXI, paragraph 2, of the Treaty, and that as a consequence the Court has jurisdiction to entertain the dispute’ (Preliminary Objection, 820, para. 53). 14 See Chapter V of ‘Report of the International Law Commission on the Work of its Fiftythird Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). 15 See, for example, Gab‘íkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7, at 38, para. 46. 16 YILC (1973), ii, para. 12. See also YILC (1979), ii, Part One, paras. 51 and 55. 17 YILC 1979, ii, Part Two, paras. 1 and 10. 18 The arbitral tribunal in the Rainbow Warrior case (‘Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair. Decision of 30 April 1990’) referred to ‘circumstances that may exclude wrongfulness (and render the breach only apparent)’, RIAA, xx, 215, at 251–2, para. 75. 19 Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). 20 Ibid., 160.

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act. The effects of a circumstance precluding wrongfulness go further: the act taken in such circumstances is not internationally wrongful; it is an international lawful act. This, in the view of the United States, is precisely what Article XX of the Treaty sets out to accomplish: it ‘precludes wrongfulness of conduct which would otherwise not be in conformity with the international obligations of the State concerned’. Although the concept of measures ‘necessary to protect essential security interests’, as provided for in Article XX, is not expressly listed in the Commission’s draft as one of the ‘circumstances precluding wrongfulness’, the United States argued that it is covered by Article 55 of the draft: These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.

This provision, as Professor Crawford explains in his book, makes it clear by reference to the lex specialis principle that the articles have a residual character. Where some matter otherwise dealt with in the articles is governed by a special rule of international law, the latter will prevail to the extent of any inconsistency.21

On the basis of the Commission’s findings—and Professor Crawford’s commentary—the United States argued that Article XX referred to a ‘circumstance precluding wrongfulness’. The United States concluded that, if the Court was satisfied that such a circumstance existed at the time of the United States actions, it should decide that there was no internationally wrongful act, and therefore no responsibility, on the part of the United States.22 At certain points in its Judgment, the Court also appeared to frame the dispute in terms of Articles X and XX. At paragraph 21, the Court declares: The task of the Court in the present proceedings is to determine whether or not there have been breaches of the 1955 Treaty, and if it finds that such is the case, to draw the appropriate consequences according to the submissions of the Parties.

Then, at paragraph 35, the Court states: To uphold the claim of Iran, the Court must be satisfied both that the actions of the United States, complained of by Iran, infringed the freedom of commerce between the territories of the Parties, guaranteed by Article X, paragraph 1, and that such actions were not justified to protect the essential security interests of the United States as contemplated by Article XX, paragraph 1 (d).

21 22

Ibid., 306. CR 2003/12, 15–18, paras. 17.12–17.19.

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Reading these two paragraphs together, one would have expected a clear and simple determination by the Court: either yes, the United States violated its obligations under Article X to protect the freedom of commerce and navigation because its actions were not necessary to protect its essential security interests; or no, the United States did not violate its obligations under Article X because these actions were necessary to protect its essential security interests. In the former case, Iran’s claim would prevail; in the latter, it would be dismissed. Ultimately, however, Iran’s contentions did not focus on the issue of responsibility for breach of treaty but relied primarily on the law governing the use of force and self-defence.23 In substance, Iran’s main argument was that Article XX, which permits each Party to take measures necessary to protect its essential security interests, could not be interpreted as exempting the parties from the provisions of the United Nations Charter and the principles of international law governing the use of force and self-defence. The Treaty of Amity, Iran argued, ‘cannot legitimise or permit . . . breaches of mandatory rules of international law’ and therefore should not be read as an ‘additional exempting authority over and above the provisions of the Charter so far as the use of force is concerned’.24 This conflation of the concept of ‘measures necessary for the protection of essential security interests’ of the Treaty and the concept of self-defence of Article 51 was at the heart of Iran’s position. Iran’s Counsel explicitly declared that Iran’s primary submission ‘is that . . . paragraph 1(d ) [of Article XX] is only satisfied by proof of circumstances which would amount to self-defence . . . Since the destruction of the platforms could not be justified as a measure of self-defence . . . it cannot be justified under paragraph 1(d) either’.25 In short, Iran asked the Court to decide the case not on the specific ground of the Treaty of Amity but on the much broader ground of the law governing the use of force: ‘We invite the Court to judge [the case] on that basis’, Iran’s Counsel explicitly stated.26 The Court was thus faced with two dramatically different perspectives on the case. Whereas the United States was asking the Court to judge the dispute on the basis of the law of State responsibility, Iran asked the Court to assess the legality of the United States’ actions on the basis of the prohibition of the use of force and the law of self-defence. The Court chose the latter

23 In the early stages of the proceedings (Application and Written Submissions), Iran had argued that the United States had violated not only Article X of the Treaty of Amity but also ‘international law’. Later, in its Counter-Memorial, Iran seemed to modify its position, arguing that the United States’ actions had violated Article X—without any reference to what it had earlier termed a violation of ‘international law’. During the oral hearings, however, Iran subtly returned to its original submission that the United States actions had violated ‘international law’—international law in general, and not specifically Article X of the Treaty of Amity. 24 Reply of Iran, 162, para. 7.71, and 165, para. 7.77; CR 2003/8, 17, para. 32. 25 CR 2003/8, 19, para. 37, and 2003/15, 55, para. 6. 26 CR 2003/8, 19, para. 37.

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approach, and the Judgment deals only with the law on the use of force and the right of self-defence. It does not say a single word about international responsibility—even though its jurisdiction rested on the limited ground of Article XXI, paragraph 2, of the Treaty.27 3. The Court’s Departure from the NICARAGUA Precedent In addition to having discretion regarding the grounds on which the case was decided, the Court had to choose the order in which it analyzed Articles X and XX—a choice that was to prove significant. The Court noted the importance of the sequence of its analysis in paragraph 35 of the Judgment: [T]o uphold the claim of Iran, the Court must be satisfied both that the actions of the United States . . . infringed the freedom of commerce . . . guaranteed by Article X, paragraph 1, and that such actions were not justified to protect the essential security interests of the United States as contemplated by Article XX, paragraph 1 (d). The question however arises in what order the Court should examine these questions . . .28

Were the Court to conclude that the American actions had not violated the freedom of commerce and navigation between the Parties provided for in Article X, it would not have had to ask itself whether these actions were justified by the protection of essential security interests under Article XX. Conversely, were the Court to conclude that the American actions were justified by the protection of essential security interests provided for in Article XX, it would not have had to ask itself whether such actions had violated the freedom of commerce and navigation protected by Article X. The Judgment points out that, faced with the same issue in Nicaragua, the Court first assessed whether the United States had violated its obligations under the Treaty of Amity, and added that it is only ‘[i]nsofar as acts of the Respondent may appear to constitute violations of the relevant rules of law’ that it ‘will then have to determine whether there are present any circumstances excluding lawfulness, or whether such acts may be justified upon any other ground’.29 On the basis of this precedent, the United States had argued, first, that its actions had not impeded the freedom of commerce and navigation of Article X and, alternatively, that these actions were in any event ‘justified’ by Article XX. The United States maintained that the order in which the Court was to

27 Article XXI, paragraph 2, reads: ‘Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means’. 28 Merits, para. 35. (Emphasis added.) 29 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, at 117–18, para. 226.

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examine Article X and Article XX was irrelevant since both approaches would yield the same result, namely that the United States was not in breach of its treaty obligations toward Iran. The Court responded as follows: The Court does not consider that the order in which the Articles of the 1955 Treaty were dealt with in the [Nicaragua] case . . . was dictated by the economy of the Treaty; it was rather an instance of the Court’s ‘freedom to select the ground upon which it will base its judgment’ . . . In the present case, it appears to the Court that there are particular considerations militating in favor of an examination of the application of Article XX, paragraph 1 (d), before turning to Article X, paragraph 1.30

The question thus arises: what are the ‘particular considerations’ that led the Court to divert from the order it had adopted in Nicaragua and which, on the basis of this precedent, the United States had relied upon in its oral presentation? The Court’s only explanation is that, since ‘both Parties are agreed as to the importance of the implications of the case in the field of the use of force’, it ‘considers that, to the extent that its jurisdiction under Article XXI, paragraph 1, of the 1955 Treaty authorises it to examine and rule on such issues, it should do so’.31 The Court’s decision to first look into whether American actions were ‘justified’ under Article XX before turning to Article X would not have been objectionable if the Court had not in effect rendered Article XX meaningless. By equating Article XX with the concept of self-defence as spelled out in the United Nations Charter and general international law, the Court denied the concept of ‘measures necessary to the protection of a Party’s security interest’ as set forth in that provision any specific meaning. In Nicaragua, the Court had expressly rejected such conflation, and recognized the specific character of the concept set forth in Article XX, as distinct from that of self-defence: It is difficult to deny that self-defence against an armed attack corresponds to measures necessary to protect essential security interests. But the concept of essential security interests certainly extends beyond the concept of an armed attack, and has been subject to very broad interpretations in the past.32

This meant that, whereas a measure taken in self-defence is by definition necessary to protect essential security interests, the reverse is not true: a measure can be ‘necessary to protect essential security interests’ even though it does not meet all the conditions required for self-defence. Relying on this most explicit analysis in Nicaragua, the United States argued that the question before the Court in Oil Platforms was whether its actions had been necessary to protect its essential security interests; if so, the United States maintained, such measures did not constitute a violation of the 1955 Treaty. In the view of the United

30 31 32

Merits, para. 37. (Emphasis added.) Ibid., para. 38. ICJ Reports 1986, 14, at 117, para. 224.

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States, the question was not whether it had acted in self-defence. The United States also emphasised that, while under the 1955 Treaty the Court had jurisdiction to assess whether the United States actions were necessary to protect its essential security interests, the Court’s jurisdiction did not extend to the question of the conformity of those actions to the law governing the use of force and the right of self-defence.33 Surprisingly, however, the Court failed to follow its own Nicaragua precedent. Instead of asking itself whether United States actions had been necessary to protect essential security interests, it asked whether the actions met the conditions required under the law of self-defence. Contrary to what it did in Nicaragua, the Court this time denied any specific meaning to the concept of ‘measures necessary to protect essential security interests’ to which the Parties referred in their 1955 Treaty, and the Court dealt with this concept as if it were interchangeable with the concept of self-defence under the Charter and general international law. To explain this approach, the Judgment declares that, ‘[b]efore the Court, [the United States] has continued to maintain that it was justified in acting as it did in exercise of its right of self-defence’.34 The Judgment does not recall, however, that when Counsel for the United States came to this aspect of the case he insisted that he was doing so only ‘for the record’35 and on a subsidiary basis: the Court can and should dismiss the claims of Iran on the basis of Article XX, without having to decide whether United States actions also fell within the bounds of self-defence. If the Court concludes that the measures taken by the United States were necessary to protect its essential security interests, then they were not precluded by the Treaty, and there would accordingly be no need for the Court to consider the right of self-defence.36

The United States could hardly have been more explicit. The United States repeatedly emphasized that, primo, the measures were justified as ‘measures necessary to protect its essential security interests’ under the 1955 Treaty of Amity; secundo, that the Treaty of Amity—the only existing basis for the Court’s jurisdiction—did not give the Court jurisdiction to discuss questions of the use of force and self-defence; and, tertio, that such lack of jurisdiction did not mean that the United States considered itself exempted from the rules and principles of international law and the United Nations Charter regarding the use of force and self-defence. All of this the Judgment appears to ignore.

33 34 35 36

CR 2003/12, 26–7, para. 17.36. Merits, para. 37. CR 2003/12, 46, para. 18.42. Ibid., 34, para. 18.4.

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Moreover, the Judgment criticizes a position that the United States did not put forward. Contrary to what the Judgment says, the United States did not ‘interpret Article XX, paragraph 1 (d ), to the effect that the “measures” there contemplated could include even an unlawful use of force by one party against the other’.37 Contrary to what the Judgment says, the United States did not invoke Article XX, paragraph 1 (d) ‘to justify actions involving the use of armed force, allegedly in self-defence’. Finally, contrary to what the Judgment says, the United States did not argue that ‘Article XX, paragraph 1 (d ), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force.’38 Quite the opposite. The United States emphasized that it did not consider having been exempted by the Treaty of Amity from the obligations imposed by the Charter and general international law. It simply argued that the Court did not have jurisdiction to address these questions. All of this the Court simply chose to ignore. Through this reshaping of the American position, the Court turned a case of international responsibility for breach of treaty into a case bearing on the rules of general and Charter international law governing the use of force and self-defence. It is worth repeating that in its final submissions Iran had requested the Court to find that the United States had ‘breached its obligations to Iran under Article X, paragraph 1, of the Treaty of Amity and that the United States bears responsibility for these attacks’,39 while the United States had requested the Court to find that ‘the United States did not breach its obligations to [Iran] under Article X, paragraph 1, of the 1955 Treaty’.40 The Court’s response to these requests, however, went far beyond an assessment whether the United States violated Article X of the Treaty. True, in the dispositif of the Judgment the Court found ‘further’ that it could not uphold the submission of the Islamic Republic of Iran that those actions constitute a breach of the obligations of the United States of America under Article X, paragraph 1, of that Treaty, regarding freedom of commerce between, the territories of the parties . . .41

This, however, is only the second sentence of the dispositif. The first sentence reads as follows: the Court found that the actions of the United States of America against Iranian oil platforms . . . cannot be justified as measures necessary to protect the essential security interests of the United States of America under Article XX, paragraph 1 (d), of the 1955 Treaty . . .42

37 38 39 40 41 42

Merits, para. 41. Ibid., para. 41. CR 2003/16, 36, para. 12. (Emphasis added.) CR 2003/18, 36, para. 29.30. (Emphasis added.) Merits, para. 125. Ibid.

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It is, in effect, the second sentence of the dispositif that answers the question in the Parties’ submissions, namely whether the United States had breached its obligations under the 1955 Treaty. Having concluded that American actions did not breach the 1955 Treaty, it was not necessary for the Court to determine whether these actions were justified as necessary to protect American essential security interests. Therefore, the Court’s statement on Article XX is mere obiter dictum, and may be regarded as not possessing the character of res judicata. Strangely enough, when one reads the dispositif—the Court ‘finds further that the Court cannot uphold . . .’43—it is the second sentence, which deals with Article X, that appears to be regarded by the Court as obiter. This reflects the fact that the Court paid primary attention to the use of force while relegating the Treaty to secondary importance. That the Court was aware of the unwarranted importance it gave to issues relating to the use of force is evident from the passage in the Judgment where the Court bluntly states that the 1955 Treaty ‘authorise[d] it to examine and rule on such issues’ because ‘both Parties are agreed as to the importance of the implications of the case in the field of the use of force’.44 The weak justification thus given by the Court to deal with issues pertaining to self-defence highlights the lack of direct relevance of such issues to the case at hand. The Court also appears to have been aware that its jurisdiction, as defined in and limited by Article XXI of the Treaty of Amity, did not allow it to go as far as examining the actions of the United States in light of general international law governing the use of force and self-defence. After repeating that its jurisdiction ‘extends, where appropriate, to the determination whether action alleged to be justified under that paragraph [1 (d ) of Article XX] was or was not an unlawful use of force’, the Court went out of its way to emphasise that its jurisdiction remains limited to that conferred to it by Article XXI, paragraph 2, of the 1955 Treaty. The Court is always conscious that it has jurisdiction only so far as conferred by the consent of the parties.45

Notwithstanding its protests to the contrary, however, the Court significantly departed from its usual caution not to overstep the limits of consensual jurisdiction. Judges Higgins,46 Kooijmans,47 Buergenthal,48 and Owada,49 all criticized the fact that the Court dealt with issues which were not before it.

43 44 45 46 47 48 49

Ibid. Ibid., para. 38. Ibid., para. 42. Separate Opinion Separate Opinion Separate Opinion Separate Opinion

of of of of

Judge Judge Judge Judge

Higgins, at para. 14. Kooijmans, at para. 17. Buergenthal, at para. 28. Owada, at para. 34.

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prosper weil and daphné richemond 4. Conclusion

As it appears from both Parties’ submissions, the Oil Platforms case raised specific issues of international responsibility for breach of treaty. The Court was, therefore, expected to contribute to the law of international responsibility and to rule on key provisions of the International Law Commission’s draft articles on State responsibility. In contrast, the Judgment does not contribute in any way to the law of State responsibility. It simply ignores it, and deals instead with the law pertaining to the use of force and self-defence. Some may rejoice that the Court chose this opportunity to address issues as important as the law on the use of force and the right of self-defence; others will question the jurisdictional grounds on which the Court did so.

PART FOUR

RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS AND OTHER NON-STATE ENTITIES

CHAPTER TWENTY-NINE

OBJECTIVE MEANING OF CONSTITUENT INSTRUMENTS AND RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS Robert John Araujo, SJ

1. Introduction It is an honor to participate in this tribute to the late Oscar Schachter, a great lawyer and teacher of the law. It can be said of him that one foot was firmly planted in the academy while the other was deeply rooted in the world of practical legal issues, particularly those of an international nature. I regret that, when I was doing my graduate legal studies at Columbia, I did not have him as a teacher. Nonetheless, his vitality and zeal for the law were shared with or passed on to those with whom I did study. I hold a common interest with Schachter that involves the world of international, i.e. intergovernmental, organizations, particularly the United Nations. For thirty years he labored on behalf of this organization. The insights he harvested and the wisdom he sowed about the United Nations have influenced my own work and understanding of this noble institution whose reputation, with wounds sometimes self-inflicted, can still be easily tarnished. Like any human enterprise, it is not perfect, and its flaws periodically demonstrate its vulnerability. But Oscar Schachter’s recorded experience helps us to chart a course through the legal Scylla and Charibdis present on the shoals of the East River of New York City. In contributing to this commemorative volume, I have not come to praise without qualification international organizations, but, I hasten to add, neither do I write to inter them. There is much they have to offer international society, and, therefore, there is hope in what they promise to do and what they can do in a legal setting that is built on not simply a political foundation but a moral one as well. It is interesting and significant to note that, with the passage of time, expectations of the external accountability of international organizations are being voiced when they have failed in some international legal obligation. These mistakes may be based on self-aggrandizement or departure from the core functions and objectives of the institutions that are contained within foundational texts. These departures have earned increased scrutiny and Maurizio Ragazzi (ed.), International Responsibility Today, 343–353. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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intensified the call for accountability borrowing from the concept of international responsibility to which other persons under international law, usually States, have been held. The fact that international organizations can fail in their legal obligations presents an emerging issue about the international responsibility of these organizations which was identified as early as 1963.1 Schachter once pointed out from his own relationship with the United Nations that mistakes can be made within that institution. He relayed the story of an ‘opinion’ requested of him shortly after he began his career. On one occasion, he was asked by the architects designing the new headquarters building how many seats should be in the General Assembly hall of an organization which then had fifty-one members. His counsel was to add another twenty seats.2 The passage of time and the subsequent growth of the United Nations’ membership demonstrated that this response about the organization’s potential growth was flawed. Of course, nobody could suggest that the organization was internationally responsible for such an omission. But the architects, engineers, construction crews, and the organization itself have demonstrated that the ‘mistake’ could be remedied so that sufficient seating could be installed (albeit at the sacrifice of seating for visitors), ensuring that the work of the General Assembly would continue in the hall erected to house its deliberations. This is precisely one of the essential points of these pages: notwithstanding mistakes or inadequate planning, complications which may seem insurmountable can be overcome. Crucial to this enterprise is ongoing vigilance to remember why the organization was established and to recognize the objectives it was designed to achieve. This enterprise, moreover, requires fidelity to the basic statute or constitution of the organization, in this case the Charter of the United Nations. If there are departures from its duties and responsibilities that are attributable to the organization rather than individual members, might the organization be liable to any parties adversely affected by its errors? In assessing its duties and responsibilities, attention must be paid to its foundational texts. 2. Objective Meaning of Constituent Instruments A sensible and historically-minded reading of the Charter and complementary legal instruments is the essential starting point for ensuring that the organization operates in a manner that avoids as many legal pitfalls as possible. The same can be said of other international organizations. With this approach, there is hope for success in realizing the noble goals for which they were created. I

1

‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), 30, relying on YILC (1963, II), 184 (Doc.A/CN.4/161 and Add. 1, para. 172). 2 Walsh, ‘A Conversation with Oscar Schachter’, 91 ASIL Proceedings (1997), 343–55, at 344.

objective meaning of constituent instruments 345 believe that Schachter recognized this point. When asked to comment on the ideals of the United Nations, he explained: ‘I look at the authoritative texts and pronouncements and, when appropriate, to practices that express basic goals and aspirations. The UN Charter and the Universal Declaration [of Human Rights] are obvious examples.’3 In the realm of international law, juridical texts are especially relevant and important in ascertaining what is constitutive of this law.4 A departure from the authentic meaning of these texts can lead to disrespect for and violations of international law and the institutions designed to sustain the law in a proper way. The order which the law can otherwise provide a chaotic world may vanish as a consequence. This is particularly true when the text is the foundation document of an international organization. Departures from the objective meaning of the text, which properly defines the nature and role of the organization for many diverse interests including its members, can foil not only common understandings but shared purposes, the raison d’être of the organization itself. Adherence to these texts makes the actions and decisions of the organization less susceptible to criticism, which has a strong legal foundation. Traditionally, responsibility for departures from international legal obligations has been attributed to States or natural and juridical persons. However, the Reparation case 5 opened the door to hypothesizing about the international responsibility of international organizations. With the declaration, by the International Court of Justice, that international organizations are persons from the standpoint of seeking and obtaining legal remedies, it follows mutatis mutandis that they should also be held accountable for their actions which conflict with international law. Some of the recent deliberations of the International Law Commission reinforce the view that international organizations have international responsibility like those traditional subjects, i.e. States, which have legal obligations.6 In the context of the Commission’s work, what is necessary for international responsibility of international organizations is not an injury but a breach of an international obligation such as those established under international juridical instruments.7 While international practice on the issue is sparse, research on the international responsibility of these organizations is beginning to appear.8 Although in its incipient stages of discussion, the question of international

3 4 5

Ibid., 347. See the Statute of the International Court of Justice, Article 38(1)(a). Reparation for Injuries Suffered in the Service of the United States, Advisory Opinion, ICJ Reports 1949,

174. 6 ‘Report of the Working Group on Responsibility of International Organizations’ (Doc.A/CN.4/ L.622). See also ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10), 228–36; and Doc. A/58/10, 29–49. 7 Doc.A/58/10, 31, 35, and 45–6. 8 Holder, ‘International Organizations: Accountability and Responsibility’, 97 ASIL Proceedings (2003), 231–6.

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responsibility of international organizations has arrived. It would seem sensible to suggest that, if natural and juridical persons along with States can be held legally accountable for their activities, why should others influencing the international legal order, specifically international organizations, enjoy immunity? With knowledge that the era of immunity for misfeasance and nonfeasance of international legal obligations has ended, the methods for holding international organizations accountable are under investigation by the International Law Commission. Since the modalities of accountability have yet to be examined, it might be useful to suggest briefly some areas in which international responsibility for international organizations may surface, and how the organizations can properly diminish their exposure to international responsibility. I shall use the case of the United Nations as the basic template for this discussion; however, the United Nations are not the only intergovernmental organization with respect to which the question about the international responsibility of international organizations may be raised. One illustration regarding problems that can be generated by international organizations is the World Trade Organization. In the opinion of some commentators, this organization has had a tendency to stray from its constitutional objectives and exercise influence if not authority in areas that seem ultra vires. This phenomenon has been described by some as ‘linkage’.9 This ultra vires activity can occur when an organization moves into a realm that may already be occupied by the objectives for which other international organizations have been established. This phenomenon may also surface when no specific organization exists that can supply the needed functions. Consequently, an expansionist-oriented organization has migrated into the area that does not appear to be within the scope of its competence as defined in its constitutive documents. The ultra vires movement can lead the organization into activities that increase its exposure to complaints that may be justiciable. Of course, the organizations could avoid such exposure by staying within the realm of their mandate as articulated by their constituent instruments and any other applicable juridical texts. Another organization that has undergone recent criticism, in this respect, is the International Monetary Fund.10 Reasoned restraints on zealous human activity presented through the objectives of normative texts are essential to preserving an ordered society. Moreover, these same texts authorize various bodies, especially international organizations, to contribute to the preservation of a harmonious international order. In this regard, the texts must offer clarity in defining the specific duties and jurisdiction of these bodies so as to avoid any straying from the organizations’ appropriate objectives which can lay the foundation for infractions of law and resulting harm to third parties.

9 10

Alvarez, ‘The WTO As Linkage Machine’, 96 AJIL (2002), 146–58. See Holder, ‘International Organizations’.

objective meaning of constituent instruments 347 One important justification for the emphasis regarding the need for precision in the meaning of normative texts is that an ill directed involvement by international organizations may blur the distinction between their value and unreasonable, even excessive, regulatory involvement that impinges on the international order. That is why the roles of international organizations must be clear. That is why the texts providing the justification and authority for these roles must be as clear as possible. And that is why the texts which they produce and apply in the execution of their responsibilities must also be carefully drafted and interpreted and take into consideration the juridical instruments on which the work relies. These texts, moreover, provide legitimacy for the organizations’ actions. This brings me to an investigation of the United Nations as a model for addressing the international responsibility of international organizations. In this part of the investigation, it would be prudent to recall the objectives of the United Nations that provide a frame of reference about its proper and legal activities. These objectives are defined by Article 1 of the Charter and embrace the realization of international cooperation in solving international problems of an economic, social, cultural, or humanitarian character which includes promoting and encouraging respect for human rights. I contend that the United Nations remain on firm ground and less susceptible to criticism under the doctrine of international responsibility when the Charter is strictly observed. Hence avoiding international responsibility depends on the United Nations respecting these goals and making their actions consistent with them. A careful and objective understanding and application of the Charter and complementary juridical texts are crucial to the success of the United Nations and the avoidance of international responsibility. This general international organization is guided by its basic document, the Charter. In addition, several complementary texts crucial to its substantive work for promoting and encouraging respect for human rights include the Universal Declaration of Human Rights and juridical instruments such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. When State delegations and other participants work closely and carefully within the objective meaning of the Charter and these complementary instruments, the success of their work can be enhanced; however, when this meaning of vital texts is disregarded or confused, the ensuing difficulties including strong disagreement amongst States involved in the organization’s work can lead to the frustration of common objectives and concerns about accountability. Thus, the door to international responsibility begins to open. 3. Draft Resolution on Parental Rights A recent illustration of the frustration of objectives involving the United Nations and the failure to apply objective meanings of relevant texts emerged from the work of the Third (Social, Humanitarian, and Cultural) Committee in the

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fifty-eighth session of the General Assembly. The group adversely affected by this was parents whose rights have been preserved by various international legal instruments. Each year, the Third Committee addresses a wide variety of draft resolutions that will be forwarded to the General Assembly for further debate and adoption. While the impact and meaning of General Assembly resolutions is often debated, they can provide some insight about consensus or support within the international community for certain principles that fall within the mandate of the United Nations. When there is a sound textual basis underlying resolution drafting, the work can proceed in a cooperative spirit; however, when new concepts or ideas which depart from ‘agreed language’ or questionable sources of authority are introduced, the work can suffer. In addition, when a proposed draft departs from or ignores relevant instruments that bind the members of the international legal community, resolution drafting can become paralyzed or, worse, some legitimate interest may be adversely affected. In 2004, the international community celebrated the tenth anniversary of the International Year of the Family. Preliminary work was initiated in the Third Committee to prepare the way for drafting at least one resolution on the family to facilitate this celebration and observance. Although the debate on certain issues was spirited, the Third Committee was able to agree on a draft resolution entitled ‘Preparations for the observance of the tenth anniversary of the International Year of the Family’. The draft resolution was subsequently adopted by the Committee without a vote. The interest in this resolution geared to family issues provided the incentive for some delegations to propose a companion resolution on the rights and role of parents. Thus, the draft resolution on ‘The importance of the guidance and role of parents in the care, control, and development of children’ (the so-called ‘parents resolution’) was introduced before the Third Committee for its consideration. Through laborious informal consultations, the Committee worked on this draft resolution that would have the General Assembly address the rights and duties of parents that are acknowledged under international law. The eventual adoption of this draft resolution would have marked the first time that these issues would be the subject of a distinct resolution concerning parents’ rights and duties in family situations and relations with their children. Although the parents resolution was carefully drafted and relied on language from respected juridical instruments including the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, as well as the Universal Declaration of Human Rights and other General Assembly resolutions, some delegations were opposed to the draft parents resolution. While noting their preference for language from the Convention on the Rights of the Child and the Special Session of the General Assembly on Children, these delegations elected to downplay the pertinent elements from the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights that identified and protected parents’

objective meaning of constituent instruments 349 rights, liberties, and responsibilities regarding their children. The parents resolution was then subjected to dubious amendments during the plenary meeting of the Third Committee that focused on concerns about children rather than parents. In the view of the amendments’ supporters, the original draft resolution failed to deal with the rights of children as related to specific rights of parents. It was noted that the amendments proposed were based on agreed language that had been adopted previously. However, in this respect, it is vital to note that, while this language may have been agreed upon in other contexts, it was not agreed upon in the context of the rights of parents. The delegate who chaired the informal consultations stated that the draft parents resolution, before the amendments, had mentioned the rights of the child and had taken them into account. As a matter of fact, some of the text of the original draft resolution had incorporated provisions of the Convention on the Rights of the Child; however, since this resolution was about parents, elements of other juridical texts that affirmatively addressed parents’ rights and responsibilities also had to be incorporated. The Chair noted her regret that further amendments had been introduced, but she hoped discussions could resume so that a final draft protecting the legitimate interests of parents could be approved, preferably by consensus. But those delegations that insisted on the inclusion of the amendments relying on children’s rights and minimizing parents’ rights would not relent. The Committee then held two recorded votes on the amendments to the title and substantive provisions which significantly altered the focus of the original draft resolution. The amendments were approved as a result of the vote. When the title and substantive paragraphs had been amended, most of the co-sponsors of the original draft resolution took the floor to withdraw their delegations’ support for the draft resolution as amended. The draft resolution died in the Committee as a result of a ‘no action motion’ vote requested by some of the co-sponsors of the original draft resolution. As a consequence of the successful ‘no action motion’ vote, the General Assembly did not consider this item, and the parents resolution, as amended, failed. Whether another attempt will be made to present a parents resolution in the fifty-ninth session of the General Assembly remains to be seen. What is clear is that the legitimate interests of parents through their rights and duties of raising their children were harmed by the failure of the fifty-eighth session to acknowledge and protect the rights and interests of parents—a failure that could be viewed as a breach of an obligation, which could trigger the international responsibility doctrine. The original draft resolution on the rights and role of parents reflected more accurately and comprehensively the underlying texts, including juridical instruments, than did the proposed amendments which proved to be the Achilles’ heel of the draft resolution. Moreover, the method used by the authors of the original draft resolution to understand the import of all the underlying texts, specifically the Universal Declaration of Human Rights and the International

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Covenant on Civil and Political Rights, which provided the basis for the parents resolution, was consistent with principles contained in the Vienna Convention on the Law of Treaties, which allows an accurate understanding and application of international legal instruments and the rights and duties they address. Several important provisions of the Universal Declaration, and the legal instruments, justified protecting parents’ rights and roles regarding the upbringing of their children. These provisions begin with and are built upon the principle of the Universal Declaration that the family is the natural and fundamental group unit of society and is entitled to be protected by society and the State.11 This principle is essentially duplicated in the International Covenant on Civil and Political Rights.12 Moreover, the Universal Declaration acknowledges that parents have the prior right to choose the kind of education that shall be given to their children.13 The International Covenant on Civil and Political Rights builds on this point and further elaborates that States have a duty to respect the liberty of parents (or legal guardians) to ensure that the religious and moral education of their children is in conformity with the parents’ convictions.14 The International Covenant on Economic, Social and Cultural Rights reflects these points by stating that the duty of the State also includes respecting the liberty of parents to send their children to schools (as long as they conform to the minimal educational standards of the State) other than those established by public authorities and to ensure the religious and moral education of children in conformity with their parents’ convictions.15 In addition, Article 5 of the Convention of the Rights of the Child acknowledges that States parties ‘shall respect the responsibilities, rights and duties of parents . . . to provide in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise of the child of the rights recognized’ by the same Convention.16 4. Principles of Interpretation under the Vienna Convention For the United Nations to achieve their objectives, it is essential that these juridical texts should be appreciated together and simultaneously applied in accordance with the principles contained in the Vienna Convention on the Law of Treaties.17 Adherence to these principles would positively contribute to fidelity to the law and reduce the likelihood of international responsibility for 11 Universal Declaration of Human Rights, Gen. Ass. Off. Recs., Third Session (Doc.A/37/51), Article 16(3). 12 International Covenant on Civil and Political Rights, 999 UNTS 171, Article 23(1). 13 Universal Declaration of Human Rights, Article 26(3). 14 International Covenant on Civil and Political Rights, Article 18(4). 15 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, Article 13(3). 16 Convention on the Rights of the Child, 1577 UNTS 3, Article 5. 17 Vienna Convention on the Law of Treaties, 1155 UNTS 331.

objective meaning of constituent instruments 351 breaches of the law. Although the Vienna Convention, at first sight, seems to posit a formalistic approach to the interpretation and application of international treaties, it demonstrates that legal interpretation is more of an art than an exact science, but an art aimed at achieving the purposes of the instrument in an objective fashion.18 As one works through the text of the Vienna Convention, it becomes apparent that its drafters had in mind a functional and pragmatic approach to applying international legal texts. Clearly, the drafters of the ‘treaty on treaties’ did not want to have the interpretive process encumbered with the niceties and the problems of formalism. This becomes evident as one reads the whole text of the Vienna Convention. While pacta sunt servanda is the underlying theme, the methods by which the text is understood and implemented are diverse. At the outset, the Vienna Convention asserts the fundamental and universal obligation that any instrument is to be read in good faith. Even the most resourceful explanation that complies with other principles should fail if it is not proffered in the context of good faith. Moreover, the text itself and the formulations chosen by the drafters must provide the essential guidance to the reader on what the instrument is about and what it is not. While Article 31(1) of the Vienna Convention refers to a plain or ordinary meaning approach, it also requires that attention be given to the ‘context’ and ‘object and purpose’ of the treaty in question. The remaining text of Articles 31 and 32 of the Vienna Convention shows that a variety of interpretative tools are at the disposal of those whose task it is to interpret and apply the instrument. Again, the objectives of the instrument are relevant to its meaning. How its purposes or goals are discerned is not immediately evident, but it is clear that the instrument’s objectives may be considered to achieve the best, material understanding of the text that defines legal rights and obligations. The Vienna Convention also allows reliance on the instrument’s working papers or legislative history.19 This component of interpretative methodology is vital to the issue under present investigation. One further comment must be made. As not all States are parties to the Vienna Convention, the question arises of how widespread the application of the above-mentioned articles of the Vienna Convention should be. In the estimation of one respected commentator, they constitute an expression of customary international law.20 Clearly, the provisions of the Vienna Convention represent a widely respected set of principles that, while not guaranteeing a particular outcome, provide a sensible approach to explaining the meaning of the constituent instruments of international organizations and, by operation of

18 See the International Law Commission’s commentary quoted in Aust, Modern Treaty Law and Practice (2000), 184. 19 Vienna Convention on the Law of Treaties, Article 32. 20 Sinclair, The Vienna Convention on the Law of Treaties (2nd edn., 1984), 153. Chapter 5 of this book provides a solid explanation of the role of the Vienna Convention in the interpretation of treaties.

