CIAO DATE: 03/02
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1999 (Volume 10 Issue 2)
In the Pinochet case the former head of state of a foreign country has been held accountable for the first time before a municipal court for acts of torture allegedly committed while he was in his post. The unprecedented character of the case causes one to ask whether municipal courts may properly complement international tribunals in the enforcement of international criminal law, and, if so, to what extent a plea of immunity or non-justiciability may be available. The divide within the House of Lords on the interpretation of the scope of application of jurisdictional immunities to foreign heads of state as regards crimes of international law hardly hides a more profound conflict based on the different perception of what values and interests should be accorded priority in contemporary international law. This article argues that neither jurisdictional immunities nor act of state and other doctrines of judicial self-restraint are consistent with the notion of crimes of international law and that the quest for normative coherence should induce a reappraisal of the relationship between human rights and the law of jurisdictional immunities.
In April 1998 a large interdisciplinary conference on 'The Turn to Ethics' took place at Harvard University. The conference investigated such phenomena as the recent establishment of courses in ethics in numerous academic institutions, the explosion of literature on the subject, and the use of the rhetoric of ethics in public life at large. Our aim in this article is to bring the international legal discipline into contact with this overall phenomenon and to relate the interdisciplinary discussion reflecting on it to international law. To start, we offer a broad sense of the critical views on ethics than enliven the contemporary discussion. We then apply these views to international legal scholarly trends, revisiting formalist, idealist and what we call strategic stances towards international legal work. In the third part, we illustrate in two case studies how legal opinions of the ICJ and of individual judges can be understood in the light of this discussion. In concluding we suggest what a turn to ethics may and may not mean for the international lawyer and how the various 'turns' may be negotiated.
The foreign policy principles proclaimed by the Member States of the European Community in European Political Cooperation were founded upon the ideas which underpinned European integration: the abandonment of Westphalian norms and respect for human rights, democracy and the rule of law. From the Copenhagen Declaration in 1970 to the Treaty on European Union in 1992, the Member States developed certain means to promote these values, such as the submission of joint démarches and the adoption of common positions in international organizations. But the political constraints of the Cold War in general prevented the Member States from implementing vigorously the values which they endorsed. The end of the Cold War, the references to human rights and democracy in the TEU and the establishment of a Common Foreign and Security Policy with improved instruments for foreign policy cooperation raised hopes that human rights might come to play a more prominent role in European foreign policy. However, economic competition and conflicting national interests continue to restrict Europe's common foreign policy on human rights issues to declarations of concern rather than action.
In his First Report to the International Law Commission as Special Rapporteur on State Responsibility, Professor Crawford severely criticizes the category of 'crime of state' and the attendant dual regime of responsibility introduced by Article 19 of the Draft Articles; he proposes to set it aside. This essay endeavours to respond to these criticisms by distinguishing the 'text' of Article 19 from the 'concept' behind it. Admitting the shortcomings of the 'text', it is argued that these can be easily perfected through good draftsmanship, making it more rigorous and giving if full effect throughout the Draft Articles. The concept behind the text remains of major importance, however, reflecting as it does in the field of state responsibility the emergence in contemporary international law of a hierarchy of norms ensuing from the recognition by the international community of the pre-eminence of certain common interests and values and the consequent necessity of surrounding them with maximum legal protection. The criticism of the concept of 'crime of state' based on the 'domestic analogy' ignores its specificity in international law. The recommended alternative course of action of reverting to a unitary regime while making special allowance for the effects of violating jus cogens norms (and erga omnes obligations) would necessarily reintroduce a binary regime. Moreover, it is feared that the abandonment of the dual regime of responsibility would be largely perceived as a setback in the evolution of general international law.
This article deals with the three main questions related to the violation of multilateral obligations in international law: definition of those obligations, the elements constituting a violation, and the effects of the latter. Observing that many obligations in international law, both in treaties and in customary international law, bind several states, or all states, in their mutual relations, thus creating parallel bilateral obligations, the author is of the opinion that they do not all correspond to the specific definition of 'multilateral obligations', but only those the violation of which is of concern for the international community. The violation of those multilateral obligations leads to state responsibility according to the normal, ordinary elements of responsibility: attribution to the state and violation of an obligation. There is no additional criterion. The quantitative element is merely relevant with respect to the reaction of other states. The breach of a multilateral obligation gives to the injured state the normal rights of the 'victim', whereas the other states are not 'victims' but are entitled to take measures aiming at the cessation of a conduct in breach of that obligation, without prejudice of conventional systems.
The forthcoming discussion in the International Law Commission on the Draft Articles on State Responsibility may well lead to the removal of Articles 51-53, dealing with the consequences of international crimes. If this occurs, there will remain the question of what to do with two other references to international crimes included in the Draft Articles. Article 40(3) says that if the wrongdoing state commits a crime, 'all other States' are to be considered injured states. The definition of injured states should thus be widened, because all other states must be considered as injured when any erga omnes obligation is infringed, whether or not the violation constitutes an international crime. This is not to say that the consequences of violations of erga omnes obligations are necessarily the same of those of wrongful acts that do not affect any interest of the international community. Article 19 would be clearly deprived of meaning if Part Two of the Draft Articles failed to specify any consequence for international crimes. However, if Article 19 were simply removed, the inference would be that there exists no special regime for wrongful acts that seriously affect the interests of international society. A saving clause could be usefully included in the Draft Articles to the effect that they are without prejudice to any regime that may be established in the future to deal with serious infringements of erga omnes obligations.
