31113-nyi_44-1 Sheet No. 3 Side A 12/07/2011 07:07:40 R R R R R R R R R R R R R R R R R R R R R .13 ...... 38 40 * ..... 9 ...... 7 ...... 37 TATE ...... 30 ...... 38 S ...... 34 ESFALIDET ...... 27 T HIRD ...... 42 ROPOSAL T ...... 15 EMANE : A P BOUT ...... 45 Y A 1 SAIAS ...... 42 ...... 11 ...... 18 ...... 43 ...... 25 & I BLIGATIONS ...... 2 ...... 21 ...... 6 O BSERVATIONS O TATE The Responsibility to Protect “Null and Void” States of Affairs Assessment of Current Practice The Cost of Universal Affirmative Duties Exclusion of States with No Involvement The Need for Legal Status Negative Involvement and Positive Involvement Primary and Secondary Violators of International Law First Party and Third State Perspectives First Party and Third of Third State The Normative Basis Obligations on International Law Third State Influence from Human Rights Obligations Emanating Instruments Erga Peremptory Norms and Obligations Omnes Obligations to Cooperate with International Tribunals RILMAYER S B Practicability and Affirmative Duties Legal Grounding Third State Obligations: The Basic Case Third State Obligations: of International Law and The Current State Theory: “State Bystanders” 4. 5. 6. 1. 2. 1. 2. 3. 1. 2. 3. 1. 2. 3. EA BLIGATIONS ENERAL HIRD L NTRODUCTION THIRD STATE OBLIGATIONS AND THE AND OBLIGATIONS STATE THIRD A. B. O A. B. ENFORCEMENT OF INTERNATIONAL LAW OF INTERNATIONAL ENFORCEMENT I. I * Lea Brilmayer is the Howard M. Holtzmann Professor of Interna- II. G III. T tional Law at Yale Law School. ‘10, J.S.D. Isaias Yemane Tesfalidet (LL.M. with the Forum for International Candidate, Yale Law School) is a fellow Criminal and Humanitrian Law. The authors wish to thank Carlos Vazquez, Michael Reisman, Allegra McLeod, and the participants at the William and Mary Law School Faculty Workshop, in particular Michael Greene, for their invaluable comments. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 1 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 3 Side A 12/07/2011 07:07:40 A 12/07/2011 Sheet No. 3 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 3 Side B 12/07/2011 07:07:40 R R , 10 [Vol. 44:1 2 1 . 341, 342–44 (2010). L L ’ 2d ed. 1979). NT 58 ( . J. I AND POLITICS UR E EHAVE B , 21 Third State Remedies in International Law NTRODUCTION . That question is very different. ATIONS N I. I ...... 51 OW H notes 38–84, 97–101 and accompanying text. The , permissible INTERNATIONAL LAW infra ENKIN L. 57, 101 (1989) (arguing that “[d]espite the values of more L. 57, 101 (1989) (arguing that “[d]espite H L ’ ONCLUSION Jonathan I. Charney, NT State Bystander Responsibility OUIS L See When one State violates the legal rights of another, what the legal rights State violates When one observed, situations, Louis Henkin once Faced with such is norms or obligations there For most international reaction by the community to deter no judgment or violation.of law or treaty is The ordinary violation against the society to be vindicated not yet a “crime” by the society. not directly It is unusual for nations even of a widely involved to respond to a violation accepted norm—say, violation of the Egypt’s alleged in 1961. immunities of French diplomats . J. I Jonathan Charney—one of the few scholars that addressed issues about 2. in contemporary inter- For a discussion of the conventional position 1. IV. C ICH third States—argued forcefully against the existence of third State obliga- tions. national law, see aggressive law enforcement, the international legal system might not tolerate aggressive law enforcement, the international law remedies to give third states a a substantial expansion of international significant role” and cautioning that, “[u]ltimately, such third state remedies might erode, rather than enhance, obedience to the rule of law.”) However, Charney’s article is primarily concerned with the question of when third States’ remedies are M standard situations where the obligations of non-parties are already taken standard situations where the obligations rights, rights of refugees, rights of into account include protection of human of mass atrocities.peoples to self-determination, and the prevention Monica Hakimi, Henkin did not seem concerned about communal passivity in Henkin did not seem concerned the face of sister-State violations. Nor did he address the possi- the violator, then this bility that, if a third State supported the violation.might count as somehow compounding Most take essentially the same posi- other international law scholars tion—to the issue at all. the extent that they address 2 do?States legally obligated are third (if anything) Is there whose rights to come to the aid of the State some general duty were violated? State’s interest to sup- What if it is in the third committed the wrong? port the State that nothing: States typically do \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 2 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 3 Side B 12/07/2011 07:07:40 B 12/07/2011 Sheet No. 3 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 4 Side A 12/07/2011 07:07:40 3 ) OMMU- ATSELLI OUNTER- There C K 4 : C erga omnes AW LENA E L . U. L. Rev. 1293, or 68-69 (Humphrey W N NTERNATIONAL 79 I This state of affairs ATIONS 5 See generally notes 36–43 and accompany- N jus cogens NTERNATIONAL F DEA OF I I O infra AW 2004 I.C.J. 136, ¶ 120 (Jul. 9) (find- , L The United States has chosen to The United States HE 6 to take action. , T TATE AND THE NFORCEMENT IN right S E RIERLY NJURED -I Is International Law Really “Law”?, J. L. B ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT ROBLEM OF ON notes 51–63 text. and accompanying P N ., Legal Consequences of the Construction of a Wall in the g . HE THE , T , NITY MEASURES continue substantial amounts of economic and military continue substantial amounts of derstood to be illegal. See infra See, e But discussion of non-party responsibilities—what of non-party But discussion we an- International legal theorists have always had substantial had have always legal theorists International Third State obligations are potentially of immense impor- are potentially of immense Third State obligations • un- on occupied territory are widely Israeli settlements (2010). 3 To our knowledge, no scholar takes the position that we have adopted To our knowledge, no scholar takes the 4. we employ, including the For an explanation about the terminology 5. 6. 3. the question “is inter- Among the many theorists that have engaged ROUKAKI 1293 (1985) and Waldock ed., Oxford University Press 1963). obligations,” “State bystander ob- terms “non-party obligations,” “third State ligations” and “first party obligations,” see ing text. ing that Israel breached international law by constructing Israeli settlements in the Occupied Palestinian Territory). Occupied Territory, Advisory Opinion here, namely that there are general third State obligations to the victim, here, namely that there are general third rights context.even in issue areas outside of the human Katselli Elena of the “non-injured State”—inProukaki has recently considered the role our parlance the third State—in the enforcement of international law. Like different question, namely, whether Charney, however, she is interested in a or not third States have the national law really law, and does it give rise to an obligation to obey?” are national law really law, and does it give Anthony D’Amato, P 2011] party” question: called the “first in what can be interest to obey international are obliged States themselves whether law. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 3 6-DEC-11 13:00 alyze here as “third State” obligations—is as “third State” alyze here limited. very are a small number of exceptional situations (mostly involving situations number of exceptional are a small characterized as human rights norms presents something of a puzzle: If we assume that the parties to of a puzzle: If we assume that presents something that gov- by the international legal norms a conflict are bound then why aren’t third States? ern the dispute, tance. Consider these examples: where non-parties are already recognized as having affirmative are already recognized as having where non-parties no general to become involved; but there are legal obligations apply across the board. legal duties that 31113-nyi_44-1 Sheet No. 4 Side A 12/07/2011 07:07:40 A 12/07/2011 Sheet No. 4 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 4 Side B 12/07/2011 07:07:40 , N UR I RL N.Y. RENT O ., , B Might ITH ERV [Vol. 44:1 9 S OUREVITCH UMANITY W G H F ILLED Does the con- Does O HILIP K ESEARCH 7 E P ALLAIRE AND B . R D AILURE ILL ONG F C W E HE OMEO , R W see generally : T AND POLITICS To what extent did these To what extent HARP 8 EVIL (2010). D M. S 22 (1998); HE OMORROW T T Has Received $50 Billion in Pledges for War SRAEL EREMY . J ITH S I WANDA HAT . T W R 10 OU ID TO Y ROM ANDS A INTERNATIONAL LAW F H NFORM OREIGN HAKE I S TORIES O President George H.W. Bush, Address to Joint Session of Congress President George H.W. Bush, Address to , T : S aid despite Israel’s continued building. continued Israel’s aid despite obligation to step in? States have a legal mili- States lost no time preparing its 1991, the United tary response. (or any other Did the United States obligation to assist Kuwait? States) have a legal there have been some other kind of obligation? there have been tinuation of American aid to Israel violate any interna- to Israel violate of American aid tinuation violations of in- help minimize obligation to tional legal law?ternational its deci- States is basing If the United is that political considerations, on internal sion purely unlawful? no 1994 Rwandan genocide and took warning of the killing to go out during the action; appeals continued ignored. but were largely (2003). U.S. F See ISH , Feb. 11, 1991, http://www.nytimes.com/1991/02/11/world/war-in- • in and attempted to annex Kuwait When Iraq invaded • advance and the United Nations had Several States 8. community in gen- For an account of the failure of the international 9. 7. is in the order of $3 The aid given by the United States to Israel W 10. International courts can assert jurisdiction only by the method of E IMES WANDA EARDSLEY AMILIES 33222, T eral and the United Nations in particular, eral and the United Nations in particular, After the End of the Gulf War (Mar. 6, 1991) (transcript available at http:// After the End of the Gulf War (Mar. 6, www.nytimes.com/1991/03/07/us/after-war-president-transcript-president- recent challenge could not have bush-s-address-end-gulf-war.html) (“The villain, Kuwait the victim. To the aid been clearer. Saddam Hussein was the North America and Europe, from of this small country came nations from the Arab world, all united against Asia and South America, from Africa and aggression.”). Kuwait, Countries coordinated to pay the war effort to assist raising tax rates in their respec- with the Japanese and German governments contributions. David E. Rosendaum, tive countries to raise their share of the War in the Gulf: Financing; U In situations like these, the victim’s calls for help cannot be these, the victim’s calls for help In situations like context, by saying “call met as they might be in the domestic the police” or “take it to court.”rarely avail- These options are able internationally. the-gulf-financing-us-has-received-50-billion-in-pledges-for-war.html. state consent. For example, article 36 of the Statute of the International Court of Justice defines its competence in terms of consent, expressed either billion in grants annually. W F B R 4 \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 4 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 4 Side B 12/07/2011 07:07:40 B 12/07/2011 Sheet No. 4 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 5 Side A 12/07/2011 07:07:40 R R R 5 note supra , This obliga- We show that 11 15 State Bystander Responsibility We next identify the practical and We next identify the practical This approach is quite different from This approach is quite different 14 12 13 Monica Hakimi, see ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT text accompanying notes 22–50. text accompanying notes 108–22. text accompanying notes 103–06. text accompanying notes 100–02. notes 36–53 and accompanying text. See infra See infra See infra See infra In making our case, we first sketch the basic contours of a In making our case, we first sketch Understandably, the victim typically feels that the legal the feels that typically victim the Understandably, some- that international law does have Our position is 14. 15. 12. 13. For a summary of these areas and a defense of what we call the “State 11. see infra 2; bystander” model, general theory of third State obligations and then assess State general theory of third State obligations somewhat similar obligations bystander models, under which are already recognized. as a general matter, a special agree- in a treaty agreeing to I.C.J. jurisdiction I.C.J., or as part of the substantive ment to take the particular case to the the first place. Statute of the Inter- agreement that created the legal right in 1945, 59 Stat. 1031. national Court of Justice art. 36, June 26, 2011] community’s support. it to the world its claim entitles merit of feel the other hand, it appeals, on States to which The third the in ignoring prerogatives within their legitimate absolutely interest. their own national and pursuing legal merits The vic- says law issue is what international that the key tim thinks that States deny claim, but the third merits of its about the The victim has anything useful to contribute. international law the latter are speaking different languages: and the third State the former international power politics and the language of international law. the language of to say about third State obligations.thing important Non-par- to contribute are under a legal obligation not ties, in our view, violation of international law. to another State’s \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 5 6-DEC-11 13:00 theoretical problems that might seem to plague any proposal theoretical problems that might non-parties. to assign legal responsibilities to the closest existing analog—what call the “State bystander” we model—which issue areas, such as human is limited to specific premises concerning af- rights, and which rests on debatable firmative obligations. tion is satisfied if either the third State has no involvement at either the third State has no involvement tion is satisfied if of the victim. or it is involved on the side all in the dispute substantive international law This position is grounded on the that gives the victim its rights—the norm that is being vio- lated—together State responsibility with doctrines regarding of “secondary” actors. 