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the similar principles embodied in the Vienna Convention of 1986 (likewise reflecting international customs),21 of the treaties between international organizations or between States and international organizations. Upon applying these principles to the issues under investigation, including the international responsibility of the United Nations, it can be seen that the draft parents resolution in its original formulation was consistent with the principles of the underlying juridical texts and, therefore, consistent with the objectives of the United Nations to promote human rights. The draft resolution’s defeat incurred by the amendments conflicted with these texts and, regrettably, interfered with the appropriate functioning of the United Nations and protection of the legal interests of parents. This leads to the application of the first principle of interpretation under the Vienna Convention, i.e. good faith. In applying this principle to the Third Committee work described above, good faith interpretation would necessitate an understanding and appreciation of the treatment accorded parents within texts that mold the conduct of the United Nations. The human rights instruments mentioned above guide the activity of the United Nations in their deliberations and decisions within the realm of human rights issues. Reliance solely on the Convention of the Rights of the Child does not. Disregarding what all these vital texts actually provide about parents does not appear to be in harmony with the principle of good faith. This observation about good faith raises the related point about what do these texts mean to the citizen of the international community. The plain or ordinary meaning of the provisions addressing parents’ prerogatives indicates that parents do have rights and responsibilities regarding their children. Ignoring these provisions would not be consistent with the ordinary meaning of all the applicable texts; moreover, the valid interests of parents would be impaired. Further, it is essential to the interpretative process to grasp the objectives and purposes of these provisions as well as the underlying motivation or intent associated with their preparation. These can be determined in accordance of the principles of the Vienna Convention by examining the travaux préparatoires. When the working papers of the United Nations Declaration of Human Rights are studied, it becomes clear that the objectives and intention of Article 26(3), as further reflected in Article 18(4) of the International Covenant on Civil and Political Rights and Article 13(3) of the International Covenant on Economic, Social and Cultural Rights, were to avoid situations like those of Nazi Germany in which the State and the controlling political party, but not the parents, determined how children were to be educated and reared.22 In short, parents 21 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 25 ILM (1986), 543. 22 Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999), 263–9; Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001), 159.

objective meaning of constituent instruments 353 have and retain this prior right that is consistent with the best interests of their children, and this right of parents is guaranteed by the rule of law. The parents resolution was consistent with a good faith application of the United Nations Declaration of Human Rights and the International Covenants, based on the plain meaning of their language as well as their goals and underlying motivations. The adoption of the draft resolution would have reinvigorated important principles underlying the noble work of the United Nations as defined by law. However, the draft resolution’s defeat thwarted the objectives of the United Nations and the indispensable tasks with which they are charged. Following Schachter’s method of carefully examining the applicable instruments would have benefited the outcome of the United Nations work in this case; moreover, this approach would establish a prudent method for ordering the organization’s future activities thereby minimizing the ability to argue that it has violated applicable norms which would raise its accountability under the doctrine of international responsibility.

5. Conclusion The parents resolution as originally drafted was an appropriate vehicle for implementing the proper objectives of the United Nations. Moreover, this initiative represented a suitable effort to encourage and promote the rights and duties of parents acknowledged by international law. Regrettably, the failure of the draft resolution prevented this primary international organization from carrying out its proper role to protect an important constituency whose human rights fall within the scope of the organization’s objectives. It is legitimate to ask whether this failure may not also be seen as a breach of an obligation that belongs to the United Nations under its Charter and related human rights instruments. The United Nations and other international organizations can prevent or reduce exposure to claims that they have incurred international responsibility by being faithful to their mandates. Schachter’s teaching on the need for coherent interpretation and application of fundamental texts remains valid in helping international organizations to be true to their noble mandates. Through a respectful and objective use of basic texts having considerable impact on the international order, international organizations may accomplish the many dignified goals that they were established to realize. On the other hand, when international organizations ignore this need for coherent interpretation and application, they risk facing allegations of international responsibility and their very future is at risk.

CHAPTER THIRTY

THE RESPONSIBILITY OF STATES FOR THE ACTS OF INTERNATIONAL ORGANIZATIONS Ian Brownlie

1. Introduction Oscar Schachter had a long career, indeed, he had several careers. In his early years he worked in the Department of Labour in the era of the New Deal. He recalled, in conversation, police violence against pickets. After his subsequent career in the United Nations Secretariat, in 1975 he began to teach at Columbia and, in this context, he was very influential, having many grateful pupils from around the world. His writings, which were backed by his experience, were lucid. Last but not least he had a good sense of humour and the gift of friendship. The present writer, along with many others, is in his debt. The subject chosen for this contribution meets the needs of brevity because not very much is known about it. Most works of reference ignore it. In the articles on State responsibility adopted by the International Law Commission in 2001,1 the question is the subject of the following proviso in Article 57: These articles are without prejudice to any question of the responsibility under international law of an international organization or of any State for the conduct of an international organization.

When the Institut de Droit International studied the problem the outcome was somewhat cautious. The key assumption was the effect of the international personality of the organization, which was, as a matter of international law, assumed to be opposable to third parties.2 In the resolution adopted in 1995,3 the question of the responsibility of member States to third parties is dealt with in Articles 5 and 6, as follows: 1 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth session, Supp. No. 10 (Doc.A/56/10). 2 See the Preliminary Exposé and Draft Questionnaire ( June 1989) by Dame Rosalyn Higgins, 66 Annuaire (1995), i, 249–89; Provisional Report (August 1993), ibid., 373–420; Final Report (October 1994), ibid., 461–3. 3 ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’, 66 Annuaire (1996), ii, 444–53.

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chapter thirty-one ian brownlie Article 5 a) The question of the liability of the members of an international organization for its obligations is determined by reference to the Rules of the organization. b) In particular circumstances, members of an international organization may be liable for its obligations in accordance with a relevant general principle of international law, such as acquiescence or the abuse of rights. c) In addition, a member State may incur liability to a third party: i) through undertakings by the State, or ii) if the international organization has acted as the agent of the State, in law or in fact. Article 6 a) Save as specified in Article 5, there is no general rule of international law whereby States members are, due solely to their membership, liable concurrently or subsidiarily, for the obligations of an international organization of which they are members. b) No inference of a general rule of international law providing for liability of States is to be deduced from the fact that the Rules of some organizations make specific provision: i) for the limitation or exclusion of such liability, or ii) for the dissolution of these organizations. c) No liability of a State arises merely by virtue of – having participated in the establishment of an international organization to serve the State’s own purposes; – the fact that the act of the organization giving rise to its liability to a third party is claimed to be ultra vires.

These formulations have their own value, of course. However, they have a curiously tangential character. The general assumption is that there is no liability of members per se (see Article 6(a)), but this statement is not as negative as it appears. This is clear from Articles 5 and 6 which enumerate various exceptions which, in total, are not insignificant. The subject is increasingly relevant in view of the growing number of ad hoc inter-actions between States and organizations. For the purpose of this essay, the term international organization means an intergovernmental organization. The International Law Commission’s draft articles on responsibility of international organizations provide that: For the purposes of the present draft articles, the term “international organization” refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.4

4 ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth session, Supp. No. 10 (Doc.A/58/10), 33, para. 53 (Article 2).

the responsibilities of states 357 2. Do Any Rules Exist? There is no doubt that the law in this area remains undeveloped and it is true to say that there is not much useful authority. However, it is necessary to avoid a transition to the assumption that no rules or principles exist. There is here, as in other areas of law, a characterization problem. Is it the case that, until there is a complete structure of rules governing the legal relations of international organizations, no rules can be said to exist? This is an unattractive hypothesis for several reasons. In particular, such an assumption is contradicted by experience. Thus, in the North Sea Continental Shelf cases,5 the International Court used legal reasoning to construct the general principles governing continental shelf entitlement.6 The Court acted similarly in the Jan Mayen case,7 in respect of the delimitation of fishery zones. Again, there appears to be no general system of rules governing the sphere of unilateral acts but, in many sets of circumstances, decision-makers have no great difficulty in recognizing the existence of important legal relations arising from unilateral acts. The most promising approach would seem to be resort to existing experience and legal analysis. But, before this is done, it is necessary to explore a preliminary issue, that is the relevance of legal personality. 3. The Relevance of Legal Personality As Dame Rosalyn Higgins demonstrated in her Preliminary Exposé to the Fifth Commission of the Institut in 1995, there is great diversity of opinion on the question whether the conferment of a separate legal personality upon an organization is decisive of the issue of the attribution of acts of the organization to the member States.8 In the absence of a consensus of opinion, it is necessary to resort to ordinary legal reasoning. In the case in which the organization is created on the basis of a constituent instrument, or even a discernible pattern of practice in the absence of such an instrument, the normal approach would be to carry out an exercise in interpretation, including the inquiry into the objective and purpose of the constituent instrument or the informal agreement. In approaching the question of the incidence of the responsibility of member States in relation to third States, the existence or not of separate legal personality would appear to be inconclusive or, on another view, irrelevant.

5

North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3, at 4. See Brownlie, ‘The Sources of the Law Governing Maritime Delimitation’, Rama-Montaldo (ed.), International Law in an Evolving World. Liber Amicorum in Tribute to Eduardo Jiménez de Aréchaga (1994), ii, 733–44. 7 Maritime Delimitation in the Area Between Greenland and Jan Mayen, ICJ Reports 1993, 38. 8 66 Annuaire (1995), i, 249–88. 6

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chapter thirty-one ian brownlie 4. Object and Purpose: the Principles of Interpretation

As already proposed, the ‘no rules’ hypothesis is unattractive and the most promising approach is to rely upon existing experience and legal analysis. The starting point is the text of the multilateral instrument in each case, employing normal principles of interpretation and seeking the object and purpose of the project. The question of responsibility may, of course, be the subject of express provisions, as in the case of the Convention on International Liability for Damage Caused by Space Objects, adopted by the General Assembly on 29 November 1971.9 The more significant question, however, is what inferences may be drawn from basic instruments which are silent on the position. In this connection the Interim Award of 5 March 1984 by the Court of Arbitration of the International Chamber of Commerce, in Westland Helicopters and AOI, is of considerable interest. In the words of the Arbitral Tribunal: In the absence of any rule of applicable law [“règle de droit positif ”], what is to be deduced from the silence of the founding documents of the AOI as to the liability of the four States? In the absence of any provision expressly or impliedly excluding the liability of the four States, this liability subsists since, as a general rule, those who engage in transactions of an economic nature are deemed liable for the obligations which flow therefrom. In default by the four States of formal exclusion of their liability, third parties which have contracted with the AOI could legitimately count on their liability. This rule flows from general principles of law and from good faith. It can be supported if one likens the given situation to that which existed during the last century, where commercial organizations were formed without a clear legal basis (whether or not they could be considered as possessing personality). As a general rule, the founding members or the members of such bodies were held liable unless they had excluded their liability in a manner which could not escape third parties’ notice which, for example, was the case with the establishment of a joint stock company, the generally known structure of which excluded the liability of shareholders. In the present case, the Basic Statute, despite the fixing of capital, does not classify the AOI as a “société de capitaux” such as a limited liability company. The AOI is rather more akin to a general partnership [“société en nom collectif ”] under French, Swiss or German law or a “partnership” under English or United States law. In this context, the phrase in Article 14 of the Treaty “Any Arab government may join this Agreement” and also that of the Basic Statute at Article 4 “those States which join the agreement” are significant, as are Articles 10(I), 1e and 15 of the Treaty calling the four States “participating countries”. The provisions relating to its constitution and to the possible increase in capital of the AOI do not prevent this entity from being much closer to a partnership than to a “société de capitaux”. This corresponds to the concept of “member” and “membership” which, in the constitution of the AOI, characterizes the position

9 Gen. Ass. Res. 2777 (XXVI), 10 ILM (1971), 965. The text of the Convention is at 961 UNTS 187.

the responsibilities of states 359 of each of the four States within it. The provisions of Article 3 of the Basic Statute (“The original members of the Organization are the four Arab States . . .”), of Article 57 (“member State”) and Articles 4 and 9 of the MOU (“the Member States of the AOI”) lead one to think that the four States, in forming the AOI, did not intend wholly to disappear behind it, but rather to participate in the AOI as “members with liability” (“membres responsables”).10

Whether or not one accepts the analysis in respect of this particular case, the approach as such has much to commend it. At the same time the basis of the responsibility is not adequately articulated. The references to general principles of law and good faith are far too economical. 5. Compatibility with Principles of General International Law and the Relevance of State Responsibility The resolution of the Institut adopted in 1995, of which Articles 5 and 6 have been set forth above, militates decisively against the ‘liability’ of member States to third parties for the obligations of an international organization. There is a certain oddity here. As a matter of general international law, third States are not bound by the constituent instrument in any event. Moreover, it cannot be reasonable to create a licence to harm the interests of third States by creating an international organization. There is surely a presumption, based upon public interest and ordinary logic, that, if the organization is not empowered to make reparation to third States, the member States are under such a duty. In the final analysis the governing legal category is not the law of international organizations but the law of State responsibility. The formation of an international organization cannot result in some species of erga omnes limitation of responsibility, or immunity, in relation to non-members. This reality has been masked to some extent by the concern of the International Law Commission to maintain a demarcation between State responsibility and other subjects. As the Commission observed in the Commentary to Article 57 of the articles on State responsibility: Article 57 also excludes from the scope of the Articles issues of the responsibility of a State for the acts of an international organization, i.e., those cases where the international organization is the actor and the State is said to be responsible by virtue of its involvement in the conduct of the organization or by virtue of its membership of the organization. Formally such issues could fall within the scope of the present Articles since they concern questions of State responsibility akin to

10 Westland Helicopters Ltd and Arab Organization for Industrialization, United Arab Emirates, Kingdom of Saudi Arabia, State of Qatar, Arab Republic of Egypt and Arab British Helicopter Company (Case No. 3879/AS), 80 ILR (1989), 596, at 613–14.

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chapter thirty-one ian brownlie those dealt with in chapter IV of Part One. But they raise controversial substantive questions as to the functioning of international organizations and the relations between their members, questions which are better dealt with in the context of the law of international organizations.11

The literature tends to focus upon the existence or not of a distinct legal personality—an international organization—and then to assume that the terms of the constituent instrument are not only relevant but represent a legal regime which third States must accept. The appropriate analysis is to treat the organization (or the joint agency of States) simply as a part of the factual elements, which, upon analysis, may lead to the responsibility of the member States, or some of them, to a third State. On this view the applicable legal category is that of State responsibility, and not the law of international organizations. This analysis provides a helpful perspective for the appraisal of the provisions in treaty instruments purporting to exclude or limit responsibility. Dame Rosalyn Higgins has pointed out that such clauses are not conclusive in relation to the general question of obligations of member States to third parties.12 This is surely the correct view. However, for present purposes the point is that such clauses would not necessarily preclude State responsibility because, like the constituent instrument as a whole, they do not bind third parties. 6. Agency and Other Special Relations Just as the International Law Commission’s articles on State responsibility cover a variety of factual permutations, so the interaction of States and organizations may involve the State, or a group of States, using an organization as an agent, or may involve the secondment of State officials, police, and armed forces, to an organization. Whilst the principles of State responsibility may be difficult to apply to the subject-matter, this is frequently the case whatever the context. In any event the milieu is clearly that of State responsibility. This is also true of the question of host State responsibility. 7. The Application of Public Order Regimes There is a major issue which cannot be fully explored in the compass of this essay, namely the question whether and to what degree the application of systems of public order can be evaded by the claim that it was not the member

11

Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries (2002), 311, para. 4. 12 66 Annuaire (1995), i, 271–4.

the responsibilities of states 361 States, but the organization, which was involved in the activities concerned. Such questions arise in practice. Thus, in the case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) (and seven other cases), at the preliminary objections phase, three of the respondent States contended that, because NATO possesses legal personality, it is the organization and not the individual member States which should bear any responsibility.13 Similarly, issues may arise in the context of regimes for the protection of human rights. In 1999, in the case of Waite and Kennedy v. Germany, the Grand Chamber of the European Court of Human Rights, in an Article 6 case, observed that: The Court is of the opinion that where States establish international organizations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organizations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see, as recent authority, Aït-Mouhoub v. France (Case No 103/1997/887/1099) (28 October 1998, unreported) (para. 52) referring to Airey v. Ireland (1979) 2 EHRR 305 at 314–5).14 (Emphasis supplied.)

Whilst the context is that of human rights, the principle invoked would seem to be general in its application. A State cannot avoid responsibility by creating an international organization. It also goes without saying that responsibility for violations of the European Convention on Human Rights15 is itself a form of State responsibility. 8. Concurrent and Subsidiary Liability The resolution of the Institut in 1995 contains provisions based upon the concepts of ‘concurrent’ and ‘subsidiary’ liability, as follows:

13 See the preliminary objections of France, Italy, and Portugal, electronically available at . 14 Waite and Kennedy v. Germany (Application No. 26083/94), 118 ILR (2001), 121, at 135 (para. 67). 15 213 UNTS 221.

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chapter thirty-one ian brownlie Article 2 For the purposes of this Resolution: [. . .] b) “liability” means both concurrent and subsidiary liability. i) Concurrent liability means a liability that allows third parties having a legal claim against an international organization to bring their claim, at their choice, against either the organization or its members. ii) Subsidiary liability means a liability by which third parties having a legal claim against the international organization will have a remedy against States members only if and when the organization defaults. [. . .] Article 4 a) The obligations that an international organization has to third parties may arise under international law (including the Rules of the organization) or under the law of a particular State. b) Whether States have concurrent or subsidiary liability for the fulfilment of such obligations due solely to their membership in an international organization is a matter of international law, whether a claim by a third party is made in an international court or tribunal or a national court.

These provisions reflect the ‘organization’-centred approach of the work of the Institut. It is not helpful, in the context of public international law, to use the term ‘liability’, when State responsibility is in issue if the member States are the respondents to claims. Once again, the terms of the constituent instrument, or the established practice of the organization, cannot, as a matter of general principle, make determinations of the incidence or priority of claims which are legally opposable to third parties.

9. Conclusion The purpose of this necessarily short essay has been to provide a clear analytical foundation for the solution of the problems in the field. The major characterization is that of State responsibility. The approach which appears to give centrality to the creation of an intergovernmental organization is analytically flawed and unattractive in other ways. It is illogical to suppose that a group of States can manufacture an immunity from responsibility toward third States by the creation of an international legal personality. And the same logic (of several responsibility) applies to the activities of joint agencies.

CHAPTER THIRTY-ONE

THE INTERNATIONAL RESPONSIBILITY OF THE UNITED NATIONS FOR INJURIES RESULTING FROM NON-MILITARY ENFORCEMENT MEASURES Christian Dominicé1

1. Introduction Both as an international civil servant with the United Nations and in his influential activities as a scholar, Oscar Schachter had strongly supported the purposes and the work of the Organization, seen as a necessary instrument for achieving peace and developing human rights. It may seem strange that, in an endeavor to honor his memory, the topic selected here relates to the international responsibility of the United Nations for unlawful acts. However, to safeguard the dignity of the United Nations, and to stregthen the authority it deserves, the Organization should be widely known for its scrupulous respect of the law. In particular, in the event of a wrongful act, it must be prepared to accept its full responsibility, as it has often done in the past.2 This essay addresses the question of the responsibility of the United Nations for injuries resulting from non-military enforcement measures taken by member States in accordance with a resolution of the Security Council (so-called ‘sanctions’). When, acting under Chapter VII of the Charter, the Security Council determines that there is a threat to the peace, a breach of the peace, or an act of aggression (Article 39) and then decides which measures, in accordance with Article 41, are to be applied against a member, it is clear that invariably those measures will harm the State concerned, its population, and even third States

1 The author would like to thank Mr Djacoba Liva Tehindrazanarivelo, Ph.D. (Graduate Institute of International Studies), Lecturer at the University of Neuchâtel, for his valuable assistance in the preparation of this text. 2 See ‘Report of the Secretary-General’ (Doc.A/51/389), 20 September 1996.

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or persons.3 Sanctions always cause injuries, but such injuries are generally to be considered as not unlawful. However, one cannot ignore the fact that the measures ordered by the Security Council could be unlawful, and the circumstances in which this may be the case must be clearly identified. This contribution will consider briefly some general aspects of the international responsibility of the United Nations, and then deal with non-military enforcement measures. 2. Principles Governing the International Responsibility of the United Nations There is no doubt that international organizations—notable amongst them the United Nations—as subjects of international law are susceptible of occasionally breaching the international obligations by which they are bound. The question of the international responsibility of international organizations is now being considered by the International Law Commission of the United Nations.4 The first observation is that, in general terms, the rules on international responsibility which have been developed to apply to the relations between States are also to be applied to international organizations.5 Thus, it can be stated that every internationally wrongful act of an international organization entails the international responsibility of that organization. As for States, there is an internationally wrongful act when the act is attibutable to the organization under international law and constitutes a breach of an international obligation of that organization.6 As an organ of the United Nations, acts of the Security Council may entail the responsibility of the Organization, even if the Security Council acts ultra vires.7 3 See Article 50 of the Charter; cf. Tehindrazanarivelo, Les effets secondaires des sanctions non militaires des Nations Unies. Aspects juridiques et influence sur le nouveau concept de sanction de l’ONU, Ph.D. Thesis, Graduate Institute of International Studies (No. 662, 2003), 67–126. 4 Professor Giorgio Gaja has been designated as Special Rapporteur. His First Report (Doc.A/CN.4/532), 26 March 2003, deals with general principles; his Second Report (Doc.A/ CN.4/541), 2 April 2004, discusses the question of attribution. 5 See ‘Report of the Secretary-General’ (Doc.A/51/389), para. 6. See also Gaja, ‘First Report on Responsibility of International Organizations’ (Doc.A/CN.4/532), 7. 6 See draft Article 3 (‘General principles’) provisionally adopted by the International Law Commission (‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), 33, para. 53): ‘1. Every internationally wrongful act of an international organization entails the international responsibility of the international organization. 2. There is an interantionally wrongful act of an international organization when conduct consisting of an action or omission: (a) Is attributable to the international organization under international law; and (b) Constitutes a breach of an international obligation of that international organization’. 7 In his ‘Second Report on the Responsibility of International Organizations’ (Doc.A/CN.4/541), the Special Rapporteur indicated that, in order to protect third parties, attribution must be

the international responsibility of the united nations 365 The main problem is to identify clearly the substantive rules to be applied to the activities of the United Nations. In order to determine if there is a breach of an obligation, the true content of the alleged obligation must first be established.8 3. International Obligations of the Security Council when Ordering Non-military Enforcement Measures The main legal basis for non-military enforcement measures is Article 41 of the Charter.9 Some observations need to be made before considering the measures themselves. a. The first observation is to stress that, whatever its powers, the Security Council cannot free the United Nations from its obligations. As a subject of international law, the United Nations is bound by many obligations and must respect them, unless it is authorized by internatonal law to suspend them or derogate from them.10 For the topic under consideration here, an important question is to what extent the rules of jus cogens in the field of human rights constitute an obstacle to enforcement measures based upon Article 41. b. The second observation is that such measures form a part of a Security Council decision which starts with the determination under Article 39, and sometimes addresses to the State designated as the ‘culprit’ an injunction to do something or adopt a specific behaviour.11 At both stages (determination as well as injunction when there is one), the decision of the Security Council might be unlawful, in which case the enforcement measures would themselves then be unlawful.

extended to ultra vires acts (para. 51 ff.). See Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports 1962, 151, at 168. 8 A well-known example is the applicability of the laws of armed conflict in the conduct of military operations commanded by the United Nations; see the United Nations Secretary-General Bulletin on the ‘Observance by the United Nations Forces of International Humanitarian Law’ (ST/SGB/1999/13), 6 August 1999; see also Klein, ‘Les organisations internationales dans les conflits armés: la question de la responsabilité internationale’, Benchikh (ed.), Les organisations internationales et les conflits armés (2001), 167–98. 9 For a recent survey of non-military enforcement measures adopted by the Security Council, see Gowlland-Debbas, ‘Sanctions Regimes under Article 41 of the UN Charter’, Ea. (ed.), National Implementation of United Nations Sanctions: A Comparative Study (2004), 3–31. 10 For example, within the context of the advisory opinion on Namibia, it was necessary to demonstrate that according to the law of treaties the United Nations was entitled to declare that it was no longer bound by the mandate. See 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, 16, at 45, para. 87 ff. 11 After the invasion of Kuwait, Resolution 660 (1990) enjoined Iraq to withdraw ‘immediately and unconditionally all its forces to the position in which they were located on 1 August 1990’. The text of the resolution is electronically available at .

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As to the determination under Article 39, it must be observed that, as shown by practice, the Security Council is given a very broad discretionary power by that provision.12 Therefore a violation of the Charter, whilst theoretically possible, is not a serious hypothesis. In respect of ‘injunctions’, practice indicates that they are of particular importance because sanctions are ordered when the State concerned does not act as it is requested to do.13 In our opinion, such injunctions are legal when the State is called upon to respect or implement international obligations which actually exist in its regard. However, they are unlawful when they create new obligations, because the Security Council does not have the authority of a legislator, allowing it to modify treaty provisions, or rules of general international law.14 c. The measures under Article 41 are implemented by member States. These measures imply a breach by member States of obligations resulting from various instruments (trade agreements, air traffic agreements, etc.), but such breaches are not internationally wrongful acts, because Article 103 of the Charter states that for member States their obligations under the Charter prevail in the event of a conflict between them and their obligations under another agreement.15 Customary international law is not covered by Article 103, but it can be argued that a resolution of the Security Council prevails over an obligation under customary international law as a lex specialis—unless it is contrary to a rule of jus cogens. This is precisely the point where we find the most important limits to the power of the Security Council under Article 41. It would be going far beyond the scope of this article to try to determine the various rules of jus cogens that are binding upon the United Nations, but one can note that a distinction must be made between two different situations.

12 However, this broad discretionary power does not mean unlimited power. See Bothe, ‘Les limites des pouvoirs du Conseil de sécurité’, Dupuy (R.-J.) (ed.), The Development of the Role of the Security Council. Peace-keeping and Peace-Building (1993), 67–81, at 69–70. 13 According to Professor Jean Combacau, this is a classical sanction against a State which does not fulfill its conventionnal obligation to respect the decision of the Security Council, See Combacau, Le pouvoir de sanction de l’ONU. Etude théorique de la coercition non militaire (1974), 11. 14 As was noted in footnote 11, above, Resolution 660 (1990) enjoined Iraq to respect an obligation under general international law: to withdraw from an invaded territory. On the other hand, Resolutions 731 (1992) and 748 (1992) imposed on Libya a new obligation (extradition of nationals) and were therefore, in our opinion, illegal. See Dominicé, ‘Le Conseil de sécurité et le droit international’, 43 Revue yougoslave de droit international (1996), 197–210, at 203. See also Arangio-Ruiz, ‘On the Security Council’s Law-making’, 83 RDI (2000), 609–725, mainly his ‘Egregious examples of recent Security Council questionable infringements of States’ rights’, at 701–24. 15 On Article 103, see the commentaries in Cot and Pellet (eds.), La Charte des Nations Unies. Commentaire article par article (2nd edn., 1991); and Simma (ed.), The Charter of the United Nations. A Commentary (2nd edn., 2002). See also Dominicé, ‘L’article 103 et le droit international humanitaire’, Condorelli, La Rosa and Scherrer (eds.), The United Nations and International Humanitarian Law (1996), 175–92.

the international responsibility of the united nations 367 When, in various situations, the Organization is acting in the same way as States may act, it is reasonable to assert that it is bound by the rules of general international law (among them the rules of jus cogens) in the same way as States are bound. This is the case when military forces are placed under the authority of the United Nations, or when the Organization is entrusted with a task of territorial administration which implies for its organs responsibility analogous to that of the organs of the State over its territory and population. However, this is not the question under discussion here. Of relevance here is when the Security Council acts as ‘legislator’ to restore peace. In the limited field of non-military enforcement measures, the limits to the Security Council’s power would be derived from certain fundamental principles of human rights considered to be rules of jus cogens. The first task of the United Nations is to promote and to guarantee human rights. It would be hard to argue that it is not bound by fundamental principles which it has the duty to require States to respect.16 Therefore, the Security Council does not have the power to call upon States to apply measures which would constitute a breach of a rule of jus cogens in the field of human rights. True, the resolutions as such are not likely to have such a content. However, the effects of embargoes which last over several years may be such that fundamental human rights are violated. This has been demonstrated by inquiries undertaken in Iraq.17 The effects of such embargoes on the civilian population are deeply worrying, and may have long term consequences. In such circumstances, one cannot avoid the conclusion that the United Nations is violating fundamental principles of human rights and consequently this entails the organization’s international responsibility. Of course, this is not likely to occur frequently, but it cannot be ignored. 16 On this United Nations obligation to respect human rights, see, among others, Clapham, ‘Sanctions and Economic, Social and Cultural Rights’, Gowlland-Debbas (ed.), United Nations Sanctions and International Law (2001), 131–41; De Wet, ‘Human Rights Limitations to Economic Enforcement Measures under Article 41 of the UN Charter and the Iraqi Sanctions Regime’, 14 LJIL (2001), 277–300; Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercice its Enforcement Powers under Chapter VII of the Charter’, 26 NYIL (1995), 33–138; Megret and Hoffman, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’, 25 Human Rights Quarterly (2003), 314–42; and Tehindrazanarivelo, ‘Le droit des Nations Unies et les limites au pouvoir de sanction du Conseil de sécurité’, Picchio Forlati and Sicilianos (eds.), Economic Sanctions in International Law (2004), 211–77, at 218–25. But see, contra, Vradenburgh, ‘The Chapter VII Powers of the UN Charter: Do they “Trump” Human Rights Law?’, 14 Loyola Los Angeles International and Comparative Law Journal (1991), 175–205, at 184. 17 See for example, Normand, ‘A Human Rights Assessment of Sanctions: The Case of Iraq, 1990–1997’, Van Genugten and De Groot (eds.), United Nations Sanctions: Effectiveness and Effects, Especially in the Field of Human Rights. A Multi-disciplinary Approach (1999), 19–33, at 25; Halliday, ‘The Impact of the UN Sanctions on the People of Iraq’, 28 Journal of Palestine Studies (1999), 29–37; and the ‘Report of the Panel’ established in 1999 by the Security Council to evaluate the humanitarian situation in Iraq (S/1999/356), Annex II, 30 ff. For a general analysis of the humanitarian effects of United Nations sanctions, see Tehindrazanarivelo, Les effets secondaires, 127–185, and the references therein.

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The question is not discussed here whether States should refuse to apply unlawful measures.18 In any case, the United Nations would be responsible, at least jointly.19 The conclusion is that enforcement measures may be unlawful: – if the determination under Article 39 is ‘unconstitutional’, which is theoretically possible but not likely; – if the injunction preceding the implementation of the measures is not in conformity with international law; – if the measures themselves, either as such or in their effects, constitute a breach of an international obligation of the United Nations in matters of human rights (rules of jus cogens).

4. Legal Consequences The legal consequences of an internationally wrongful act have been dealt with by the International Law Commission in its draft articles on State responsibility. It is possible to assert that at least the first two Chapters of Part Two on the Content of the International Responsibility of a State20 express rules of customary international law. They are without a doubt also to be applied in matters of international responsibility of international organizations, including the United Nations.21 It is therefore sufficient merely to refer to those articles. Practice seems to be clear in this regard, particularly with respect to compensation.22 However, two important questions deserve special consideration. The first relates to reparation, the second to cessation of the internationally wrongful act. They are difficult questions which cannot be fully addressed here. Some brief observations are nonetheless warranted.

