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CIAO DATE: 02/03
2002 (Volume 13 Issue 5)
The Concept of Suspended Sovereignty in International Law and Its Implications in International Politics by Alexandros Yannis
The concept of suspension of sovereignty is not new in the legal and political discourses in international relations. It has been employed mainly to describe dramatic and extreme situations in which a clear rupture is observed between the legal proposition of internal sovereignty and the social and political realities on the ground. A prominent example has been the case of foreign occupation. The recent UN Security Council Resolutions on Kosovo and East Timor rekindled interest in the concept of suspended sovereignty and raised new perspectives about its function and role in international politics because it is the product of legitimate international processes representing a further evolution of models of international political authority. Thus, the possible future crystallization of such a concept in international law should be seen and explored more as an opportunity to increase the transparency and accountability of international transitional administrations and less as a chance to reintroduce hierarchical relations in international politics.
A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility by Pierre-Marie Dupuy
The multilateral dimension of a number of international obligations raised the need for a review of the classical law of state responsibility, originally designed in the context of bilateral inter-state relationships. In this lengthy process, the International Law Commission sought to enhance the function of the responsibility of states as an instrument for restoring international legality. This tendency was reinforced by the introduction in its Draft Article 19 (1976-1996) of two categories of international wrongful acts: 'delicts' and 'crimes' of states. The final solution adopted by the ILC had to take into account the negative reactions of several states to this distinction. It thus maintains the distinction, while abandoning the ambiguous term of 'crime of state'. However, it consequently fails to differentiate the legal regime of obligations of the state responsible for the violation of 'obligations under peremptory norms of general international law'; the ILC substantially clarifies the notion of 'injured state'. Regrettably, criticism by some states of the draft as adopted in August 2000 resulted in the consolidation, or even introduction, of some incongruities in the final Draft Articles. Nevertheless, the final text constitutes a major contribution to the consolidation of the international law of state responsibility as a tool for the reparation of international wrongs and the restoration of international legality. Its weaknesses are not those of its authors but primarily of states and their political incapacity to develop the international institutions required by the normative design of new concepts such as 'peremptory norms of international law'.
From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations by Georg Nolte
The writings of the twentieth-century protagonists of the law of state responsibility, Anzilotti and Ago, represent two conceptually opposed theories. Both authors have had their predecessors since Grotius and their approaches are likely to remain influential in the future. Taking into account the political and legal context in which Anzilotti and Ago developed their theories, both Anzilotti's bilateral conception of state responsibility and Ago's recognition that the violation of certain fundamental norms creates a legal injury to all states, should be perceived as legitimate. The persistent influence of their theories even beyond the context in which they were developed appears due to the reasons which led international lawyers to lean more towards a positivistic or to a natural law/policy-oriented jurisprudence. In this respect, the work of Hersch Lauterpacht marks an important turning point.
From One Codification to Another: Bilateralism and Multilateralism in the Genesis of the Codification of the Law of Treaties and the Law of State Responsibility by Marina Spinedi
The article traces the progressive abandonment by the International Law Commission in the 1960s and 1970s of a strictly bilateralist conception of the legal relations arising from internationally wrongful acts of a state. This shift towards multilateralism, in contrast to the following period of codification work by the ILC, was limited to the consequences of wrongful acts which injure the fundamental interests of the international community (termed 'international crimes' by the ILC) and concerned solely the possibility of countermeasures (or sanctions) being adopted by subjects other than the state directly affected by the wrongful act. The author examines the reasoning which led Special Rapporteur Ago and the other ILC members to this move towards multilateralism and investigates whether this development can be linked to the positions taken by the ILC in the early 1960s regarding the invalidity of treaties contrary to jus cogens and the suspension/termination of multilateral treaties as a consequence of their breach, where such a shift towards multilateralism had already taken place.
The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility by Linos-Alexander Sicilianos
The final version of the Articles on State Responsibility, adopted by the ILC in 2001, contains considerable advances over the previous draft of 1996. The ILC reconsidered the group of provisions dealing with the multilateral aspect of responsibility relations, and proceeded to 'decriminalize' international responsibility; to classify international obligations by taking into account the intrinsic nature and beneficiaries of the obligations breached; to differentiate the positions of individually injured states and not directly affected states; and to spell out the legal consequences of 'serious' breaches of obligations under peremptory norms and of erga omnes obligations. The present paper offers a critical analysis of the relevant provisions of the text on state responsibility by focusing on their interplay. Emphasis is also given to the question of countermeasures by not directly affected states.
From 'State Crime' to Responsibility for 'Serious Breaches of Obligations under Peremptory Norms of General International Law' by Eric Wyler
The article endeavours to determine whether there has been any substantial change in the law of state responsibility brought about by the ILC through the replacement of the concept of 'crime' in old Article 19 by that of 'serious breach' in Article 40. Restricting the analysis to the viewpoint of international legality, it is argued that this new concept follows the line sketched out by Roberto Ago, as the new concept also aims at reinforcing international legality particularly through collective intervention based on the idea of states' legal interests whenever a serious breach of a peremptory norm of general international law occurs. Furthermore, the ILC commentary shows that serious breaches hardly differ from crimes ratione materiae. Similarly, a serious breach should be interpreted by recourse to the same criteria as those used by Article 19, namely, the essential importance of the obligation violated and the serious nature of the breach. Finally, when comparing the legal consequences of serious breaches to those of crimes, it seems legitimate to draw the conclusion that the former is the twin brother of the latter.
Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State? by Christian J. Tams
The International Law Commission's decision to maintain Articles 40 and 41 is based on the conviction that serious breaches of peremptory norms entail specific legal consequences within the field of state responsibility. Among these consequences, it is possible to distinguish between (i) specific obligations binding on other states, (ii) specific rights of other states and (iii) specific obligations of the responsible state. This article critically assesses whether international law recognizes specific consequences falling within the third of these categories. It discusses six prominent candidates suggested in international practice, literature, and the work of the ILC - such as the obligations to provide assurances of non-repetition, to pay punitive or exemplary damages or to prosecute individual perpetrators of serious wrongful acts. The article concludes that none of these candidates qualifies as a specific consequence of serious breaches of peremptory norms - partly because the alleged specific obligation has not been recognized in international law, and partly because it equally applies to internationally wrongful acts that do not constitute serious breaches in the sense of Article 40. It follows that international law at present does not impose specific obligations on states responsible for serious breaches of peremptory norms. This in turn raises doubts as to the viability of the distinction between serious breaches and ordinary wrongful acts.
A Return Ticket to 'Communitarisme', Please by Andrea Gattini
In Article 41 of its Draft Articles on State Responsibility, the International Law Commission gave expression to community interests in relation to serious breaches of peremptory norms, without giving in to the pitfalls of an over-progressive development of the subject. However, when it came to the rules on invocation of responsibility, the ILC fell back into a stale, bilateralistic response. This imbalance, more than being a symptom of schizophrenia or a sign of disingenuousness, is probably the undesired result of a dichotomy in the ILC Draft between 'serious breaches of peremptory norms' and 'violations of obligations owed to the international community as a whole'. Yet, overall, the ILC's choices accurately reflect the current transitional state of international law.
The Invocation of Responsibility for the Breach of 'Obligations under Peremptory Norms of General International Law' by Iain Scobbie
The invocation of responsibility for the breach of an international obligation is a matter involving numerous substantive issues. This paper examines only two - the law of diplomatic protection and the process of international adjudication. Both these issues raise particular problems where the obligation in question is a peremptory norm of international law. All states have a legal interest in ensuring compliance with peremptory norms, whether or not they or their nationals are materially injured by any given breach. That this entails a multilateral, as opposed to a bilateral, delictual relationship was recognized by the International Law Commission when it drafted the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts. Although Articles 42 and 48 of these Articles recognize that states not directly injured by the breach of a peremptory obligation are entitled to invoke the responsibility of the delinquent state, these two Articles are not self-contained. In particular, they are expressly subject to Articles 44 and 45. These preclude the invocation of responsibility unless the nationality of claims rule is satisfied (Article 44) or if the injured state has validly waived or acquiesced in the lapse of the claim (Article 45). These conditions restrict, if not negate, the practical utility of Articles 42 and 48.
Countermeasures of General Interest by Denis Alland
The use of countermeasures by indirectly injured states, subjectively analyzed as a means of the defence of general interests - referred to as 'countermeasures of general interest' - is not specifically embodied in the ILC's Draft Articles on the International Responsibility of States. This omission raises questions about the substantial international practice of states on this point, which the article considers. The Draft Articles refer to jus cogens in preference to the previously utilized notion of the 'international crime'. The article considers how this fits in with the notion of countermeasures of general interest, and also considers the link between international responsibility and the guarantee of international legality.
Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law by Pierre Klein
Discussions surrounding the concept of the international state crime have focused to a large extent on the mode of reaction to breaches of peremptory norms of the international legal order. In particular, the question arose whether UN mechanisms aimed at preserving international peace and security should be regarded as a privileged - or even exclusive - means to implement this type of 'aggravated' responsibility. Drawing on Security Council practice, Special Rapporteurs Ago and Riphagen suggested that UN organs should play a central role in such a situation. Ascribing a central function to UN organs in reaction to international crimes has, however, drawn criticism on several grounds, such as the limits to the Security Council's ratione materiae competence and its lack of legitimacy in representing the international community. Proposals to develop new institutional mechanisms, put forward by Arangio-Ruiz, have, however, proved no more successful, and have been condemned as 'utopian'. Article 54 of the final version of the Articles on State Responsibility appears to leave the question open, since, following Special Rapporteur Crawford, the ILC chose not to exclude any specific mode of reaction to serious breaches of peremptory norms of international law, whether carried out within or outside existing international institutions. This probably better reflects the present state of institutionalization of the international society.
Consular Assistance: Rights, Remedies and Responsibility: Comments on the ICJ's Judgment in the LaGrand Case by Christian J. Tams
The Politics of International Criminal Justice by Frédéric Mégret
Book Review — Basic Documents in International Law. 5th ed by Brownlie Ian