31113-nyi_44-1 Sheet No. 5 Side A 12/07/2011 07:07:40 A 12/07/2011 Sheet No. 5 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 5 Side B 12/07/2011 07:07:40 R 18 16 [Vol. 44:1 notes 44–53 . art. 2, para. 6 General rec- id HIRD infra 17 T BOUT A AND POLITICS . art. 94 (“If any party to a case fails id BLIGATIONS O BSERVATIONS O TATE S ENERAL INTERNATIONAL LAW text accompanying notes 97–01. text accompanying notes 33–34. II. G But in such cases, the obligation to take action arises But in such cases, the obligation U.N. Charter art. 41–45 (dealing with mandatory measures that 19 See infra See infra See Although rarely addressed directly in either case reports addressed directly in either case Although rarely The influence that a powerful State has through its con- State has that a powerful The influence 16. 17. 18. are made; for an examination In certain substantive areas exceptions 19. (“The Organization and its Members, in pursuit of the Purposes stated in (“The Organization and its Members, article 1, shall act in accordance with the following Principles . . . . The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.”). or scholarly literature, there is an implicit assumption in inter- or scholarly literature, there is an in response to interna- national law that community action beyond the call of duty. tional law violations is above and is not itself a violation, and Taking the side of the violator neither is failure to act at all.an authori- In specific situations, Security Council can instruct tative institution such as the UN measures against some vi- the international community to take olator. 6 less vul- are them, have defined as we State obligations, third State the existing than extending to these challenges nerable of issue areas. a wider range models to cover bystander as, or as great third States is probably the conduct of trol over di- through its own it exerts than, the influence even greater with international standards. rect compliance \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 6 6-DEC-11 13:00 from the fact that the Security Council has spoken, rather than from the fact that the Security Council law alone.from general principles of international Legal obli- ognition of third State obligations could, for this reason, con- State obligations could, for this ognition of third of law. an atmosphere of obedience tribute greatly to The obligations fit are to show where third State challenges ahead law and framework of international in the general theoretical the interna- be recognized and respected by why they should tional community. of the problems of genocide and related violations, see of the problems of genocide and related may be taken by the Security Council); and accompanying text. upon it under a judgment rendered to perform the obligations incumbent recourse to the Security Council, by the Court, the other party may have recommendations or decide upon which may, if it deems necessary, make the judgment.”); measures to be taken to give effect to 31113-nyi_44-1 Sheet No. 5 Side B 12/07/2011 07:07:40 B 12/07/2011 Sheet No. 5 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 6 Side A 12/07/2011 07:07:40 7 Draft Articles on Re- See also Third State Obligations: The Basic Case Third State Obligations: The Basic ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT text accompanying notes 36–53; A. See infra 20 The third State obligations proposed here are not limited proposed here State obligations The third States have traditionally been thought only to have legal States have traditionally been thought It seems that there is no general obligation on the part of third It seems that there is no general obligation wrongful con- States to cooperate in suppressing internationally have occurred.duct of another State which may already it is Again establish any such obliga- a matter for specific treaty obligations to tion of suppression after the event. There are, however, two impor- tant qualifications here. First, in some circumstances assistance latter has committed an given by one State to another after the to the adoption of that internationally wrongful act may amount obligations of cooper- act by the former State . . . . Secondly, special arise in the case of ation in putting an end to an unlawful situation norms of general serious breaches of obligations under peremptory international law.definition, in such cases States will have By agreed that no derogation from such obligations is to be permitted and, faced with a serious breach of such an obligation, certain obli- gations of cooperation arise. These are dealt with in article 41. 20. Rep. of the Int’l Law Comm’n, 53rd Sess., Apr. 23–JuneRep. of the Int’l Law Comm’n, 53rd Sess., 1, July 2–Aug. 10, . 2011] compara- crises or rights human to to respond do exist gations to be exceptional are understood but these ble situations; disprove the general that do not limited relevance cases of rule. hu- human rights or areas, such as substantive to particular manitarian law. the importance of these Without denigrating we argue or their need for special treatment, substantive areas international obligation arises with regard to that a separate more generally.substantive law third State obligations The from contrib- concerned prohibit one State with which we are State’s violation.uting to another State may take the side of A the sidelines, or may remain completely on the innocent party, the viola- to facilitate, support, or encourage but is not entitled law.tion of international obligations require that Third State side of the involved, it should be on the if a State does get victim. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 7 6-DEC-11 13:00 sponsibility of States for Internationally Wrongful Acts with Commentaries, sponsibility of States for Internationally in 2001, at 154–55, Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001) U.N. [hereinafter ILC Report (2001)]. comment Paragraph 9 of the introductory in Connection with the Act of An- to Chapter IV (Responsibility of a State other State) reads: Id responsibility for another State’s injuries when they were the responsibility for another State’s 31113-nyi_44-1 Sheet No. 6 Side A 12/07/2011 07:07:40 A 12/07/2011 Sheet No. 6 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 6 Side B 12/07/2011 07:07:40 R States . Article [Vol. 44:1 Id 21 Rep. of the in Draft Articles See AND POLITICS . art. 16–19. As will be discussed below, Id INTERNATIONAL LAW text accompanying note 68. See infra (a) Is attributable to the State under international law; and (a) Is attributable to the State under international obligation of the (b) Constitutes a breach of an international State. Our proposal for third State obligations attaches consider- third State obligations attaches Our proposal for There is an internationally wrongful act of a State when conduct There is an internationally wrongful act consisting of an action or omission: 21. is the subject of the Interna- The liability of States for wrongful acts . Chapter IV deals with “Responsibility of a State for Acts Undertaken in such responsibility is limited and does not generally entitle the victim to as- sistance. tional Law Commission’s Articles on State Responsibility. tional Law Commission’s Articles on State act of a State”) provides: 2 (“Elements of an internationally wrongful Id Connection with Another State.” 8 it was not rights; legal substantive party’s other of the violator the victim. position to assist simply to be in a enough \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 8 6-DEC-11 13:00 on Responsibility of States for Internationally Wrongful Acts, on Responsibility of States for Internationally were not thought to have legal interests of their own in the of their own in legal interests thought to have were not vin- in obtaining States; self-interest of other lawful treatment of their legitimate was the extent of their own rights dication concern. its aid when to come to a State’s failure Neither rights the side of the actually taking violated, nor rights were law. a violation of international violator, was considered It fol- to make its has the complete discretion lows that a non-party and to act based on its own national interests decision how to the victim’s pleas for help.turn a deaf ear on It is free to at- for help- or demand concessions in exchange tach conditions to side with its rights; or it may choose ing the victim vindicate may just do nothing. the violator; or it of legal vio- to the expectations of the victims able importance rational self- doing so through appeals to lations; it justifies lawfulness.interest in long-range community this per- From of their own: most spective, third States have legal obligations to contribute to violations of importantly, the obligation not the victim’s legal rights. Int’l Law Comm’n, 53rd Sess., Apr. 23–June 1, July 2–Aug. 10, 2001, at 43, No. 10 (2001) [hereinafter Arti- U.N. Doc. A/56/10; GAOR, 5th Sess., Supp. cles on Responsibility of States (2001)]. for its own A State is responsible acts or acts “attributable to” it. of a According to article l (“Responsibility “Every internationally wrongful State for its internationally wrongful acts”), of that State.” act of a State entails the international responsibility 31113-nyi_44-1 Sheet No. 6 Side B 12/07/2011 07:07:40 B 12/07/2011 Sheet No. 6 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 7 Side A 12/07/2011 07:07:40 9 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT States, generally speaking, have two different means of have two different speaking, States, generally law a State respects international The second is indirect: of how the general Diagram 1 is a schematic depiction First Party and Third State Perspectives Third Party and First supporting international law. international supporting re- direct: a State The first is with other States. in its own dealings law spects international as responsibility we refer to this direct below, In the discussion law “first party” obligations: international involving the State’s on it by to comply with the duties placed obligates every State legal norms. substantive international States on on disputes between other by basing its positions law requires.what international argue that, in certain cir- We and respect is a legal obligation to ascertain cumstances, there refer to these of the innocent party, and we the legal rights “third State” obligations.responsibilities as We do not call obligations—whichthese “third party” with would be parallel “first party” obligations—because, State is although the first State is not, strictly speak- truly a party to a dispute, the third ing, a party. “third The terminological difference between obligations” is intended as a State” obligations and “first party approaches, the position of reminder that, under conventional position of the parties to the the third State is distinct from the dispute. Third State obligations deal with a State’s responsibil- more other States, in which ity in a dispute involving two or to have violated interna- one or more of the others is claimed tional law.third State The test that we propose is that the by facilitating, encourag- should not contribute to the problem state’s commission of a ing, or otherwise supporting another violation of international law. (right side) compares party structure of third State obligations of a dispute as traditionally to the standard two-party structure understood (left side). perpetra- For both, the first party is the tor (“P”)—a be doing something con- State that is alleged to trary to international law.set of victims Next is P’s victim or international law was de- (“V”) whose substantive interests signed to protect.State or an The victim might be either a international law was con- individual; although, historically, 2011] 1. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 9 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 7 Side A 12/07/2011 07:07:40 A 12/07/2011 Sheet No. 7 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 7 Side B 12/07/2011 07:07:40 (TS) State Third [Vol. 44:1 232 (5th ed. 2003) (noting, AW L 11, 11–14 (2010) (discussing the AND POLITICS Victim (V) L. L ’ The Position of Individuals in International NT the Conflict Between P and v the Conflict Between . J. I Relationship of Third State to Relationship of Third UR NTERNATIONAL E , I , 21 HAW Giorgio Gaja, 22 INTERNATIONAL LAW N. S See also ALCOLM M Victim (V) Third State obligations diverge from the standard two- Third State obligations diverge essentially a byproduct These third State relationships are Perpetrator (P)Perpetrator Perpetrator (P) of Two Party Case 22. Traditional Conception Law: An ILC Perspective “individuals have become increasingly recognized as participants and sub- “individuals have become increasingly jects of international law . . . primarily but not exclusively through human rights law”). ILC’s recognition of individual rights under international law). State structure through the addition of one further element: a State structure through the addition States,” or “TS”), whose own State or group of States (“third who might have some influ- legal rights are not at stake but P’s unlawful action against V. ence in preventing or stopping involves a duty to assist; TS’s relationship with V potentially involves a duty to pressure, TS’s relationship with P potentially to conform its behavior to the threaten, or otherwise induce it requirements of international law. not cause Although TS did law, and TS may the problem of P’s violation of international P being brought into compli- not stand to gain directly from obligations could put a po- ance, the principle of third State it to assist in defending V tentially serious responsibility on against P’s violation. exist as between P and of a dispute over what legal obligations 10 is no States, this between disputes with exclusively cerned case. longer the \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 10 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 7 Side B 12/07/2011 07:07:40 B 12/07/2011 Sheet No. 7 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 8 Side A 12/07/2011 07:07:40 11 Third State obliga- Third State 24 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT text accompanying notes 44–53. ıve nor irrational. The degree to which interna- ¨ See infra Third party obligations to support the enforcement of in- to support the enforcement Third party obligations interest in lawfulness is The assumption of a shared of the consequences that History abounds with examples They do not alter or replace first party legal obligations legal first party replace alter or do not They The Normative Basis of Third State Obligations The Normative Basis 23. obligations that arise when Third State obligations are, by definition, 24. 