18 For a discussion of the right of States to protest against ‘unlawful’ Security Council decisions, see Angelet, ‘Protest against Security Council Decisions’, Wellens (ed.), International Law: Theory and Practice. Essays in Honour of Eric Suy (1998), 277–85. 19 See Articles 17 and 18 of the International Law Commission’s draft articles on State responsibility: ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). 20 Draft articles on State responsibility, Part Two (‘Content of the International Responsibility of a State’), Chapter I (‘General principles’), Articles 28–33, and Chapter II (‘Reparation for injury’), Articles 34–39. 21 On some specific points, the analogy may not be total. Thus, the provision on the irrelevance of internal law (Article 32) is without prejudice to the application of Chapter VII of the Charter. 22 See Zacklin, ‘Responsabilité des organisations internationales’, La responsabilité dans le système international (Société française pour le droit international, Colloque du Mans) (1990), 91–100, at 93.

the international responsibility of the united nations 369 The nature and amount of reparation will depend on several factors. The main duty of the United Nations, if it appears that the enforcement measures were unlawful, even if only partially, is to ensure that the injured State has the resources needed to resume normal functioning. Sometimes compensation might be justified, sometimes it will be more appropriate to organize and finance a programme of assistance. These are questions to be discussed with the State concerned. The role of the Security Council is important here. Its first task is to recognize that something has gone wrong and to set up an adequate procedure to address the matter. Cessation is one of the main consequences stemming from the commission of an internationally wrongful act, if that act is continuing. Here, particularly, the Security Council has an important responsibility. It must put an end to, or modify, measures which appear to be unlawful, and this is certainly what occurs if embargoes last too long and are in breach of rules of jus cogens protecting human rights. The objective of enforcement measures is to attempt to provoke a change in the behaviour of the leaders of a country, not to harm innocent people.23 In the preparation of Security Council decisions, thorough assessments are needed, both legal and factual. This is the task of the Secretariat, in collaboration with the Sanctions Committee.24 Reports and inquiries by NGOs should also be taken into consideration.

23

This non-punitive objective of United Nations sanctions has been explicitly recognized by the United Nations Secretary-General (‘An Agenda for Peace’ (Doc.A/50/60–S/1995/1), 3 January 1995, paras. 66–8), the Security Council on behalf of its President (S/PRST/1995/9, 22 February 1995, 4), the General Assembly (A/RES/51/242, 15 September 1997, Annex II, para. 3), and numerous States intervening at the 4128th session of the Council, discussing ‘General questions on sanctions’ (see the provisional verbatim record of this special session, S/PV.4128, 17 April 2000). 24 The idea of preliminary assessment of the effects of United Nations sanctions was first discussed at the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, in the framework of the effective application of Article 50 of the Charter (see Doc.A/49/33, 7 April 1994, paras. 72–5). By its Resolution 50/51 of 11 December 1995, the General Assembly entrusted the Secretary-General with this assessment function, at the request of the Security Council and its organs. The pratical procedure and outcome of the assessment was developed in the ‘Report of a Special Panel of Experts’ (Doc.A/53/312, 27 August 1998), created in application of General Assembly Resolution 52/162. As to practice, the Security Council asked for such an assessment for the proposed flight ban of Sudan in 1997 (see Cortright and Lopez, The Sanctions Decade. Assessing UN Strategies in the 1990’s (2000), 125). More explicitly, the same organ, in its Resolution 1343 (2001) on Liberia (para. 13a), requested the Secretary-General to provide, six months from the date of the adoption of the resolution ‘a preliminary assessment of the potential economic, humanitarian and social impact on the Liberian population’ of possible sanctions to be taken by the Council on the basis of the report of a Panel of Experts investigating the links between the exploitation of natural resources and other economic activities, and the fuelling of conflict in Sierra Leone and neighboring countries. Following the Panel of Experts’ recommendation (in S/2001/1015) and its discussion by the Security Council members (S/PV.4405, 5 November 2001), a boycott of all round logs and timber products originating in Liberia was imposed by the Council, provision being made for an examination of the necessary means to reduce the humanitarian or socio-economic impact of the boycott (S/RES/1478 of 6 May 2003, paras. 17–18).

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In conclusion, nobody will deny that one evident duty of the United Nations is to be true to international law. The Security Council has a special responsibility to make sure that its actions are in conformity with international law, and, when there is a breach, to take adequate measures to restore legality.

CHAPTER THIRTY-TWO

THE DEFINITION OF ‘INTERNATIONAL ORGANIZATION’ IN THE INTERNATIONAL LAW COMMISSION’S CURRENT PROJECT ON THE RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS Maurice Mendelson1

1. Introduction Although I occasionally had the temerity to question some of Oscar Schachter’s views,2 he never allowed this to stand in the way of friendship—for which he had a great capacity. He believed passionately in international law, but never lost his gift of wry detachment and tolerance. For many years a distinguished servant of international organizations, and particularly of the United Nations, he was a lifelong student of the law that governs them. I therefore like to think that he would have been interested in the subject of this essay, which is dedicated to his memory. My topic is the definition of ‘international organization’ in the current work of the International Law Commission on the responsibility of international organizations. At present, Article 2 reads: For the purposes of the present draft articles, the term ‘international organization’ refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.3

To my mind, this definition is unsatisfactory in several respects, which I shall explicate shortly. I am very conscious of the warning of the celebrated Roman

1 I am grateful for the valuable research assistance of Ms Tara Helfman, JD student of Yale Law School, and formerly LLM student of University College London. 2 See e.g. our debate about the standard of compensation for expropriation in the American Journal: Schachter, ‘Compensation for Expropriation’, 78 AJIL (1984), 121–30; my ‘Compensation for Expropriation: The Case Law’, 79 AJIL (1985), 414–20; Schachter, ‘Compensation Cases— Leading and Misleading’, ibid., 420–2; my ‘Letter to the Editor in Chief ’, ibid., 1041–3. See also my ‘The Formation of Customary International Law’, 272 RdC (1998), 155–410, at 159 and 243–4. 3 ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), para. 53.

Maurizio Ragazzi (ed.), International Responsibility Today, 371–389. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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jurist Javolenus: ‘omnis definitio in jure civili periculosa est, parum est enim ut non subverti possit ’: every definition in the civil law is dangerous, for there is hardly one that cannot be overthrown.4 The problem is particularly acute in the case of international organizations, because they vary so much. Amongst the hundreds of intergovernmental organizations that have come into being, mostly since 1945, there are very great differences in (amongst other things) size, categories of member, functions, powers, structure and legal status. They range in size from the universal—such as the United Nations with its 191 members— through regional organizations such as the European Union, with 25 members, down to organizations with just two or three members, such as the Organisation pour la mise en valeur du fleuve Sénégal, with three members,5 or the Basel-Mulhouse Airport, with two.6 Moreover, although intergovernmental organizations primarily comprise States as members—by definition—other types of entity may, in relatively rare cases, enjoy full or associate membership. Thus the ‘Overseas Territories of the United Kingdom’ is a member of the Universal Postal Union;7 the African Development Bank is a founder member of the African Development Fund;8 the World Tourism Organization is open, not only to States as full members, but to dependent territories as associate members, as well as to a wide range of organizations and companies working directly in travel, tourism and related sectors;9 and, somewhat similarly, Article 4(2) of the treaty establishing the Arab International Bank provides that the membership could include, as well as governments, ‘Banks, Institutions, Organizations, Arab Companies and Arab Individuals’.10 So far as concerns organizations’ functions, these vary from the very wide and important—such as those possessed by the United Nations—to the very narrow and relatively modest—such as the management of a boundary-straddling river system, airport, or tunnel. Organizations’ powers and capacity to act independently of particular members also diverge greatly, ranging from a supranational body such as the European Community to organizations that are little more than frameworks for consultation and/or unanimous joint action by members. Their structure varies considerably too, from the very complex to the very simple, and from those modelled on the United Nations to those more akin to private law corporations. Their legal basis also varies. Nearly all intergovernmental organizations are established by treaty; but a few dozen, although provided for by treaty, are in fact incorporated under

4

Digest, 50.17.202 (my translation). See <www.gouv.sn/integration/omvs.html>; Peaslee, International Governmental Organizations (3rd rev. edn., 1974), v, 582. 6 See Adam, Les établissements publics internationaux (1957), 223. 7 See <www.upu.int/members/en/members.html>. 8 See Article 3(1) of the Agreement establishing the African Development Fund (29 November 1972): 1197 UNTS 13. 9 See <www.world-tourism.org/aboutwto/eng/menu.html>. 10 Text supplied by the Arab International Bank. The treaty has apparently not been registered with the United Nations. 5

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the domestic law of one (or very occasionally more than one) member State or States—though often with significant modifications to the normal pattern.11 Organizations’ legal personality varies too, as we shall see. So generalizations can be risky. Because each organization’s law depends on its particular constituent instrument or instruments, some have doubted whether there is such as thing as a ‘law of international organizations’, rather than laws of particular organizations.12 For my own part, I suggest that there exist sufficient similarities between at any rate the great bulk of international organizations for one to be able to detect a body of rules that apply to them as a class, at any rate prima facie. That is to say, there exist general rules that apply unless one can show that the particular rules governing the particular organization impose a different solution. Be that as it may, once the International Law Commission decided to codify13 the rules about the responsibility of international organizations, it could hardly avoid defining the entities in question. But it is important that the definition be as useful and ‘elegant’ as possible: it should capture everything that ought to be included in it, and nothing else. I shall submit that the Commission’s draft is unsatisfactory in relation to organizations established partly by treaty and partly under domestic law and—more importantly—in relation to the legal personality of international organizations. My concerns about what the Commission has done are more than merely a quibble about the definition section of a particular (possible) draft convention. As we shall see, the definition identifies international organizations not only by their membership but also by their supposed attributes, such as legal personality. This has implications for general law. For experience has shown that many (though not all) codifications by the International Law Commission exercise a sort of gravitational pull on decision-makers and writers, even if the codes in question have not (yet) become treaty law—either at all, or for particular States. What is quotable will tend to be quoted, if it comes from an apparently authoritative source. Accordingly, even though the particular definition under examination here is accompanied by the qualification that it exists (only) for the purpose of the draft articles in which it appears, there is a good chance that what is ultimately adopted will be widely cited outside that context. So it is particularly important to avoid errors. 11 This latter category is usually confined to bodies similar to the Basel-Mulhouse Airport described above—bodies established by a pair of States for a limited, often technical, purpose. Such bodies were dubbed ‘établissements publics internationaux’ by Adam, the leading writer on this particular subject; see his Les établissements publics internationaux, already mentioned, and his Les organismes internationaux spécialisées (5 vols., 1965–1992). But not all organizations of this type are confined to a pair of States or are of relatively minor significance: the Bank for International Settlements falls into this category too, despite its plural membership and its relatively important functions: see . 12 This is the so-called ‘principle of speciality’. 13 ‘Codify’ in the broad sense, including both codification of existing customary law and ‘progressive development’.

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maurice mendelson 2. Previous Definitions

Before embarking on a detailed examination of the present text, it may be useful briefly to consider previous definitions in texts of the International Law Commission. Article 3 of the Vienna Convention on the Law of Treaties 196914 provides in pertinent part that ‘the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law’. What the Commission meant by ‘other subjects of international law’ was primarily international organizations. However, this exclusion clause left unaffected the constituent agreements of such organizations, as well as agreements made under their auspices (see Article 5), and so specific provision was made for them where necessary. Accordingly, Article 20(3) treats reservations to the constituent instruments of international organizations as a special case; whilst a number of other articles of the Vienna Convention also refer specifically to these bodies.15 In these circumstances, a definition of the term was thought desirable, but the one chosen was extremely brief. Article 2(1)(i) simply provides that, in the Convention, ‘“international organization” means an intergovernmental organization’.16 In 1975, there followed the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.17 Article 1(1)(1) defined ‘international organization’ in the same way as the 1969 Convention. As its name and Article 2 indicate, the scope of the 1975 Vienna Convention was confined to ‘international organization[s] of a universal character’ and to conferences convened by them, without prejudice to the position regarding other types of organization. ‘International organization of a universal character’ was defined in Article 1(1)(2) as ‘the United Nations, its specialized agencies, the International Atomic Energy Agency and any similar organization whose membership and responsibilities are on a worldwide scale’.18 14

1155 UNTS 331. The Convention entered into force on 27 January 1980. Article 7(2)(c) deals with the powers of representatives to (inter alia) international organizations, whilst Articles 76 and 77 deal with depositaries (which may include international organizations or their chief administrative officers) and their functions. 16 Previously, Article 7 of the Geneva Convention on the High Seas 1958 provided that ‘[t]he provisions of the preceding articles [on the jurisdiction of the flag State] do not prejudice the question of ships employed on the official service of an intergovernmental organization flying the flag of the organization’; but no further definition was given: 450 UNTS 82; entered into force on 30 September 1962. Similarly, Article 1(1)(b) of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, defined such persons to include ‘any official or other agent of an international organization of an intergovernmental character’: 1035 UNTS 167; entered into force on 20 February 1977. 17 Doc.A/CONF.67/16; not yet in force at the time of writing. 18 The final draft of Optional Protocol 2 to the draft articles on the Status of the Diplomatic Courier and the Diplomatic Bag of ‘international organizations of a universal character’ does not define that term or, indeed, ‘international organizations’: YILC (1989), ii, Part 2, 14. 15

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The next text originating in the Commission was the Vienna Convention on Succession of States in Respect of Treaties 1978.19 As with Article 5 of the 1969 Convention, this one also covers the constituent instruments of international organizations and treaties concluded under their auspices (Article 4)— though once again without prejudice to the rules of these bodies. Consequently, a definition was needed. Unsurprisingly, Article 2(1)(n) uses exactly the same one as the 1969 Convention. Whilst international organizations were not central to the purpose of the 1969 and 1978 Conventions, they were at the very heart of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986.20 It is therefore a little surprising to find, in this case too, a simple repetition of the definition in the 1969 Convention.21 When one turns to the Commission’s Commentary on the corresponding provision in its final draft articles,22 however, it becomes clear that the Commission and, indeed, some governments had felt uneasy about so laconic a definition. But at the end of the day it was decided to keep it, largely because the focus was on the treaty aspect, not the organizational aspect.23 In paragraph 19 it was noted that, in practice, though intergovernmental organizations were mostly composed of States, they could comprise other international organizations or in some cases have associate members that were not yet States or which might be international organizations. In somewhat delphic manner, paragraph 21 of the Commentary also observed (amongst other things) that no attempt has been made to prejudge the amount of legal capacity which an entity requires in order to be regarded as an international organization within the meaning of the present draft. The fact is that the main purpose of the present draft is to regulate, not the status of international organizations, but the regime of treaties to which one or more international organizations are parties. The present draft articles are intended to apply to such treaties irrespective of the status of the organizations concerned.

This seems to be a recognition that not all international organizations possess the capacity to enter into treaties or, if they have it, to enter into treaties on all subjects. This is a topic to which I shall return shortly.24

19

1946 UNTS 3; entered into force 6 November 1996. Doc.A/CONF.129/15; not yet in force. 21 Article 2(1)(i) of the 1986 Convention. 22 ‘Report of the International Law Commission on the Work of its Thirty-fourth Session’, Gen. Ass. Off. Recs., Thirty-seventh Session, Supp. No. 10 (Doc.A/37/10), 25 ff. 23 Ibid., especially para. 23 of the Commentary on draft Article 2. 24 Mention may also be made of the Convention on the Law of the Non-navigational Uses of International Watercourses 1997 (Doc.A/51/869); not yet in force. Article 2(c) included, in the definition of ‘watercourse State’, a party to the Convention ‘which is a regional economic integration organization, in the territory of one or more of whose Member States part of an international watercourse is located’. Para. (d) goes on to define ‘regional economic integration organization’ as ‘an organization constituted by sovereign States of a given region, to which its 20

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maurice mendelson 3. The Present Draft

The Commission commenced work on the subject of the responsibility of international organizations, at the General Assembly’s request, in 2002. It appointed Giorgio Gaja (Professor of International Law at the University of Florence) as Special Rapporteur, and established a Working Group, which reported in August of the same year. The Working Group’s report devoted a short section to ‘[t]he concept of international organizations’.25 It decided to confine the study to intergovernmental organizations, as the Commission had always done before. The Special Rapporteur first reported in 2003 and presented three draft articles. Article 2 read as follows: ‘For the purposes of the present draft articles, the term “international organization” refers to an organization which includes States among its members insofar as it exercises in its own capacity certain governmental functions’.26 I have to say, with respect, that the words ‘insofar as it exercises in its own capacity certain governmental functions’ seem rather opaque. It looks as if the Commission agreed: whereas it referred draft Articles 1 and 3 to the Drafting Committee, it established an open-ended Working Group to consider draft Article 2.27 A new text proposed by the Working Group read as follows: For the purposes of the present draft articles, the term ‘international organization’ refers to an organization established by a treaty or other instrument of international law and possessing its own international legal personality [distinct from that of its members]. In addition to States, international organizations may include as members, entities other than States.28

The Drafting Committee improved the wording slightly, ending up with the following formulation: For the purposes of the present draft articles, the term ‘international organization’ refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.29

member States have transferred competence in respect of matters governed by the present Convention’. The European Community is such a body. 25 ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10), paras. 469–72. 26 Gaja, ‘First Report on Responsibility of International Organizations’ (Doc.A/CN.4/532), para. 34. 27 ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), para. 47. 28 Ibid., para. 48, note 25. 29 Ibid., para. 53.

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In the General Assembly Sixth Committee’s 2003 discussion of the Report of the Commission on the work of its fifty-fifth session, comments (several of them critical) were focused particularly on the drafting of Article 2.30 I shall return to some of these later. The Special Rapporteur’s response, in his second Report, was to express the view that these observations should be considered by the Commission before the end of the first reading; it could then decide whether to revise the draft articles as they were provisionally adopted or to postpone their revision to the second reading.31 That, for the moment, is where the drafting stands, for at its fifty-sixth session in 2004 the Commission moved on to other draft articles. Despite the amendments to the Special Rapporteur’s original draft, there are features of draft Article 2, as it stands at present, that still seem questionable to me. I have no quibble with the decision to restrict the scope of the Convention to intergovernmental organizations: this is in line with the past practice of the Commission, and the responsibility of non-governmental organizations would be an entirely different subject—moreover, one about which international law would have relatively little to say. Neither do I question the last sentence of the draft: as I have already indicated, this is in line with reality, and it is an improvement on what has gone before.32 What does concern me is, first, the lack of clarity about whether organizations established both under a treaty and under domestic law are covered; and, secondly and more importantly, the potential for confusion in the words ‘and possessing its own international legal personality’. 4. Intergovernmental Organizations Established under Domestic Law So far as concerns the first point, I certainly agree that the draft articles should not attempt to deal with municipal law corporations just because a State may be a shareholder. The simple reason is that international law has nothing to say on the matter (apart from the issue of the privileges and immunities of the State shareholders if there is domestic litigation). But what if States agree by treaty to establish an entity under the law of one of their number, but with a special statute or articles of incorporation, and with the entity’s legal status and

30 Gen. Ass. Off. Recs., Sixth Committee, Summary Records of 14th and 15th Sessions (27 and 28 October 2003) (Docs.A/C.6/58/SR.14 and 15, respectively). 31 Gaja, ‘Second Report on Responsibility of International Organizations’ (Doc.A/CN.4/541), para. 1. 32 It should be noted, though, that in the debate in the Sixth Committee the British delegate, Mr Wood, stated, without elaboration, that ‘he was not convinced of the utility of departing from the very simple definition of “international organization” contained in previous codification exercises’: Doc.A/C.6/58/SR.15, 4. In view of the difficulties which I explore in this essay, there is something to be said for his view.

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powers perhaps being affected by the provisions of the treaty itself ? As previously indicated, there are a few dozen of such établissements publics internationaux, as Adam named them. The Commission was aware of their existence. In its 2002 Report, it observed that: The topic would be considerably widened if the study were to comprise also organizations that States establish under municipal laws, for example under the law of a particular State, and non-governmental organizations. Thus, it may seem preferable to leave questions of responsibility relating to this type of organization aside, at least provisionally.33

This seems a perfectly reasonable approach, particularly if the decision to exclude the former class of entity is open to reconsideration as the work of the Commission progresses. Unfortunately, though, the language used in the definition (‘established by a treaty . . .’) does not make it clear whether they are or are not excluded. These bodies are usually established under a treaty, in the sense that a treaty provides for their creation.34 But, typically,35 they are then actually incorporated under municipal law (though, as previously mentioned, usually with modifications which one would not find in the constituent instruments of a normal corporation). Are they, then, established ‘by a treaty’? Perhaps not, if one takes the language literally. This interpretation also appears to be borne out by paragraph 6 of the Commentary to draft Article 2, which begins: The definition in article 2 does not cover organizations that are established through instruments governed by municipal laws, unless a treaty or other instrument governed by international law has been subsequently adopted and has entered into force.36

However, the second part of this sentence is puzzling. Why does it make sense to include bodies originally set up under domestic law, so long as a treaty (or

33 ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10), para. 472. 34 The reason why the definition says ‘established by a treaty or other instrument governed by international law’ is to include bodies which are not set up by a treaty, but a resolution of an international organization or by another international instrument akin to a treaty. An example is the Organization for Security and Cooperation in Europe: see paragraph 4 of the Commentary to draft Article 2, ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), 40. It is, of course, not axiomatic that the international agreement that envisages the setting up of the organization will itself be governed by international law. It could in theory be a municipal law contract. However, usually there are indicia that the agreement in question is in fact a treaty—for instance, provision for ratification, and/or for registration of the agreement with the United Nations (or, in the case of the Bank for International Settlements, with the League of Nations). 35 There are exceptions. Sometimes, for instance, the bodies in question are not incorporated, but set up by parallel legislation. 36 ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), 40.

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other instrument governed by international law) has been concluded subsequently and has entered into force, but presumably to exclude those whose creation under domestic law was previously envisaged by a treaty (or other similar instrument)?37 First, if it was decided—at least provisionally—to exclude établissements publics internationaux, then there is no reason to include one particular class of them, selected on the arbitrary criterion of when the treaty was concluded. And, if any distinction is justified, should it not be the other way round? If States deliberately agree by treaty to set up an organization, then that organization in a sense owes its existence to international law; it could reasonably be described as having been established ‘by’ the treaty, even if there was an important contribution from domestic law. On the other hand, if the body has already been set up under domestic law, and the treaty comes later, that fact does not, of itself, change the organization’s fundamental nature.38 So the Commentary seems, with respect, rather muddled. I suggest that there is, in fact, a good reason to exclude all bodies set up under municipal law, even if a treaty has been concluded relating to their establishment. It is simply this. In domestic law, one of the most important objects—perhaps the most important object—of incorporation (of any body, be it a bank, a foundation, or a corner grocery) is the special regime with regard to responsibility, and in particular the creation of a ‘corporate veil’ (of greater or lesser transparency) between the members and the outside world. An établissement public international is meant to have responsibilities under domestic law, not international law. And so it is out of place in a draft dealing with the international responsibility of organizations. Whether or not this view is accepted, what does seem tolerably clear is that the language of draft Article 2 is too imprecise, and that the Commentary, far from illuminating the matter, obscures it further. In the debate in the Sixth Committee, a number of delegates were critical of this aspect of the definition.39 M. Ronny Abraham of France was amongst those dissatisfied with the formulation of the intergovernmental aspect, which

37 This exclusion would seem to follow, on the basis of the maxim expressio unius exclusio alterius: express mention of one excludes the other. 38 Paragraph 6 of the Commentary to draft Article 2 goes on to say: ‘Thus the definition does not include organizations such as the World Conservation Union (IUCN), although over 70 States are among its members, or the Institut du Monde Arabe, which was established as a foundation under French law by 20 States’. (Footnotes omitted.) In the case of the IUCN, its exclusion is not surprising. It is a body comprising 77 States, 114 government agencies, and over 800 nongovernmental organizations. And there is no treaty which provides for its establishment. See . The position with regard to the Institut du Monde Arabe is perhaps less clear. It was established as a foundation under French law, but this was done in pursuance of an agreement between 19 Arab States on the one hand, and France on the other. This agreement could have been governed by international law, even if was not a treaty; but it seems that such was not the intention. See . 39 Gen. Ass. Off. Recs., Sixth Committee, Summary Records of 14th and 15th Sessions (27 and 28 October 2003) (Docs.A/C.6/58/SR.14 and 15, respectively).

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he regarded as confusing. He suggested replacing the second part of the definition with the words: ‘An international organization is composed of States and may, as the case may be, include among its members entities other than States’.40 This does seem a better definition, though I wonder whether the words ‘as the case may be’ are really necessary. The Special Rapporteur’s reaction was recorded as being that: ‘The definition proposed by the French delegation seemed to be more elegant than the Commission’s text; however, it read more like a general definition than a description of what was meant by international organization for the purposes of the draft articles’.41 With respect, it is not clear why this is so.42

5. International Legal Personality But what seems even more troublesome than the unsatisfactory definition ratione personae is what the International Law Commission has said about international legal personality. The first sentence of draft Article 2 reads: ‘For the purposes of the present draft articles, the term “international organization” refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality’. The problem that troubles me would not arise if it were clear that the words I have italicized are words of limitation—if, in other words, it is only organizations which possess their own international legal personality that are covered by the draft.43 Such a construction is certainly a possible one. And, indeed, it makes sense, because if an organization does not have international legal personality it is incapable of being made responsible, independently of its members, for the international wrongs committed in its name. Unfortunately, however, the Commentary, as it stands at present, suggests that this is not the correct interpretation of the words in question, and that what the drafters meant was that everything that we would think of as an international organization44 normally, or even necessarily, has international legal personality and so would fall within the definition. That is an idea which is much more questionable.

40

Ibid., Doc.A/C.6/SR.14, 10. Ibid., 12. 42 Perhaps, in the heat of the moment, the Special Rapporteur thought that M. Abraham’s proposal related to the whole of draft Article 2, whereas in fact it related only to the second part, concerning composition. 43 This interpretation, incidentally, would also solve the other problem to which I have already alluded: because établissements publics internationaux do not normally have international, but only domestic, legal personality. 44 For the purpose of this part of the discussion I omit établissements publics internationaux. 41

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It is worth quoting the relevant paragraphs of the Commentary in full. After distinguishing the question of the recognition of the organization’s personality under domestic law, they continue:45 (8) The acquisition by an international organization of legal personality under international law is appraised in different ways. According to one view, the sheer [scil. mere] existence for an organization of an obligation under international law implies that the organization possesses legal personality. According to another view, further elements are required. While the International Court of Justice has not identified particular prerequisites, its dicta on the legal personality of international organizations do not appear to set stringent requirements for this purpose. In its advisory opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt the Court stated: International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties. In its advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the Court noted: The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. While it may be held that, when making both these statements, the Court had an international organization of the type of the World Health Organization (WHO) in mind, the wording is quite general and appears to take a liberal view of the acquisition by international organizations of legal personality under international law. (9) In the passages quoted in the previous paragraph, and more explicitly in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations, the Court appeared to favour the view that when legal personality of an organization exists, it is an ‘objective’ personality. Thus, it would not be necessary to enquire whether the legal personality of an organization has been recognized by an injured State before considering whether the organization may be held internationally responsible according to the present draft articles. On the other hand, an organization merely existing on paper could not be considered as having an ‘objective’ legal personality under international law. (10) The legal personality of an organization which may give rise to the international responsibility of that organization needs to be ‘distinct from that of its member States’. This element is reflected in the requirement in article 2 that the legal personality should be the organization’s ‘own’, a term that the Commission considers as synonymous with the phrase ‘distinct from that of its member States’. The existence for the organization of a distinct legal personality does not exclude the possibility of a certain conduct being attributed both to the organization and to one or more of its members or to all its members.

45 ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), 41–3. (Footnotes omitted.)

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Paragraph 10 seems unobjectionable. For an association to have a legal personality of its own necessarily means that it is in some degree separate from the members who comprise it. It is also correct, as a matter of comparative law and logic, that a degree of separation does not necessarily mean that the members can never be liable themselves. For instance, whilst in modern English company law shareholders in a limited company are not normally personally liable for its obligations, members of a French société en nom collectif are liable for its obligations in certain circumstances, notwithstanding its separate personality. It is with paragraphs 8 and 9 that I have difficulty. They suggest (though in a somewhat oblique and tentative way) that all international organizations possess international legal personality ipso facto. I submit that the authorities cited do not support this proposition and that it is at best a loose generalization. I shall begin with two important preliminary points. The first is that to say that an entity ‘has legal personality’ is to say that it possesses some capacities within the legal system in question, but not necessary the complete ‘set’ of available capacities. Thus, to assert that, say, the United Nations possesses international legal personality is not to say that it possesses all of the capacities of the typical State, but that it possesses some of them. The advisory opinions in the Reparation case46 and on the Legality of the Use by a State of Nuclear Weapons,47 both cited in the Commission’s Commentary, amply bear this out. It is uncontroversial. My second preliminary point, while not uncontroversial, is fundamental. There is a difference between an organization’s international legal personality in relation to its members, on the one hand, and non-members on the other. If the organization does not have the former, it will not normally have the latter; but, conversely, the mere possession of a personality opposable to the members does not necessarily mean that it is opposable to non-members also. The International Law Commission’s Commentary suggests that it is opposable to non-members; but the authorities that it cites do not in fact support its assertion.

46 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174. Having concluded, on analyzing the Charter, that the United Nations Organization was an ‘international person’, the International Court of Justice went on (at 179) to say the following: ‘That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is ‘a super-State’, whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be on that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims’. 47 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66, at 78, para. 25—this is the case concerning the request for an advisory opinion by WHO, which was refused on the ground that the powers of that organization did not extend to an assessment of the legality of certain types of use of force.