As Special Rapporteur to the International Law Commission, Roberto Ago enlarged the vision of the scope of state responsibility including new legal relations between the wrongdoer and the victim or third parties. He also eliminated any reference to damage in the definition of state responsibility. Finally, he proposed new classifications of wrongdoings and obligations. However, this latter makes use of a misleading terminology to designate inappropriate distinctions which do not necessarily correspond to any specific differentiation of legal regime in Part Two of the ILC's Draft Articles on State Responsibility. This is particularly the case for the classification of obligations of means and obligations of result. It is thus necessary to reassess the legal bearing of this distinction in terms of its civil law origin in order to decide whether it would be worthwhile to incorporate it, even indirectly, in the final version of the ILC's project. This is also the case for the overly sophisticated relationship established by Ago between some categories of obligations and wrongful acts. This paper argues that an opportunity now exists to make these distinctions more reliable and effective, even at the price of eliminating some of them.
The dualism between public and private spheres of action has been identified as a key feature of Western, liberal thought. Its normative consequences in domestic law have been much critiqued on both practical and theoretical grounds. The article examines how this same distinction operates in international law, inter alia through the principles of attribution for the purposes of state responsibility to delineate the reserved area from international intrusion. It questions whether the changing concept of the role of the state undermines the usefulness of the distinction and considers some of the strategies engaged for its avoidance, in particular within human rights jurisprudence.
The question of the place of fault in the system of state responsibility has long been avoided by the International Law Commission. The Commission chose not to dwell on what was felt to be an old academic dispute and preferred to deal with the fault issue in a pragmatic way by envisaging it as a circumstance, the absence of which must be proven by the respondent state in order to preclude the wrongfulness of its conduct. In the Draft approved on its first reading, some hidden and open references to fault were found in various chapters, from imputation to the ascertainment of the consequences of the wrongful act, but the issue was not sufficiently explored. The present author urges the ILC to bring more clarity to this fundamental topic.
The International Law Commission's Draft Articles on State Responsibility propose to characterize wrongful conduct in respect of which there exist exculpatory circumstances as 'not wrongful'. The Commission could have characterized them as wrongful but excused. This paper explores the theoretical differences between those alternatives and, in particular, the distinction between the right of an injured state to waive its entitlement to reparation and the right of an injured state to release other states from their obligation to obey the law. It argues that even if the creation of international legal obligations is, by virtue of the principle of opposability, an essentially bilateral matter, violation of those obligations engages a wider community interest and is not a matter of concern to the law-breaker and the injured state alone. The paper suggests that, as a matter of policy, it would be preferable to regard such conduct as 'wrongful but excused'. That might in practice strengthen the normative pull of rules, and make it easier to deal with situations where third state rights are affected by violations of international law.
The recent case before the International Court of Justice, Paraguay v. USA (Provisional Measures), highlights dramatically the fundamental uncertainties as to the availability of restitution in international law, and should serve as a warning to the International Law Commission not to be unduly dogmatic or over-ambitious in its quest for universal rules in its Draft Articles on the choice between restitution and compensation. The caution of the International Court of Justice in this and other cases provides a marked contrast to the ILC's 1996 Draft Articles. The current Draft Articles take a firm view on the primacy of restitution; this inevitably entails the need for limits and exceptions to the award of restitution. The ILC has run into difficulties in trying to provide for these while maintaining its distinction between primary and secondary rules. Moreover, if the exceptions are too wide they will offer loopholes to the wrongdoing states and undermine the primacy the ILC wants to assert; if the limits are too narrow they will be unrealistic. The reactions of states to the Draft Articles shows the need for the ILC to be flexible in its approach.
Despite the strong (probably growing) and passionate campaign against the notion of state crimes led by a handful of powerful states and relayed by some ILC members, including the new Special Rapporteur, the distinction between what is termed 'delicts' and what is termed 'crimes' answers an indisputable need and must be maintained. However, while the definition of crimes given in Article 19 of the ILC Draft Articles on State Responsibility is acceptable, though perhaps unduly sophisticated, the legal regime of these crimes as envisaged by the ILC is debatable. The method adopted to establish this regime has been grossly unsatisfactory and it must be accepted that the word 'crime' might be misleading. The concept is nevertheless indispensable in contemporary international law.
This article reviews some major issues involved in revising Part 1 of the 1980 draft on state responsibility and responds to comments made in this symposium. In the author's view: (a) there is no single principle of fault as a basis for state responsibility in international law, nor is the possibility of no-fault responsibility a priori excluded. The debate is thus a false one. Retaining Articles 1 and 3 recognizes that the particular standard of responsibility is set by the primary rules; (b) criticisms that the articles on attribution of conduct to the state embody a 'very traditional' Western concept of the state fail to take into account the flexibility of the rules; the distinction between obligations of conduct and of result lacks consequences within the framework of the secondary rules, and is of doubtful value; (d) the idea of international crimes as expressed is unnecessary and potentially destructive. But the idea that some obligations are owed to the international community as a whole and that grave breaches thereof may attract special consequences, is important. The problem is to find an acceptable formulation; (e) two different kinds of circumstances precluding wrongfulness are dealt with in Chapter V: some (e.g. self-defence) preclude wrongfulness; others (e.g. distress, necessity) preclude responsibility. This distinction should be more clearly made; (f) the balance between restitution and compensation needs further thought, but it is not clear that the Draft Articles as presently formulated are defective.