23 some other State is engaged in a violation of international law. For a third some other State is engaged in a violation State obligation to exist, that is to say, some other State must be violating international law, meaning that the other State must have a first party obliga- tion. 2011] V. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 11 6-DEC-11 13:00 and are not inconsistent with them.not inconsistent and are they interfere with Nor do by will discuss below, which we number of provisions, the small in are created to become involved obligations which special instruments. substantive legal particular ternational law reflect the principle that States have an interest the principle that States have ternational law reflect even of the international community, in the general lawfulness and immediately impli- when their own rights are not directly cated. climate of This interest that States all have in a general they all share of contribut- lawfulness justifies the burden that security and the rule of law. ing to the community’s general neither na security and stability of all tional law is respected effects the and well-insulated from States, no matter how self-sufficient conflict they might otherwise appear. of a The consequences that are technically the conflict are not limited to the States to affect neighbors, trading legal parties to it; conflict is likely strong relationships to one partners, and any other States with or both sides of the dispute. benefit It is obvious that States and the rule of law, and generally from international stability and war. suffer generally from political chaos community ignores victimiza- follow when the international tion. appease- Among the more notorious examples are the the League of Nations to act ment of Hitler and the refusal of tions are more an addition to standard international discourse to standard international more an addition tions are than a replacement. are not affected by First party obligations of third the compliance or noncompliance this addition, and does not ex- own third State responsibilities States with their violation in unlawful conduct caused the cuse the State whose the first place. 2. 31113-nyi_44-1 Sheet No. 8 Side A 12/07/2011 07:07:40 A 12/07/2011 Sheet No. 8 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 8 Side B 12/07/2011 07:07:40 , in OW , AUSES ,H While : C [Vol. 44:1 323 n.368 27 The Italian- UZMAN G ALUES OLLAPSE 68 (2008) (citing V C L. 614 (1937), both NDREW TL ’ A N NALYSIS LOODY A B . J. I S ’ M OLITICS AND A The Test of Aggression in the Italo- : P HOICE AND POLITICS 31 AW C note 8, (detailing the 1994 Rwandan L UGOSLAVIA Y , 679 (Russell A. Miller & Rebecca M. Brat- supra ATIONAL Progress in Enforcing International Law Against , AW L. 55–56 J. Spencer, (1936), and L TL 236 (1995) (concluding that, “[i]n retrospect, it 236 (1995) (concluding that, “[i]n retrospect, : A R Also familiar are the consequences of are the consequences Also familiar ’ ENNETT N B 25 NTERNATIONAL ORKS , I . J. I OUREVITCH W M G INTERNATIONAL LAW A 26 AW ENKIN L ONSEQUENCES H NTERNATIONAL , 30 HRISTOPHER I C also Orde F. Kittrie, C N OUIS I See L See generally Even without the aid of historical examples, however, the aid of historical examples, however, Even without the party obligations, are ex- Third State obligations, like first 26. 27. For development of the basic logic of collective action in the context 25. to deal effectively with the For the failure of the League of Nations OURSE AND ROGRESS NTERNATIONAL (1995). Current Age of Nuclear Proliferation Rogue States?: Comparing the 1930s with the “multilateral environmental agreements (where the harms of noncompli- ance are truly felt by many states), human rights agreements, and many mul- cited in C genocide); spies eds., 2008) (noting that the failure of the international community and spies eds., 2008) (noting that the failure law “against Germany, Italy the League of Nations in enforcing international 60 million deaths in six years”). and Japan contributed to World War II’s is difficult to envisage a worse strategy towards the Yugoslav wars than that is difficult to envisage a worse strategy far pursued. . . . [I]nternational at- the international community has thus tempts to halt the fighting have been farcical.”). of the international law of first party obligations, see Ethiopian Dispute and the League of Nations, Ethiopian Dispute and the League of Nations, Italian invasion of Ethiopia, see Wright, Q. Ethiopian War I P consequences of treating assistance to victims of lawlessness as treating assistance to victims of consequences of to predict.optional are easy or powerless States are sys- Small to turn to because they have no one tematically disadvantaged rights. more powerful ones violate their when larger and Pow- payments) concessions (in effect, side erful States demand what is le- need assistance in vindicating when smaller States gally owed to them. States to their own de- Leaving victimized and privatizes international law enforcement, vices effectively any other privatization) the it is to be expected that (as with a State receives will be a func- quality of the final product that the State already has. tion of the power and wealth that of collective action. plicable in terms of the basic logic 12 of the at the start both Ethiopia, of invasion Mussolini’s upon World War. Second \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 12 6-DEC-11 13:00 unwillingness to make a strong stand in favor of human rights favor of human strong stand in to make a unwillingness of a small show violation, when of a massive at the outset would be effective. service of principle power in The Rwandan are famous in the former Yugoslavia and the wars genocide its ob- take seriously community to the international failures of ligation to act. 31113-nyi_44-1 Sheet No. 8 Side B 12/07/2011 07:07:40 B 12/07/2011 Sheet No. 8 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 9 Side A 12/07/2011 07:07:40 13 29 As a 28 One can case exists 30 prima facie note 3, at 1293 (1985) (noting that lack of supra ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT . at 65, 68 (noting that when public goods are involved, collec- . at 65, 68 (noting that when public goods See id International law is notoriously problematic for its ab- is notoriously problematic for International law It seems entirely likely that a powerful State’s greatest con- It seems entirely likely that a powerful Third State Influence on International Law Third State Influence on International 28. 29. contributes to other Indeed, even the third State that wrongfully 30. Anthony D’Amato, tilateral arms control agreements” as examples of the provision of public tilateral arms control agreements” as examples collective action problems involved goods being suboptimal because of the of compliance and threats of and because “threats of reciprocal withdrawal retaliation . . . normally lack credibility”). sence of a formal centralized sanctioning scheme. sence of a formal 2011] States individual lawfulness, general from all benefit States own. on their incentive to comply lack sufficient generally the “public the burden of producing prefer that Each would someone else. be borne by general lawfulness good” of \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 13 6-DEC-11 13:00 result, a suboptimal quantity of the good is produced: there is is produced: there of the good suboptimal quantity result, a too little compliance. lawlessness and too much All States, en- system and an creation of a legal benefit from therefore, its norms. to ensure compliance with forcement structure tribution to international law occurs through pressure or per- tribution to international law occurs States’ conduct, rather than suasion directed towards other compliance.through the direct effect of its own a pow- When law, this fact may go erful State complies with international granted and not attributed to unnoticed or may be taken for question how such a faulty mechanism can ensure sufficient a faulty mechanism can ensure question how such and over- resolve collective action problems enforcement to State obliga- to “cheat.” But third come States’ enticements than first any worse off in that regard tions are not necessarily party obligations.reasons for having some Given that the same as for obligations are essentially the form of third State it can be argued, a first party obligations, for treating the two as comparable. 3. tive action problems become harder to overcome even with the traditional tive action problems become harder to tools of retaliation and reciprocity). an interest in lawful behavior, be- States violating their obligations may have the more likely that its status as cause the more States that violate the norm, State simply deems its assistance to international law will erode. The third maintaining norms of international the violator to be a higher priority than law. The authors thank Carlos Vazquez for his helpful discussion of this point. effective enforcement mechanisms is the main criticism levied against inter- national law). 31113-nyi_44-1 Sheet No. 9 Side A 12/07/2011 07:07:40 A 12/07/2011 Sheet No. 9 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 9 Side B 12/07/2011 07:07:40 [Vol. 44:1 When unfriendly States 33 AND POLITICS Given its role in proselytiz- Given its role in 32 31 INTERNATIONAL LAW For example, when the United States complies with its ob- States complies when the United For example, The opposite is true when the United States sets out to true when the United States sets The opposite is 31. effect will be considerably Needless to say, the demonstration 32. to comply can be ex- Unfortunately, failure of the United States 33. Discussions of how the United States aims to influence respect for watered down when there is serious dispute over the facts.watered down when there is serious dispute example, if For to pressure an alleged violator by the third State defends its unwillingness if the average State is unwilling or denying that there was a violation, and on its own, then it will be unable to make an accurate factual determination conclusions about the commit- difficult for that average State to draw correct specifically, the commitment of ment of the international community (more rule in question. the third State) to respect for the substantive influential.tremely visible and for that reason quite de- The Guantanamo (“enhanced interrogation tech- tainee cases and torture of terror suspects niques”), illustrate how the United States has set a bad example for repres- sive regimes around the world. human rights in the rest of the world is the mainstay of news outlets from 14 obey. to its obligation for respect the State’s when it However, pres- States to contrary-minded influence over other uses its is their behavior attempt to change to comply, the sure them the demonstration In such situations, be more visible. likely to be considerable. effect can this fact may international human rights law, ligations under unremarked. go unnoticed and \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 14 6-DEC-11 13:00 such as Iran or North Korea are treated one way, while allies such as Iran or North Korea are ing the promotion of “human rights” and “democracy” around of “human rights” and “democracy” ing the promotion own human States’ compliance with its the world, the United is usually taken as a given.rights obligations Decisions im- government are likely to be made within pacting human rights other mem- there is little or no reason that channels, so that know that community would even bers of the international was under consideration. noncompliance in the cases of to comply, as exemplified influence other States North Korea, China, or Iran. are many If nothing else, there the probability that in at more of these other States, increasing be visible to the rest of the least one such case the pressure will world. U.S. at- Noncompliance, in particular, often precedes attention to the problem. tempts at influence, thus drawing Korea, China, and Iran The human rights records of North media.have been fully aired in the American at- American out publicly in the inter- tempts at pressure have been fought closed doors in the top national arena, rather than behind echelons of the U.S. government. 31113-nyi_44-1 Sheet No. 9 Side B 12/07/2011 07:07:40 B 12/07/2011 Sheet No. 9 Side 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 10 Side A 12/07/2011 07:07:40 - 15 HE NE T , O Barack ORALITY IN A ., Ian Black, g . M See, e OLITICAL : P EGEMONY The function of third State obliga- The function of H 35 The perception of general lawfulness of general The perception “State Bystanders” 34 MERICAN ,A 112–40 (1994) (arguing that “American leadership in ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT ORLD RILMAYER W The Current State of International Law and Theory: The Current State of International B , May 19, 2011, http://www.guardian.co.uk/world/2011/may/19/ EA L B. Powerful States, including the United States, have an im- the United States, States, including Powerful Because contemporary international law places considera- Because contemporary international 35. 