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Let me elaborate. First, not all international organizations’ constitutions expressly provide for them to enjoy international legal personality even vis-à-vis their own members. For example, the Charter of the United Nations famously does not, even though Article 104 provides for the Organization to ‘enjoy, in the territory of each of its Members, such [domestic] legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes’. The Court nevertheless held in the Reparation case that, on a proper construction of the Charter, the Organization did possess the capacity to bring an international claim in respect of injury to its officials. But this holding was based on a careful analysis of whether the power in question was implicit in the particular treaty, and particularly on the finding that ‘the Organization is at present the supreme type of international organization, and it could not carry out the intention of its founders if it was devoid of international personality’.48 The advisory opinion was neither intended to lay down the law about the capacities of other organizations, existing or future.49 Perhaps surprisingly, even after the Reparation case, when States set up a new international organization they by no means always expressly provide for it to enjoy international legal personality, in so many words. Quite often, they simply use a formula along the lines used in, for instance, Article 1(b) of the Convention Establishing the Multilateral Investment Guarantee Agency: ‘The Agency shall possess full juridical personality and, in particular, the capacity to: (i) contract; (ii) acquire and dispose of movable and immovable property; and (iii) institute legal proceedings’.50 This language is more appropriate to municipal, rather than international, legal personality. To decide whether a particular organization enjoys international legal personality, one would have to go through a construction process similar to that followed by the Court in the Reparation case. And it is by no means a foregone conclusion that the outcome would always be the same. I tentatively suggest that, where the constitution provides for the organization to enjoy immunities and privileges, this is quite a good indication that the organization enjoys international capacity in that respect, at any rate. For, although immunities and privileges operate primarily on the domestic plane, if they are violated one would expect it to be the organization which has an international claim in that regard.51 But, if no

48

ICJ Reports 1949, 174, at 179. Nor did it hold that even the United Nations possessed the full range of possible international legal capacities. For instance, it does not enjoy the right of active or passive legation as such, nor the capacity to possess territory in its own right. 50 1508 UNTS 99. On the other hand, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention), for instance, provides expressly in Article 18 (in pertinent part) that ‘The Centre shall have full international legal personality’. See 575 UNTS 159; ICSID Convention, Regulations and Rules (2003), electronically available at . 51 It is theoretically possible that the right to make a claim about a violation of immunity is vested in the other member States, not the organization. But that seems unlikely. 49

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provision is made for privileges and immunities, one may need to look harder to find implied international legal capacities and hence even a degree of international legal personality. It may readily be conceded that, in most cases, an international organization will in fact enjoy a measure of international legal personality in relation to its own members. They will have agreed to it, expressly or impliedly, in the constituent treaty. That is the easy part. The harder question is whether that personality is opposable to non-members. By definition, non-members have no obligation under the constitution to accept the organization’s personality: they are not a party to it. Obviously, also, they are free to recognize the personality of the organization if they choose. They can do so expressly; or they can do so implicitly, for instance by entering into a treaty with the organization or by presenting an international claim to it. But suppose that a particular non-member State has not, thus far, recognized the organization, either expressly or impliedly. Is it bound to treat the organization as a legal person, for instance entertaining international claims presented in the organization’s own name? This very question arose in the Reparation case. Though the issue was posed in the abstract, a particular claim which the General Assembly had in mind was one against Israel, which, when the advisory opinion was requested, was not yet a member of the United Nations. The question, the Court said, was ‘whether the Organization has capacity to bring a claim against the defendant State to recover reparation in respect of the damage or whether, on the contrary, the defendant State, not being a member, is justified in raising the objection that the Organization lacks the capacity to bring an international claim’.52 The answer the Court gave was very specific. Having previously observed—as we have seen—that the United Nations was ‘at present the supreme type of international organization’, it went on to say that: ‘the Court’s opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective legal personality, and not merely personality recognized by them alone, together with capacity to bring international claims.’53 Clearly, for the Court the universal vocation, and near-universal membership, of the United Nations were key factors, along with—possibly—its key role in the international system. Accordingly, the observation in the International Law Commission’s Commentary that in that case ‘the Court appeared to favour the view that when legal personality of an organization exists, it is an “objec52

ICJ Reports 1949, 174, at 185. At the time the opinion was rendered the United Nations was not quite universal: there were about a dozen States whose admission had been blocked due to Cold War rivalries, as well as Israel, whose application was in the pipeline. All had applied to join the United Nations, and in accordance with the Provisional Rules of Procedure of the Security Council all had accompanied their applications with a declaration, in a formal instrument, that they accepted the obligations contained in the Charter. Thus, they were ready to accept what the Court was to hold was a personality implicit in the Charter. 53

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tive” personality’,54 is inaccurate due to what it leaves out, and so highly misleading.55 There is only one supreme political organization in the world; furthermore, universal international organizations constitute only a small minority of the totality.56 The next case cited by the Commentary is the advisory opinion in the WHO and Egypt case.57 The Commentary accurately quotes the Court as saying: ‘International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.58 However, the Commission quotes the passage completely out of context. Earlier in the same paragraph, the Court had noted that ‘in the World Health Assembly and in some of the written and oral statements before the Court there seems to have been a disposition to regard international organizations as possessing some form of absolute power to determine and, if need be, change the location of the sites of their headquarters and regional offices’. In response to this, the Court cited its earlier observation in the Reparation case that (even) the United Nations was not some form of ‘superState’; organizations had no greater freedom than States, which were themselves bound by their international obligations. International organizations, continued the Court in the passage quoted by the Commission, as subjects of international law, are bound by their customary and conventional obligations. The focus, then, is on the obligations of organizations, not on whether they all have international legal personality. Still less on whether, if they have personality, it is ‘objective’—that is, opposable to non-members.59 It may also be 54 ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), 42, para. (9). 55 In his first Report (Doc.A/CN.4/532, 10–11, para. 19), the Special Rapporteur got close to equating the mere factual existence of an organization with ‘objective’ legal personality— though he wisely avoided actually espousing the rather unconvincing, and not generally accepted, views of Seyersted, ‘Objective International Personality of International Organizations’, 34 Nordisk Tidskrift for International Ret (1964), 1–112. Juridical ‘facts’ are of a particular kind; and whether an association that exists in the ‘real world’ possesses legal personality depends on the rules of the particular legal system, which do not necessarily recognize the ‘fact’ in question. Plainly, when the Court in the Reparation case spoke of the United Nations’ ‘objective’ legal personality, it was speaking of opposability and was drawing a conclusion of law. For the reasons already indicated and to follow, this conclusion is not generalizable to all international organizations. 56 Most such organizations are Specialized Agencies of the United Nations. It is an interesting theoretical question whether membership has to be (quasi-) universal at the time of the organization’s establishment, or at the time that the issue of opposability arises. The Court’s language suggests the former, but the question did not arise there, because both were true. In fact, the only organization which was far from universal at its inception, but now is close to it now, seems to be the International Maritime Organization (formerly the Inter-Governmental Maritime Consultative Organization). 57 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, 73. 58 Ibid., 89–90, para. 37. 59 In the last sentence of paragraph (9) of the Commentary on draft Article 2, after discussing opposability, the Commission curiously goes on: ‘On the other hand, an organization existing

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noted, as the Commentary somewhat reluctantly concedes, that the World Health Organization is, like the United Nations, a universal organization, so the pronouncement in question would not, in any event, necessarily apply to the great bulk of organizations. But this is subsidiary to my main point, which is that the Court was simply not addressing the issues with which the Commentary is concerned in the paragraphs now under discussion. Similar considerations apply to the other quotation in the Commentary, from the advisory opinion on the Legality of the Use by a State of Nuclear Weapons. The issue here was whether it fell within the competence of the World Health Assembly to ask for an advisory opinion on the eponymous topic. The answer, predictably, was ‘No’. In the course of coming to that conclusion, the Court referred to the principle of speciality and to the fact that international organizations have only the powers with which they are expressly or impliedly endowed by their constituent instruments. In that context there occurs the sentence relied on by the Commission: ‘The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence’.60 The focus of the words used is the contrast between the general competence of States and the limited competence of international organizations. Once again, then, the Court was not discussing whether all international organizations possess legal personality. Still less whether, if they have personality, it is ‘objective’.61 For the Commission to say of both of these passages that ‘the wording is quite general and appears to take a liberal view of the acquisition by international organizations of legal personality under international law’ is over-imaginative, to say the least.62

merely on paper could not be considered as having an “objective” legal personality under international law’. This is a further strange use of the concept ‘objective’. In the Sixth Committee the delegate of the Netherlands, Mr Lammers, ‘wondered what an organization “merely existing on paper” was and how it could cause injury to States’ (Doc.A/C.6/58, SR.14, 8). The Commission seems to have created something of a ‘red herring’ here. 60 ICJ Reports 1996, 66, at 78, para. 25. 61 And in any case, once again, WHO is untypical inasmuch as it is universal. 62 The Commission’s Commentary omits—in my view wisely—another point made in the first Report of the Special Rapporteur (Doc.A/CN.4/532, 9, para. 17). Citing paragraph 77 of the Court’s judgment in the LaGrand case, he asserted that the Court ‘stated that individuals are also subjects of international law’, and that ‘[t]his approach may lead the Court to assert the legal personality even of non-governmental organizations’. He concluded from this that it would be anomalous if an intergovernmental organization did not receive the same treatment, ‘provided that it is an entity which is distinct from its members’. There are a number of weaknesses here. First, the Court did not utter the words ascribed to it; it simply observed that Article 36(1) of the Vienna Convention on Consular Relations ‘creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person’. Although, admittedly, the creation of an international right for an individual can make him a subject for that limited purpose, it is limited—the more so if it is only his national State, and not the individual himself, who can vindicate it. Secondly, an international legal right or obligation could attach to a non-governmental organization only if a treaty accorded it: few if any do so. (The International Committee of the Red Cross is a possible exception that proves the rule.) Thirdly, the issue here is not whether particular international organizations can enjoy

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Thus, the authorities cited by the Commission do not support the construction it seeks to put on them. The Commentary says nothing of the State practice—perhaps unsurprisingly, because it is very scant. However, precedents do exist. First, for a long time the Soviet bloc refused to accept the international legal personality of the European Community. It did in the end recognize it, but only when the European Community recognized the legal personality of the Council for Mutual Economic Assistance (‘Comecon’).63 This certainly indicates that one group of influential States, at least, considered that not all organizations—not even those as significant as the European Community— possessed a personality ‘objectively’ opposable to non-members. It may also be noted that, in the 1946 interim agreement between the United Nations and Switzerland—a non-member—regarding the take-over by the former of the League of Nations premises in Geneva, Switzerland expressly recognizes the international personality and legal capacity of the United Nations. Consequently, according to the rules of international law, the Organization cannot be sued before the Swiss courts without its express consent.64

Now, it might of course be argued that the mere fact of recognition does not prove anything one way or another. Switzerland might have been exercising its prerogative to accept or refuse to accept the international personality of the United Nations; but it might simply have been acknowledging an existing legal state of affairs. However, in the negotiations leading up to the agreement, it was recognized that Switzerland’s non-membership made this special provision necessary.65 If Switzerland and the United Nations had thought that the organization automatically enjoyed international legal personality in relation to nonmembers, the provision would hardly have been necessary, save for the avoidance of doubt.66

(a measure of ) international legal personality—of course they can. Rather, it is whether all international organizations necessarily enjoy it; and also whether such legal personality as they do possess is opposable in all cases against third parties—whether it is ‘objective’, in other words. Nothing in the Special Rapporteur’s chain of reasoning leads to an affirmative response to either of these questions. 63 See Grzybowski, ‘The Council for Mutual Economic Assistance and the European Community’, 84 AJIL (1990), 284–92. 64 Article 1: 1 UNTS 163. 65 ‘Report by the Secretary-General: Negotiations with the Swiss Federal Council’ (Doc.A/175), 4 November 1946. The negotiations were, admittedly, conducted before the Reparation case; but Switzerland would not necessarily have accepted the Court’s view of the United Nations’ objective international personality; and anyway, as we have seen, the Court’s reasoning is expressly confined to universal, or near-universal, organizations. 66 The decision of the House of Lords, in Arab Monetary Fund v. Hashim (No. 3), [1991] 2 AC 142, might be thought at first sight to provide support for the view that international organizations of limited membership do not have (objective) international legal personality in relation to non-members. For if the AMF—an Arab organization which had no establishment in the United Kingdom and of which the United Kingdom was not a member—had objective international legal personality, the simplest thing would have been for the Court to hold that, like States (another class of international person), the Fund had the capacity to contract, possess

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Considerations of theory and principle also militate against assuming that all intergovernmental organizations possess objective international personality, however limited their membership.67 States, acting collectively, are the lawmakers in the international system. There is no reason why they could not either constitute a new class of entities as international persons (e.g. universal international organizations), or confer that status on particular entities (e.g. the United Nations). This, essentially, is what the Court was saying in the Reparation case. But, as with the formation of customary international law, it is only States acting as a whole that have this power, not a few States acting, as it were, on their own account. Thus, a small minority of States cannot confer personality on their particular creation in a way that would bind third States; neither is there any evidence that the generality of States have created a general customary rule that non-universal organizations have this quality. Furthermore, if statehood is an exclusive club, admission to which is a closely guarded privilege, why should we assume that States would be willing to accept some hundreds of ‘associate members’ of the club on the mere nomination, as it were, of a handful of full members?68 The more so when we recall that, in the domestic forum, international organizations are entitled to wider jurisdictional immunities than States, for the doctrine of absolute immunity applies to the former, but not to the latter. If, therefore, an organization which is making a claim against a State is one of limited membership, one can easily imagine that a defendant State might wish to retain the privilege of saying: ‘No, we will not deal with an instrumentality, but only with the principals’. It might seem at first sight that, if the property, and sue and be sued in England, without more ado. (Instead, the Court used a much more convoluted reasoning, treating the AMF as a foreign corporation, in order to achieve a common-sense result.) However, in fairness, it must be pointed out that this approach was necessitated by the earlier decision of the Lords in the International Tin Council case, Rayner ( J.H.)(Mincing Lane) Ltd. v. Dept. of Trade & Industry, [1990] 2 AC 418—a curious judgment over which, in my respectful opinion, it is best to draw a veil of embarrassment—but which is in any case not pertinent to the present discussion. 67 I doubt that the conflicting general theories about recognition are capable of providing assistance here. Firstly, neither the declaratory nor the constitutive approach is conclusive as a matter of logic or policy. Secondly, there is no a priori reason why one answer should hold true for all types of entity or situation. For instance, even if (for the sake of argument) the declaratory theory best explains practice in relation to statehood, this would not preclude the possibility that the constitutive approach better fits the question of the status of governments or of international organizations. Thirdly, the answer might depend on the legal plane: thus, the general approach of, say, English courts to statehood is constitutive, but on the level of international law (and especially in an international tribunal) a declaratory view could well be taken. Fourthly, even if one approach more accurately describes the general practice, it is possible that there are exceptions more in accordance with the other approach. For instance, even if one took the view that the declaratory theory more accurately reflected practice in relation to statehood, the international community, acting collectively, could vary the rules in particular cases, either treating as States entities which do not satisfy the traditional criteria, or not treating as States entities which do. Examples readily come to mind. 68 This, broadly, was the position of the Chinese delegate to the Sixth Committee, Mr Liu Zhemin: Doc.A/C.6/58/SR.14, 9–10.

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situation were the converse (if it was the organization that owed an obligation to a State), the latter would be ready to acknowledge the organization’s legal personality. But that is not necessarily so. If the organization is insolvent, a third State might prefer to deny its personality and go directly against the members (or allow litigants in its courts to do so). Similar considerations might apply if a third State thought that setting up an international organization was a device by which the members were seeking to offload their own responsibilities. In short, neither the case law, the practice, theory or policy support the suggestion in the Commentary that all organizations enjoy objective international personality.69

6. Conclusion The definition in Article 2 of the International Law Commission’s draft articles on the responsibility of international organizations contains ambiguities and infelicities that ought to be avoided. This applies to the question whether organizations established under municipal law but in pursuance of a treaty are covered; and (more importantly) to the question whether all international organizations automatically enjoy international legal personality, particularly in relation to non-members. Unfortunately, far from clarifying matters, the Commentary only adds to the confusion and propounds some very dubious theories in the process. True, the definition is expressly limited to the particular subject-matter of the draft articles. But even aside from the (relative) importance of that particular topic, there is a strong likelihood that the definition—being the fullest official one to date—will gain currency in very different contexts. It is therefore desirable that it be got right. As previously mentioned, when faced with (mostly brief and relatively unspecific) criticisms of the definition in the Sixth Committee of the General Assembly in 2003, the Special Rapporteur’s response was that they should be considered by the Commission before the end of the first reading; it could then decide whether to revise the draft articles as they were provisionally adopted or to postpone their revision to the second reading. I hope that the present contribution will assist the Commission in that much-needed task.

69 I have not gone into the literature here, firstly for reasons of space, and secondly because, by and large, it does not address the particular issues in sufficient depth or sufficiently convincingly.

CHAPTER THIRTY-THREE

NON-STATE ACTORS: AREAS OF INTERNATIONAL RESPONSIBILITY IN NEED OF FURTHER EXPLORATION Emmanuel Roucounas

1. Introduction The International Law Commission completed a major project on ‘responsibility of States for internationally wrongful acts’ in 2001.1 This was its principal, but not its only, exploration in the field of international responsibility. Already in 1994 the Commission had adopted a draft Statute for an International Criminal Court,2 and in 1996 had finalized a draft ‘Code of crimes against the peace and security of mankind’.3 On the other hand, since 1978, the Commission has been working on the topic of ‘international liability for injurious consequences arising out of acts not prohibited by international law’.4 In the diverse phases of all these projects non-State actors, private persons (physical and legal) either interchanged appearances and disappearances from the scene (playing a second

1 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10). See Crawford, The International Law Commission’s Articles on State Responsibility: Introduction Text and Commentaries (2003). 2 See ‘Report of the International Law Commission on the Work of its Forty-sixth Session’, Gen. Ass. Off. Recs., Forty-ninth Session, Supp. No. 10 (Doc.A/49/10). 3 See ‘Report of the International Law Commission on the Work of its Forty-eighth Session’, Gen. Ass. Off. Recs., Fifty-first Session, Supp. No. 10 (Doc.A/51/10). 4 For the Commission’s recent activities, see ‘Report of the International Law Commission on the Work of its Forty-ninth Session’, Gen. Ass. Off. Recs., Fifty-second Session, Supp. No. 10 (Doc.A/52/10); ‘Report of the International Law Commission on the Work of its Fifty-second Session’, Gen. Ass. Off. Recs., Fifty-fifth Session, Supp. No. 10 (Doc.A/55/10); ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fiftysixth Session, Supp. No. 10 (Doc.A/56/10); ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10); ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10). See also Rao, ‘First Report on Prevention of Transboundary Damage from Hazardous Activities’ (Doc.A/CN.4/487); Id., ‘First Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, Relating to the Legal Regime for Allocation of Loss in Case of Transboundary Harm’ (Doc.A/CN.4/531).

Maurizio Ragazzi (ed.), International Responsibility Today, 391–404. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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fiddle) or, indeed, occupied the central place in it.5 The purpose of this essay is to examine briefly areas for further consideration in some situations that could entail international responsibility or liability for non-State (and non-intergovernmental international organization) actors. Obviously, the imposing qualitative and quantitative diversity of these non-State actors and the variety of the situations render a systematic analysis very difficult. The initial idea of the Commission on the topic of international responsibility of the State was to focus, as in the 1930 Hague Conference for the codification of international law, on the examination of State responsibility for illicit acts of State organs towards foreign citizens and their property. Some years later, following a complex debate in the Commission and the United Nations General Assembly, the project took, in the words of Paul Reuter, a ‘political, extensive, abstract and general’6 form (legal consequences of an internationally wrongful act, circumstances under which State responsibility occurs, content, cessation, countermeasures, compensation/reparation) that led to the draft articles of 2001. Even during the early stages of the project, Clive Parry—in his lectures at the Hague Academy—had pointed out that since the end of the nineteenth century the great majority of cases involving State responsibility and brought before international courts and tribunals were related to situations of violation of international law in the person of citizens of the requesting State and not necessarily of damage to the sovereignty of the State itself.7 Past efforts to distinguish between direct and indirect responsibility were explained by the need to locate the individual within the system. The whole idea that international responsibility passes through the screen of the State dominates the International Law Commission’s articles. Articles 4 to 11 of Part One, Chapter II (entitled ‘Attribution of conduct to a State’),8 enunciate the conditions of State responsibility under international law for the wrongful acts of State organs and other persons or entities exercising elements of governmental authority, persons directed or controlled by the State, or when the State assumes responsibility for the conduct of private persons, which it did not prevent or even adopted as its own. The articles also strike out situations in which individual acts do not entail State responsibility. Under the same heading, the articles address the question of the international responsibility of insurrectional movements. In so doing, they restrict their applicability in two specific situations.9

5 See Roucounas, ‘Facteurs privés et droit international public’, 299 RdC (2002), 9–420, at 321–87. 6 Reuter, ‘Trois observations sur la codification de la responsabilité internationale des Etats pour fait illicite’, Le droit international au service de la paix, de la justice et du développement. Mélanges Michel Virally (1991), 389–98, at 390. 7 Parry, ‘Some Considerations Upon the Protection of Individuals in International Law’, 90 RdC (1956), 653–726, at 695. 8 See Crawford, The International Law Commission’s Articles, 61–5, 91–122. 9 Article 10, paragraphs 1 and 2. See below.

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Yet, over the last fifty years, the international community has encountered many intermediate situations, which, strictly speaking, could not be part of the chapter on State responsibility. These intermediate situations are dealt with in section 2 of this essay. On another level (unrelated to entities as non-State actors but relevant to the responsibility of non-State private actors), it is high time to examine to what extent, under specific circumstances, the private (physical or legal) person is not only the beneficiary of the rules of international law or the victim of the transgression of these rules, but an author of internationally wrongful acts not entailing international criminal responsibility. Section 3 of this essay contains a brief presentation of this issue. 2. Insurrectional Movements as Entities not Becoming New States or New Governments During the initial stages of its work, the International Law Commission included two provisional articles (14 and 15)10 on the question of insurgents. Article 14 had firstly stressed the negative principle that the conduct of an insurrectional movement is not attributable to the State under international law. Then, Article 15 set forth the conditions of attribution to the State of acts of the insurrectional movement. These provisions also reserved the cases where such a conduct is attributable (a) to the State by other rules spelled out in the draft, or (b) to the insurrectional movement itself under other rules of international law. The two articles merged into Article 10 of the 2001 text that was modified in order to express the positive enunciation of the attribution to the State of the act of an insurrectional movement if (a) it ‘becomes the new government of a State’ (Article 10, paragraph 1), or (b) it results in the formation of a new State ‘in part of the territory of a pre-existing State or in a territory under its administration’ (Article 10, paragraph 2). Furthermore, in paragraph 2, on the insistence of some of its members, the Commission added to the qualification ‘insurrectional’ the words ‘or other’ movements, to signal that the provision includes national liberation movements. But it is not clear why the words ‘or other’ were omitted from paragraph 1. Moreover, Article 10 addresses the case of insurgents identified by their leadership, but the text does not speak of an ‘organ’ of the insurrectional movement and takes the movement as a whole. Finally, the reference to the attribution of responsibility to the insurrectional movement ‘under other rules of international law’ was deleted from Article 10. The article stops also short of the situation in which an insurrectional or other movement does not form a new government or a new State, either in part of the

10

YILC (1974), ii, Part Two, 91–106.

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territory of another State or in a territory under its (the State’s) administration. Eventually, when referring to the possibility of attribution to the State of any conduct however related to the insurrectional movement by virtue of the provisions of Articles 4 to 9, the text sends back to square one. And the commentary on Article 10, paragraph 3, cites only one example, namely the applicability of international humanitarian law to the movement.11 The applicability of international humanitarian law in cases of intra-State armed conflicts has been extensively dealt with in theory and practice,12 and a clear echo of the rules applicable in internal armed conflicts is found not only in Article 3 common to the 1949 four Geneva Conventions on humanitarian law, the 1977 Additional Protocol II,13 and the Statute of the International Criminal Court,14 but also in the case law, in particular of the International Criminal Tribunal for the former Yugoslavia.15 Yet, during the last fifty years, the international community has experienced a number of situations of armed conflict, mainly ‘non-international’ and intra-State, where the rules of humanitarian law are applicable to everyone but moreover involve the management of the aftermath of the conflict. In such circumstances the main issue is not only humanitarian law. Indeed during and after the armed conflict a number of legal questions arises in other fields of action of the insurrectional movement in its relation to the government in place and to the organs of the international community. The issue is the applicability of international law beyond the rules governing an armed conflict as such. The two possibilities (pursuance of the armed conflict or the establishment of a new government or a new State) are not the only situations characterizing the outcome of an intra-State armed conflict. During the armed conflict or after the cessation of the hostilities the movement continues to exist and enters into a series of complex relationships, including provisional or final agreements, whose international character cannot be denied.

11

Article 10, Commentary, para. (16). Schachter, ‘Internal Conflicts and International Law’, Pathak and Dhokalia (eds.), International Law in Transition. Essays in Memory of Judge Nagendra Singh (1992), 1–9; Fujita, ‘Application of International Humanitarian Law to Internal Armed Conflicts’, McCormack et al. (eds.), A Century of War and Peace (2001), 139–54; Abi-Saab, ‘Non-international Armed Conflicts’, International Dimensions of Humanitarian Law (1988), 215–39. See also the Resolution adopted by the Institut de Droit International on ‘The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties’, 68 Annuaire (1999), ii, 386–99. See also S/RES/941 (23 September 1994). 13 Gasser, ‘Some Legal Issues Concerning Ratification of the 1977 Geneva Protocols’, Meyer (ed.), Armed Conflict and the New Law: Aspects of the 1977 Geneva Protocols and the 1981 Weapons Convention (1989), 81–104, at 97–8. 14 Article 8, paragraph 2(e) and (f ). See Momtaz, ‘War Crimes in Non-international Armed Conflicts under the ICC Statute’, 2 Yearbook of International Humanitarian Law (1999), 177–92. 15 See Meron, ‘Cassese’s TadiÆ and the Law of Non-international Armed Conflicts’, Vohrah et al. (eds.), Man’s Inhumanity to Man. Essays in International Law in Honour of Antonio Cassese (2003), 533–8. 12

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As for Article 10 of the Commission’s 2001 draft, one could remark that, save for an extensive interpretation, the provision is not even satisfied by the insurgent movement’s eventual participation in the government;16 the article requires that the movement forms by itself a new government or a new State. Considering that the articles are limited to the behaviour of States only, the Commission did not address the intermediate situations where the insurgents neither form a new government nor create a new State. In most intra-State conflicts the conditions for the termination of the civil war are inscribed in a written text generally qualified as ‘peace agreement’ or ‘peace accord’, ‘framework document’, ‘permanent truce’, ‘armistice agreement’ (‘intra-State peace agreement’).17 In the recent past, such agreements have been concluded in the conflicts in Cambodia (1991), Mozambique (1992), Angola (1994), Burundi (2003), Bosnia-Herzegovina (1996), Guatemala (1990–1996), El Salvador (1996), Mexico (1996), Chechnya (1996), Sierra Leone (1997–2003), Liberia (2003), etc.18 The instruments were concluded by the representatives of the government and by those of the insurgents. The importance of these ‘new’ types of agreements, which in most cases are both respected and violated, is obvious: although there is no model peace agreement for intra-State conflicts, in their majority these instruments provide firstly for the ‘definite’ cessation of the hostilities and contain further elaborate provisions for the establishment of a long-lasting peace. Their main objective is illustrated by a series of provisions concerning the dismantling of the revolutionary or rebel forces, the reduction of government forces, the repatriation of refugees, respect for human rights, the organization of and participation in free elections and so on. Some agreements go as far as to provide for the details of a new constitution, the setting up of democratic institutions by the State, even for measures of agricultural reforms and economic development. The most complicated and difficult commitment announced by the agreements is the one that requires the transformation of the revolutionary movement into a political party.19

16 The Commentary on Article 10, in its paragraph (7), gives the following doubtful explanation: ‘[T]he rule in paragraph 1 should not be pressed too far in the case of governments of national reconciliation, formed following an agreement between the existing authorities and the leaders of an insurrectional movement. The State should not be made responsible for the conduct of a violent opposition movement merely because, in the interests of an overall peace settlement, elements of the opposition are drawn into a reconstructed government’ (‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), 114.) 17 See Roucounas, ‘Peace Agreements as Instruments for the Resolution of Intrastate Conflicts’, Conflict Resolution: New Approaches and Methods (under the auspices of UNESCO, 2000), 113–40. Id., ‘Los Acuerdos de Paz como documentos para la resolución de conflictos intraestatales’, 14 Anuario de Derecho Internacional (1998), 561–88. 18 The United States Institute of Peace reports 15 recent agreements for Africa, 5 for the Americas, 11 for Asia and 7 for Europe. The list could be extended with at least 3 agreements in Africa. See . (Site visited in July 2004.) 19 Examples in Roucounas, ‘Peace Agreements’, 125 ff.

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Almost all intra-State peace agreements involve in their negotiation, elaboration, signature, entry into force, and implementation, the presence of the United Nations, of other international organizations, and of interested third States. They are signed by the parties to the conflict and by ‘witnesses’, among which, most frequently, the Secretary-General of the United Nations or his representatives, representatives of regional organizations, of the European Union, of the African Union, of the Organization of American States, as well as of States with special interest in the settlement of the dispute—the United States of America, the United Kingdom, France, Russia (formerly the Soviet Union), Portugal, the Holy See, and others. Usually these agreements are welcomed or formally endorsed by an act of the United Nations Security Council and commended by the General Assembly; they are implemented with the assistance of the United Nations and the participation of other international organizations (38 in the case of Bosnia-Herzegovina). In the nineteenth century, and the first part of the twentieth, the quality of the parties (the recognition of the revolutionary as belligerents) has been a major political and legal issue. Today this question is instead reduced to an emotional one, as all the relevant international instruments expressly or tacitly reserve the legal situation of the insurgent party or parties.20 The parties to the agreement are on the one part a State (or a government) and on the other part the representatives of an insurrectional or ‘other’ movement. It is debatable if such an agreement can have some of the characteristics of a treaty under the 1969 Vienna Convention on the Law of Treaties.21 A case-by-case examination seems to be required. On the other hand, such an instrument cannot enter into the realm of the political agreements or soft instruments, which are common in relations between States. Indeed, the objective of establishing peace and security would be scarcely served by an agreement of a weak tenure between parties who object even to their mutual existence. Some could also object that usually and by definition an ‘internal conflict’ is not ‘of an international character’. But the threshold of transition from domestic to international conflicts is one of magnitude. An armed conflict of a certain degree of importance is a threat to international peace and security whoever the actors are.22 Those involved in the negotiation, conclusion and implementation of this category of intra-State peace agreements are aware of the fact that one of the arguments arising after the conclusion of the agreement relates to the legal basis of the obligations assumed by the parties. In most cases the parties are not keen to 20 See the above-mentioned 1999 Berlin Resolution of the Institut de Droit International, 393. See also Sandoz, Swinarski and Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 1362 ff. 21 Article 3 in conjunction with Article 1 of the 1969 Vienna Convention on the Law of Treaties. See Brownlie, Principles of Public International Law (6th edn., 2003), 63. Reuter, Introduction au droit des traités (3rd edn. Cahier, 1995), 29 and 45. 22 Roucounas, ‘Peace Agreements’, 117.

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include in the agreement references to international law. Instead, they are ready to declare that the agreement is based on domestic law, the constitution or their word of honour. Yet, these useful explanations are not enough to guarantee a successful process of implementation. It is imperative for the interpretation and the application of the agreement to spell out its legal basis and that basis is clearly to be found in international law.23 The submission of these agreements to international law offers security for the parties and a formal legal reference for the involvement of the United Nations and of other international actors in the process of its implementation. Otherwise, the presence of third parties as witnesses would hardly be explicable. The relationship among the government, the insurgents, the international organization and the witnesses raises questions of international responsibility at least in two ways: (a) in case of violation by the parties of specific provisions of the intra-State peace agreement taken as a legally binding instrument; and (b) in case of non-observance of rules stemming from general international law. The individual criminal responsibility of the leaders and the fighters of the movement is a separate question of observance of the rules of international humanitarian law. (a) The violation of the agreements entails international responsibility for the parties, States and insurgents alike. From the moment the insurgents acquire as an entity a locus standi under international law (a limited international legal personality) and are admitted to conclude a peace agreement, it is natural that in case of violation they be treated accordingly. Otherwise, the binding agreements would present the peculiarity of being destined to operate according to the rules of international law but not to be submitted to the sanctions provided for by this law. Such an argument would be unsustainable; a proof to the contrary can be found in the fact that in a number of instances the Security Council has taken or threatened to take measures against parties (insurgents and governments alike) to an armed conflict that either refused to enter into an agreement for the cessation of a conflict, or did not abide by the terms of an intra-State peace agreement.24 One can cite the conflicts in the former Yugoslavia—and the Bosnian Serb Party;25 in Cambodia—and the Khmer Rouge;26 in Angola—and the UNITA.27

23 The problem can be dealt with through either the international legal regime of the movement or the nature of the peace agreement. According to Frowein, ‘De Facto Régime’, Bernhardt (ed.), Encyclopedia of Public International Law, i, 966–8, the insurgents, as de facto regimes, are partial subjects of international law. The expression ‘internationally binding agreement’ is used by Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’, Wellens (ed.), International Law: Theory and Practice. Essays in Honour of Eric Suy (1998), 333–46, at 337 in respect to the instruments. 24 Kooijmans, ‘The Security Council’, 335–7. 25 S/RES/941 (1994). 26 S/RES/792 (1992). 27 S/RES/792 (1992); S/RES/864 (1993); S/RES/1127 (1997); S/RES/1173 (1998).

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(b) The insurrectional movement has not to conclude a peace agreement in order to be bound by the fundamental rules of international law. By definition, the movement challenges by force or otherwise elements (in casu the State) of the international system. This does not entail that the movement operates in vacuo, outside the system or within it, but with some sort of immunity, if it violates fundamental rules of international law corresponding to the framework of its activities. Considering that in any case the movement is bound by the rules of customary international humanitarian law, it also must abide at least by the erga omnes rules of the system.28 And the discussion on the relationship between such rules and the existing network of the international legal protection of human rights is already engaged.29 3. The Change of Partners in the Shift from Primary to Secondary Rules It is generally admitted that the international responsibility of the State is neither ‘civil’ nor ‘criminal’. On the other hand, since the beginning of international law, the international responsibility of the individual, invoked in situations of extreme anomaly, has mainly been ‘criminal’ (a classical example of this being the crime of piracy). The individual criminal responsibility has further expanded into three categories—war crimes, crimes against humanity, and crimes against peace. The international criminal responsibility of the individual being a chapter apart, it is conceptually possible for international law to provide rules of ‘civil’ responsibility or liability for individuals. (It is worth-noting that the distinction of terminology between responsibility and liability in the common law systems does not exist in the civil law systems.) Since the middle of the twentieth century a rapidly growing number of treaties provide for an international ‘civil’ responsibility/liability of private persons (physical or legal).30 On the other hand, one can understand that it was not simply out of intellectual curiosity that Roberto Ago worked on the assumption of a distinction between ‘primary’ and ‘secondary’ rules.31 According to this distinction, the basic rules of behaviour in international law are the primary rules or obligations; and 28

Cf. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, 1997). Simma, ‘From Bilateralism to Community Interest in International Law’, 250 RdC (1994), 217–384. 29 See Schoiswohl, ‘De Facto Regimes and Human Rights Obligations—The Twilight Zone of Public International Law?’ 6 Austrian Review of International and European Law (2001), 45–90. 30 See Brunée, ‘Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environmental Protection’ 53 ICLQ (2004), 351–68. Rao, ‘First Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, Relating to the Legal Regime for Allocation of Loss in Case of Transboundary Harm’ (Doc.A/CN.4/531), paras. 47–113. 31 See an early reference made by Ago, ‘Le délit international’, 68 RdC (1939), 415–554, at 445–6. Crawford, The International Law Commission’s Articles, 14–16. See also YILC (1976), ii, Part Two, 69–71.

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their violation mobilizes a new set of rules called secondary rules or obligations. In that case, the parties enter into a new legal relationship, one of international responsibility. It is worth noting that in the traditional approach the parties to the primary and the secondary rules are supposed to be the same, i.e. States. The Commission’s articles, except for the still mysterious notion of the ‘international community as a whole’ (a party to the secondary rules), were canvassed accordingly. However, in the expanding field of special legal regimes of international law, the parties to the primary are not necessarily the same as those to the secondary rules. In such cases, there is a change of partners and the legal consequences of that change need to be further elucidated. The most significant example of such a shift is that of the international protection of human rights, where in principle the State is (technically and in substance) committed vis-à-vis other States to respect and to ensure respect by persons within its jurisdiction of the obligations set forth by treaty or custom (primary rules), where in reality the addressees are individuals.32 But in case of violation the partners to the new relationship (secondary rules) diverge. They are on the one hand the State and on the other hand the victim, which can be a State but also a private person or both. Obviously, these consequences are felt in the phase of reparation/compensation,33 and in this respect those who favored the maintenance of the concept of damage as a decisive element for the mobilization of the secondary rules were right. It should also be remembered that there is a clear tendency to consider the obligation of reparation/compensation by the State, at least for the most serious and massive violations of human rights, as stemming not only from treaties providing for the right of individual petition before competent international treaty bodies, but from a more general rule of international law.34 In a different context and on a different level, the question of human rights of multinational companies (private-to-private in the application of secondary rules) appeals to the theoreticians and is dealt with in the framework of the International Labor Organization and other international bodies.35

32 The International Law Commission did not examine in depth the status of the so-called ‘self-contained regimes’ (a concept to which the present author does not subscribe, as he considers that all international regimes are permeated by general international law). It is however interesting that the Commentary on the articles on State responsibility contains a good number of references to the case law of organs of some ‘self-contained regimes’. 33 For an interpretation of this distinction, see ‘Report of the International Law Commission on the Work of its Fifty-second Session’, Gen. Ass. Off. Recs., Fifty-fifth Session, Supp. No. 10 (Doc.A/55/10), para. 227. 34 Commission on Human Rights, ‘Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms’ (Final Report by van Boven, Doc.E/CN.4/Sub.2/1993/8). 35 See Maupain, ‘L’OIT, la justice sociale et la mondialisation’ 278 RdC (1999) 201–396; Addo (ed.), Human Rights Standards and the Responsibility of Transnational Corporations (1999); Van Hoof, ‘International Human Rights Obligations for Companies and Domestic Courts: An Unlikely Combination?’, Castermans-Holleman, Van Hoof, and Smith (eds.), The Role of the Nation-State in the 21st Century, Essays in Honour of P. Baehr (1999), 47–59; Muchlinski, ‘Human Rights and Multinationals; Is There a Problem?’, 77 International Affairs (2001), 35–47.

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Human rights apart, some internationally wrongful acts of private persons mobilizing the secondary rules drive in two directions: they (a) entail the responsibility of the State for not preventing or not exercising due diligence in the behaviour of these private persons under its jurisdiction, and (b) provide for reparation on a State to private or private to private basis. In this respect the legal basis might be the same, but the obligations differ and the reparation can operate cumulatively or separately. It has already been pointed out that the diversity of the regimes of responsibility/liability under international law complicates the task of systematization. The example of the protection of the marine and/or atmospheric environment under international law36 is characteristic. (a). In case of pollution of the sea by ship, endangering or damaging a coastal State, the relevant treaties provide that it is the ship-owner who is liable towards the coastal State, as well as towards the private persons who suffered physically or in their property from the act of pollution.37 The curiosity of the situation is that, whereas according to the law of the sea an act of pollution at sea entails liability of the owner of the ship (in most cases a private person), the transboundary harm in State A originating from a private enterprise situated in the land territory of State B entails, under certain conditions and in the realm of the so-called ‘hazardous activities non prohibited by international law’,38 the responsibility/ liability, not of that private enterprise, but of State B on whose territory the pollution originated. An explanation of this difference of treatment by international law might be found in history, although even today some continue to consider the ship as (in Jeremy Bentham’s expression) ‘an ambulatory province’. Consequently, in cases of pollution damaging a third State, the traditional law of the sea and the special treaty regimes engage the liability of the ship-owner (where the control by the flag State is sometimes rather loose), whereas the liability of the State is engaged for the dangerous activities of enterprises operating on its land territory (where the control of private enterprises by the territorial State is by definition easier to carry out). Still, Judge Nagendra Singh39 had early drawn attention to the fact that the international responsibility of the State can be engaged if the State does not take the necessary measures for the effective control of ships flying its flag. This aspect of international responsibility can now generate from the violation by the State of Articles 91, 92, and in particular

36 See Birnie and Boyle, International Law and the Environment (2nd edn., 2002); Fitzmaurice (M.), ‘International Protection of the Environment’, 293 RdC (2001), 9–488; Hafner, ‘Le contexte particulier de la responsabilité dans le droit international de l’environnement’, Institut des Hautes Etudes Internationales, Cours et travaux (2000), 1–73. 37 See De La Rue (ed.), Liability for Damage to the Marine Environment (1993). 38 See Scovazzi, ‘State Responsibility for Environmental Harm’, 12 Yearbook of International Environmental Law (2001), 43–67. 39 Singh, ‘Maritime Flag and State Responsibility’, Makarckzyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (1984), 657–69.

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Article 94, of the 1982 United Nations Convention on the Law of the Sea; a confirmation of this interpretation can be found in the case law of the International Tribunal for the Law of the Sea (e.g., The Saiga 2 case).40 (b). Admittedly, the issue of State responsibility or liability for acts not prohibited by international law is a very complicated one. The arbitral award in the Trail Smelter case (1941),41 and the decision of the International Court of Justice in the Corfu Channel case (1949),42 are quoted ad nauseam as proofs of the existence of a rule of international law prohibiting States from causing transboundary damage to other States; the work of the International Law Commission and a number of treaties confirm this self-evidence. But the tragic and disturbing accident of Chernobyl (1996) led to the conclusion of a poorly ratified treaty providing for an obligation of prevention for the State where the dangerous activity is situated. Some lawful activities in the extra-atmospheric space operate under the conventional (non tested until now) status of strict liability of the ‘launching’ State. (The incident of the Cosmos 459 (1979) was solved in the traditional way, but in that case the ‘launching’ State was also the owner of the space object.)43 (c). Furthermore, numerous treaties establish confusingly for the State and/or the private operator (in principle the owner of the enterprise) either measures to prevent damage and/or international liability for risk in areas as variable as the pollution of the sea, nuclear energy, environmental modification, the transportation of dangerous goods, and Antarctica. Although most of these treaties are still lacking ratification by the States of the most important private users involved,44 academics agonize over the detection of some elementary customary rules of international liability for lawful activities causing harm to other States or private persons. It also appears that for a number of developing countries accidents of the type of Bhopal,45 assuming they had a transboundary impact, could hardly find an effective response if reparation for damage resulting from dangerous activities of huge multinationals operating in their territory were to be made by the State. (d). Since 1985, the International Law Commission has been working on the establishment of a legal basis for a regime of strict or risk liability of the State,46

40 The M/V “Saiga” (No2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, para. 8.1. The text of the judgment is electronically available at <www.itlos.org>. 41 Trail Smelter Arbitration, RIAA, iii, 1905. 42 Corfu Channel, Merits, Judgment, ICJ Reports 1949, 4, at 22. 43 See Gorove, ‘Cosmos 954: Issues of Law and Policy’, 6 Journal of Space Law (1978), 137–46. 44 See Brunée, ‘Of Sense and Sensibility’, 356 ff. 45 On some aspects of the problem, see Baxi, ‘Mass Torts, Multinational Enterprise Liability and Private International Law’, 276 RdC (1999), 297–428. 46 See Barboza, ‘International Liability for the Injurious Consequences of Acts not Prohibited by International Law and Protection of the Environment’, 247 RdC (1994), 291–406; Tomuschat, ‘International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law: The Work of the International Law Commission’, Scovazzi, and Francioni (eds.), International Responsibility for Environmental Harm (1991), 33–62.

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with an exercise swinging around the notions of prevention—causality—harm, taken together or separately. There are also unresolved questions on primary rules expressing concepts such as the precautionary principle, sustainable development, common but differentiated responsibilities.47 Three special rapporteurs have presented at least twenty-one reports on this matter and the most recent version of the effort has led the International Law Commission to separate the obligation of prevention from the obligation of reparation, whereas the notions of risk (for dangerous activities) and harm (appreciable, serious, significant or other)48 come and go from the proposed scenarios. The project was finally cut in two and, since 2001, the Commission has proposed a set of draft articles on measures of prevention that the State has to take in case of ‘activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences’.49 Presumably the failure to respect the obligation of prevention set out in the first part of the proposals of the Commission could entail the international liability of the State (the nineteen articles adopted in 2001 expressly refer forty-four times to the State and the rest of the text implies that).50 The Commission is now preparing a separate instrument on the allocation of loss in case of transboundary harm arising out of otherwise lawful but hazardous activities. But the 2002 Report of the Commission goes a step further and makes a commendable effort to recognize the late arrival of another actor in the process of liability, the private operator who in most cases actually causes the transboundary harm. Thus, the second part of the agenda on international liability would provide a system of insurance for private enterprises engaged in dangerous activities and the creation of a fund.51 Taking as a precedent some arrangements already existing in the field of liability for the pollution of the sea by ships this insurance system transplants these solutions at a time where the International Maritime Organization tries to adapt the law (by the creation of a third tier of compensation) to the current needs of the international community. The problems of traceability and of the identification of the end-user are equally complex. Finally, it should be kept in mind that efforts to introduce in a multilateral instrument of the law of the sea and of maritime law the regime of unlimited civil liability for operators were not successful and that the Secretary-General

47

Brunée, ‘Of Sense and Sensibility’, 354. The qualification is still under discussion in both domestic and comparative law. See Reid, ‘Liability for dangerous activities: A Comparative Analysis’, 48 ICLQ (1999), 731–65. 49 ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10), 370–7. 50 Ibid. 51 On the basis of the conclusions of a working group. See ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10), Chapter VII, paras. 442–57. 48

non-state actors

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of the International Maritime Organization recently discarded the idea of criminalizing by treaty the polluters of the sea.52 In another field, the uses of the extra-atmospheric space 53 are now almost completely privatized. This means that sometimes the State has little to do with the activities in question, but we also witness a tendency of the parties involved to by-pass by unilateral actions the competent international organizations whatever their efficacy has ever been (an example being the situation in the International Telecommunications Union). International organizations such as Inmarsat 54 and Intelsat 55 are undergoing a substantial change of ownership from intergovernmental to private and henceforth operate under competitive rules. In the field of responsibility/liability, the existing international instruments for space activities adopt solutions similar to the flag State principle (the principle of the liability of the State of registration),56 whereas, as far as ships are concerned, this principle is currently under criticism.

4. Conclusion In international law it is easier to identify the State than the non-State actors. The latter are presented in a variety of forms and situations and bear many denominations: individuals, physical or private legal persons, groups, associations, networks, entities, companies, insurgents, etc. These actors have a differentiated status under international law, a status that responds to their degree of integration into the system and to the activities they perform. Still, their share of international responsibility/liability under international law is growing. (I). Since the 1990s, more than 40 intra-State peace agreements have been concluded between insurrectional movements and governments with the assistance of the main actors of the international community (States and international organizations). The systematic assessment of the effective implementation of these agreements leads to a more concrete vision of the consequences of their non-respect. It also gives the occasion for research into the complex issue of the application of erga omnes rules of general international law by the insurgents.

52 See the ‘Speech by E. Mitropoulos before the Singapore Shipping Association’, 25 May 2004, electronically available at . 53 See Salin, ‘Une menace directe sur l’espace extra-atmosphérique: les conséquences juridiques et institutionnelles de la privatisation et de la militarisation des activités aérospatiales’, McGill University Annals of Air and Space Law (2000), 209–37. 54 Inmarsat Group Limited, now a London based company, is the leading global provider of mobile satellite communication services. See . 55 Intelsat was fully privatised in 2001. Its assets and liabilities were transferred to a holding Bermuda company. See . 56 See Trudel, ‘Liability in Cyberspace’, The International Dimensions of Cyberspace Law (2000), 189–218; Balsano, ‘An International Legal Instrument for Cyberspace? A Comparative Analysis with the Law of Outer Space’, ibid., 127–46.

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(II). We live the impressive expansion of privatization in the sense both of an ideological choice and in that of the transformation of enterprises from public to private.57 In this respect a distinction has to be made between (a) private enterprises that serve a domestic public service and were formerly operating as a component of the public sector of the economy of a State (including nuclear and electric energy, and other facilities, dangerous by definition and producing dangerous waste, as well as dams, etc.), and (b) other private enterprises that engage in activities susceptible to have a transboundary impact. Another example could be the operation of transport services in the sea by formerly public and now privatized nuclear ships. When we refer to domestic law we should specify ‘what law of which country’, and keep in mind that international law plays a privileged role when it expresses the convergence of needs and accepted rules. Notwithstanding the transformation of the role of the State in the above examples, it is time to ascertain the place of international law in this important change of partners. Actors and partners change in the process of the shift from primary to secondary rules. In this respect distinct rules of responsibility/ liability are required. Irrespective of the question of State responsibility/liability, the importance of some private actors operating in the international scene requires their direct attachment to international law. As an example one can invoke the gradual transformation that occurs in the relationship between the ship, the flag State and the port-State control: for that control the ratification by the flag State of treaties enunciating some fundamental principles is irrelevant. On the basis of a number of internationally agreed standards, States participating in the expanding practice of the memoranda of understanding put into practice their right to control the navigability of the ship, the conditions of safety of the crew and of the passengers, as well as the protection of the environment by all merchant ships entering their ports. If a ship does not meet the internationally agreed standards, irrespective of her place of registration, her flag State or the citizenship of the owner, she is retained by the authorities of the port-State and is liable for the violation of these standards. This is one more efficient expression of the genuine link, which is henceforth required, not only between the ship and her flag State, but also between the ship and international law. Further studies on such a direct link between the non-State actors concerned and international law are required. Then, for each activity, at sea in the atmosphere and in outer space, the questions of responsibility/liability of the State and the private actors will emerge more clearly. This will also result in a demonstration of the change of partners for the application of secondary rules.

57 See Higgott, Hunderhill and Bieler (eds.), Non-State Actors and Authority in the Global System (2000); Eldowney, (ed.), National and International Perspectives on Law and Privatisation (1999); Roucounas, ‘Facteurs privés’, 51–80 and 81–103.

CHAPTER THIRTY-FOUR

RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS: DOES THE EUROPEAN COMMUNITY REQUIRE SPECIAL TREATMENT? Stefan Talmon

1. Introduction After the completion by the International Law Commission of its second reading of the draft articles on the responsibility of States for internationally wrongful acts, the General Assembly recommended that the Commission take up the subject of the responsibility of international organizations.1 During its fifty-fourth session (2002), the Commission decided to include the ‘responsibility of international organizations’ in its current programme of work. At the same session, the Commission appointed Giorgio Gaja as Special Rapporteur and established a Working Group on the topic. During its fifty-fifth session (2003), the Commission considered the first report of the Special Rapporteur and provisionally adopted three draft articles concerning general principles relating to the responsibility of international organizations with commentaries thereto. At its latest session in 2004, the Commission, following largely the pattern of the articles on the responsibility of States, provisionally adopted four draft articles on attribution of conduct.2 In March 2003 and March 2004, in response to various requests by the International Law Commission and the General Assembly, the European

1 ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83). 2 On the Commission’s work on the question of the responsibility of international organizations, see the Commission’s Reports on its 54th to 56th session (‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10); ‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10); ‘Report of the International Law Commission on the Work of its Fifty-sixth Session’, Gen. Ass. Off. Recs., Fifty-ninth Session, Supp. No. 10 (Doc.A/59/10)) and the two Reports produced thus far by the Special Rapporteur (Gaja, ‘First Report on Responsibility of International Organizations’ (Doc.A/CN.4/532, 26 March 2003); Id., ‘Second Report on Responsibility of International Organizations’ (Doc.A/CN.4/541, 2 April 2004)).

Maurizio Ragazzi (ed.), International Responsibility Today, 405–421. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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Commission—together with selected other international organizations—submitted comments and observations on the question of the responsibility of international organizations.3 The European Commission also expressed its view on the topic in a statement to the Sixth Committee of the General Assembly on 27 October 2003.4 In its submissions, the European Commission pointed out that the European Community (EC)5 is ‘not the “classic” type of international organization, for several reasons’.6 Firstly, the EC is not only a forum for its member States to settle or organize their mutual relations, but it is also an actor in its own right on the international stage. Thus, the EC is a party to many international agreements with third parties and often concludes such agreements together with its member States, each in accordance with its own competence. Secondly, the EC constitutes a legal order of its own, with comprehensive legislative and treaty-making powers, deriving from the transfer of competence from the member States to the EC. Community law, including international obligations assumed by the EC, is directly applicable in the member States as part of their national law. In addition, the practical implementation of Community law is carried out by the authorities of the member States instead of the EC institutions themselves. There is no EC administration throughout the Community territory. In that sense, the EC goes well beyond the normal parameters of classical international organizations. The European Commission therefore emphasized that the International Law Commission’s draft articles should fully reflect the institutional and legal diversity of the structures existing in the international community.7 In this respect, it proposed that the International Law Commission should ‘take into account diverse situations and structures such as that of the European Community, which to some extent was sui generis’ when devising

3

The responses of the European Commission and international organizations are reproduced in a topic-by-topic manner in ‘Responsibility of international organizations: Comments and observations received from international organizations (25 June 2004)’ (Doc.A/CN.4/545). 4 Doc.A/C.6/58/SR.14, 22 December 2003, 4, paras. 13–14. Acting on the suggestion of the representative of Italy, speaking on behalf of the European Union, the Chairman invited a representative of the European Commission to address the Committee. 5 The statements of the European Commission only concerned the EC and not the European Union (EU), whose legal status at the time had still been under discussion. According to the Treaty Establishing a Constitution for Europe, signed in Rome on 29 October 2004 (electronically available at ), the ‘EU established by this Treaty’ is the successor to the old EU and the EC (Article IV-438) and has legal personality (Article I-7). The structural problems outlined by the European Commission with regard to the EC will largely remain the same with regard to the EU under the new constitutional setup. As the Treaty will only enter into force if all 25 member States ratify it (which, in view of the referenda in various member States, seems doubtful at the moment) and, in any case, not before 1 November 2006 (Article IV-447), this essay is also concerned only with the EC. 6 Doc.A/C.6/58/SR.14, 22 December 2003, 4, para. 13. 7 The differences between the EC and other classic international organizations are set out ibid., 4, para. 13, and Doc.A/CN.4/545, 25 June 2004, 5 and 18–19.

responsibility of international organizations 407 its draft articles.8 This essay will examine whether the EC requires any special treatment by the International Law Commission when it further considers the topic of responsibility of international organizations. 2. General Principles Concerning Responsibility of International Organizations At its fifty-fifth session in 2003, the International Law Commission adopted the general principles concerning responsibility of international organizations. Draft article 3, which is modelled on articles 1 and 2 of the articles on the responsibility of States for internationally wrongful acts,9 provides: (1) Every internationally wrongful act of an international organization entails the international responsibility of the international organization. (2) There is an internationally wrongful act of an international organization when conduct consisting of an action or omission: (a) Is attributable to the international organization under international law; and (b) Constitutes a breach of an international obligation of that international organization.10 As in the case of States, two requirements must be satisfied for an internationally wrongful act of an international organization to occur: (1) the conduct in question must be attributable to the international organization and (2) the conduct must violate an international obligation of the organization. The obligation may result either from a treaty binding the international organization or from any other source of international law applicable to the organization. The European Commission pointed out that, in practice, the EC’s international responsibility has arisen only in the context of international obligations ex contractu with third parties rather than in a non-treaty context. It therefore limited its observations to the breach of bilateral and multilateral agreements to which the EC, either alone or together with its member States, is a party. The European Commission’s observations on the questions of attribution of conduct to the EC and whether an obligation of which a breach is alleged is an obligation of the EC will be discussed in turn.

8 Doc.A/C.6/58/SR.14, 22 December 2003, 4, para. 14. A Working Group established by the International Law Commission in 2002 had already acknowledged that ‘it may be necessary to devise specific rules for different categories of international organizations’ (Doc.A/57/10, 230, para. 470). 9 For the text of the articles and the commentary thereto, see Doc.A/56/10, 29–365. 10 Doc.A/58/10, 45. For the commentary on the article, see ibid., 45–9.

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chapter thirty-four stefan talmon 3. Attribution of Conduct to the European Community

The implementation of international obligations resulting from agreements entered into by the EC, even in areas of exclusive Community competence,11 is almost exclusively carried out by the authorities of the member States, not EC institutions. This poses questions whether and when the conduct of these national authorities is to be attributed to the EC. Matters are, at least in part, further complicated in the fields of shared competence between the EC and the member States.12 International agreements in these areas frequently result in so-called ‘mixed agreements’, to which both the EC and some or all of the member States are parties.13 In that case, the international obligations adopted both by the EC and its member States are carried out by one and the same (national) authorities. As far as mixed agreements of a bilateral nature are concerned, they do not pose any particular problem as the EC and the member States are regarded as one legal person in the framework of the treaty relationship. This is already shown by the language of such agreements, which provide that they are concluded ‘of the one part’ by the EC and its member States and their respective treaty partner(s) ‘of the other part’.14 Their conduct need not be attributed to each other but is attributed instead to the legal person consisting of the EC and its member States.15 Problems may however arise in the case of multilateral mixed agreements, to which the EC and its member States are parties individually. The European Commission suggested that the question of attribution of conduct to an international organization should generally be decided on the basis of the ‘rules of the organization’ and, in the particular case of the EC, on the basis of its internal rules on the division of competence between the EC and the member States. Actions of the authorities of the member States in areas of Community competence are thus to be attributed to the EC.16 As the jurisprudence of the European Court of Justice plays an important role in the delim-

11 E.g. customs union, competition, monetary policy, commercial policy, or the conservation of marine biological resources. 12 E.g. the environment, transport, agriculture and fisheries, or consumer protection. 13 On mixed agreements, generally, see Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001); Bourgeois, Dewost and Gaiffe (eds.), La Communauté européenne et les accords mixtes: quelles perspectives? (1997); Stein, Der gemischte Vertrag im Recht der Außenbeziehungen der Europäischen Wirtschaftsgemeinschaft (1987); Dolmans, Problems of Mixed Agreements: Division of Powers Within the EEC and the Rights of Third States (1985); O’Keeffe and Schermers (eds.), Mixed Agreements (1983). 14 See, e.g., the Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the EC and its member States, of the other part, signed in Cotonou, Benin, on 23 February 2000: OJ L 317, 15 December 2000, 3. 15 The question of dual attribution of conduct does not arise in the framework of bilateral mixed agreements as there is only one legal person on each side to which conduct can be attributed. This fact has not been appreciated by the Special Rapporteur in his Second Report: Doc.A/CN.4/541, 4–5, para. 8. 16 Doc.A/CN.4/545, 13–14 and 19–20.

responsibility of international organizations 409 itation of competence between the EC and its member States, the European Commission emphasized that the ‘established practice of the organization’, one of the elements of the definition of ‘rules of the organization’, should be understood broadly as encompassing the case law of the courts of an organization.17 The problem with the European Commission’s approach is that competence is not determinative of the question of attribution of conduct as may be seen by the attribution of ultra vires conduct.18 Attribution of conduct on the basis of a division of competence also provides no criteria for the attribution of conduct in areas of exclusive Community competence. As Community obligations are not only implemented by the authorities of the member States but also, for example, by private organizations in the member States,19 it is necessary to establish general criteria for determining whether a particular conduct of an official, person or entity is attributable to the EC. Despite the problems of attribution outlined by the European Commission, the Special Rapporteur saw ‘no need to devise special rules on attribution in order to assert the organization’s responsibility in this type of case [where the authorities of the member States act as implementing authorities in areas of Community competence]’.20 Instead, the Rapporteur suggested that [the] responsibility of an organization does not necessarily have to rest on attribution of conduct to that organization. It may well be that an organization undertakes an obligation in circumstances in which compliance depends on the conduct of its member States. Should member States fail to conduct themselves in the expected manner, the obligation would be infringed and the organization would be responsible. However, attribution of conduct need not be implied.21

This statement seems difficult to reconcile with the International Law Commission’s view that ‘the attribution of conduct to an international organization is one of the two essential elements for an internationally wrongful act [of the organization] to occur’.22 The requirement of attribution of conduct is necessitated by the fact that international organizations, like States, are legal persons which

17 Ibid., 15. The European Commission therefore recommended making this point clear either in the text of the draft articles by referring to ‘established practice of the organization, including the case law by its courts’ or by explaining this point in the commentary to the draft definition. The International Law Commission did not act on this recommendation, see Doc.A/59/10, 103, para. 7 and 108, para. 11. It may however be argued that the definition of ‘rules of the organization’ is wide enough to encompass the case law of the courts of an organization. 18 See Article 7 of the Commission’s articles on State responsibility and Article 6 of the Commission’s draft on responsibility of international organizations, provisionally adopted so far (Doc.A/59/10, 100, para. 71). 19 E.g. measures taken by private producers’ organizations in the member States, acting within the Community’s agricultural intervention system, have been regarded as ‘governmental measures’ taken by the EC. See the European Commission’s observations in Doc.A/CN.4/545, 20. 20 Doc.A/CN.4/541, 6, para. 11. 21 Ibid., 6, para. 11 (footnote omitted). 22 Doc.A/58/10, 46, para. 4 (emphasis added).

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cannot act of themselves. As the Permanent Court of International Justice held: ‘States can act only by and through their agents and representatives’.23 The same is true for international organizations. The determination of an internationally wrongful act of the EC thus, by necessity, will always involve the question of attribution. The Rapporteur is correct in pointing out that international organizations may incur responsibility not just for their own acts but also in connection with internationally wrongful acts of States or of other organizations.24 Any responsibility of the EC on this basis, however, would require, first of all, an internationally wrongful act on the part of the member States. Such an act will usually be lacking because, as the case of pure Community agreements25 shows, the conduct of the national authorities, although attributable to the member States on the basis of Article 4 of the International Law Commission’s articles on State responsibility, will not violate any obligations of the member States because they are not parties to these treaties. In the framework of international treaty law, the principle pacta sunt servanda not only carries the idea that treaties are binding, but also that they are binding (and thus create obligations) only for those who are formally the parties to the treaty (the concept of privity).26 In addition, the requirements for the responsibility of an international organization for the wrongful acts of others will not usually be met. The EC neither aids and assists nor directs and controls, let alone coerces, the member States when they are implementing Community agreements.27 Thus, if the EC is to be responsible at all, it can only be so for its own internationally wrongful acts, that is to say for conduct attributable to it which is in breach of its international obligations. The Rapporteur presents Annex IX to the United Nations Convention on the Law of the Sea as an example of ‘an approach which is focused on attribution of responsibility rather than on attribution of conduct’.28 According to Article 5, international organizations and their member States are required to

23

German Settlers in Poland, Advisory Opinion, 1923, PCIJ, Series B, No. 6, 22. Cf. Articles 16–19 of the Commission’s articles on State responsibility. Following the pattern of the articles on responsibility of States for internationally wrongful acts, the Special Rapporteur intends to address in his third report, inter alia, the ‘responsibility of an international organization in connection with the wrongful act of a State or another organization.’ See Doc.A/59/10, 9, para. 25 and Doc.A/CN.4/541, 5, para. 9. 25 That is to say agreements in the fields of exclusive Community competence to which only the EC, and not the member States, is a party. 26 Cf. also Articles 34 and 35 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, Doc.A/CONF.129/15. (The text of the Convention is available at 25 ILM (1986), 543.) The Convention is not yet in force and the EC has neither signed nor ratified it, although 15 member States have ratified it. 27 In his Second Report, the Rapporteur states himself that the organs of the member States, when implementing a Community agreement, ‘are not placed under the organization’s control’ (Doc.A/CN.4/541, 5, para. 10). 28 Ibid., 6–7, para. 12. 24

responsibility of international organizations 411 declare their respective competence with regard to matters covered by the Convention. Article 6 then states: ‘Parties which have competence under article 5 of this Annex shall have responsibility for failure to comply with obligations or for any other violation of this Convention’.29 The International Law Commission is more guarded in its assessment of these provisions. In the draft report on the work of its fifty-sixth session, it says with regard to Article 6: ‘Attribution of conduct to the responsible party is not necessarily implied’.30 But, one may add, attribution is also not expressly excluded. States and international organizations are free to agree on special conditions for the existence of an internationally wrongful act which will take precedence over the general principle set out in draft Article 3.31 It is, however, questionable whether this was intended in Articles 5 and 6 of Annex IX to the Convention on the Law of the Sea. Article 6 seems to deal with allocation of responsibility rather than with attribution of responsibility.32 Within a party’s allocated area of responsibility, it is argued that the existence of an internationally wrongful act must still be established if the ‘responsible’ party is to incur responsibility under international law. This may be shown by the following example: according to Article 5, competence for the repression of piracy clearly lies with the member States and not with the EC.33 This alone does not establish whether a certain member Sate is responsible to a foreign flag State for the unjustified boarding of one of its ships wrongly suspected to be engaged in piracy. This question will depend in the first instance on whether the boarding of the vessel can be attributed to the member State. This, in turn, will depend on the factual circumstances of the case. If the boarding was carried out by one of the member State’s warships the action will obviously be attributable to it under Article 4 of the Commission’s articles on State responsibility; the same, however, is not true if the boarding was carried out by an (unsuccessful) insurrectional movement in the member State.34 Similar questions may arise with regard to matters for which the EC has responsibility. For example, it will make a difference whether the authorities of a member State or a private producers’ organization act in an area of exclusive Community competence such as the conservation and management of sea fishing resources. Article 6 thus can only be a

29

United Nations Convention on the Law of the Sea, 10 December 1982: 1833 UNTS 396, at 580. 30 Doc.A/59/10, 101, para. 3. 31 See Article 55 of the Commission’s articles on State responsibility. It can be assumed that a similar article will be adopted for the responsibility of international organizations. 32 An allocation of responsibility that is based on a division of obligations under the treaty which, in turn, is based on declarations of competence by the organization and its member States; see below the section on the breach of an international obligation by the EC. 33 Cf. the EC’s ‘Declaration made pursuant to article 5(1) of Annex IX to the Convention and to article 4(4) of the Agreement’, 1 April 1998, electronically available at . 34 Cf. Article 10 of the Commission’s articles on State responsibility.

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starting point or a fork in the road on the way to establishing the international responsibility of the EC or its member States. It does not absolve States or international organizations wanting to invoke the responsibility of the EC from the need to show that the conduct in question is attributable to it. The fact that often no reference to attribution of conduct to the EC is made in practice does not necessarily mean that such attribution is not required.35 It could equally be that States have implicitly accepted the legal position advanced by the European Commission that conduct of the authorities of the member States is, under certain circumstances, to be attributed to the EC.36 In order for conduct to be attributed to the EC the authorities of the member States need not be (quasi) Community organs (which they are clearly not).37 The International Law Commission itself has shown another way. The draft articles on responsibility of international organizations, provisionally adopted by the Commission at its fifty-sixth session in 2004, provide in Article 4: (1) The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization. (2) For the purposes of paragraph 1, the term ‘agent’ includes officials and other persons or entities through whom the organization acts. (3) Rules of the organization shall apply to the determination of the functions of its organs and agents. (4) For the purpose of the present draft article, ‘rules of the organization’ means, in particular: the constituent instruments; decisions, resolutions and other acts taken by the organization in accordance with those instruments; and established practice of the organization.38 This general rule on attribution of conduct to an international organization seems wide enough to cover the relationship between the EC and the authorities of its member States. The latter may be regarded as agents of the EC. The word ‘agent’ is understood by the International Law Commission in the

35

But see the opposite conclusion of the Special Rapporteur: Doc.A/CN.4/541, 7, para. 12. See the statement of the Director-General of the Legal Service of the European Commission: ‘[given] the “vertical” structure of the EC system as it concerns the authorities of the Member States (customs administration) acting as implementing authorities of EC law in a field of exclusive Community competence [the] EC took the view that the actions of these authorities should be attributed to the EC . . .’ (Quoted in Doc.A/CN.4/541, 6, para. 11). See also Groux and Manin, The European Communities in the International Order (1985), 144. 37 See M. & Co. v. Germany, European Commission of Human Rights, decision of 9 February 1990 on application no. 13258/87, 64 Decisions and Reports 138, at 144. The Special Rapporteur seems to rest his case heavily on the argument that the authorities of the member States are not organs of the EC. See Doc.A/CN.4/541, 7, para. 13 and especially note 18. 38 Doc.A/59/10, 103, para. 7. 36

responsibility of international organizations 413 most liberal sense as any ‘person through whom [the organization] acts’.39 This term thus covers not only officials but also any natural or legal person (including the organs of member States of an international organization) that performs functions as determined by the rules of the organization. Under the rules of the EC the practical implementation of Community law, including international obligations adopted by the EC, is entrusted to the member States and their authorities.40 The reference in paragraph 1 of draft Article 4 to the fact that the agent acts ‘in the performance of functions of that . . . agent’ makes it clear that conduct is attributable to the EC only when and to the extent that the authorities of the member States implement Community law or exercise some other element of the authority of the EC entrusted to them by the rules of the Community. The conduct that would be attributed to the EC as conduct of its agents, however, could equally be attributed to the member States as conduct of their organs on the basis of Article 4 of the International Law Commission’s articles on State responsibility.41 As has been pointed out by the Commission, attribution of conduct to an international organization does not imply that the same conduct cannot be attributed to a State.42 Situations of dual attribution also arise in the case of organs placed at the disposal of an international organization by a State.43 In that case the problem of dual attribution has been solved by draft Article 5 which provides that ‘the conduct of an organ of a State . . . that is placed at the disposal of [an] international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct’.44 No such provision exists yet for the conduct of a State organ acting as an agent of an international organization. This is probably due to the fact that the Special Rapporteur does not see the need for any special rules on attribution to accommodate the special relationship between the EC and its member States. However, as has been shown above, there will generally be no responsibility of the EC without attribution of conduct. It is therefore argued that, if the authorities of member States qualify as agents of the organization, a similar provision to draft Article 5

39 Ibid., 106, para. 5. The wide meaning of the term ‘agent’ is also to cover situations corresponding to the ones in Articles 5 and 8 of the Commission’s articles on State responsibility (ibid., 108–109, paras. 12–13). 40 Cf., e.g., Declaration (No. 19) on the implementation of Community law annexed to the Final Act of the Treaty on European Union, done at Maastricht on 7 February 1992: OJ C 191, 29 July 1992, 95. 41 The Working Group established by the Commission in 2002 stated in its report: ‘in certain cases attribution could conceivably be made both to an organization and to its member States’. (Doc.A/57/10, 232, para. 476). 42 Cf. Doc.A/59/10, 101, para. 4. 43 Cf. ibid., 110, para. 1 and 111, para. 4. 44 Ibid., 109. A similar provision exists in Article 6 of the Commission’s articles on State responsibility for the conduct of organs placed at the disposal of a State by another State; see Doc.A/56/10, 95.