34. selective responses of the See, for example, the inconsistent and UARDIAN UPERPOWER while serving an important function, are very different. while serving an S the post-Cold War period should be treated as a public good”). Obama Signals Selective Response to ‘Arab Spring’: President Declares Support for Obama Signals Selective Response to ‘Arab No Mention of Saudi Arabia Human Rights in Middle East Speech but Makes barack-obama-response-arab-spring (highlighting Obama’s inconsistent barack-obama-response-arab-spring (highlighting treatment of Saudi Arabia and Syria). G television stations to various types of electronic media.television stations to various types of Google A simple on the subject. search brings up thousands of news items to the revolutions in the Mid- United States and European Union members dle East and North Africa. fit our “third Although these do not exactly of the phenomena with which State” obligations model, they are illustrative we are dealing here.and European The response by the United States in the Middle East and North Union to the events that are still unfolding that we refer to here and the Africa illustrates the demonstration effects countries involved about their com- doubts raised as to the seriousness of the law. mitment to the enforcement of international 2011] may dissonance the another, are treated Arabia as Saudi such visible. be particularly \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 15 6-DEC-11 13:00 suffers from inconsistent treatment and recovers if consistency treatment and inconsistent suffers from evidence of consis- point is that the the important is restored; publicly. relatively available inconsistency is tency or evenhandedly international law when they portant effect on less powerful States to comply.pressure or cajole Purporting moral obliga- the United States has a to act as global hegemon, good of the consistently and for the tion to use its authority international community. matter, community lawfulness as a general tions is to promote States both the victim and also the remaining for the benefit of of the world. in contemporary law and The closest analogs theory—what to as “State bystander” approaches— we refer ble importance on protecting individuals from state abuse, the ble importance on protecting individuals obligation to assist victims of question of whether there is an received substantial attention. genocide and similar crimes has 31113-nyi_44-1 Sheet No. 10 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 10 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 10 Side B 12/07/2011 07:07:40 , We non- 37 [Vol. 44:1 The rea- 36 86 (considering . The State by- Responsibility to Pro- EV 38 L. R LOBAL The Responsibility to Protect: Water- G AND POLITICS INDAL J , 2 39 note 2. note 2, at 343 nn.8–9 (citing conventions relating to (2001) (discussing the right of humanitarian interven- (2001) (discussing the right of humanitarian ); . INTERNATIONAL LAW Gareth Evans & Mohamed Sahnoun, TR supra supra notes 39–43 text. and accompanying . C ES . R refoulement their home countries where they may face harm ( their home countries where they EV See infra See generally D A point on terminology may be helpful here. may be helpful on terminology A point The ques- A more descriptive term for present purposes was recently term for present purposes was A more descriptive Using this “State bystander” terminology, Hakimi usefully Using this “State bystander” terminology, • return people to obligations of States not to forcibly L ’ 38. 37. Hakimi, 39. Hakimi, 36. NT “third State model”—as for what we call “non- the explanation adoption of the responsibility to protect at the 2005 World Summit). adoption of the responsibility to protect torture, status of refugees, cases decided in national courts according to these conventions and Human Rights Committee reports and communica- tions). tion); Stephen P. Mark & Nicholas Cooper, tion); Stephen P. Mark & Nicholas Cooper, shed or Old Wine in A New Bottle? I 16 philoso- scholars, to legal one a familiar therefore issue is The decision makers. and foreign policy scientists, phers, political has, of human rights in protection to assist tion of obligations most frequently in literature been addressed until recently, intervention.” rubric of “humanitarian under the \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 16 6-DEC-11 13:00 son that we do not adopt this terminology, despite its consider- adopt this terminology, despite son that we do not interven- is that discussions of humanitarian able usefulness, to assist deal with the legal obligation tion do not necessarily of the victims’ legal rights.in the vindication Instead, they violator State, the impingement on the tend to revolve around in- may be threatened by the “humanitarian whose sovereignty consideration. tervention” under Hakimi: “State bystander” obligations. coined by Monica stander model competes with our own proposed approach—stander model competes with our party obligations.” term “Non-party obligations” is the general states that are technically not referring to the obligations of all parties to the dispute. failure to act in the summarizes the existing rules governing face of human rights violations. where Identifying those areas imposes State bystander substantive international law already from abuse, she lists: obligations to protect individuals adopt her terminology by referring to existing conventional by referring to existing adopt her terminology “State bystander model.” approaches as the tect: Report of the International Commission on Intervention and State Sovereignty tect: Report of the International Commission 31113-nyi_44-1 Sheet No. 10 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 10 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 11 Side A 12/07/2011 07:07:40 17 norms and jus cogens 40 BLIGATIONS 41 O erga omnes 43 and and ONPARTY 42 Specified in substantive law (e.g. Genocide Convention) substantive law (e.g. Genocide Specified in jus cogens with tribunal procedure Cooperation to Protect Responsibility N     z z z z THIRD STATE OBLIGATION MODELS THIRD STATE OBLIGATION STATE BYSTANDER MODELS STATE BYSTANDER . Third are norms requiring third States to . Third are norms requiring third YPES OF T ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT . at 343 nn.10–11 International Court of Justice determina- (citing . at 342 nn.5–7 human rights and “criminal law” treaties as (citing . at 342 nn.3–4 (citing academic secondary sources). . at 343 n.12 (noting that the “Responsibility to Protect” has State, erga omnes by or in another State and against conduct that violates State and against conduct that by or in another of peoples; self-determination actors; committed by private by private parties; sponsibility to Protect.” Id Id Id Id • people against acts of genocide obligations to protect • abuses States to protect persons from obligations of •nationals from injury responsibility to protect foreign issues into four catego- We divide these “State bystander” •the concept of the “Re- obligations emanating from 40. 43. 41. 42. NONPARTY OBLIGATIONS tions). human rights treaty bodies relating well as reports and communications of women, elimination of racial dis- to elimination of discrimination against of migrant workers and their family crimination, rights of the child, rights suppression of unlawful acts members, rights of persons with disabilities, against aviation safety, and suppression of terrorist bombings). UN, NGO and scholarly support). norms ries, which will be discussed in the following sections.ries, which will be discussed in the First are substantive laws, such obligations that emanate from specific as the Genocide Convention. Second are 2011] \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 17 6-DEC-11 13:00 cooperate with international tribunals; and the fourth includes cooperate with international tribunals; “Responsibility to Protect.” the newly recognized category of but it is considerably less well There is a fifth category as well, established that the first four. do We examine, but ultimately some states of affairs are null not include, the argument that origin. and void because of their unlawful 31113-nyi_44-1 Sheet No. 11 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 11 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 11 Side B 12/07/2011 07:07:40 [Vol. 44:1 46 57 (2008) (arguing L. L ’ NT Victims Become Victims: Prevent- . J. I 44 ES AND POLITICS Before W. R ASE C Dec. 9 1948, 78 U.N.T.S. 277 (entered into Acting , 40 45 INTERNATIONAL LAW opened for signature . at 342–44 state obligations in specific provi- (enumerating W. Michael Reisman, See id The first example of something akin to third State obliga- akin to third example of something The first The Convention on the Prevention and Punishment of on the Prevention and Punishment The Convention Party may call upon the competent Any Contracting Nations to take such action organs of the United con- of the United Nations as they under the Charter for the prevention and suppression sider appropriate or any of the other acts enumer- of acts of genocide ated in article III. Obligations Emanating from Human Rights Instruments Rights from Human Emanating Obligations Genocide and the other acts enumerated in Article 3 shall not be Genocide and the other acts enumerated of extradition. The considered as political crimes for the purpose such cases to grant extra- Contracting Parties pledge themselves in treaties in force. dition in accordance with their laws and 44. 46. Article 7 reads 45. of the Crime of Ge- Convention on the Prevention and Punishment that most of the articles of the Genocide Convention concern punishment rather than prevention of murder). force Jan. 12, 1951). Id. see also ing and Arresting Mass Murder sions). a range of We use the term “Human Rights Instruments” to refer to the traditional human rights con- international legal instruments including humanitarian law and international ventions and covenants, international criminal law instruments. nocide art. 8, tions is the duty to help enforce that is inserted into particular enforce that is inserted duty to help tions is the rules.substantive typically rights instruments, Certain human rights of human important norms of the most a small number specific provisions within them law, contain and humanitarian by State bystanders. for involvement impose obligations to Article 8, as written, does not explicitly even on the States take positive action to enforce compliance, States parties to the parties; its provisions merely authorize organs of the United Convention to “call upon the competent Nations.” within States parties are required only to include persons suspected of com- the scope of their extradition law and to remove the crime of mitting the crime of genocide, acts from the category of po- genocide and other enumerated extradition.” litical crimes “for the purpose of 18 1. of 1948 may be the best example.the Crime of Genocide Arti- cle 8 provides: \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 18 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 11 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 11 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 12 Side A 12/07/2011 07:07:40 R 50 19 Ap- and 49 The Court predi- 48 47 http://www.icj-cij.org/docket/files/91/ available at note 46, at 63. note 72 and accompanying text. . ¶ 442. The Court goes on: on each State party to act meaningfully to pre- on each State party ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT supra Id See infra . ¶ 449. Id erga omnes Another provision widely regarded as requiring third Another provision widely regarded The International Court of Justice has somewhat ex- Court of Justice has somewhat The International The right to call upon competent organs of the UN, obvi- the UN, of organs competent call upon right to The Article VI only obliges the Contracting Parties to institute and exer- Article VI only obliges the Contracting Parties it certainly does not pro- cise territorial criminal jurisdiction; while conferring jurisdiction hibit States, with respect to genocide, from other than where the on their criminal courts based on criteria with international law, crime was committed which are compatible it does not oblige them in particular the nationality of the accused, to do so. , the Court held Serbia liable for “fail[ing] to comply both Serbia liable for “fail[ing] to comply , the Court held 47. Reisman, 48. Prevention and Punishment of Application of the Convention on the 50.which took place outside the Regarding the Srebrenica massacres, 49. the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, ¶ the Crime of Genocide (Bosn. & Herz. v. 450 (Feb. 26, 2007), States to assist in enforcing compliance with norms of interna- States to assist in enforcing compliance Geneva Convention.tional law is article 1 of the Fourth It pro- tended the obligation of States under the Convention, enlarg- of States under the Convention, tended the obligation responsibility for failure to assist.ing the resulting In the of the on the Prevention and Punishment plication of the Convention and Montene- (Bosnia and Herzegovina v. Serbia Crime of Genocide gro) to punish ge- to prevent and its obligation with its obligation from the Convention.” nocide deriving 2011] Genocide Convention. prior to the ously, existed It is, there- adds. this provision entirely clear what fore, not Michael Reis- treat- and contingent 8 was a timid that “Article man laments and observes, preventing genocide” the issue of ment of that it is astonishing of the offense, the gravity “[c]onsidering imposed an obliga- Convention in the Genocide no provision tion \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 19 6-DEC-11 13:00 explained the obligation to punish the crime of genocide in explained the obligation to punish the Genocide Convention. terms of article 1 and article 4 of The Court also found that the Respondent was in breach of its obligation to cooperate with the International Criminal Tribunal for the Former Yugosla- via (ICTY). territory of Serbia, the Court held that “an obligation to try the perpetrators territory of Serbia, the Court held that “an domestic courts cannot be deduced of the Srebrenica massacre in Serbia’s from Article VI.” 13685.pdf. cated its holding on the fact that Serbia was a party to the Day- cated its holding on the fact that of the United Nations ton Agreement and a member vent or suppress acts of genocide.” vent or suppress 31113-nyi_44-1 Sheet No. 12 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 12 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 12 Side B 12/07/2011 07:07:40 : ODAY T [Vol. 44:1 ESPONSIBILITY R AND POLITICS 33 (Maurizio Ragazzi ed., 2005). , declaring the illegality of an , declaring the illegality NTERNATIONAL I in , CHACHTER S SCAR Do States Have a Duty to Ensure Compliance with Obliga- Do States Have a Duty to Ensure Compliance O INTERNATIONAL LAW by Other States? 