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should be included in the International Law Commission’s draft articles in order to avoid dual attribution of conduct. Such a provision, which may be added as paragraph 5 to draft Article 4 above, could read as follows: The conduct of an organ of a State that performs the functions of an agent of an international organization under the rules of the organization shall be considered an act of that organization under international law if the organ is acting in the performance of those functions.

The situation where an organ of a State performs the functions of an agent of an international organization under the rules of the organization seems to be limited in practice to the particular structure of ‘supranational’ organizations such as the EC; a point that may be emphasized in the commentary to the provision. In contrast to the case of conduct of organs placed at the disposal of an international organization, the criterion for attribution of conduct either to the State or to the international organization cannot be effective control over the particular conduct of the agent, as the organization will not usually possess such control. It is therefore suggested that attribution of conduct be based on the normative criterion of performance of functions under the rules of the organization.45 In the relationship between the EC and the authorities of the member States, this means, inter alia, the implementation of the international agreements entered into by the EC. 4. Breach of an International Obligation of the European Community The second requirement for the responsibility of an international organization is that the conduct attributable to it breaches one of its international obligations. International agreements in fields of shared competence between the member States and the EC frequently result in mixed agreements, to which both the EC and the member States are contracting parties. This raises the question as to their respective obligations under such agreements vis-à-vis third parties. Again, it is necessary to distinguish between bilateral and multilateral mixed agreements.46 In the case of the former, no problem arises as the obligations are placed jointly upon the EC and the member States which, in the framework of the treaty relationship, are regarded as one legal person. This has been confirmed by European Court of Justice which held with regard to the Fourth ACP-EEC Convention:47 45 This would also be a criterion general enough to cover the case of private organizations implementing Community law. 46 This distinction is not always appreciated by the Special Rapporteur, see Doc.A/CN.4/541, 4–5, para. 8. 47 Fourth Convention between the European Economic Community and its Member States, of the one part, and the ACP [African, Caribbean, and Pacific] States, of the other part, signed at Lomé on 15 December 1989: OJ L 229, 17 August 1991, 3.

responsibility of international organizations 415 The Convention was concluded . . . by the Community and its Member States of the one part and the ACP States of the other part. It established an essentially bilateral ACP-EEC cooperation. In those circumstances, in the absence of derogations expressly laid down in the Convention, the Community and its Member States as partners of the ACP States are jointly liable to those latter States for the fulfilment of every obligation arising from the commitments undertaken . . . It follows from the above that, in accordance with the essentially bilateral character of the cooperation, the obligation . . . falls on the Community and on its Member States, considered together.48

In the case of multilateral mixed agreements, however, where the EC and the member States are parties in their own right, the question of the division of obligations arises. The European Commission suggested that the question of apportionment of obligations49 as between the international organization and its member States should be decided on the basis of the internal rules of the organization on the division of competence between the organization and its member States. Its observations read, in part, as follows: They [the ‘rules of the organization’] are, however, equally important for . . . the question whether the obligation of which a breach is alleged is an obligation of the international organization in question. This is the question . . . of the apportionment of the obligation as between the organization and its members. This apportionment is entirely determined by the rules of the organization, since these rules define the tasks and powers of the organization which possesses its own international legal personality, vis-à-vis those of the member States.50

This view, however, is not fully in conformity with current international law. The questions whether an international obligation is incumbent upon an international organization and whether such obligation has been breached are inextricably linked and both are to be decided on the basis of international law and not on the basis of the rules of the organization in question. Article 1, paragraph 1, of the draft articles speaks of the ‘international responsibility of an international organization for an act that is wrongful under international law’. Article 3 of the International Law Commission’s articles on State responsibility expressly provides that ‘the characterization of an act of a State as internationally wrongful is governed by international law’. No such provision was deemed necessary by the Commission in the present draft articles as this was seen as a rather obvious statement, ‘since it is clearly implied in the principle that an internationally wrongful act consists in the breach of an obligation under international law’.51 48 Case C-316/91, Parliament v. Council, Judgment of 2 March 1994, [1994] ECR I-625, paras. 29, 33. 49 The European Commission uses ‘apportionment of obligations’ and ‘apportionment of responsibilities’ interchangeably. 50 Doc.A/CN.4/545, 13. See also, ibid., 14 and 19. 51 Doc.A/58/10, 48, para. 9.

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The question whether an obligation under an international agreement is incumbent upon an international organization is to be determined by reference to the law of treaties. The internal rules of the organization regarding competence to conclude treaties are of no relevance in establishing the existence or extent of the obligations of an organization under a treaty vis-à-vis third parties. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations makes this clear when it distinguishes between the capacity of international organizations to conclude treaties under international law and their competence to do so under the rules of the organization.52 In article 27, paragraph 2, the Convention also provides that ‘an international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty’.53 The principle that the organization cannot plead its own rules as an excuse corresponds with the interests of the parties to a treaty of not having to enquire into the internal rules of an international organization to determine its obligations under the treaty. Otherwise, treaty obligations would change alongside changes in the rules of the international organization. In this connection, it should also be recalled that mixed agreements are sometimes concluded for the very reason that the EC and its member States agree to disagree on the exact delimitation of their competences and, in order to leave the question open, all become parties to the treaty. In such a situation, or in the case of a dispute between the EC and its member States as to their respective competencies, how should third parties determine the extent of their obligations? If the EC becomes a party to a treaty it is bound by all the obligations under the treaty irrespective of whether or not it has competence for a certain matter under its internal rules. This is confirmed by several treaties which expressly provide that any ‘organization that becomes a Party to this Convention without any of its member States being a Party shall be bound by all the obligations under the Convention’.54 The same is true if both the EC and its member States become parties to a treaty. In the latter case, the obligations under the treaty are incumbent upon all of them.55 The result that the obligations are binding upon the EC and the member States, and that they are jointly and

52 Preamble, paras. 11 and 12. On the distinction between capacity and competence in the EC’s external relations, see also Kingston, ‘External Relations of the European Community— External Capacity Versus Internal Competence’, 44 ICLQ (1995), 659–69. 53 See also the largely identical Article 27 of the Vienna Convention on the Law of Treaties, 23 May 1969: 1155 UNTS 331. On Article 27 as transcribing a general principle, see Case C-224/01, Köbler v. Österreich, [2003] ECR I-10239, para. 88 (opinion of Advocate-General Léger of 8 April 2003). 54 See, e.g., Article 22 (2) of the United Nations Framework Convention on Climate Change, 9 May 1992: 1771 UNTS 107. 55 See Article 26 of the 1986 Vienna Convention. Cf. also Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, 73, at 89–90, para. 37: ‘International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them . . . under international agreements to which they are parties’.

responsibility of international organizations 417 severally responsible,56 seems appropriate as the other parties to the treaty potentially face twenty-six parties which may exercise rights and claim violations of obligations under the treaty. The reason for this is that the other parties cannot rely on the rules of the organization regarding competence to conclude treaties in their treaty relations with the EC or its member States as, for them, these are res inter alios acta.57 The situation may be different where a specific declaration of competence has been made by the EC and/or its member States. In modern treaty practice, where both a ‘regional economic integration organization’ (the generic term for an international organization such as the EC)58 and its member States can be parties to an international agreement, the treaties more and more frequently provide that the international organization and, in the case of some treaties, also the member States shall, at the time of signature, ratification, acceptance, approval or accession, declare the extent of their competence with respect to the matters governed by the treaty. They shall also promptly inform the depositary of the treaty, who shall in turn inform the parties, of any substantial modification in the extent of their competence.59 Such provisions seem to permit an international organization and its member States to limit their consent to be bound by the treaty to matters in respect of which they have competence. Thus, the United Nations Convention on the Law of the Sea, which in Articles 2 and 5 of its Annex IX requires both the international organization and its member States to make such declarations specifying the matters governed by the Convention in respect of which they have competence, expressly provides that ‘an international organization shall be a Party to this This position was also taken by the European Commission in its submissions in Case C-13/00, Commission v. Ireland, [2002] ECR I-2943, para. 29 (Advocate General’s opinion). 56 Advocate-General Tesauro (in Case C-53/96, Hermès International v. FHT Marketing Choice, [1998] ECR I-3603, para. 14) and Advocate-General Jacobs (in Case C-316/91, Parliament v. Council, [1994] ECR I-625, para. 69) seem to suggest ‘joint responsibility’. 57 Cf. Article 36 (1) of the 1986 Vienna Convention. It cannot be assumed that the member States of the EC intended to create rights for third States when concluding the treaties establishing the EC. 58 ‘Regional economic integration organization’ has been defined as an ‘organisation that is composed of several sovereign states, and to which its Member States have transferred competence over a range of matters, including the authority to make decisions binding on its Member States in respect of those matters’, see, e.g., Article 1 of the WHO Framework Convention on Tobacco Control, 21 May 2003: 42 ILM (2003), 518. 59 Cf., e.g., Article 35(3), WHO Framework Convention on Tobacco Control; Article 67(4), United Nations Convention against Corruption (42 ILM (2003), 518); Article 25(3), Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Doc. UNEP/FAO/PIC/CONF/2); Article 35(3), Convention on the Law of the Non-navigational Uses of International Watercourses (Doc.A/51/869, 11 April 1997); Article 34(3), United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1954 UNTS 3); Article 22(3), United Nations Framework Convention on Climate Change (1771 UNTS 107); Article 34(3), Convention on Biological Diversity (1760 UNTS 79); Article 27(2), United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psycotropic Substances (Doc.E/CONF.82/ 15, Corr. 1 and Corr. 2).

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Convention to the extent that it has competence in accordance with the declarations, communications of information or notifications referred to in article 5 of this Annex’.60 It also requires the organization ‘to accept the rights and obligations of States under this Convention in respect of matters relating to which competence has been transferred to it by its member States’.61 Other conventions which also prescribe such declarations of competence expressly state that any regional economic integration organization which becomes a party to the treaty without any of its member States being a party shall be bound by ‘all the obligations’ under the treaty.62 From this, one may draw the reverse conclusion that, if both the organization and its member States become parties to the convention, each shall be bound only by its respective obligations under the convention.63 As pointed out above, the consent of an international organization to be bound by a treaty covers all obligations under the treaty (the principle of integrity of the treaty). There are, however, two exceptions: reservations and the possibility of consenting to be bound by part of a treaty. The latter is effective only if the treaty so permits or if the other parties to the treaty so agree.64 Even without any specific provision relating to the extent of rights and obligations as in Annex IX to the United Nations Convention on the Law of the Sea, the requirement for a declaration of competence could be interpreted as permitting an international organization and its member States to limit their consent to be bound by the treaty to matters in respect of which they have competence.65 The European Commission is thus correct insofar as there is a correlation between the division of competence between an international organization and its member States and the apportionment of their obligations under a treaty. However, it is not the division of competence as laid down in the rules of the organization that is decisive but the division of competence as declared to the other parties to the treaty.66 This distinction is relevant if there is a discrepancy between the rules of the organization and the declaration of competence. Such a discrepancy may easily arise if a modification of

60

Article 4(2), Annex IX, to the Convention on the Law of the Sea. Article 4(1), Annex IX, to the Convention on the Law of the Sea. 62 See the treaties referred to in footnote 59, above. (Emphasis added.) 63 If the international organization and one or more of its member States are parties, the treaties provide that they ‘shall decide on their respective responsibilities for the performance of their obligations under the Convention’. (Emphasis added.) 64 See Article 17(1) of the 1986 Vienna Convention. 65 At least the initial declarations, at the time of signature, ratification, acceptance, approval or accession, could also be qualified as a reservation expressly authorized by the treaty, cf. Article 20(1) of the 1986 Vienna Convention. 66 Cf. Article 4(2), Annex IX, to the Convention on the Law of the Sea, which provides that ‘an international organization shall be a Party to this Convention to the extent that it has competence in accordance with the declarations, communications of information or notifications’ (emphasis added). The fact that the EC and its member States have recourse to the formula of a mixed agreement without a specific declaration of competence therefore cannot be sufficient to limit the obligations of the EC to matters within its competence, contra Advocate-General Mischo in Case C-13/00, Commission v. Ireland, [2002] ECR I-2943, para. 30. 61

responsibility of international organizations 419 the rules on the division of competence is not promptly notified to the depositary of the treaty. In contrast to the rules of the organization, the other parties to the treaty may rely on the declaration of competence in their treaty relations with the international organization and its member States. The declaration creates an estoppel which prevents the organization and its member States from exercising any rights or claiming the violation of any obligations with regard to matters in respect of which they have declared competence to lie with the other party. The problem with a division of obligations on the basis of a declaration of competence is that these declarations are often formulated in such general and nebulous terms that it may be difficult for the other treaty parties to determine whether a certain obligation is incumbent upon the organization or upon its member States.67 Only the Convention on the Law of the Sea contains detailed procedural provisions how to deal with obscure or incomplete declarations of competence.68 It is suggested that in cases of uncertainty as to the division of obligations the rule in article 46, paragraph 2, of the 1986 Vienna Convention should be applied by analogy. According to this provision, ‘an international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding competence to conclude treaties as invalidating its consent unless that violation was manifest’. What applies to invalidating consent should equally apply to restricting consent. In case it is not manifest from the declaration of competence whether an obligation falls within the area of competence of the organization or within that of its member States, it will be incumbent upon both of them. This result coincides with the interests of the other parties to a treaty, which should not be unduly burdened with enquiring under whose area of competence a specific matter falls. Following the pattern of the International Law Commission’s articles on State responsibility, it is expected that the Commission will deal with the topic of ‘breach of an international obligation’ at its fifty-seventh session in 2005,69 and/or at its future sessions. In order to clarify the law on breach of an international obligation in areas of shared competence between an international organization and its member States it is recommended that the Commission include an article on the question taking account of the treaty practice in that area. Such an article could be phrased along the following lines:

67 See, e.g., the Declaration made by the EC pursuant to Article 35(3) of the WHO Framework Convention on Tobacco Control: OJ L 196, 2 August 2003, 7. 68 Cf. Article 5(3) and (5), and Article 6, Annex IX, to the Convention on the Law of the Sea. 69 Cf. Chapter III of Part I of the Commission’s articles on State responsibility.

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(1) An act of a member State of an international organization to which its member States have transferred competence over a range of matters, including the authority to make decisions binding on its Member States in respect of those matters, does not constitute a breach of an international obligation of the State if it is manifest at the time the act occurs that competence for the obligation lies with the organization. (2) An act of an international organization to which its member States have transferred competence over a range of matters, including the authority to make decisions binding on its member States in respect of those matters, does not constitute a breach of an international obligation of the organization if it is manifest at the time the act occurs that competence for the obligation lies with the member States. (3) A division of competence between an international organization and its member States is manifest if it would be objectively evident to any State or any international organization conducting itself in the matter in accordance with the normal practice of States and, where appropriate, of international organizations and in good faith. The provision is phrased in terms general enough to cover both contractual and non-contractual obligations, although, in practice, its main—if not only— area of application for the present time will be treaties concluded by the EC and its member States. While declarations of competence will help to make the division of competence manifest to the other treaty parties they are not the only way to do so. The provision also applies to treaties which do not expressly require a declaration of competence by the EC and/or its member States. If the other parties to the treaty are or ought to have been aware of the division of competence the EC and its member States will be able to invoke this division against them as a ground for limiting their obligations under the treaty in accordance with the principle of good faith. In both cases, however, the burden of proof will lie with the EC and its member States. Given the complexity of the EC’s internal law on the division of competence between the EC and its member States, in most cases the division is most unlikely to be manifest as such. It is thus in the interest of the EC and the member States to provide detailed declarations of competence and to update them regularly.

5. Conclusion The practice of the EC and its member States to conclude multilateral mixed agreements raises some difficult questions for the International Law Commission’s work on the responsibility of international organizations. It has been shown that the questions whether certain conduct is to be attributed to the EC or to its member States and to which of the two a certain obligation belongs can

responsibility of international organizations 421 be accommodated within the present system of the draft articles. The notion of ‘agent’ in draft Article 4 is broad enough to encompass the situation of the authorities of the member States implementing Community law, but a provision precluding dual attribution is required. The modern treaty practice on the division of obligations between the EC and the member States can be codified in an additional draft article in the chapter on breach of an international obligation. No concept of ‘attribution of responsibility’, that is to say responsibility without the attribution of conduct,70 is called for in the case of the EC. The responsibility of international organizations is, after all, not a question of attributing responsibility but a question of establishing responsibility. This should be done in the same way with regard to all international organizations in accordance with the general principles set out in draft Article 3. The EC does not require any special treatment but merely the adjustment of some of the general rules to its particular structure and supranational nature.

70 See, however, the Special Rapporteur’s Second Report: Doc.A/CN.4/541, 6–7, paras. 11–12 and the Commission’s report on the work of its fifty-sixth session: Doc.A/59/10, 101, para. 3.

CHAPTER THIRTY-FIVE

STATE RESPONSIBILITY FOR PRIVATE ACTORS: AN OLD PROBLEM OF RENEWED RELEVANCE Rüdiger Wolfrum

1. Introduction The question whether and to what extent a State is responsible for the conduct of private persons or groups is an old issue which inspired considerable academic writing and some international jurisprudence. The issue has become of renewed relevance recently since States seem increasingly to entrust functions to private organizations which traditionally have been carried out by public officials (outsourcing). This contribution will not deal with this issue in general1 but only in the context of the belligerent occupation of Iraq by the United States2 since this raises particular questions concerning State responsibility. Private organizations have taken over military training in Iraq and assume functions as prison guards. Interpreters are involved in military inquiries in the questioning of detainees and of prisoners of wars, etc. The activities referred to all reflect functions traditionally exercised by State officials. Any violation of international law by State officials in exercising such functions would be clearly attributable to the State. However, what is the situation in respect of the conduct of such private organizations which evidently are not included in the hierarchy of military command and control? Allegedly some private persons have been involved in interrogation practices amounting to torture. It is the objective of this essay to contribute to the discussion whether international

1 Assessing this phenomenon more from a generalized point of view, one may associate it with the decline of nation-States, an issue which Oscar Schachter has dealt with in depth. See, for example, his ‘The Decline of the Nation State and its Implications for International Law’, 36 CJTL (1997), 7–23. Whereas the decline of nation States is the result of economic and social developments on a world wide scale or, as far as failed States are concerned, is due to internal factors of that particular State [space], the withdrawal of a State from exercising certain functions is based upon a voluntary decision of that State. 2 This practice was questioned, for example, by Senators Levin and D. Kennedy at the testimony of Secretary of Defence Donald H. Rumsfeld, 7 May 2004. Reference was made in this context to the report of General Taguba who referred to the fact that private persons had participated in the interrogation of prisoners at the Abu Ghraib Prison.

Maurizio Ragazzi (ed.), International Responsibility Today, 423–434. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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law rules on State responsibility ensure that States remain accountable. The central question therefore is whether States bear international responsibility for the conduct of private persons entrusted with functions if they violate international law in the context of carrying out such functions. There is another interesting aspect which has emerged in Iraq during the period it had been under full control of the United States and its allies. The United States authorities have employed Iraqi police and security forces in their attempt to re-establish peace and security in Iraq. Here again it is a question whether violations of international law, in particular international humanitarian law, undertaken by members of these forces are attributable to the United States. Finally, it is interesting to ascertain to whom such conduct can be attributed after 28 June 2004 when the Interim Government of Iraq assumed control over Iraq3 although the allied forces under the command of the United States remained in place to guarantee security in Iraq. The question of attribution4 is one of the crucial issues in the legal regime on State responsibility. States do not act as such but through persons. The normal way of establishing attribution is to determine whether such persons have acted as agents of the State concerned so as to qualify such acts as an act of that State. The issue of State responsibility for acts of private persons raises particular problems since such acts are, under normal conditions, not to be considered as acts of States.5 Two different aspects have to be distinguished as far as activities of private actors are concerned. One issue is attribution of the conduct to a State which means whether the action of a private person or group may or is to be imputed to a State. Another issue is the question under which circumstances a State may be held responsible for such conduct of private actors. The International Law Commission has dealt with this issue in its articles on State responsibility submitted to the General Assembly in 2001.6 The respective rules are based upon customary international law. As far as State responsibility in respect of the conduct of private citizens is concerned customary international law proceeds from the premise that, in principle, a State is not responsible for the conduct of private persons and the conduct of persons not acting on behalf of a State cannot be considered an act of that State. However, there are several exceptions to this rule.

3 See Law of Administration for the State of Iraq for the Transitional Period, 8 March 2004. The text of the Law is electronically available at . 4 See on the notion in general: Starke, ‘Imputability in International Delinquencies’, 19 BYIL (1938), 104–17; Christenson, ‘The Doctrine of Attribution in State Responsibility’, Lillich (ed.), International Law of State Responsibility for Injuries to Aliens (1983), 321–60; Wolf, Die Haftung der Staaten für Privatpersonen nach Völkerrecht (1997), 61 ff. 5 See on this, in general, Dahm, Delbrück and Wolfrum, Völkerrecht (Band I/3, 2nd edn., 2002), 905–12. 6 ‘Resolution of the United Nations General Assembly on the Responsibility of States for Internationally Wrongful Acts (adopted on 12 December 2001)’ (A/RES/56/83).

state responsibility for private actors 425 The International Law Commission has identified two exceptions. In the first case the acts of private persons and groups are attributable to a State if they are acting on the instruction or under the direction or control of that State (Article 8).7 In the other case where private persons or groups thereof are not acting under the control of a State, but have assumed functions which are normally exercised by the State, the responsibility devolves upon the State for which they act (Article 9).8 The attributability of private conduct to a State in these cases is based on the consideration that a State should not escape international responsibility by not acting or by leaving the taking of measures to private persons although it was its responsibility to take action. The general rule, namely that States are not internationally responsible for the conduct of private persons reflects that States cannot—or should not—control the activities of their citizens. It is quite doubtful whether these are the only two cases where the conduct of private persons may result in international responsibility of a State. State responsibility may result from the conduct of a private person which violates internationally protected rights or positions and a State did not intervene for their protection although that State was, under international law, obliged to do so.9 In such case a State, in fact, is not held directly responsible for the private conduct but for the State action or rather the lack thereof in response to the conduct of private persons. The private conduct only constitutes the trigger for the international responsibility but it is the conduct of State officials or the lack of conduct which counts. This may be of quite some relevance in practice as international responsibility depends upon as to whether there was— on the so-called primary level—an international obligation of the State to intervene. Accordingly such State responsibility has an inherent limitation in that it requires a primary obligation to intervene. Further, a State may be held responsible for the conduct of private persons if it has assumed the role of a guarantor for a certain conduct or event to happen or not to happen. Here again the decisive actions are the ones undertaken or not undertaken by the State. This case is, for example, referred to 7 ‘The conduct of a person or a group of persons shall be considered an act of State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’. 8 ‘The conduct of a person or a group of persons shall be considered an act of State in international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority’. 9 For example, the Inter-American Court has affirmed that acts of private persons can be attributable to a State when a State fails to act in accordance with the American Convention on Human Rights: ‘An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’ (Velásquez-Rodríguez, 29 July 1988, Series C No. 4, .)

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in Article 139 of the Convention on the Law of the Sea.10 By assuming the role as the sponsoring State the State assumes the responsibility for a private operator concerning the implementation of the obligations under the legal regime for deep seabed mining. Finally, the conduct of a private person may be attributed to a State when such conduct was later openly or tacitly consented to. Such State consent changes the qualification of the conduct in question from private into State conduct. The issue of international responsibility of a State for private actions has been discussed by the International Court of Justice in the Nicaragua case11 in respect of the question whether the actions of the contras had to be attributed to the United States—which the Court denied in general. It became also relevant in the TadiÆ case12 decided by the International Criminal Tribunal for the Former Yugoslavia and in the Loizidou case, in the case of Ila{cu and Others v. Moldovia and Russia which was decided by the European Court of Human Rights13 as well as in several cases by the Iran-United States Claims Tribunal.14 The issue of retroactive State consent has been touched upon by the International Court of Justice in the United States Diplomatic and Consular Staff in Teheran case.15 Of the different scenarios where private conduct may be attributable to a State only the first two referred to above have been addressed explicitly in the articles of the International Law Commission on State responsibility. The others are covered in general by Article 2 of the Commission’s draft which provides that a wrongful act of State may be committed through an action as well as an omission.16

10 Article 139 reads: ‘(1) States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part . . . (2) Without prejudice to the rules of international law and Annex III, article 22, damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability . . .’ (United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982 (DOC.A/Conf.62/122, and Corr. 1 to 11).) 11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14. 12 Prosecutor v. Dusko TadiÆ (Appeals Chamber—ICTY), Judgment (15 July 1999), . 13 Loizidou v. Turkey, Judgment (Merits and Just Satisfaction), 18 December 1996, ; Ila{cu and others v. Moldova and Russia, Judgment (Merits and Just Satisfaction), 8 July 2004, . 14 For a summary of the relevant cases and the development of the jurisprudence of the Tribunal see Lillich and Magraw, The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (1998), 129–73; Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996), 196–200; Mohebi, The International Character of the Iran-United States Claims Tribunal (1999), 303–7. 15 ICJ Reports 1980, 3. 16 In this respect reference may be made to the judgement of the International Court of Justice in the Hostages case (see the previous footnote), where the Court concluded that the responsibility of Iran was entailed by the ‘inaction’ of its authorities which failed to take ‘appropriate steps’, in circumstances where such steps were evidently called for (para. 170); Article 2

state responsibility for private actors 427 In particular the scenario referred to in Article 9 of the Commission’s draft is restricted to emergency situations, that is when States should act but are unable to act and private persons or groups step in. This may also be the case where in the situation of failed States, such as Somalia. Functions exercised by the Warlords in Somalia are to be attributed to Somalia since they assume supreme functions in the area they control in place of the non-functioning government of Somalia. Article 9 of the Commission’s draft thus only covers a very particular situation. It does not contribute to the solution of the question whether the United States may be held internationally responsible for acts of persons in Iraq not included in the United States governmental hierarchy but which have been entrusted with certain functions traditionally exercised by public officials or under the direct control of public officials. There is no question that for Iraq a governmental authority exists: governmental activities are either undertaken under the authority of the Interim Government or the Allied Forces. 2. Article 8 of the Commission’s Draft: An Adequate Solution? An attempt will be made to assess whether under Article 8 of the Commission’s draft the United States may be held internationally responsible for violations by members of private organizations committed while conducting functions entrusted to them by the United States administration. The attribution to a State of the conduct of a private person who in fact acts under the instruction, direction or control of that State in carrying out that activity is, in principle, widely accepted in international jurisprudence.17 Article 8 of the Commission’s draft is meant to reflect such rules which have emerged in customary international law. That provision, in fact, deals with two different scenarios. The first one covers private persons acting on instruction of a State when carrying out the wrongful conduct; in the second scenario the relationship between the State and the private persons is more remote. One may wonder whether the first scenario really describes a case of attribution of conduct of private persons to a State. By acting on instructions such private persons become the extended arm of the instructing State organ and therefore the attribution in the sense that the conduct is to be considered as State action is a matter of consequence. These are the cases where a State supplements its own staff by recruiting private persons to act as auxiliaries which remain outside the official structure of the State while performing functions as instructed.

of the Commission’s draft reads: ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State’. 17 See, for example, the 1925 case of Zafiro, RIAA, vi, 160; the 1927 case of Stevens, RIAA, iv, 265; Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 110.

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In these cases it is not the position of the respective person which matters but the performance of functions as directed by public officials. What is decisive, though, is that the authorities giving instructions exercise either legislative, executive or judicial functions. In such cases it does not matter that a person or persons involved are private individuals nor whether their conduct involves ‘governmental activities’.18 To give an example, torturing prisoners in order to extract more information by private teams entrusted with the task to interrogate prisoners and doing so on the basis of specific instructions or general instruction on the methods of interrogation would certainly come under the first alternative of Article 8 of the Commission’s draft. This means that even if the interrogation in the Abu Ghraib prison or of persons detained at Guantanamo Bay was undertaken by private persons assigned to this task but working under general or specific instructions as to the methods of interrogation this would entail international responsibility of the United States to the extent that such methods are in violation of applicable international humanitarian law or international human rights law. The issue is more complex when the conduct was carried out under ‘the direction or control of a State’, the second alternative of Article 8 of the Commission’s draft. It is commonly held that such conduct may be attributed to the State only if that State directed or controlled the specific operation and the conduct. There are several questions which have to be considered, namely whether the State concerned must be in control of the activity in question in general or whether it is necessary that the specific activities which may give rise to international responsibility must have been controlled by the State. Finally, it is questionable whether the activities violating international law must be an integral part of the conduct the private persons are undertaking on behalf of the State or whether it is sufficient that such illegal activities have been undertaken at the occasion of the tasks they were to perform. The standard of control was a key issue in the case of military and paramilitary activities in and against Nicaragua.19 Although the International Court of Justice stated that the United States was responsible for the ‘planning, direction and support’ given to the Contras by the United States the Court rejected

18

Crawford, The International Law Commission’s Articles, 110. ICJ Reports 1986, 14. The respective passage reads: ‘[D]espite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf . . . All forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well have been committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed . . .’ 19

state responsibility for private actors 429 the claim of Nicaragua that the whole conduct of the Contras could be attributed to the United States. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia addressed a seemingly similar issue in the case Prosecutor v. TadiÆ.20 It held that: [T]he requirement of international law for the attribution to States of acts performed by private individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber failed to see why in each and every circumstance international law should require a high threshold for the test of ‘control’.21

The interpretation of Article 8 of the Commission’s draft can be approached from two different points of view. One may argue that Article 8 does not refer to two different scenarios, namely that the factual influence or authority a State has to exercise over the conduct which is considered to be attributable to it is always the same in spite of the differentiated wording of Article 8. This would mean that the conduct of private persons is only attributable to a State if the illegal activity was undertaken on instruction or was covered by a direction of the State concerned or if the concrete illegal activity was undertaken under the control of that State. If, however, the private group had overstepped its mandate, this activity would not entail international responsibility. To refer to the concrete example, mentioned above, illegal interrogation practices by private groups as in the case of Iraq, under this interpretation would only be attributable to the United States if such practices had been authorized by public authorities or if the interrogations had been undertaken under the direct control of public officials. This would, in fact, mean that the general principle that States are not responsible for private conduct prevails, even if a private party works for a State under its general authority and direction. There are at least two reasons which indicate that such interpretation cannot be sustained. Such interpretation would totally ignore the differentiated wording of Article 8 of the Commission’s draft. Apart from that, read in this way, Article 8 would create an incentive for States to outsource State functions and thus render the rules of international law on State responsibility inoperative. Additionally, international jurisprudence, some of it even referring to an earlier draft on State responsibility by the International Law Commission, does not endorse such an approach. To the contrary, the Iran-United States Claims Tribunal has taken the opposite position. 20

Prosecutor v. Dusko TadiÆ (Appeals Chamber—ICTY), Judgment (15 July 1999), para. 117. Crawford (The International Law Commission’s Articles) asserts that the International Criminal Tribunal for the Former Yugoslavia had to deal with individual responsibility rather than with State responsibility. This is certainly correct; however, it is a valid question whether the standards applied for establishing attribution should not be the same in both cases. Both regimes, namely the regime of international criminal law and the one on State responsibility, mutually reinforce each other. It is hardly conceivable that a State official could be prosecuted under international criminal law for an instance which would not entail international responsibility of the respective State. 21

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In this respect the Yeager case decided by the Iran-United States Claims Tribunal is of relevance.22 The case devolved from activities of the so-called Revolutionary Guards against Mr. Yeager, a United States citizen. The Revolutionary Guards were a group of private persons at that time not being part of the Iranian government nor recognized by the Iranian government although they acted with the general support of Ajatollah Khomeini. The Tribunal rejected the claim by the Iranian government that it could not control the Revolutionary Guards. It observed that because the government accepted their activity in principle and their role in the maintenance of public security and even called for more discipline, although such calls were phrased in general rather than specific terms, the government did not meet the standard of control required in order to effectively prevent these groups from committing wrongful acts against the United States. Under international law Iran cannot, the Tribunal stated, on the one hand, tolerate the exercise of governmental authority by revolutionary ‘Komitehs’ or ‘Guards’ and at the same time deny responsibility for wrongful acts committed by them. One could have argued that since the government of Iran accepted the activities of the Revolutionary Guards and tolerated their exercise of governmental authority the Guards operated within the organic structure of the Iranian State.23 Although this case was decided on a different basis since the Iran-United States Claims Tribunal did not invoke the control theory used by the International Court of Justice or the International Criminal Tribunal for the former Yugoslavia it quite clearly identifies the problems the rules on State responsibility face in such a situation. If one considers the judgement from the point of view of the International Law Commission’s draft on State responsibility, to which the judgement explicitly refers, the Tribunal pursued a different chain of argumentation than the one of the International Court of Justice. Instead of using the rules on control over private groups acting on behalf of the State so as to establish that the acts of the private group are attributable to the State it argued that the State was under an international law obligation to act. The responsibility of Iran resulted rather from the failure of the Iranian government to act than from the attribution of the conduct of a private group to the State. Such an approach has one shortcoming, though. It can only be invoked if it is pos-

22 17 C.T.R. 92 (1987–IV), at 103–4: ‘While there is some doubt as to whether revolutionary “Komitehs” or “Guards” can be considered “organs” of the Government of Iran, since they were not formally recognized during the period relevant to this Case, attributability of acts to the State is not limited to acts of organs formally recognized under internal law. It is generally accepted in international law that a State is also responsible for acts of persons, if it is established that those persons were in fact acting on behalf of the State’ and para. 43: ‘The Tribunal finds sufficient evidence in the record to establish a presumption that revolutionary “Komitehs” or “Guards” after 11 February 1979 were acting in fact on behalf of the new government’. 23 For a different view, see De Hoogh, ‘Articles 4 and 8 of the 2001 ICJ Articles of State Responsibility, the TadiÆ Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’, 72 BYIL (2001), 255–92, at 271.

state responsibility for private actors 431 sible to sustain the claim that there is an obligation of the State concerned to intervene. Such an obligation is established under customary international law in respect of the protection of aliens. It seems, however, doubtful whether this obligation exists, in general, in cases where the State tolerates the taking over of governmental activities by private groups. In this context a judgement of the European Court of Human Rights is equally worth mentioning. In the case Ila{cu and Others v. Moldovia and Russia the Court had to deal with the question whether human rights violations by agents of the Moldavian Republic of Transniestria (MRT) are attributable to Russia. The Court affirmed this on the basis of the following reasoning: (392) All of the above proves that the ‘MRT’, set up in 1991–1992 with the support of the Russian Federation, vested with organs of power and its own administration, remains under the effective authority, or at least under the decisive influence, of the Russian Federation . . . (393) That being so, the Court considers that there is a continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate . . .24

The Court finally emphasized that the Russian Federation had made no attempt to put an end to the applicant’s situation brought about by its agents and did not prevent the violations allegedly committed.25 On this basis the interpretation of Article 8 of the Commission’s articles on State responsibility should be reconsidered. States cannot circumvent the international rules on State responsibility by either transferring competences, generally exercised by State officials, or by tolerating the take-over of such functions by private groups by claiming these groups were meant to or acted independently. International law on State responsibility does not honour the withdrawal of a State from its genuine responsibility. It is sufficient that States have entrusted private persons or groups with certain tasks and continue to exercise a general control over the conduct of such persons or groups. It is not necessary that States control such conduct in details to meet the standard ‘under the direction or control’ in Article 8 of the Commission’s draft. This, however, does not yet answer how to deal with situations where such private groups overstep their mandate. In this respect it is appropriate to consider the relationship between Article 8 and Article 7 of the Commission’s draft. Article 7 concerns the issue that an illegal conduct may be attributed to the State concerned even if an organ or a person or an entity in power to exercise governmental authority may have exceeded its authority or contravened instructions. It is the underlying philosophy of this rule that it is most likely that violations of international law which give rise to State responsibility are the result of excès de pouvoir. States should, however, take precautions 24 25

Ila{cu and others v. Moldova and Russia, Judgment (Merits and Just Satisfaction). Ibid., para. 393.

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against such an excès de pouvoir. If such precautionary measures do not exist or fail, the respective State has failed in its responsibility to provide for adequate organization and supervision of those public officials acting on its behalf. This indicates that a State cannot claim that the private person or group has overstepped his or its mandate. By entrusting private persons with the conduct of activities the State sets a causal development into motion which may result in State responsibility, depending on whether the threshold of Article 8 of the Commission’s draft is met. This view is endorsed by also considering Article 9 of the Commission’s draft dealing with the attribution of the conduct of private persons in cases of emergency. Under this provision only acts containing elements of governmental authority may be attributed to the State in question which excludes acts ultra vires. Note should be taken that such words do not feature in the text of Article 8 of the Commission’s draft; in that respect Article 8 differs from Article 9. The situation covered by the two provisions differs. Under Article 9 the initiative to take over governmental functions comes from the private persons and not from the State as it is the case under Article 8. In the former case private persons take action in case the State is unable to act. Their action, accordingly, is only attributable if one may presume that the State would have acted accordingly had it been in the position to do so. Such presumption is only valid for governmental activities. This allows to distinguish clearly the scenarios covered by the two provisions in question. Whereas under Article 8 of the Commission’s draft the State may be held responsible for all activities, under Article 9 it may only encounter responsibility for governmental activities. The underlying rationale of Article 7 can be applied when it comes to the interpretation of Article 8. Under Article 8, invoking excès de pouvoir as an excuse for international responsibility is unwarranted. On the basis of the wording of Article 8, it cannot be argued that unauthorized practices (excès de pouvoir) such as torturing in interrogations are not governmental practice and thus fall outside the scope of State responsibility. This reading confirms the interpretation of Article 8 as given above, namely that a State under Article 8 of the Commission’s draft has to bear the responsibility for private persons or groups even if they, while performing the conduct entrusted to them, engage in acts violating international law. Only in the case the acts in question are totally unrelated to the conduct private persons are meant to perform, such acts may not entail international responsibility under Article 8. In this case it would, however, be necessary to establish whether the State in question has taken all measures to exclude such conduct to happen. If this is not the case, namely the respective State has not taken all precautionary measures required, this State would be internationally responsible for violating its international obligation under Article 2 of the Commission’s draft.

state responsibility for private actors 433 3. Distribution of State Responsibility in Iraq after 28 June 2004 According to Security Council Resolution 1546 (2004) of 8 June 2004, the Interim Government of Iraq was meant to ‘assume full responsibility and authority by 30 June 2004 for governing Iraq’.26 Does this mean that, under the rules on State responsibility, henceforth the conduct of soldiers by the allied forces, including the one of the private groups in their service, may only give rise to the responsibility of Iraq? Article 6 of the International Law Commssion’s draft articles on State responsibility covers this situation. According to this provision it is essential whether organs (including military forces) are placed at the disposal of another State. Only in this case the conduct of these organs can be attributed to the receiving State. This requires that such organs act with the consent of the receiving State and in conjunction with the machinery of such State. This is not the situation envisaged for Iraq. According to Coalition Provisional Authority Order Number 17 (Revised) of 27 June 2004, all personnel of the coalition forces, including their civil consultants are immune from Iraqi legal process.27 They are only subject to the jurisdiction of the sending State.28 Apart from that, the sending State retains the right to exercise within Iraq any criminal and disciplinary jurisdiction conferred on it by the law of that sending State over all persons subject to the military law of that State. Also, services and equipment contractors are not subject to Iraqi laws or regulations as far as their contracts are concerned and are immune in this respect from Iraqi legal process.29 Although the possibility exists to waive immunity,30 it is evident that the threshold of Article 6 of the Commission’s draft has not been met. The Allied Forces cannot be considered to have been placed at the disposal of Iraq and, accordingly, any violation committed by their members will entail international responsibility of the sending State.

4. Conclusion The present contribution allows to conclude as follows. A State may entrust private persons or groups thereof with the task to perform certain functions. This, however, does not alter its position in respect of international responsibility. Although the general principle is well established that a State may not be held responsible for conduct by private persons this principle does not apply

26

The text of the resolution is electronically available at . Section 2, para. 1. The text of the Order is electronically available at . 28 Ibid., Section 2, para. 3. 29 Ibid., Section 4. 30 Ibid., Section 5. 27

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as far as such persons perform functions entrusted to it by a State. Article 8 of the International Law Commssion’s draft articles on State responsibility establishes some threshold in this respect, namely that these persons either act under instruction or under the direction or control of that State. Whereas in the former case the private person or group acts as the extended arm of the State concerned, in the latter case it is sufficient that such conduct was entrusted to the person or group in question and under general control. The limitation for State responsibility inherent therein is not of overwhelming practical relevance, though. If a State entrusts private persons with the task to perform certain functions without any guidance or control the State has violated its organizational responsibility. This entails not international responsibility for private conduct but rather for acts or omissions of State organs. International law rules on State responsibility, therefore, should not be considered to encourage to transfer functions from State organs to private entities.

CHAPTER THIRTY-SIX

THE RESPONSIBILITY OF STATES MEMBERS OF AN INTERNATIONAL ORGANIZATION FOR ITS CONDUCT AS A RESULT OF MEMBERSHIP OR THEIR NORMAL CONDUCT ASSOCIATED WITH MEMBERSHIP Sienho Yee1

1. Introduction Given the limited space available to me, I can only aspire to touch upon several conceptual and theoretical or policy considerations on this complex topic. I will first sketch out my precise inquiry on the responsibility2 of States members of an international organization3 for its conduct as a result of membership or

1 I was fortunate to have Prof. Oscar Schachter as my adviser in the preparation of my first legal essay: ‘The Discretionary Function Exception Under the Foreign Sovereign Immunities Act: When in America, Do the Romans Do as the Romans Wish?’, 93 Columbia Law Review (1993), 744–82. Prof. Schachter was a member of the Fifth Commission of the Institut de Droit International that studied the issue discussed here. I am grateful to Prof. Shabtai Rosenne for reading an earlier draft of this essay; to Chris Gray for research assistance on the comparative law analysis; and to Irene Berkey, and the staff members of the law library at the University of Colorado Law School, for assistance in obtaining materials. Several other scholars also spoke with me on various issues addressed in this essay. Full responsibility is mine alone: concurrent or joint and several responsibility does not apply to this essay, which was completed on 18 November 2004. 2 I am familiar with the distinction between ‘responsibility’ and ‘liability’ that seems to have taken root in the work of the International Law Commission. See Barboza, ‘Liability: Can We Put Humpty-Dumpty Together Again?’, 2 ChJIL (2002), 499–526. Of course, such a distinction is not completely a happy one, particularly for treaty drafters, see Nordquist (ed.), United Nations Convention on the Law of the Sea, 1982: a commentary, iv (1991), 642; and v (1989), 163. I will leave the ‘liability’ category out of my inquiry, and focus on ‘responsibility’, even though, in my view, the analysis here also applies to the ‘liability’ scenarios. The International Law Commission’s work on the ‘liability’ regime is still under way. However, the prevalent use of the term ‘liability’ in the sense of ‘responsibility’ in municipal law and in the literature, and the need to adhere to its original use, will make it necessary for me to use the term ‘liability’ in this essay, most of the time in the sense of ‘responsibility’. 3 The term is used here in the sense as defined by G. Fitzmaurice: the ‘term “International organization” means a collectivity of States established by treaty, with a constitution and common organs, having a personality distinct from that of its member-States, and being a subject of international law with treaty-making capacity’. (‘First Report on the Law of Treaties’ (Doc.A/CN.4/101), YILC (1956), ii, 104–28, at 108.) NGOs are not covered in my inquiry.

Maurizio Ragazzi (ed.), International Responsibility Today, 435–454. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

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their normal conduct associated with membership. From time to time, I shall use the term ‘member responsibility’ to refer to this concept. I shall then deal with some essential aspects of the sources of law relevant to the inquiry; the consequences of the separate and independent personality of international organizations and the nature of the responsibility of the States members; the general operational framework of the international legal system and the background rule on State responsibility; types of transactions and types of injuries; some relevant policy considerations; and the standard of conduct and the possible regime of proportionate responsibility.

2. The Inquiry International organizations are nothing mysterious, whatever personality they may have; they are simply the result of the acts of States in the international sphere. The constituent acts of the members4 bring the organizations to life. The general rule on the responsibility of a State acting in the international sphere (not necessarily excluding national jurisdiction) is, as stated by the Permanent Court of International Justice in Phosphates in Morocco, that, once a State has acted wrongfully against another on the international plane, ‘international responsibility would be established immediately as between the two States’.5 That rule, which I shall call ‘the Phosphates rule’, in contrast to the famous Lotus rule,6 has been applied in several subsequent cases before the International Court of Justice.7 This point is so basic that courts, States and 4 One supposes that a non-State inter-governmental entity (such as an international organization) may become a member of an international organization. I will leave this abnormal situation aside; but, in any event, there is no reason to treat such entities differently than member States, broadly speaking. 5 Phosphates in Morocco, Judgment, 1938, PCIJ, Series A/B, No. 74, 10, at 28. 6 “Lotus”, Judgment No. 9, 1927, PCIJ, Series A, No. 10, at 18–20. On the ‘Lotus rule’ and the contrast between that rule and the ‘Phosphates rule’, see the considerations developed in this essay below (footnotes 21–24 and the accompanying text). I am using the term ‘rule’ as including ‘principle’ throughout this essay to describe the various ‘rules’. I have difficulty understanding the distinction between the two as they are used, often unexplained, in international law materials, although I am familiar with the debate on the two terms in general jurisprudence. See, e.g., Hart, The Concept of Law (2nd edn. 1994), 259–68. I think it reasonable to use the term ‘rule’ this way for these reasons: (1) the various ‘rules’ described herein are strong and ‘conclusive’ so as to amount to ‘rules’ even under the disputed criteria used in general jurisprudence; (2) some theorists such as Hart have argued that the distinction is really a matter of degree (ibid., 262); and (3) Article 38(1)(d) of the Statute of the International Court of Justice uses only ‘rules of law’. 7 The International Law Commission listed these as examples: Corfu Channel, Merits, Judgment, ICJ Reports 1949, 4, at 23; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, at 142, paras. 283, 149, 292; Gab‘íkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7, at 38. The principle was referred to in several other cases. See comment (2) on Article 1 in ‘Report of the International Law Commission on the Work of its Fifty-third Session’, Gen. Ass. Off. Recs., Fifty-sixth Session, Supp. No. 10 (Doc.A/56/10).

the responsibility of states members 437 practitioners normally do not feel a need to make it explicit; they treat it as implicit. When they deal with State responsibility, they often first attempt to establish a violation of a substantive obligation, and then proceed to the reparation stage, without making an affirmative and distinct finding that the injuring State is responsible for the violation.8 Such a point is presumed or taken for granted. This principle has now been restated in Article 1 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (the ‘Commission’s Draft Articles’), which reads: ‘Every internationally wrongful act of a State entails the international responsibility of that State’.9 While Article 57 would, by fiat of the Commission, exclude the responsibility of States for acts of an international organization from the scope of application of the Draft Articles, the general rule codified in Article 1 would seem to have application outside the sphere where the Commission reigns, and would lead to the conclusion that States may be responsible for the acts of international organizations if the normal conditions for the application of this general rule are met. For example, if a State uses an international organization as its agent, it will be held responsible for the acts of the latter. I intend to address a narrower inquiry: the potential responsibility of States members of an international organization for the acts of that organization as a result of their membership or of their normal conduct associated with their membership.10

8

For a survey of the case law of the International Court of Justice, see Higgins, ‘Issues of State Responsibility before the International Court of Justice’, Fitzmaurice (M.) and Sarooshi (eds.), Issues of State Responsibility before International Judicial Institutions (2004), 1–9. She saw an ‘absence of a need for a “stepping stone” between illegality and remedy’ (ibid., 8). 9 The Commission’s commentary on this article does not seem to address expressly the issue whether there is a need for a specific rule stating that responsibility would ensue from a violation, although the article and the commentary as a whole suggest that the Commission presumed that there is no such a need. 10 This question was pending before the International Court of Justice in the Legality of Use of Force (Kosovo) cases by Serbia and Montenegro against several NATO members. The Court could have dealt with this issue in the Nauru case, ICJ Reports 1992, 240, but the case did not proceed to the end. Commentary (3) on Article 57 of the International Law Commission’s Draft Articles shows that the Commission’s members had this precise question in mind, but left it for the future topic on the responsibility of international organizations. Then, in that subsequent project, the Commission mentioned the issue in 2002 in ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’, Gen. Ass. Off. Recs., Fifty-seventh Session, Supp. No. 10 (Doc.A/57/10), 333. The Commission provisionally adopted some draft articles in 2003. Article 1(2) of these draft articles states: ‘The present articles also apply to the international responsibility of a State for the internationally wrongful act of an international organization’ (‘Report of the International Law Commission on the Work of its Fifty-fifth Session’, Gen. Ass. Off. Recs., Fifty-eighth Session, Supp. No. 10 (Doc.A/58/10), 34). However, the Commission does not clearly spell out the different types of responsibility under consideration. In fact, the Commission gives the impression (particularly in para. (7) of the commentary), however unclear, that it seems to have in mind only the situation where an organization acts as an unwilling instrument or willing agent of a member State (paras. (6) to (9) of the commentary on draft Article 1(2), particularly para. (7)). Thus, the precise inquiry dealt with here has not yet been expressly included by the Commission in its work, although this topic might be considered to be, arguably, within the ambit of para. (6) of the commentary on draft Article 1(2). The

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If one is to follow the normal inquiry on State responsibility, one may reasonably conclude that the critical question is whether an international organization may be considered an agent of a State member, to some extent at least, so as to bring the acts of that organization into the sphere of the responsibility of a State member. If so, the debate would seem to be on how to define agency. If not, then, the critical question becomes whether membership or the normal conduct associated with their membership may still be the basis for State responsibility.

Commission’s 2004 Report did not appear to have added anything, although the second report by the Special Rapporteur contained some interesting language in this respect. See Gaja, ‘Second Report on Responsibility of International Organizations’ (Doc.A/CN.4/541), 3–5. During the debates at the Sixth Committee in the autumn of 2004, a proposal was made to include expressly this topic in the work of the Commission. See United Nations Press Release GA/L/3268, 9 November 2004 (Statement by Ambassador Allieu Kanu (Sierra Leone)). There is a certain amount of law and practice on the topic, as the Commission too has noted. However, it is not clear to what extent the International Tin Council litigation ([1990] 2 A.C. 418 (House of Lords, UK)) and the Westland Helicopters arbitration/litigation (80 ILR 596 (ICC Award, 1985); 80 ILR 622 (Swiss Federal Supreme Court, 1988); 108 ILR 564 (England, High Court, 1994)) are meaningful because the former seems to be based on English domestic law while the latter seems to be based on the internal arrangements of the Arab Organization for Industrialization. The Institut de Droit International established a commission to study this issue under the title ‘The legal consequences for member states of the non-fulfilment by international organizations of their obligations toward third parties’, with Rosalyn Higgins as the Rapporteur. The Preliminary, Provisional and Final Reports of the Fifth Commission, and the responses of and the general debate among members (published at 66 Annuaire (1995), i, and 66 Annuaire (1996), ii) are most illuminating. In 1995, the Institut adopted a resolution on the question. Part B of that Resolution, entitled ‘Current Law’, reads in relevant part as follows: Article 5 a) The question of the liability of the members of an international organization for its obligations is determined by reference to the Rules of the organization. b) In particular circumstances, members of an international organization may be liable for its obligations in accordance with a relevant general principle of international law, such as acquiescence or the abuse of rights. c) In addition, a member State may incur liability to a third party i) through undertakings by the State, or ii) if the international organization has acted as the agent of the State, in law or in fact. Article 6 a) Save as specified in Article 5, there is no general rule of international law whereby States members are, due solely to their membership, liable concurrently or subsidiarily, for the obligations of an international organization of which they are members. b) No inference of a general rule of international law providing for liability of States is to be deduced from the fact that the Rules of some organizations make specific provision: i) for the limitation or exclusion of such liability, or ii) for the dissolution of these organizations. c) No liability of a State arises merely by virtue of – having participated in the establishment of an international organization to serve the State’s own purposes; – the fact that the act of the organization giving rise to its liability to a third party is claimed to be ultra vires.

the responsibility of states members 439 The normal argument is that an international organization is an independent organization, having independent personality and autonomy. As a result, it is no agent of any one State member, without additional agreement or conduct in addition to the constituent instruments. As a result, the States members are not responsible for the conduct of the organization. The true story, however, is different. Depending on the decision-making arrangements among the States members, one can see a spectrum of scenarios as follows (without attempting to paint an accurate or comprehensive picture):11 – Type A, a State member may be driving the decisions of an organization; – Type B, a State member may control the decision-making of an international organization; – Type C, a State member may have a veto over the decisions of an international organization, whether or not it has been an active participant in the formulation of a decision; – Type D, a State member may participate in the decision-making in an influential way; or – Type E, a State member may participate in the decision-making but without much influence and may vote against a certain decision. One can see the movement of a State member from a position of principal to that of pure membership in the international organization. It is not a foregone conclusion that one cannot treat the international organization as the agent of a Type A, B or C State. If one can, the responsibility of the State member may be rested on this ground. Such a way of treating international organizations

Article 7 Unless the Rules of the organization direct otherwise, no distinction is to be made between claims in contract and other claims for purposes of determining whether any liability exists for member States for the obligations of an international organization. 66 Annuaire (1996), ii, 449 (also available online: ). I do not intend to address every important issue that one may raise regarding this study. Other useful commentaries include: Higgins, ‘The responsibility of states members for the defaults of international organizations: continuing the dialogue’, SchlemmerSchulte and Tung (eds.), Liber Amicorum Ibrahim F.I. Shihata: International Finance and Development Law (2001), 441–8; Seidl-Hohenveldern, ‘Liability of member states for acts or omissions of an international organization’, ibid., 727–39; Klabbers, An Introduction to International Institutional Law (2002), 300 ff.; Hirsch, The Responsibility of International Organizations toward Third Parties: Some Basic Principles (1995); Schermers and Blokker, International Institutional Law: Unity within diversity (3rd edn., 1995), 992–5; Amerasinghe, ‘Liability to Third Parties of Member States of International Organizations: Practice, Principle and Judicial Precedent’, 85 AJIL (1991), 259–80; Sadurska and Chinkin, ‘The Collapse of the International Tin Council: A Case of State Responsibility?’, 30 VJIL (1990), 845–90. 11 This typology is given here only with a view to illustrating, roughly, the different kinds of involvement of a State member in the decision-making process of an international organization, not to describing the entire constitutional establishment of it such as the amendment procedure, etc. Sometimes the veto is not exercised to prevent unlawful decisions from being taken.

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in these situations is not unreasonable. As the International Court of Justice has taught us in the Reparation advisory opinion, the word ‘agent’ should be read ‘in the most liberal sense’.12 The Type D scenario is a difficult one, as the State member plays an influential role in the decision-making of the organization and yet its role does not rise to a level of being the ‘principal’ for the agent. The organization in a Type E scenario probably cannot be considered an agent of the State member in the strict sense of the term. Assuming that the responsibility of a Type D or E State member for the international organization cannot be rested on grounds of agency, stricto sensu, the question will then be whether the State member should still be held responsible for the acts of the international organization for membership and participation in decision-making, or for an additional element, namely, influential participation. This is the focus of my inquiry. Given the state of the world and the state of the development of international law, one may reasonably argue that States members must shoulder (at least in part) the responsibility for the conduct of an international organization, leaving aside the scope and extent of that responsibility for further finetuning. Otherwise, the world would be beautiful for some but ugly for others; States may simply set up an international organization to reap the benefits of organizing their international activities this way and to avoid the responsibility they would have to shoulder if they conduct the same activities without forming an international organization for such purposes. Various issues are involved in our inquiry and I shall deal with the more important ones here. 3. Sources of Law It is somewhat puzzling to see, sometimes, broad statements to the effect that the responsibility of a State member of an international organization is to be determined by reference to the rules of that organization.13 One may argue that such rules of an international organization can only be agreements between and among the members themselves, and, as such, have no adverse effect on third parties,14 particularly when these rules seek to affect the responsibility of the organization or its members toward third parties. Otherwise, States members of an international organization would be able to make rules on responsibility not only for application among themselves but also for the world.

12 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174, at 177. 13 See, e.g., the 1995 Resolution of the Institut, quoted in footnote 10, above. 14 The term ‘third parties’ is used here to refer to States primarily but with the understanding that an individual can be impacted by the conduct of an international organization, and can always be protected by a State on the international plane.

the responsibility of states members 441 Of course, these rules may inform our consideration of the role of a State member in the organization, in order to determine the type of organizations involved, as discussed above, which would in return inform our consideration of the responsibility of a particular State member involved and the extent thereof. Furthermore, such rules of an organization limiting the responsibility of a State member may be a basis to exclude such responsibility of a State member vis-à-vis a third party. But these responsibility-limiting provisions do not operate as a matter of treaty law; they must borrow some force from other principles. As discussed below, they are not dispositive of the issue, but may have a differing impact on responsibility depending on the types of transactions. It would seem that only general international law, including customary international law and general principles, may regulate the relationship between an international organization and its States members, on the one hand, and a third party, on the other. The relevant general principles may be found in national legal systems, and they inform our consideration of the issues when appropriate. Often, one can see arguments to the effect that international law is different from national legal principles on the liability of juridical persons and that, therefore, the latter have no effect in international law. Such a conclusion would appear a bit hasty, although it may be correct. At least, one who asserts such a conclusion owes us an explanation as to why the difference between international law and national legal principles would necessarily require us to reject an international borrowing of these national legal principles. Another approach equally suspect is that there is a certain form of liability prevalent in the national legal systems, and, therefore, this should also be appropriate on the international plane. While such an approach may have the semblance of ‘prevalence’ support, closer examination may demand a rule on the international plane different from that existing in national legal systems if the operational framework or premises of the international system are fundamentally different from those of the national systems. In addition, the current emphasis on the similarity or dissimilarity between the activities of private corporations and those of international organizations concerns only part of the story, if it does not take account of the ‘operational framework’ differences. 4. The Separate Legal Personality of an International Organization and the Nature of the Responsibility of the States Members The normal analysis of the issue seems, as far as one can discern from the existing literature, to start with an inquiry into whether the international organization has a separate legal personality. If not, then the States members are responsible. If yes, and if the conduct in dispute is attributable to the international organization, then either the States members are not responsible at

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all, or their responsibility is subsidiary (which arises only when the organization is unwilling or unable to bear responsibility).15 It would seem that the above analysis of the sources of law shows that such an approach is not satisfactory. While the first part—holding States members responsible if there is no separate legal personality—is correct, the second part is questionable. The international legal personality of an international organization is normally endowed by the States members themselves, and, once endowed, may have to be respected by third parties if certain conditions (such as near universality of representation) are met, as the Reparation16 advisory opinion teaches. However, respecting the international personality is one thing; allowing such personality to remove the responsibility of States members is quite another. Or, one may say, respecting such international personality does not need to reach an extent where the responsibility of States members of the international organization is eviscerated; rather, a third State need only recognize the normal rights and obligations of the organization. The responsibility of States members and those of the international organization are not mutually exclusive. Furthermore, while the ‘subsidiary responsibility’ idea is relevant, it is not the most important aspect: one may legitimately treat the responsibility of a State member as joint and several or concurrent with that of other members and with that of the international organization so that: (a) the States members and the international organization are concurrently or jointly and severally responsible for the conduct of the organization to an unlimited extent; (b) when the organization is unwilling or unable to bear responsibility, the States members must step up; and (c) more importantly, even when the organization is willing and able to bear responsibility, an aggrieved third party should be allowed, at its own election, to press a claim against a State member, if that aggrieved third party is not able to press the claim directly against the organization itself because of a jurisdictional or another reason, or if that party simply does not wish to press the claim directly against the organization for a strategic or other reason. A concurrent, or joint and several, responsibility regime is not only reasonable because of these practical reasons that I have just given (which may be described in more beautiful terms), but, more importantly, because it is based on the general operational framework of the international legal system, as discussed below, and the general nature of organizational arrangements. The allocation of the responsibility of an organization among its members, and between the

15 16

Klabbers, ‘An Introduction’, 302. ICJ Reports 1949, 174.

the responsibility of states members 443 organization and its members, is the business of the members; whether such responsibility should be subsidiary or not is a matter for them, not the aggrieved third party which should not be adversely affected by this allocation. Indemnification or set-off may be sought among its members, and between the organization and its members, according to the rules of the organization. Of course, an international organization may make an agreement with a third party, where possible, to provide for a special arrangement. However, such an agreement may not be possible, as discussed below, regarding certain types of injury. In any event, such special arrangements concern particular third parties only. One, of course, may refine the concurrent or joint and several responsibility so that a regime of proportional responsibility is applied. As discussed below, there are many advantages to such a regime, but it is premised on the appropriateness of the concurrent or joint and several responsibility as the basic regime. 5. The General Operational Framework of the International Legal System and the Background Rule on State Responsibility In my view, the operational framework of the international legal system and the general background of the rules holding States responsible for their activities on the international plane support the concurrent or joint and several responsibility regime. I will sketch out these arguments here, while critiquing the contrary arguments. (a) The operational framework of the international legal system on State responsibility In the existing literature, one can discern a certain amount of ignoring or at least de-emphasizing of the operational framework of the international legal system and the background rule on State responsibility and a concurrent emphasis17 on the alleged lack of a rule establishing the responsibility of States members for the conduct of international organizations. Such a rule, though ‘specific’ in substance, has often been termed ‘general’. The normal ‘first thing first’ item for some scholars in their discussions is to point out that one may, of course, easily notice the lack of any rule specifically and affirmatively holding a State member responsible for the conduct of an international organization as a result of its membership or its normal conduct associated with its membership. 17 See Article 6(a) of the 1995 Resolution of the Institut, footnote 10, above. There were some dissenting voices, but without detailed elaboration, see, e.g., 66 Annuaire (1996), ii, 273 (Rosenne); 274 (Torres Bernárdez; Broms); 313 (Rosenne reiterated his objection; Torres Bernárdez, Sohn, Díez de Velasco, supporting Rosenne); 314 (Rosenne’s proposed amendment defeated, 13–15); 319 (Rosenne reiterated his objection; the final vote for the article was one against, two abstentions).

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However, as noted most authoritatively in 1994, ‘the reality was that there was also no rule saying that there was not liability’.18 From this state of affairs, it would be a mistake for one to draw the conclusion that there was no such member responsibility in general. It also seems problematic to simply turn to the rules of the international organization alone,19 as they are only agreements inter se among its members and between them and the international organization. Rather, this state of affairs should point one to fall back to the operational framework of the international legal system on State responsibility and to consider the question whether there already has been a background rule from which one may derive a rule providing for responsibility so that there is no need for an affirmative rule written in so many words. This view finds inspiration and support in the jurisprudence of the International Court of Justice. A similar exercise was done by the Court in the Nuclear Weapons advisory opinion, whatever result the Court reached therein. There, at paragraph 74, the Court stated: ‘The Court not having found a conventional rule of general scope, nor a customary rule specifically proscribing the threat or use of nuclear weapons per se, it will now deal with the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality’.20 The Court then proceeded to answer that question. The content of that answer is now familiar to us, and needs no further elaboration. What I would like to emphasize is that the approach adopted by the Court is the one we should follow in our inquiry. In other words, we should consider the precise question of member responsibility in the light of the operational framework of the international legal system and the general background rule on State responsibility. If we are to conduct the same kind of analysis, which I have previously sketched out in Section 2 of this essay, we may reasonably conclude that the general rule that States normally are responsible for their conduct demands a rule that States are responsible for their conduct in bringing to life an international organization and, therefore, for all the resultant responsibility of that organization. That is to say bringing to life an international organization is the ‘original sin’ for which the States members must be responsible. Thus, there is no absence of law on point. Support for this view can be found in the Phosphates in Morocco case and its progeny, as discussed in Section 2 above. There, I coined the phrase ‘the Phosphates rule’ to describe what one can derive from these cases.