53 52 Wall Advisory Opinion EMORY OF 51 M The ICJ has endorsed this interpretation of the Conven- this interpretation of the The ICJ has endorsed Convention rela- All the States parties to the Geneva Persons in Time of tive to the Protection of Civilian an obligation, while War of 12 August 1949 are under and interna- respecting the United Nations Charter by Israel with inter- tional law, to ensure compliance in that Con- national humanitarian law as embodied vention. It is unclear from the text whether article 1 was actually whether article from the text It is unclear was meaning of this provision Although the original to of imposing on a State a duty arguably not that pre- by other States, the currently ensure compliance is shared by the International vailing view, which Red Cross, is that Article 1 imposes Committee of the also the duty to ensure that other on States parties Con- their obligations under the States comply with vention. Erga Omnes 53. of a Wall in the Occupied Legal Consequences of the Construction 51. Protection of Civilian Per- Geneva Convention (IV) Relative to the 52. Giorgio Gaja, SSAYS IN E Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶ 159 (July 9). The Palestinian Territory, Advisory Opinion, General Assembly to give its advi- ICJ was requested by the United Nations sory opinion on the legal consequences of the construction of a wall by Israel in the Occupied Palestinian Territories by a communication from the Secre- tary-General of the United Nations pursuant to the United Nations General Assembly Resolution ES-10/14 adopted on 8 December 2003. sons in Time of War art. 1, Aug. 12, 1949, 75 U.N.T.S. 287. sons in Time of War art. 1, Aug. 12, 1949, The Geneva and Genocide Conventions are almost unique in The Geneva and Genocide Conventions for non-party affirmative du- the special provisions they make ties. without To generate a comparable obligation for norms turn to general doctrines of such special provision, one must tion in the encroached on Palestinian Israeli-built separation barrier that territory, holding that, 20 and to respect undertake Parties Contracting “The High vides in all circum- present Convention respect for the to ensure stances.” the duty to ensure impose on States by its drafters to intended by other States.compliance is however, That interpretation, today.widely accepted writes: Giorgio Gaja \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 20 6-DEC-11 13:00 tions 31113-nyi_44-1 Sheet No. 12 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 12 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 13 Side A 12/07/2011 07:07:40 21 note 21, art. 40–41. supra For norms that fall into For norms that 54 norm is one that is under- norm is one that norms. (peremptory norms) or obligations norms) (peremptory 56 jus cogens, jus cogens and, second, norms from which no deroga- and, second, norms jus cogens jus cogens Article 41 provides that 55 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT ated by a serious breach within the meaning of ar- ated by a serious breach within the in maintain- ticle 40, nor render aid or assistance ing that situation. lawful means any serious breach within the mean- lawful means any serious breach ing of article 40. . art. 41. erga omnes Id Pursuant to paragraph 1 of article 41, States are Pursuant to paragraph 1 of article in order to bring under a positive duty to cooperate sense of article 40. to an end serious breaches in the which could Because of the diversity of circumstances 2. a situation cre- No State shall recognize as lawful 1. an end through States shall cooperate to bring to Somewhat similar in effect to this first group, obligations to this first group, similar in effect Somewhat A peremptory, or A peremptory, or Peremptory Norms and Obligations Erga Omnes Norms and Obligations Peremptory 54.Co. (Belg. v. Spain), Judgment, Barcelona Traction, Light and Power 55. Articles on Responsibility of States (2001), 56. norms 1970 I.C.J. 3, ¶ 33 (Feb. 5) (internal citations omitted). 1970 I.C.J. 3, ¶ 33 (Feb. 5) (internal citations Chapter III of Part II is entitled Serious Breaches of Obligations Under Per- emptory Norms of General International Law. The Commentary to Article 41 elaborates somewhat: The Commentary to Article 41 elaborates 2011] law: international \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 21 6-DEC-11 13:00 either or both of these categories, bystander obligations are these categories, bystander obligations either or both of need for the or less automatically, without the generated more in the Geno- expressed provisions contained sort of separately Conventions. cide and Geneva emanating from human rights instruments, are two other spe- are two other rights instruments, from human emanating rules.cial categories of are, first, those which The categories all States”—nature . . . are the concern of “[b]y their very tion are allowed— erga omnes. 2. stood by the international community as not permitting dero- community as not permitting stood by the international gation. into this The norms most commonly cited as falling genocide, piracy, slaving and category are: the prohibitions of or for territorial expan- slavery, torture, and wars of aggression sion. in Chap- Enforcement of peremptory norms is addressed Articles on State ter III of the International Law Commission’s Responsibility. 31113-nyi_44-1 Sheet No. 13 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 13 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 13 Side B 12/07/2011 07:07:40 , : In are erga 59 AGAZZI R [Vol. 44:1 57 as follows norms is the norms is AURIZIO erga omnes 1–5 (2000). norms (as per M in which the ICJ . As examples of obligations.” 58 erga omnes ) or whether they are 61 jus cogens jus cogens case, see Erga Omnes erga omnes erga omnes AND POLITICS erga omnes case the International Court case the International . concept of norms The BLIGATIONS O note 20, at 286. advisory opinion, Barcelona Traction erga omnes supra , the ICJ listed obligations deriving from , the ICJ listed obligations deriving , 1970 I.C.J. 3, ¶ 33. , 1970 I.C.J. 3, ¶ 33 (internal citations omitted). The , 1970 I.C.J. 3, ¶ 33 (internal citations omitted). in the Namibia ’s assertion that “all States can be held to ’s assertion that “all States can Barcelona Traction Barcelona Traction INTERNATIONAL LAW NTERNATIONAL 60 note 52, at 32. I erga omnes supra erga omnes dates to the Barcelona Traction Barcelona Traction ONCEPT OF The precise characteristics of obligations The precise characteristics of obligations possibly be involved, the provision does not prescribe does the provision be involved, possibly take. cooperation should what form this in detail of with this category Overlapping By their very nature the former [obligations of a State the former [obligations of a By their very nature are community as a whole] towards the international States.the concern of all the importance In view of a all States can be held to have of the rights involved, they are obligations legal interest in their protection; erga omnes. C 61. 57. ILC Report (2001), 58. Presence of South Africa in Legal Consequences of the Continued 59. Gaja, 60. HE T omnes Namibia (South West Africa) Notwithstanding Security Council Resolution Namibia (South West Africa) Notwithstanding 276 (1970), Advisory Opinion, 1971 I.C.J. 16 (June 21). 22 as one that “involves in article 40 breach is defined A “serious” fulfill State to by the responsible systematic failure a gross or the obligation.” \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 22 6-DEC-11 13:00 disputed. States For example, it is not entirely clear whether are merely empowered to enforce Barcelona Traction have a legal interest in their protection” category of obligations category of obligations States have first indication that in certain cases provided “[t]he infringements of a duty to react to required to. specific There is likewise no consensus as to what norms carry with them obligations obligations “outlawing of acts of aggression, and of genocide, as also from “outlawing of acts of aggression, the basic rights of the the principles and rules concerning the well-known case was brought by Belgium on behalf of Belgian nationals, shareholders in case was brought by Belgium on behalf reparations for damage alleg- a company incorporated in Canada, seeking by organs of the Spanish state in edly sustained as a result of acts committed contravention of international law. For a critical analysis of the ICJ’s inter- pretation of of Justice defined the concept of norms of Justice defined 31113-nyi_44-1 Sheet No. 13 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 13 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 14 Side A 12/07/2011 07:07:40 23 Western and erga omnes or Namibia , 1971 I.C.J. 19, ¶ 117. jus cogens jus cogens 63 . According to the Court: , the Court indicated that , the Court indicated , the Court merely noted , the Court Id . Namibia erga omnes character . . . .”, citing the character of a norm and the rule of consent to character of a norm and the rule of consent 62 Case Concerning East Timor (Port. v. Austl.), Judgment, Case Concerning East Timor (Port. v. Austl.), Wall Advisory Opinion ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT . . . Portugal could require it, individually, to respect them . . . Portugal could require it, individually, erga omnes . at 178 (dissenting opinion of Judge Weeramantry). erga omnes See also Id . ¶ 34 (citing Reservations to the Convention on the Prevention . ¶ 34 (citing Reservations to the Convention advisory opinions). However, the Court declined to rule on Portu- Continued Presence of South Africa in Namibia Id erga omnes It is also for all States, while respecting the United It is also for all States, while respecting law, to see to it Nations Charter and international The Court has not, in either these cases or others, identi- these cases has not, in either The Court A binding determination made by a competent or- made by a competent A binding determination a United Nations to the effect that ganization of the cannot remain without conse- situation is illegal Court is faced with such a situa- quence. Once the failing in the discharge of its judicial tion, it would be not declare that there is an obliga- functions if it did Members of the United Nations, tion, especially upon to an end. to bring that situation jurisdiction are two different things. the Whatever the nature of rule on the lawfulness of obligations invoked, the Court could not would imply an evalua- the conduct of a State when its judgment another State which is not a tion of the lawfulness of the conduct of party to the case. Where this is so, the Court cannot act, even if the right in question is a right [T]he 63. 62. . See, however, the dissenting opinion of Judge Weeramantry, arguing the Id opposite. and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 23 and Punishment of the Crime of Genocide, (May 28)). 1995 I.C.J. 90, ¶ 29 (June 30)in a dictum “the right of peoples to (stating Charter and from United Nations self-determination, as it evolved from the practice, has an “all States” had an obligation to see that “any impediment, re- “all States” had an obligation to the wall . . . is brought to an sulting from the construction of end”: Similarly in the 2011] racial slavery and from protection including person, human discrimination.” States are permitted measures third kinds of remedial fied the event that to take in the or required are violated.obligations In \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 23 6-DEC-11 13:00 without illegal, a situation “cannot remain that, once declared consequence”: Sahara Australia allegedly breached were gal’s argument that since “the rights which rights had conducted itself in a similarly regardless of whether or not another State unlawful manner” on procedural grounds. 31113-nyi_44-1 Sheet No. 14 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 14 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 14 Side B 12/07/2011 07:07:40 [Vol. 44:1 163, 164–65 L. L ’ NT I 65 OF . Y.B. AND POLITICS How much of a limitation RIT B 68 From Contract to Pledge: The Structure of Inter- , 77 The reference, presumably, is to articles 2(4) The reference, presumably, is to INTERNATIONAL LAW Lea Brilmayer, 66 64 Other limitations regarding the suitability of certain Other limitations regarding the . . 67 Id Id See generally These principles were recognized as not being absolute; were recognized as not being These principles that any impediment, resulting from the construction from resulting any impediment, that people by the Palestinian to the exercise of the wall, to an is brought to self-determination of its rights end. an the view that all States are under [T]he Court is of re- recognize the illegal situation obligation not to construction of the wall in the Occu- sulting from the Territory, including in and around pied Palestinian East Jerusalem. an obligation They are also under sit- or assistance in maintaining the not to render aid such construction. uation created by Article 2(7) states that: shall authorize the Nothing contained in the present Charter which are essentially within United Nations to intervene in matters shall require the Members the domestic jurisdiction of any State or the present Charter; to submit such matters to settlement under the application of enforce- but this principle shall not prejudice ment measures under Chapter VII. 64. of a Wall in the Occupied Legal Consequences of the Construction 65. 66. 67. shall refrain in their interna- Article 2(4) states that “[a]ll Members 68. Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, ¶ 159 (July 9). Palestinian Territory, Advisory Opinion, force against the territorial integrity tional relations from the threat or use of or in any other manner inconsistent or political independence of any State, with the Purposes of the United Nations.” para. 4. U.N. Charter art. 2, U.N. Charter art. 2, para. 7. and 2(7) of the United Nations Charter, which prohibit threat and 2(7) of the United Nations Charter, in the domestic jurisdiction of or use of force and intervention States. the Court qualified its holding by subordinating them to un- its holding by subordinating the Court qualified Nations Charter and “inter- specified provisions in the United national law.” 24 were that States the Court stipulated paragraph, In the same . . . illegal situation to recognize the obligation not “under an the situa- aid or assistance in maintaining [and] not to render construction”: tion created by such \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 24 6-DEC-11 13:00 national Human Rights Agreements remedies may also apply, such as the principle that one State’s remedies may also apply, such as does not entitle other breach of a human rights agreement States to breach in retaliation. 