18 ‘Final Report’ (Rosalyn Higgins, Rapporteur), 66 Annuaire (1995), i, 462 (emphasis in the original). 19 See Article 5 of the 1995 Resolution of the Institut, footnote 10, above; 66 Annuaire (1996), ii, 274 (Statement by the Rapporteur). 20 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, at 256.

the responsibility of states members 445 This nature of things may be the reason why there is no specific rule providing for concurrent or joint and several responsibility: there is no need for such a specific rule. The general background for responsibility is here for the decision-makers to apply, and its eventual application depends on whether such issues are presented, perhaps haphazardly. Given this general operational framework, one cannot but have sympathy with the argument for a presumption in favor of concurrent or joint and several responsibility. In fact, if this general background of State responsibility is accepted, whatever the particular rules (including constituent instruments) of an international organization may provide for would not be dispositive, because they are particular rules binding upon particular parties only, not third parties. As discussed below, these particular rules may exert an effect in a different way. A default operational framework opposite to the one that I have found and elaborated here in this essay was presented, as a possibility, in the Preliminary Report (1989) and the Provisional Report (1993) of the Fifth Commission of the Institut de Droit International.21 In the latter Report, it was stated: Is the position that the absence of a specific norm (which some would term a positive rule) determining state liability means that there is no liability? Or is the correct position that, unless states can be shown to have excluded or limited their liability, the liability must be presumed to exist? The latter view can only be correct if international law will presume obligations to be incumbent upon states unless the contrary is proved. But this seems to run counter to well established principles: «The rules of law binding upon states . . . emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law» (Lotus Case, PCIJ Judgment N° 9, 1927, Series A, N° 10). Put differently, obligations resulting from norms of law (rather than from treaty or other agreement) must be shown to exist by reference to the normal sources of international law. The absence of a norm stipulating liability is, on this basis, determinative of the matter, in the sense that obligations will not be attributed to states in the absence of a clear requirement of international law.22

With the greatest respect, I beg to differ. All of my arguments presented here so far go against that possibility; so will my additional arguments to be given below. Here I would like to take issue directly with both strands of the above quoted statement. The first is the apparent presumption that there is an absence of a norm providing for member responsibility. As argued above, this apparent presumption may be only apparent, but not true. The second is the fact that the possibility of no ‘liability’ was rested on the Lotus default rule. In my view, this is questionable. Even if the Lotus rule is

21 See ‘Preliminary Report’ (Rosalyn Higgins, Rapporteur), 66 Annuaire (1995), i, 286; ‘Provisional Report’ (Rosalyn Higgins, Rapporteur), ibid., 415–16. It is not clear whether Article 6 of the 1995 Resolution, footnote 10, above, may have adopted this view of the default rule, although one can say that Article 6 simply states, as a statement of an objective fact, the absence of a general rule, without endorsing any theory relating thereto. 22 66 Annuaire (1995), i, 415–16.

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still alive and well these days when State sovereignty has been constantly under attack (against my personal inclinations),23 I believe it is the wrong basis for a proposition on State responsibility; the Lotus rule is one about primary conduct (what States can or cannot do lawfully—exercising jurisdiction in that case), not a secondary rule of responsibility about the consequences of the primary conduct (whether and how they should be responsible for their conduct).24 If that is the point, then in our particular inquiry the Lotus rule goes to whether States may create an international organization that may engage in certain activities. That is a question different from whether States should be responsible for the consequences of those activities, although the two are related. If one were to look for a default rule on responsibility (after an internationally wrongful act was found), that should be the Phosphates rule as described in Section 2 of this essay. That rule, for the reasons previously given, is a good rule. It will take weighty reasons to override it. (b) The operational framework on responsibility in national legal systems The framework existing in the international legal system is the same as that existing in national legal systems in general, as comparative legal scholars have taught us.25 Because of this, some have asked why this did not prompt the rejection of limited liability in municipal law. Some other scholars seem to argue that, because of the prevalence of limited liability in national legal systems, limited liability should therefore be accepted in the international legal system, as a number of the constituent instruments of international organizations have provided for. Both approaches forget that the most important thing that makes limited liability prevalent or even possible in national legal systems is that a positive municipal rule (normally legislation) exists to authorize it, and the decisions of the incorporators merely take advantage of a facility made available to them by the government. In international society, there is no such super-government that can grant such an authority for States to limit the responsibility that may result from their activities such as setting up an international organization. Therefore, it would seem to be impossible to create limited liability international organizations against such a background in international law.26 Until a rule of cus-

23 I have argued that the phenomenon called State has both intrinsic and instrumental values. See my Towards an International Law of Co-progressiveness (2004), 23–5. 24 This distinction pervades Hart, The Concept of Law (1961) and the Commission’s project on State responsibility after García Armador served as the Special Rapporteur. See Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), 14–16. 25 Hirsch, The Responsibility, 136 (note 200 and the text thereto). 26 Henry Schermers seemed, at one point in time at least, to hold such a view (‘Provisional Report’ (Rosalyn Higgins, Rapporteur), 66 Annuaire, i, 397, quoting Schermers, International

the responsibility of states members 447 tomary international law comes into existence authorizing that, the States concluding constituent instruments providing for limited responsibility would seem to be doing nothing more than municipal incorporators contracting for limited liability in a State where there is no positive rule providing for it. The existing attempts to provide for limited responsibility in the constituent instruments of international organizations are thus not yet proof that it is possible to create limited responsibility entities in international law, as some have intimated,27 but remain attempts only. The fate of these attempts must await further testing in the battle field, as far as third parties are concerned. This operational framework of the national legal systems thus supports the concurrent or joint and several responsibility regime, unless a positive rule exists to permit otherwise.28 We may resort to this as a general principle of law or as an analogy which one finds no substantial reason to reject. Of course, the attempts to provide for limited liability in the rules of an international organization may have an impact on responsibility in voluntary transactions, as discussed below. (c) The need for an ultimate redress for injury A general rule of international law, as well as municipal law, is that an injurer must make adequate reparations for an injury wrongfully done to another, as one can infer from the Chorzów Factory case.29 This can be called the ‘Factory rule’. The International Law Commission’s Draft Articles took the same position.30 This rule finds support ultimately in fundamental justice. Such a strong rule should only be modified sparingly and only when an alternative form of redress has been provided for. There is no need for philosophers to tell us that the provision for limited liability has not done away with risks or burdens, but simply distributes them to those who suffer them, particularly when the burdens are in excess of the ability of injurers to pay. For this reason, in national legal systems, the rise of limited liability has been accompanied by the rise of various insurance requirements, which goes a long way to make up for the liability in excess of the ability of the injurers, and, more importantly, by a vast welfare system, which serves as the ultimate or the last resort place for the injured persons to get assistance. This way of organizing the society was

Institutional Law (1st edn., 1980), 780), but he may have had a change of mind. See Schermers and Blokker, International Institutional Law, 992–5; 1009–11. 27 See ‘Provisional Report’ (Rosalyn Higgins, Rapporteur), 66 Annuaire, i, 397. 28 Another reason why the limited liability regime cannot be transposed to the international legal system, as has been pointed out by Hirsch, The Responsibility, 129–36, would be that the domestic corporations and international organizations are not similar; they do different things. In my view, this is not a good enough reason. International organizations can be set up to do basically anything. A rule based on a distinction between functions would thus seem to be somewhat patronizing. 29 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, PCIJ, Series A, No. 9, 21. 30 See Article 31 of the Commission’s Draft Articles, and the commentaries thereon.

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considered to be conducive to the promotion of economic activities and general progress in social development. In the international legal system, which is still anarchical, there is no such ultimate or last resort place for an injured State to go to for assistance. Until such a place emerges, there is strong reason to hold the injurer responsible for the injury done. Otherwise, injustice would result because the injured State, through no fault of its own, would be saddled with the risks and injury alone. The injustice will be aggravated by the jurisdictional immunity that many international organizations still enjoy, making it impossible for the injured party even to air its grievances. This would lead to attempts at vengeance and a spiral of violence and chaos. (d) Existing regimes in selected areas and the concurrent or joint and several responsibility of States members Currently, there are existing regimes31 concerning space activities that lend support for concurrent or joint and several responsibility of States members. The 1967 Outer Space Treaty provides for concurrent responsibility.32 The 1972 Liability Convention provides for ‘joint and several liability’, while setting up a secondary liability regime as the implementation mechanism.33 In addition, in environmental law, the Trail Smelter case34 long ago stated, and has since been considered to represent, the general rule that a State must pay for material damage its own citizens caused to another State as a result of activities conducted within the territory of the former. If a State may be held responsible for not properly regulating the conduct of private actors within its borders when that conduct resulted in extraterritorial damage, should the same State be relieved of its responsibility simply because it has organized, 31

See Hirsch, The Responsibility, 98–102. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967, 610 UNTS 205, Article VI (also available online: , at 6) (‘When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.’). 33 Convention on International Liability for Damage Caused by Space Objects, 1972, 961 UNTS 187, Article XXII(3) (also available online: , at 17) (‘If an international intergovernmental organization is liable for damage by virtue of the provisions of this Convention, that organization and those of its members which are States Parties to this Convention shall be jointly and severally liable; provided, however, that . . . (a) Any claim for compensation in respect of such damage shall be first presented to the organization . . . (b) Only where the organization has not paid, within a period of six months, any sum agreed or determined to be due as compensation for such damage, may the claimant State invoke the liability of the members which are States Parties to this Convention for the payment of that sum.’). See also the interesting formulations in Article 139(2) and Annex IX, Article 6(2), of the United Nations Convention on the Law of the Sea (1833 UNTS 396). 34 RIAA, iii, 1905, at 1965–6 (arbitral awards of 1938 and 1941). 32

the responsibility of states members 449 together with other States, an international organization that has produced the same damage? While these special regimes may not be sufficient evidence from which one can infer a general rule, when coupled with the general operational framework discussed above, they can be considered as concrete manifestations of that general framework.35 These manifestations take on greater importance because these special regimes concern the most important and controversial areas of activities that States care about strongly; these activities have great potential for transboundary damage. Other areas of activities may present lesser problems that States may be able to deal with on their own, and they have decided to pick their more important battles to fight. 6. Types of Transactions and Types of Injuries The general regime of concurrent or joint and several responsibility should, in principle, operate as a general proposition, but it applies with particular force to involuntary transactions with international organizations which a third party has entered into or been forced to enter into, without any element of choice, or any chance of taking notice of or appreciating the organizational rules limiting responsibility. This will occur in the ‘tort’ situation, to use a common law term, or the ‘delict’ situation, to use a term that international law writers like to use more often, including accidental injuries, intentional armed attacks, negligence, etc. In such a situation, the injury is caused by the injurer alone, and the responsibility should stay with the injurer.36 As was argued above, it would be a gross injustice if the burden of curing the injury would be borne by the injured party. If the injury or loss occurs in a voluntary transaction with an international organization which a third party has willingly entered into, the picture becomes

35 But see Karl Zemanek’s personal recollection that the negotiators meant to create something new. (66 Annuaire (1995), i, 328.) On one view, such private recollections have little value. Judge H. Lauterpacht eloquently argued against reliance on the secret state of the mind of the International Court of Justice when it was called upon to interpret a 1950 opinion. He stated: ‘It is for this Court, confronted as it is with an apparent gap in the opinion of the Court of 1950 with respect to a situation which calls for clarification, to fill the lacuna by all available means of interpretation. These do not include the knowledge of any particular member of the present Court as to the state of his—or his colleagues’—minds at the time when the Advisory Opinion was rendered in 1950’. Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South-West Africa, Advisory Opinion, ICJ Reports 1955, 67, at 96 (Separate Opinion of Judge Lauterpacht). 36 But see Article 7 of the 1995 Resolution of the Institut, footnote 10, above. One may think that notice by an international organization to the world was most important. Such a notice in my view can only take care of the normal slip and fall incidents (as was discussed in the deliberation of the Institut), not, for example, armed attacks. Notice may serve to warn potential victims not to get on the premises of an international organization. Such a regime does not apply to those victims who may suffer greatly during an air campaign by an international organization.

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more complicated, assuming that the third party has freely given its consent. Normally, one may argue that the same concurrent or joint and several responsibility regime can apply even to these transactions. However, if the constituent instrument of the international organization plainly provides that a State member does not shoulder any responsibility of the international organization, then that statement should have effect. That effect, however, is not one that follows from the language itself, but must be buttressed by something more: either the argument that the third party has assumed the risk willingly, or that the content of the agreement regarding the particular transaction has incorporated that statement on responsibility. We can then say that there is a particular agreement (which can be implicit or express) on the responsibility of States members. Such an agreement can also be signed, and may have been, one hopes, signed by all prudent international organizations when contracting with third parties. A constituent instrument itself does not create the ‘no member responsibility’ regime; the second agreement between the international organization and a third party does. The former simply serves to give notice. Notice, of course, entails consequences. In voluntary transactions, the most important aspect is not a particular regime of responsibility, but clear notice. Assuming that every third party’s voluntary intent is genuine, the parties may order their lives and their activities accordingly. For this reason, the championing of a clear rule to be stated in the constituent instruments or other rules of international organizations is laudable. However, this approach solves only part of the problem; it does not help those third parties who are involuntarily injured by an international organization, or those third parties who are in a very weak bargaining position so as to become ‘wards’ of the community, not a far-fetched scenario even in today’s world. 7. Some policy considerations Various other arguments in the nature of policy considerations have been brought to bear on our inquiry. I will briefly mention a few here. One argument is that imposing concurrent or joint and several responsibility may cause the States members to attempt to influence or control the decision-making of the international organization, thereby reducing or eliminating its autonomy. This is a serious concern; yet it is an inter-se issue among the members, and between them and the international organization. Innocent third parties should not be part of this calculation. That is to say the independence of the international organizations should not be purchased at the expense of innocent third parties, particularly those who are affected involuntarily by the conduct of an international organization. One might also argue that complete autonomy on the part of an international organization may not necessarily be a good thing, and some measure of supervision and control by the States mem-

the responsibility of states members 451 bers, not necessarily a bad thing.37 A concurrent or joint and several responsibility regime may induce the States members to participate more actively in the decision-making of, and the supervision over, the international organization so that it will not become a ‘Frankenstein’, hurting the world and ultimately its own creators. Another argument is that imposing concurrent or joint and several responsibility would lead to reluctance on the part of the States to join international organizations and to engage in their international activities. I am not sure whether such a prediction is exaggerated or not. Even if it were true, one must answer the question why such international activities would still be a virtue or appropriate if the benefits resulting from them are not sufficient to pay for the damage. Yet another argument is that imposing responsibility on States members will ‘draw a line between rich and poor states—the latter already found membership in international organizations a difficult financial burden and would be unable to participate if exposed to liability’.38 While one may have great sympathy for poor States, one wonders whether a no-responsibility regime is the best approach to dealing with their plight. In each of these policy arguments a wealth-redistribution scheme is embedded, although it might not have been seen clearly. Determining the responsibility regime is nothing less than distributing risks, burdens and the consequences of injuries. These various policy arguments in favor of a ‘no member responsibility’ regime will have the effect of making innocent third parties bear all the risks, burdens, and injuries alone. This is nothing less than adding insult to injury when injury is forced upon the victim State through no fault of its own. The injustice of such an approach is manifest. International law should not lend a hand to such injustice. I am not opposed to redistributing wealth; I, in fact, believe that eliminating the extreme disparities in the world is necessary for the world to be safe and peaceful. I am only opposed to leaving all the burdens to the victims. Better and more comprehensive schemes for wealth-redistribution can be devised. That is a task for another day. 8. Conduct of the States Members and Proportionate Responsibility Some arguments have been made that do not seem to go against the possibility of a concurrent or joint and several responsibility regime but deal with some other issues. These include the fear that, as soon as the possibility exists, 37

On the virtues of supervision, see Sadurska and Chinkin, ‘The Collapse’. Argument by Ibrahim Shihata, as described in the ‘Final Report’ (Rosalyn Higgins, Rapporteur), 66 Annuaire (1995), i, 462. 38

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responsibility will be always unlimited. This is not necessarily true. The existence of such a regime does not do away with the normal or substantive requirements for responsibility, such as the standard of behavior to which the international organization and its States members are held. That is to say, responsibility only arises after an internationally wrongful act has been found; if every player involved acts reasonably, there generally would be no wrongful act. This should be the same whether the regime is one of unlimited or limited responsibility. Another issue is the ‘fictitious’ decision-making concern. One commentator has put the issue this way: ‘resting the outcome of the issue of concurrent or secondary responsibility on the theory that states members are responsible for the decisions of the organization in one way or another may not only involve a fictitious assumption of participation in decision making, but also raise the question why the minority that is against a certain decision should be held liable in the same way as the majority’.39 Such a question is worthy of serious consideration. Still it does not really speak to the possibility of imposing concurrent or joint and several responsibility; it deals with how to distribute responsibility among the members of an international organization. One cannot, simply because it is difficult to distribute the responsibility among the members, eliminate it completely. As to how to formulate a regime for distributing responsibility among the members of an international organization, one can resort to many existing or theoretical approaches. While I do not intend to give a detailed treatment to this issue, I believe a regime of proportionate responsibility would be appropriate, provided that the injured State is always able to obtain full recovery. This would seem most satisfactory because it can pin responsibility more precisely to the conduct of a State member. This seems to be supported by both common sense and by the general trend in tort law in national legal systems. Such a refinement in a responsibility regime may even be necessary in some circumstances. This is so because it is a fundamental principle of international law that reparation is required only if the injury is caused by the internationally wrongful act.40 That is to say there must be a causal link between the conduct in dispute and the injury. As described in Section 2 of this essay, there can be several types of participation in the decision-making process of an international organization, and responsibility should vary accordingly, in proportion to involvement and fault. For example, a Type A, B or C State member may be held responsible to the same extent as the international organization, because, if it were not for its role in the decision-making or its failure to prevent the decision from being

39 40

Amerasinghe, ‘Liability to Third Parties’, 278. See Article 31 of the Commission’s Draft Articles, and the commentaries thereon.

the responsibility of states members 453 adopted when it could do so conclusively by exercising its power to veto it, the injury would not have occurred. A Type D State member may be held responsible for a certain proportion of the responsibility because, if it were not for its influential participation, we do not know whether the injury would have occurred. A regime may properly assign no responsibility for a Type E State member or the minority that has voted against a decision because its participation did not promote the decision in a traceable way. However, it would not be wrong to assign some, but not all, responsibility to even a Type E State member or the dissenting minority. The ultimate issue is whether an international organization is being established as a sort of agency or instrument of its States members to achieve a certain purpose, in the loose, if not the strict, sense of those two terms. If so, then the States members should be responsible, to some extent, for what their agency or instrument does. One can say that responsibility ensues, at the minimum, from joining the organization, which is an affirmative act by any member. That is to say, by joining an international organization, a State member lends its assistance to other States members and the organization which ultimately brings about the injury. Furthermore, it was no doubt clear to the States members, at the time of establishing an international organization, that, as a rule, the participation of the minority as well as that of the majority together give birth to the decisions of the international organization, that in the nature of things the international organization sometimes may take decisions against their will, and that those decisions may lead to consequences and responsibility. With such knowledge, the States members still have proceeded to establish the international organization anyway. Accordingly their autonomy in exercising their will should be given effect to the fullest extent so that they should reap the benefits of their acts as well as bear the responsibility for them. I am not asserting that this must be the regime to be followed. I am simply illustrating how a good regime can be. I am sure the detailed formulations can be refined and improved upon.

9. Conclusion The general operational framework of the international legal system and the background rule on State responsibility support a concurrent or joint and several responsibility regime for the responsibility of States members for the acts of an international organization as a result of membership or the normal conduct associated with membership. This also finds support in the general operational framework in national legal systems, in the need for an ultimate redress for injuries done, in the limited existing regimes on member responsibility, and in fundamental sense of justice. The arguments for a ‘no member responsibility’ regime from the independent personality of the international organization,

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the alleged absence of a rule on point regarding member responsibility, the rules of the international organization, a faulty analogy to limited liability regimes in municipal law, or policy considerations are not sufficiently weighty, for one reason or another. Currently the development of international law is trending towards an international law of co-progressiveness, all-encompassing and preoccupied with advancements in moral and ethical terms. This manifests itself in the strengthening efforts to pursue individual and State responsibility and to dismantle, to a large extent, the citadel of sovereign immunity. Such a trend militates in favor of concurrent or joint and several responsibility. At the time when the international community is striving to build a fairer world, a concurrent or joint and several responsibility regime may prove to be an important component of that world, as well as an important tool to build it.

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INDEX

(As every index is intended to be read in conjunction with the tables of contents, of cases and of documents, no repetition is provided here of information that can be extracted from those tables. Except for one case, subentries have been avoided.) actio popularis 94, 99, 100, 231, 313 Aerial Collision incident (US-PRC) 38, 46 agent 360, 362, 413–414, 421, 424, 438, 440, 453 Ago 94, 104, 206, 223–225, 262–264, 323, 332 aggression 38, 64, 66, 68, 70, 72, 74, 77, 86, 202–203, 205, 305, 319 aid and assistance (in the commission of a wrongful act) 205–206, 410 Al-Qaeda 141, 239 see also terrorism alterum non laedere 139 see also neminem laedere Antarctica 211, 218, 401 apology 37, 40, 46–47, 107–16, 212, 278 see also condemnation; regret; sorrow Arangio-Ruiz 54–55, 56, 60, 62, 94, 149, 223, 228–232, 295 attribution (of conduct or responsibility) 5, 8, 37, 38, 121, 272–5, 284, 357, 364, 392–394, 405, 407–414, 420–421, 424–432, 441 aut punire aut dedere 144 Awa Maru incident (US-Japan) 42 Baghdad Corrective Facility (Abu Ghraib) 110, 112, 114 Bartolus 134, 148 belligerent occupation 203–204, 206, 423 see also occupation Bhopal 401 Black September 146 bona fides, see good faith canon law 288, 291, 293 causality 7, 81–91, 94, 218, 247, 402, 452 cessation 11–13, 15–16, 38, 78, 97–99, 102, 104–105, 126, 212, 219, 279–280, 304, 314, 317, 320–322, 325, 368–369, 392

Chernobyl 215, 401 circumstances precluding wrongfulness 37, 42, 122–123, 176, 178, 276, 304, 307, 319, 332–333 see also consent; self-defence; distress; necessity codification and progressive development 373 coercion 127, 134, 410 compensation 9, 11, 15–19, 37, 42, 61, 107, 115, 122–123, 152, 212–213, 215, 217–221, 245–248, 251–252, 265, 267, 283–284, 332, 368–369, 392, 399, 402 conciliation 51, 228 condemnation 110 see also apology, regret, sorrow consent 42, 122, 176, 426 continuing breach 12, 14, 279 Cosmos 954 incident (USSR-Canada) 46 countermeasure 6, 11, 21, 38, 49–62, 97–98, 102–103, 119, 121–122, 125–130, 134, 142, 199, 222–223, 228–31, 233, 263, 276, 363–367, 392, 397 see also proportionality (of countermeasure) Crawford 60, 96, 104, 226, 232, 333 crime of State, see State crime crime against humanity 64, 70–73, 75–76, 154, 158, 238–239, 256, 265, 398 see also crime against peace; individual criminal responsibility; war crime crime against peace 64, 154, 398 see also crime against humanity; individual criminal responsibility; war crime Daigo Fukuryu Maru incident (US-Japan) 44 damage (moral or legal) 7, 16–18, 22, 26, 94, 100, 119–120, 209, 211–213, 218,

Maurizio Ragazzi (ed.), International Responsibility Today, 469–472. © 2005 Koninklijke Brill NV. Printed in the Netherlands.

470

index

220–222, 246–248, 257–258, 261, 298–299, 314, 317, 320, 326, 384, 399, 401 Darfur 238–239 debellatio 207 declaratory judgment 19 denial of justice 177 desuetudo 19 development 183–195, 213, 402 diplomatic protection 101, 132, 163–165, 305 direction and control (over commission of a wrongful act) 131, 410, 425, 427–428, 431, 434 dispute resolution 6, 51, 53–57, 60–62, 103, 107, 120, 130, 141–144, 171–173, 178, 180, 194, 223–34, 243, 299, 302, 307–309, 316–317 distress 122, 176 domestic jurisdiction 132, 236–237 draft code of offences against peace and security of mankind 65–66, 68–72, 75–76, 154, 157 effectiveness 147–149 embargo 127, 129–130, 199, 367, 369 Entebbe 146–147 environmental protection 57, 59, 120, 132–133, 209–22, 259, 400, 402, 404, 448 erga omnes obligation 8, 20–21, 31–36, 78–79, 94, 126, 190, 218, 304–305, 311–320, 325, 327–328, 398, 403 établissements publics internationaux 378–380 excés de pouvoir 431–432 ex facto jus oritur 148–149 expressio unius exclusio alterius 379 expropriation 57–58, 167, 247 extradition 144, 158–159, 366 failed State 131, 423, 427 Falklands-Malvinas war 199 family 88, 348, 350 fault 8, 85, 176–177, 215, 258–259, 264, 298–299 forced disappearance 158–159, 248 foreign investment 132, 171–182 force majeure 122, 176 Gaja 405 García Amador 177, 265 Gatumba transit camp 238 general principles of State responsibility 3, 16, 37–38 genocide 38, 66, 69–70, 72–76, 81, 133, 237–239, 255–256, 305, 320 global commons/concerns 213–215, 218, 222 globalization 129–130, 132, 172, 188, 195, 216

good faith 17, 61, 63, 351–352, 359, 420 Grenada 147 Grotius 22, 144 habeas corpus 273 Holy See 287–295, 396 Hostages incident (Iran-US) 47, 146, 272 hostis humani generis 139 see also piracy; terrorism human rights 57–59, 69, 71–72, 89, 98, 120, 126–127, 129–131, 133, 145–147, 151–60, 184–188, 190–192, 194, 237, 239, 243–244, 247, 249, 252–260, 264–269, 305, 347, 352–353, 361, 363, 365, 367, 395, 398–400, 428, 431 humanitarian intervention 6, 146–147, 149, 235–240 humanitarian law 77, 129, 155, 203, 206, 236, 255–256, 259–260, 264–265, 267, 277, 394, 397–398, 424, 428 immunity, see privileges and immunities indigenous Maya communities 255 individual criminal responsibility 156–158, 253, 256–258, 261, 267–268 see also crime against humanity; crime against peace; war crime injury (moral or legal) 7–22, 93–106, 177, 363–364, 449–450 insurgent, see insurrectional movement insurrectional movement 392–398, 403, 411 interest 14 international community as a whole 8, 10, 20, 22, 79, 94, 96, 100, 102, 120–121, 184–185, 190, 192, 218–219, 257, 262–264, 267, 304–305, 313, 399 international humanitarian law, see humanitarian law international legal personality 357, 380–389, 397, 415 international organization (definition) 371 intervention (before a court) 297, 319–325 Iran-Iraq war 198–199, 330 Iraqi invasion of Kuwait 72, 199, 216, 220, 239, 365 Iraqi war 198, 200, 203, 205, 207, 239, 423–424, 429, 433 Javolenus 372 jus ad bellum 205 jus cogens 22, 24–25, 27, 32, 76–79, 94, 97–98, 103, 118, 120–121, 127–128, 192–193, 222, 232–233, 237, 262–263, 304–305, 319, 334, 365–369 jus excludendi alios 137 jus in bello 205–206 jus libertatis personalis 137 jus omnium 21

index Kelsen 51–53, 61, 125–126, 134, 258 Kosovo 149, 198, 239 Lauterpacht (H.) 53, 61, 261 laws and customs of war 64, 66, 72–73 lex naturae vel gentium, see natural law liability 4, 217, 362, 369, 398, 400–401, 403–404 sine delicto 19, 120, 210–211, 401–402 lucrum cessans 14 maleficium 22 March 11 attacks (Madrid) 130 see also terrorism matrimonio concordatario 291–292 mercenary 68–70 most favored nation 173 natural law 145, 148 necessity 42–44, 60, 122–123, 145, 176, 277, 304 negotiation 54–56, 60–61 neminem laedere 140 see also alterum non laedere neutrality 197, 199 non-belligerency 197–207 non-intervention 20 non-repetition (assurances and guarantees of ) 16, 78, 97–98, 102, 104–105, 118, 212, 217, 219, 265–266, 275, 278–279, 304, 314, 320–322, 325 non-State actor 132–134, 391–404, 423–34 nullum crimen/nulla poena sine lege 256 obligation of conduct/result 211–212 obligation of doing/giving 266 obligation erga omnes, see erga omnes obligation occupation 281–282, 284, 318 see also belligerent occupation pacta sunt servanda 19, 351, 410 pacta tertiis neque nocent neque prosunt 295 parental rights 347–350, 352–353 peacekeeping 122 peremptory norm, see jus cogens piracy 131, 138–140, 398, 411 see also hostis humani generis; privateering precaution 212–213, 402 precautionary principle, see precaution primary/secondary rule 5, 8, 10, 12, 35, 68, 104, 120, 171, 209–210, 212, 227, 277–279, 323–324, 398, 402–404, 425, 446 prior notification 41, 62 privateering 142 see also piracy privileges and immunities 272, 290, 359, 383–384, 388, 433, 448

471

proportionality (of countermeasure) 127–128, 146 see also countermeasure protection of nationals abroad 39–41 protection of shareholders 161–170 provisional measure 301–303, 307–308, 325–326 public debt 38, 43–44 punitive damages 221, 265–267 rebus sic stantibus 302 reciprocity 129 regret 108, 115, 212, 260 see also apology; condemnation; sorrow reparation 9–12, 14–16, 18, 22, 37–38, 44, 46–47, 60, 78–79, 94, 97–105, 110, 114–115, 119, 126, 142, 211, 218–219, 221–222, 244–246, 254, 257, 261, 264–268, 275, 278, 281, 283, 301–302, 304, 313–314, 317, 319–321, 324–325, 359, 368–369, 384, 392, 399–402, 437, 447 reprisal, see countermeasure res inter alios acta 323, 417 res judicata 301, 303, 319, 339 responsibility (types of: concurrent, joint and several, subsidiary) 416–17, 442–443, 445, 447–454 restitutio (in integrum), see restitution restitution 9, 11, 13–19, 42, 102, 104, 115, 118, 219, 244–247, 251, 261, 280, 284 retorsion 49 Riphagen 227 rule of law 269 rules of the organization 408–409, 412–419 sanction 10–11, 51, 53, 57–59, 77, 97, 125–127, 129–130, 134, 257, 260, 264–265 Santo Domingo 147 satisfaction 9, 11, 17–19, 46, 102, 110, 115, 212, 219, 244–249, 251, 266 Schachter 23, 31–32, 49–51, 54, 56, 61–62, 82, 93, 103, 194, 223–225, 230, 236, 243, 253, 297, 343–345, 353, 355, 363, 371, 423, 435 seizure of Japanese Ambassador’s residence (Peru) 41 self-defence 6, 42, 53, 56, 66, 122–123, 127, 130, 137, 145–148, 176, 202, 204, 239, 276, 319, 329, 334–340 self-determination 35, 77, 186–188, 190–194, 236, 305, 311, 318 September 11 attacks 130, 140, 239 see also terrorism settlement of disputes, see dispute resolution Siberian Airlines incident (Ukraine-Israel) 45 slavery (including slave labour) 58, 70, 305

472

index

societas delinquere (non) potest 259 sorrow 109, 111 see also apology; condemnation; regret speciality (principle of ) 373, 386 Srebrenica 238 State crime 23, 29, 67, 119, 222, 231–232, 253–269 State(s) other than the injured State 95–99, 102, 104–105, 121, 190, 304, 311, 314, 317–322, 325–327 State voluntarism 185–186, 262 sustainable development, see development Talibans 141, 144, 239 terra nullius 218 territorial title 271, 283, 285 terrorism 68–70, 72, 76, 130–131, 133, 137–149, 276 see also Al-Qaeda, March 11 attacks (Madrid), September 11 attacks torture 70, 75–77, 133, 140, 158, 245, 248, 423, 428, 432 totus orbis 184–186, 195

transboundary harm 120, 210–213, 400–402, 404 transnational law 4–5 treaty (principle of integrity of ) 418 ubi societas ibi jus 263 ultra posse nemo tenetur 131–132 ultra vires 346, 356, 364, 409, 432 unilateral act 188, 357 United Nations permanent observer 290 use of force 129, 143, 146–148, 199, 235–236, 284, 329–330, 334–335, 337–340 USS Pueblo case 38, 113 uti possidetis juris 282 Vatican City 291 Vitoria, Francisco de

186

war crime 64, 69–70, 72, 75, 158, 238, 256, 398 see also crime against humanity; crime against peace; individual criminal responsibility

MEMORIAL LIST

GEORGES ABI-SAAB Geneva NISUKE ANDO Professor, Doshisha University, Faculty of Law GAETANO ARANGIO-RUIZ Emeritus Professor of International Law JUAN ANTONIO CARILLO-SALCEDO ORIOL CASANOVAS Professor of Public International Law, Pompeu Fabra University, Barcelona (Spain) JAMES CRAWFORD LORI FISLER DAMROSCH CHRIS DE COOKER LLM ’75 Columbia PROF. DR. MANUEL DIEZ DE VELASCO VALLEJO Professor (catedrático) in Public and Private International Law, Former Judge of the Court of Justice of the European Communities, Judge of the Constitutional Court, Membre de l’Institut de Droit International PIERRE MICHEL EISEMANN Professeur à l’Université Paris I, Panthéon-Sorbonne H.E. NABIL ELARABY Judge, International Court of Justice, The Hague PIERRE GANNAGÉ Professeur à la faculté de droit de l’université St Joseph, Beyrouth, Membre de l’Institut de Droit International TERRY D. GILL Utrecht University/University of Amsterdam; Fulbright Research Fellow, Columbia University 1991 CHRISTOPHER GREENWOOD

memorial list LAURI HANNIKAINEN Professor of International Law, University of Turku, Finland PROF. DR. ELLEN HEY H.E. JOSE LUIS JESUS Judge, International Tribunal for the Law of the Sea, Hamburg SIR ELIHU LAUTERPACHT, CBE, QC VAUGHAN LOWE H.E. HISASHI OWADA Judge, International Court of Justice, The Hague PEACE PALACE LIBRARY M.C.W. PINTO Attorney of the Supreme Court of Sri Lanka JEAN SALMON Professeur émérite Université libre de Bruxelles DIETRICH SCHINDLER NICO SCHRIJVER Professor of International Law, University of Leiden, The Netherlands H.E. SHI JIUYONG Judge, International Court of Justice, The Hague SANTIAGO TORRES BERNÁRDEZ Institute of International Law EDUARDO VALENCIA-OSPINA Former Registrar, International Court of Justice KAREL WELLENS Professor of Public International Law, University of Nijmegen, The Netherlands