31113-nyi_44-1 Sheet No. 14 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 14 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 15 Side A 12/07/2011 07:07:40 25 jus or note 2, supra note 7, at 68. note 21, art. supra supra erga omnes erga omnes Guzman, See also 797, 800 n.9 (2003); Charney, . L. Trade Sanctions and Human Rights – Past, Present, CON They also empower the tribunals’ Prosecu- They also empower E L ’ 69 70 NT ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT I OF J. Carlos Vazquez, S.C. Res. 955, ¶ 2, U.N. Doc. S/RES/955 (Nov. 8, 1994) (establish- S.C. Res. 955, ¶ 2, U.N. Doc. S/RES/955 , 6 Articles on Responsibility of States (2001), Articles on Responsibility of States (2001), See may be the closest existing analogy to third State obliga- analogy to third closest existing may be the See See The constitutive instruments of several international The constitutive Obligations to Cooperate with International Tribunals International to Cooperate with Obligations [D]ecides that all States shall cooperate fully with the International [D]ecides that all States shall cooperate take any measures neces- Tribunal and its organs . . . all States shall the provisions of the sary under their domestic law to implement the obligation of present resolution and the Statute, including or orders issued by a States to comply with requests for assistance Trial Chamber. 69. 70.Tribunal for Rwanda art. 17(2) Statute of the International Criminal at 101. ing the ICTR adopted by the Security Council Resolution at its 3453rd meet- ing the ICTR adopted by the Security Council (May 25,1993) (establishing ing); S.C. Res. 827, ¶ 4, U.N. Doc. S/RES/827 at its 3217th Meeting). The two the ICTY adopted by the Security Council that the Security Council: resolutions have identical wording, stating 28 (Cooperation and Judicial (Investigation and Preparation of Indictment), Res. 955 annex, U.N. Doc. S/RES/ Assistance) (originally adopted at S.C. 955 (Nov. 8, 1994)); Statute of the International Tribunal for the Former Yugoslavia art. 18(2) (Investigation and Preparation of Indictment), 29 (Co- operation and Judicial Assistance) (originally adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993), text at U.N. Doc. S/25704 at 36, annex tribunals impose procedural obligations on States to cooperate procedural obligations on States tribunals impose and their decisions.with such institutions While some of these parties to such obligations only on States instruments impose apply more generally.the dispute, others The Statutes of the Yugoslavia Tribunal for the Former International Criminal of the United example, require all members and Rwanda, for surrender of the tribunals in the arrest and Nations to assist falling under of committing the crimes individuals suspected their jurisdiction. cogens tions. 3. of treaty relationships . . . is not well (2006) (noting, “[the] exchange model suited to human rights agreements.”). 2011] is unclear. practice, in would impose, qualifications these In of meet the test obligations that any event, \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 25 6-DEC-11 13:00 tors to seek assistance from State authorities in conducting from State authorities in tors to seek assistance their functions. Human rights treaties are also unusual in that according to the ILC Articles Human rights treaties are also unusual are available only to the “injured on State Responsibility counter-measures state.” 49–51. step with contemporary state This result has been criticized as out of practice. and Future 31113-nyi_44-1 Sheet No. 15 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 15 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 15 Side B 12/07/2011 07:07:40 [Vol. 44:1 . Hence, the Court rea- Id AND POLITICS http://www.icj-cij.org/docket/files/91/ ” to though Serbia was not found Even 71 available at INTERNATIONAL LAW case, in which the ICJ found Serbia to be in case, in which Genocide 72 These two particular tribunals, however, were established were however, tribunals, two particular These In finding Serbia’s failure to prevent, the Court considered as relevant In finding Serbia’s failure to prevent, the things, on the geographi- This capacity itself depends, among other the scene of the events, cal distance of the State concerned from as well as links of all other and on the strength of the political links, and the main actors in kinds, between the authorities of that State the events. 71. Prevention and Punishment of Application of the Convention on the 72. [to prevent] is one of con- According to the Court, “the obligation . The legal aspect, on the other hand, depends on what a State may do soned “a State’s capacity to influence may vary depending on its particular (May 25, 1993)). tribunals The relevant articles of the Statutes of the two have identical provisions. Serb. & Montenegro), Judgment, ¶ the Crime of Genocide (Bosn. & Herz. v. 446 (Feb. 26, 2007), 26 Council acting of the UN Security context in the distinctive Charter. VII of the under Chapter not possible It is therefore other authority of examples to the from these to generalize are by States that order cooperation courts to international to a dispute.not party VII tribunals authority of Chapter The the Court’s attention the subject of cooperation was to compel in the \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 26 6-DEC-11 13:00 have committed the crime of genocide itself, its failure to meet the crime of genocide itself, its failure have committed to cooperate prevent and to punish as well as its obligations to respon- sufficient to engage its international with the ICTY was sibility. 13685.pdf. duct and not one of result.” Id. ¶ 430. The Court further explained, “a whatever the circumstances, State cannot be under an obligation to succeed, in preventing the commission of genocide: parties is the obligation of States available to them, so as to prevent rather to employ all means reasonably genocide so far as possible.” Id. to influence—towhether Serbia had in its power the capacity take reasona- ble measures.influence, two In assessing whether a State had the capacity to legal.sets of criteria are involved: material and Court, the According to the State to another”, and “is clearly the material aspect “varies greatly from one of persons likely to commit, or capacity to influence effectively the action already committing, genocide.” Id. The Court further elaborated: Id “within the permitted limits of international law.” breach of its obligations to cooperate with the ICTY. to cooperate with the breach of its obligations The “[I]s the the issue in the following terms: Court formulated of the ICTY, to accept the jurisdiction Respondent obliged the Security with the Tribunal by virtue of and to co-operate other rule which established it, or of some Council resolution law? of international 31113-nyi_44-1 Sheet No. 15 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 15 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 16 Side A 12/07/2011 07:07:40 E- 73 27 AW G L Para- 76 ONOUR OF H NTERNATIONAL I in , 77 ESTSCHRIFT IN : F The Concept of ‘Responsibility to Protect’ as note 36. supra RAGMENTATION F . Id ` a-vis the situations and persons facing the danger, or the a-vis the situations and persons facing ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT also Arpad Prandler, (Isabell Buffard et al., eds. 2008). NIVERSALISM AND See Evans & Sahnoun, The R2P principle was later endorsed and adopted by was later endorsed and adopted The R2P principle RARD . ¶ 138. reads: . ¶ 139. The full text of Paragraph 139 .; U 74 AFNER Id Id See Id 75 Another obligation somewhat similar to the one that we similar to obligation somewhat Another non-par- approaches to the obligation of As with previous The Responsibility to Protect Responsibility The H The international community, through the United Nations, also The international community, through diplomatic, humanitarian, has the responsibility to use appropriate and other peaceful means, in accordance with Chapter VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this con- text, we are prepared to take collective action, in a timely and deci- 75.Res. 60/1, ¶¶ 138–40, 2005 World Summit Outcome, G.A. U.N. Doc. 76. 77. 73. 74. ETWEEN A/RES/60/1 (Sept. 16, 2005). an Emerging Norm Versus ‘Humanitarian Intervention’ an Emerging Norm Versus ‘Humanitarian legal position vis- reality, of genocide.” B propose is the so-called “Responsibility to Protect” (often re- to Protect” (often “Responsibility is the so-called propose as “R2P”).ferred to enunciated by authoritatively R2P was first Sov- and State on Intervention Commission the International government. by the Canadian (ICISS) sponsored ereignty to be abused on the rights of individuals not ties, the focus is law generally. than on public international by States, rather the con- the Outcome Document specifies Paragraph 138 of the responsi- “Each individual State has tent of the obligation: genocide, war crimes, eth- bility to protect its populations from humanity. This responsibility nic cleansing, and crimes against including their incite- entails the prevention of such crimes, necessary means.” ment, through appropriate and 2011] 4. on all attempt at codifying obligations ICISS was an ambitious to assist in community as a whole States and the international atrocities of international norms when mass the enforcement occur. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 27 6-DEC-11 13:00 the UN General Assembly in its World Summit Outcome docu- Assembly in its World Summit Outcome the UN General ment. graph 139 of the World Summit Outcome recites the obliga- graph 139 of the World Summit to “to use appropriate tions of the international community other peaceful means . . . to diplomatic, humanitarian, and genocide, war crimes, ethnic help protect populations from cleansing and crimes against humanity.” 31113-nyi_44-1 Sheet No. 16 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 16 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 16 Side B 12/07/2011 07:07:40 [Vol. 44:1 79 AND POLITICS INTERNATIONAL LAW 78 . . Id Id Paragraph 139 then pledges States to take collective ac- collective to take States pledges then 139 Paragraph collective ac- to take we are prepared In this context, the and decisive manner, through tion, in a timely in- in accordance with the Charter, Security Council, in VII, on a case-by-case basis and cluding Chapter as relevant regional organizations cooperation with peaceful means be inadequate appropriate, should pro- are manifestly failing to and national authorities from genocide, war crimes, tect their populations and crimes against humanity. ethnic cleansing sive manner, through the Security Council, in accordance with the sive manner, through the Security Council, basis and in coop- Charter, including Chapter VII, on a case-by-case as appropriate, should eration with relevant regional organizations authorities are mani- peaceful means be inadequate and national from genocide, war festly failing to protect their populations humanity. We stress the crimes, ethnic cleansing and crimes against consideration of the need for the General Assembly to continue genocide, war crimes, responsibility to protect populations from and its implications, ethnic cleansing and crimes against humanity Charter and international bearing in mind the principles of the as necessary and appropri- law. We also intend to commit ourselves, protect their populations ate, to helping States build capacity to and crimes against hu- from genocide, war crimes, ethnic cleansing under stress before crises manity and to assisting those which are and conflicts break out. 79. 78. . Id Despite its lofty purpose and clear language, this principle suf- and clear language, this Despite its lofty purpose formulations challenges as faced by earlier fers from the same referred to as the theory of a similar duty, the one commonly of “humanitarian intervention.” have Many commentators 28 Council. the Security tion through as a general back- It also, General Assem- all States to support matter, commits ground to protect against capacity-building and State bly consideration these crimes. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 28 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 16 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 16 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 17 Side A 12/07/2011 07:07:40 , 29 , http:// EMOCRACY and for and D However, 80 83 OUTUBE OPEN Y , http://www.au.int/en/con- 81 , July 23, 2009, With Great Power Comes Great Re- available at 469 (2010) (arguing that Responsibility L. L ’ note 36, at 86–130 that “[R2P] is not (arguing NT J. I supra ALE Y The Responsibility to Protect 35 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT The Responsibility to Protect: Holding the Line ., Mehrdad Payandeh, Note, g . 82 See, e The authority has been exercised in a number of situa- been exercised in a number The authority has Finally, the Constitutive Act of the African Union (AU), Act of the African the Constitutive Finally, Union to intervene in a Member the right of the re- a decision of the Assembly in State pursuant to ge- namely: war crimes, spect of grave circumstances, seri- against humanity as well as a nocide and crimes and order to restore peace ous threat to legitimate the State of the Union upon stability to the Member of the Peace and Security Coun- recommendation cil. 83. The AU has carried out intervention and peace keeping operations 82. Protocol on Amendments to the Constitutive Act of the African 81. Mark & Cooper, 80. Oct. 8, 2008, http://www.gevans.org/opeds/oped96.html (discussing R2P’s Oct. 8, 2008, http://www.gevans.org/opeds/oped96.html reaffirmation and clarification); UN emergence, acceptance, and need for Press Conference, tent/protocol-amendments-constitutive-act-african-union. in Burundi, Somalia, Sudan, Comoros Islands and most recently in Ivory www.youtube.com/watch?v=RS9bSUdW6b4&feature=PlayList&p=FF755F22 (discussing the Gen- 08DE4CD6&playnext=1&playnext_from=PL&index=14 panel that included Noam Chomsky, eral Assembly’s dialogue on R2P with a Jean Bricmont, and Ngugi wa Thiong’o).publica- For a list of Gareth Evans’ http://www.gevans.org/index.html tions, presentations and speeches, see (last visited Feb. 1, 2011). Union, art. 4, Feb. 3–July 11, 2003, to Protect is a fluid and nebulous concept that cannot be characterized as a to Protect is a fluid and nebulous concept specific legal norm). a radical departure on the role of international community regarding mass a radical departure on the role of international concepts of ‘just war’ and hu- atrocities, but a codification of pre-existing their consistent application”). manitarian intervention, and a call to ensure co-chair of ICISS and one of R2P’s For further discussion by Gareth Evans, is a new concept with much broader foremost proponents, arguing that R2P intervention, see generally application than the traditional humanitarian Gareth Evans, The Constitutive Act of the African Union is the first such in- Act of the African Union is the The Constitutive authority. make allowance for such strument to expressly mixed results. tions on the continent, albeit with 2011] into practice, it of putting the difficulties shown incor- Unity (OAU), of African to the Organization successor to of responsibility to the principle something akin porates The Act recognizes protect. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 29 6-DEC-11 13:00 some it is “old wine in new bottles.” is “old wine in new some it sponsibility? The Concept of the Responsibility to Protect Within the Process of Interna- sponsibility? The Concept of the Responsibility tional Lawmaking, 31113-nyi_44-1 Sheet No. 17 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 17 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 17 Side B 12/07/2011 07:07:40 . NN OLU- EACE A S FRICAN P Report ENNIFER J ARTIES IN A [Vol. 44:1 EW EMOCRACY ODE P HE N D S . C ’ A ee also , T OUNCIL HIRD V C T FRICA A PERATIONS in VENSSON OLE OF , ECURITY NSTITUTIONALIZING O S , thus unenforceable, be- R S , I AND HE MMA ., The Proceeds of Crime Act, g E . : T ORMS e ab initio , AND POLITICS N EACE AND See : MAES P cases, discussed above, might be cases, discussed above, , ONFLICT http://www.iss.co.za/default.php. In the C 200–01 instances where AU (2009) (listing ˜ ao Gomes Porto eds. 2010). S Wall ROMOTING OMOROS TUDIES S : P THNIC C ARS E W available at IVIL and the ECURITY C INTERNATIONAL LAW S S ’ OF RCHITECTURE . Regional Security in a Global Perspective ONFRONTING A FRICA NST , C Namibia I PERATIONS IN THE A 19–23 (Ulf Engel & Jo Hence, it remains to be seen whether AU members seen whether it remains to be Hence, TIONS AND O AIO If recognized, this fifth category would include all viola- fifth category would include all If recognized, this See 84 S ’ ECURITY The 13, M 85 “Null and Void” States of Affairs “Null and Void” States The authors wish to thank Professor Michael Reisman for bringing the E S 85. law. Relevant parallels can be found in domestic in- Such examples 84. see For an account of the AU’s interventions Frederik Soderbaum & ANAGING NION No. 19, at 11–15 (2011), conducted a military intervention, Comoros Islands, the AU Members have Comorian island of Anjouan.known as Operation Democracy, on the For a see detailed description of the operations, and African sub-regional organizations have intervened in AU Member and African sub-regional organizations States—all some sort of civil war but not interstate con- of them involving flict). activity in criminal law and in cases clude denying the proceeds of illegal where a contract is deemed null and void cause of its illegal object and purpose. 2002, c. 29 §§ 142–43 a person liable for benefits obtained (Scot.) (making in the Act); as a result of “criminal lifestyle” as defined read as recognizing a fifth category, one that in principle ap- a fifth category, one that in read as recognizing rather than range of substantive legal norms plies to a broad some circum- and humanitarian law. In only to human rights are so com- be argued, the actions of a State stances, it might no legal ef- to international law as to have pletely contrary fect. §§ 59.1-335.9(B) (2006) (“Any contract . . . that does not comply with the applicable provisions of [the relevant] chapter shall be void and unenforce- able as contrary to the public policy of the Commonwealth.”). possibility of “null and void” states of affairs to their attention. U (2008). Bjorn Hettne, L. D M Coast. 30 has intervened Union the African which in the situations all of in- actors; none various domestic conflicts between involved an- one State against law by of international volved violations other. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 30 6-DEC-11 13:00 would be willing to use this provision to enforce international provision to willing to use this would be neighbors. their recalcitrant law against 5. tions of international law that result in a “null and void” state law that result in a “null and tions of international of affairs. 31113-nyi_44-1 Sheet No. 17 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 17 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 18 Side A 12/07/2011 07:07:40 R 31 ex in- 105, 107–10 . L. L ’ NT J. I HINESE C , 2 note 86, at 123 n.77. supra 88 : illegal acts cannot establish rights. cannot establish : illegal acts For pre- The United States Secretary of State at the The United States ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT Turns, 86 The League of Nations’ Special Assembly adopted a The League of Nations’ Special . at 105. quoted in 87 The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influ- The Stimson Doctrine of Non-Recognition: Its Id A draft report of the Committee of Nineteen reached the A draft report of the Committee The position that states of affairs brought about by unlaw- about brought of affairs that states position The The problem started in 1932 when Japan invaded the Chi- in 1932 when Japan invaded The problem started proclaims the binding nature of the principles and proclaims the binding nature of provisions referred to above Pact of Paris [i.e. the declares that it is and Article 10 of the Covenant] and the League of Na- incumbent upon the Members of treaty or agree- tions not to recognize any situation, by means con- ment, which may be brought about of Nations or the trary to the Covenant of the League Pact of Paris. 88. League of Nations Official Journal Special Supp. No. 101, at 87–88 87. 86.Manchukuo’s creation see For the history of the State of David (1932), (2003). Turns, ence on Contemporary International Law same conclusion: “[T]he maintenance and recognition of the same conclusion: “[T]he maintenance . . [is] incompatible with the existing regime in Manchuria, . international obligations fundamental principles of existing 2011] Latin maxim void reflects the are null and ful conduct \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 31 6-DEC-11non oritur juria jus 13:00 were a state of affairs point is that if the central sent purposes, it as be bound to treat all States would and void, then truly null such. to cooperate be required States would, effectively, Third they would rules of international law because in enforcing the of its illegal the offending State the fruits be required to deny actions. of the State of Manchu- A case in point is the creation the inter-war period. kuo by Japan during state of Manchuria and set up the puppet nese province of Manchukuo. time, Henry L. Stimson, sent diplomatic notes to the Chinese sent diplomatic notes to time, Henry L. Stimson, States stating that the United and Japanese governments, or agree- to recognize any situation, treaty, “does not intend to the be brought about by means contrary ment which may Pact of Paris of August 27, covenants and obligations of the 1928.” almost identical to Secretary resolution on March 11, 1932 the Assembly Stimson’s declaration. It stated that 31113-nyi_44-1 Sheet No. 18 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 18 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 18 Side B 12/07/2011 07:07:40 R . at , pt. Id 420 AW EACE [Vol. 44:1 P note 86, at L supra AW OF L HE : T Turns, NTERNATIONAL ” AW I 89 L quoted in 91 AND POLITICS defacto. or ECOGNITION IN NTERNATIONAL ,I , R dejure INTERNATIONAL LAW AUTERPACHT AUTERPACHT L L (E. Lauterpacht ed., 1975). ERSCH ” ERSCH 90 H 2 H But whether such a duty of non-recognition exists in inter- But whether such a duty of non-recognition Lauterpacht complained elsewhere about the conse- elsewhere about the Lauterpacht complained of advantage if lawyers and states- It would have been disparaged the principle men had not occasionally of situations brought and practice of non-recognition contrary to fundamental interna- about by means that law must follow tional obligations on the ground facts. Apart from the basic consideration that an ille- for the law-abiding gality confers no right, it is proper of permanence not to attribute an undue probability to facts grounded in illegality. The principle underlying this “doctrine of non-recogni- this “doctrine underlying The principle 36–37 91. 89. formally adopted by the Draft Rep. of the “Committee of Nineteen,” 90. (1978). 1, at League of Nations Assembly, Feb. 24, 1933, League of Nations Assembly, Feb. 24, 1933, 127 n.88.abstention (Siam The draft was adopted by 42 votes in favor, 1 (Japan) on 24 February 1933. absent during the voting) and 1 against 127. national law is doubtful. of the In the specific context seemed elsewhere to distance Manchuko incident, Lauterpach an alternative route to himself from the position. By offering the same conclusion—that should not be recog- Manchuko nized—Lauterpacht of reliance on the avoided the necessity and void.theory that unlawful acts are null ex- His alternative that Japan had over planation was that the total control from being recognized as a Manchuko disqualified Manchuko State: 32 to recog- not continue will the League] of [and Members . . . regime either nize this \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 32 6-DEC-11 13:00 quences of “lawyers and statesmen” disregarding this “general and statesmen” disregarding quences of “lawyers recognized by all civilized nations”: principle of law tion” was explained by Hersch Lauterpacht: “Non-recognition Lauterpacht: explained by Hersch tion” was are international law acts contrary to on the view that is based the legal rights for a source of cannot become invalid and wrongdoer.international law as one of That view applies to civilised na- of law recognised by the “general principles tions.” 31113-nyi_44-1 Sheet No. 18 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 18 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 19 Side A 12/07/2011 07:07:40 33 339 ORKS arbitra- 94 W Tinoco ENERAL : G AW L NTERNATIONAL ,I government under Tinoco than the government under Tinoco than ´ etat or by a revolution against a recognized etat or by a revolution AUTERPACHT de facto ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT L governments. Their action under the treaty governments. Their action under ERSCH 92 President Wilson accordingly withheld recognition of President Wilson accordingly withheld . 93 Id 1 H [H]owever justified as a national policy [of the [H]owever justified as a national such a ground [il- United States] non-recognition on an already existing legal usurpation of power in Lauterpacht’s treatment of the Manchuko incident of the Manchuko Lauterpacht’s treatment The legal basis of non-recognition of Manchukuo as Manchukuo of of non-recognition legal basis The as, in view of it is not a State apparently that a State is lacks actual independence. with Japan, it its relations applies in of non-recognition as the doctrine In so far intention of of the it is an announcement this case to situation amounting of any future non-recognition part of Ja- Manchuria as of formal incorporation pan. Chief Justice Taft did not share Wilson’s view, holding Chief Justice Taft did not share rights of subjects of Such a treaty could not affect the or amend or a government not a signatory thereto, law in the matter of change the rules of international de facto the exis- could not be of more weight in determining tence of a considered. policy of the United States, already 93. Aguilar-Amory and Royal Bank of Canada claims (Gr. Brit v. Costa 94. 92. (E. Lauterpacht ed., 1975). Rica), 1 R.I.A.A. 369, 382 (1948). Taft denied the existence of a legal principle such as Wilson’s, Taft denied the existence of a legal in by all the nations asserting that it “has not been acquiesced of the world”: squares with Chief Justice Taft’s holding in the squares with Chief Britain and Costa Rica.tion between Great In that case, Costa vio- recognition of the Tinoco government Rica argued that 1907. of Washington of December 20, lated the Treaty The recognize any “contracting parties will not treaty provided that in conse- power in any of the five republics one who rises to d’ quence of a coup by free the representatives of the people government until country in constitutional elections have reorganized the form.” 2011] \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 33 6-DEC-11 13:00 the government of Frederico Tinoco, who had come to power the government of Frederico Tinoco, Alfredo Gonzalez Flores. by deposing the elected president by the treaty: that third States could not be bound 31113-nyi_44-1 Sheet No. 19 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 19 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 19 Side B 12/07/2011 07:07:40 L ’ A NT J. I [Vol. 44:1 . ALE Y , 33 Tinoco line of reasoning seems line of reasoning AND POLITICS Tinoco Who Is the “Sovereign” in Sovereign Debt?: Reinter- arbitration and Chief Justice Taft’s holding are Taft’s holding and Chief Justice arbitration INTERNATIONAL LAW 95 rejects the position that an illegitimate regime rejects the position ., Odette Lienau, g . Tinoco Tinoco . at 381. , then, it is rejected by Taft’s opinion in , then, it is rejected Id See, e 96 State] may be, it certainly has not been acquiesced in acquiesced not been has it certainly may be, State] a condition world, which is nations of the by all the of interna- it as a postulate to considering precedent tional law. The At the end of the day, the At the end of the Tied as they are to the specific issue areas of human Tied as they are to the specific Assessment of Current Practice 96. 95. 63, 73 n.35–37 (2008) (noting that “Taft’s award is the lead case cited for preting a Rule-of-Law Framework from the Early Twentieth Century preting a Rule-of-Law Framework from the Early L. the dominant approach to sovereign recognition, which identifies the exis- tence of a valid government on the basis of its ‘effective control’ of a state’s territory and population,” and citing examples). 34 \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 34 6-DEC-11 13:00 must be treated a nullity.must be treated that third State obli- The hypothesis to interna- treating all acts that are contrary gations require ambitious, and void would be even more tional law as null of new not only to issues of recognition since it would apply as well. potentially to other issue areas, governments but fortiori usually cited for the proposition that there is no obligation to is no obligation that there for the proposition usually cited of a re- because of the unlawful genesis withhold recognition gime. rights, humanitarian law, and core international crimes, the rights, humanitarian law, and core obligations are motivated by a four successful “State bystander” ending violations of human common underlying policy of to the whole of human- rights so egregious as to be an affront ity. the While important in the areas that it covers, however, the traditional approach to State bystander model that forms use to other sorts of non-party obligations is of limited problems.purport to The State bystander model does not to have prevailed over the argument that states of affairs over the argument that states to have prevailed unlawful acts are null and void.brought about by Neither the seems to be supported by broader nor the narrower version state practice. poten- Although the nullity hypothesis has clear it therefore fails to ra- tial, in theory, for general application, in which third States are tionalize a fifth category of cases or redress a wrong done to obliged to take action to prevent another. 6. 31113-nyi_44-1 Sheet No. 19 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 19 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 20 Side A 12/07/2011 07:07:40 R 35 supra , HAW S 399–400, 402 note 98, at 46. AW An exception L See also 99 supra 97 Where mass atrocities . at 25. 98 Id NTERNATIONAL I UBLIC P RINCIPLES OF P , ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT ., with Commentaries, Draft Articles on Diplomatic Protection g . ROWNLIE See, e B It should not be surprising that whatever progress has that whatever not be surprising It should [D]iplomatic protection . . . rests primarily on the existence of the [D]iplomatic protection . . . rests primarily to the individual or cor- nationality of the claimant state attaching poration concerned both at the time of the alleged breach of duty and at the time when the claim is presented . . . . It is trite learning that, with some exceptions, states may only exercise diplomatic pro- tection in respect of their nationals. AN I 99. See the ILC Commentary on article 7 (Multiple Nationality and 97.Co. (Belg. v. Spain), Judgment, Barcelona Traction, Light and Power 98. Rep. of the Int’l Law Comm’n, 58th Sess., May 1–JuneRep. of the Int’l Law Comm’n, 58th Sess., 9, July 3–Aug. 11, note 22, at 232. where the ILC states “one State of Claims Against a State of Nationality) another State of nationality.”nationality [may bring] a claim against Draft Commentaries, Articles on Diplomatic Protection with (7th ed. 2008) (citing Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 20–21(7th ed. 2008) (citing Nottebohm Case (Apr. 6)): 1970 I.C.J. 3, ¶ 33 (Feb. 5). See 2011] obligations. third State of theory a general ground Indeed, exist, and are singled categories fact that these special the very the importance of in view of the special treatment out for third State obliga- quite clearly that suggests rights involved, rule. rather than the the exception tions are has been in non-party obligations been made in establishing of individuals.the context of abuse Human rights and human- a State and on the legal relationship between itarian law focus law are most other areas of international an individual, while between States. structured as disputes \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 35 6-DEC-11 13:00 must be made for human rights, and this requires authorizing must be made for human rights, in Sess., Supp. No. 10 (2006).2006, U.N. Doc. A/61/10; GAOR, 61st In its “Diplomatic protection has tradi- Commentary on Article 1, the ILC notes, right in the sense that a State exer- tionally been seen as an exclusive State because an injury to a national is cises diplomatic protection in its own right deemed to be an injury to the State itself.” occur, individuals would surely benefit from having a State to would surely benefit from having occur, individuals placed cause and there may be no suitably champion their in protecting them.State that is interested This is particularly a State abuses its own citizens.so in cases where Settled prac- of which to be represented by the State tice is for individuals and if however, if that State is the violator, they are a national; there might be no State with this standard rule were followed, forward. an interest in moving the complaint 31113-nyi_44-1 Sheet No. 20 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 20 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 20 Side B 12/07/2011 07:07:40 See [Vol. 44:1 , 15 (59) doing certain prohibit note 13. Thus the objection supra AND POLITICS Negative and Positive Duties are not elastic enough to accommo- are not elastic enough The importance of having strong pro- The importance of having strong 101 erga omnes Marcus G. Singer, INTERNATIONAL LAW and 100 97–103 have (1965) (concluding that, “positive duties, when they See generally As many philosophers maintain—for good reason, we will Although the reasons for focusing on human rights and focusing on human the reasons for Although Less obvious, but perhaps even more important, is an- Less obvious, but perhaps even . Q. note 101 and accompanying text, and jus cogens 101. 100. recognizes that in The proposed theory of third State obligations HIL no corresponding or equivalent negative duties, are relatively less determi- many or most cases, legal standards can be satisfied either through affirma- many or most cases, legal standards can tive actions or failures to take action. is The reason is that noninvolvement to the assistance of the victim. satisfactory, but so is affirmatively coming infra is not pertinent to third that affirmative obligations are too burdensome State responsibilities. P see—it impose affirmative duties is much more problematic to than negative duties. 36 commu- international the entire by enforcement or requiring nity. understandable, law are therefore humanitarian international leaves approach the State bystander is that the consequence at- any comparable norms without of substantive other types obligations.tention to non-party Human rights and related of other obligations for bystanders but norms norms generate etc.) do rights, treaty rights, diplomatic rights, sorts (territorial not. and Geneva Con- The special provisions in the Genocide the specific in point; they are limited to ventions are a case address.contexts that they the concepts It is clear, as well, that of \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 36 6-DEC-11 13:00 date all types of the non-party obligations—nor,date all types of probably, Neither of the other two categories—obliga-should they be. to with prosecutions and the responsibility tion to cooperate protect—purports might to address the possibility that there issue areas. be non-party obligations in other bystander approaches.other distinctive feature of State State mainly on so-called “affirma- bystander approaches are based require the performance of tive duties,” meaning duties that certain conduct.certain actions, as opposed to avoiding Most norms of international law, in contrast, another State’s territory, things (breaching treaties, invading forth) rather than requiring violating human rights, and so that something be done. The theory of third State obligations satisfied through simple fail- that we propose can likewise be ure to act. 31113-nyi_44-1 Sheet No. 20 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 20 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 21 Side A 12/07/2011 07:07:40 37 ROPOSAL : A P Affirmative Duties and the Limits BLIGATIONS O 65, 65–66 that impos- (1996) (demonstrating . TATE HIL A third State’s responsibilities are satis- A third State’s responsibilities S 102 L. & P HIRD ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT , 15(1) III. T Third State obligations, we propose, are a function of the we propose, are a function Third State obligations, This resolution of the problem of non-party obligations is This resolution of the problem of 102. Such a State would still be entitled to take voluntary action in support of the victim. ing affirmative duties to aid others present heavier moral and practical bur- den than negative duties). nate than negative duties”); Larry Alexander, nate than negative duties”); Larry Alexander, of Self-Sacrifice type of involvement that the third State has with the dispute in that the third State has with type of involvement question. contribute These obligations consist of a duty not to of the victim’s rights under to the frustration or infringement international law. 2011] killing, (mass violations heinous particularly against tection may violent crimes) cruel and other exceptionally slavery, and step of recogniz- for the unusual these problems, call, despite to assist. obligations ing affirmative duties may But affirmative an making them of lesser urgency, for norms be unsuitable non-party obliga- dealing with other vehicle for inappropriate the norms to other substantive of extending tions. Instead such as geno- currently afforded to violations treatment that is affirma- a rather different strategy that avoids cide, we propose third altogether and focuses on prohibiting tive obligations the viola- in, protecting, or encouraging States from assisting tion of other states. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 37 6-DEC-11 13:00 fied if either the State has no involvement at all in the dispute fied if either the State has no involvement the victim. or if it is involved on the side of extending the approach fundamentally different from simply issues, namely, the State by- already applied to human rights stander approach. that Although we might simply resolve obligation to come to the States have a universal affirmative of international law, there are aid of the victim of any violation with following this path. two potentially serious difficulties of imposing affirmative The first concerns the practicability actual violator.burdens on States other than the second The non-party obligations: would concerns the legal grounding of affirmative obligation really a universal application of such an have the authority of law?extending We argue below that to all substantive norms is State bystander obligations to apply unworkable. 31113-nyi_44-1 Sheet No. 21 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 21 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 21 Side B 12/07/2011 07:07:40 [Vol. 44:1 AND POLITICS Practicability and Affirmative Duties Practicability and INTERNATIONAL LAW A. Third State obligations, as we define them, avoid these avoid them, we define as obligations, State Third Consider a hypothetical territorial dispute between two Consider a hypothetical territorial by identifying all of the The island nation might begin The first difficulty in extending State bystander logic uni- in extending State bystander The first difficulty The Cost of Universal Affirmative Duties 38 problems. to situations are limited Third State responsibilities not violation and do to the third State contributed where the to the dispute. is a stranger the third State apply where Their in law at issue lies in the substantive in positive law grounding actors.” the law of “secondary together with the dispute, The relatively se- State obligations is therefore provenance of third cure. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 38 6-DEC-11 13:00 States in West Africa.a small is- What is the responsibility of that has no knowledge about land nation in the Pacific Ocean conflict?or interest in this African boundary the Extending responsibility would seem to State bystander approach to legal with every other nation require that this island nation (along the merits of the territorial in the world) form an opinion on action against the State that, dispute and take some kind of was in the wrong.according to its view of the merits, From this project exceed a small start to finish, the demands of State’s capabilities. law; as a third State world’s existing violations of international it would be responsible for supporting the victim on every one of them. This task is not as straightforward as might first ap- pear; not all conflicts are front-page news, and it might be nec- essary for this small country to do considerable research to versally relates to the burden that such affirmative responsibili- the burden that such affirmative versally relates to globe. on most nations around the ties would impose Few relatively low small States that maintain a States, particularly compliance have the capacity to monitor international profile, law all across the globe.with international And taking action merely monitoring) would be against violators (as opposed to even more costly—economically, and in terms of ex- militarily, penditure of diplomatic capital. affirma- The cost of universal almost certainly unwork- tive duties makes such an approach able. 1. 31113-nyi_44-1 Sheet No. 21 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 21 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 22 Side A 12/07/2011 07:07:40 39 103 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT This is the case even if a State faces only a single interna- This is the case even if a State faces Next would come the task of gathering information about of gathering information come the task Next would of obliged to take a position in support It would then be 103. not entitlements but rather op- The advantages withheld are typically portunities that other states want but have no right to. Among the induce- portunities that other states want but have support for membership in interna- ments are promises of such things as Union or the WTO); trade tional organizations (e.g. NATO, the European exports); support for miscella- privileges (e.g. tariff reductions on the State’s arenas (e.g. to be voted one of the neous diplomatic goals in international nonpermanent members of the Security Council or to have one’s candidate selected as Secretary General); military assistance; and in case of developing countries, foreign aid or support for economic assistance from international organizations such as the World Bank. Such sanctions are among the least aggressive ways of influenc- among the least aggressive ways Such sanctions are than, for certainly they are less destructive ing other States; action.example, military modest sort, Even sanctions of this demanding.however, would be prohibitively and Organizing burdensome and costly, and monitoring a sanctions regime is prompt costly retaliation boycotts and embargoes can also from the target. tional law dispute at a time. any given Of course, however, at one and they will be of all time there will be many more than maritime disputes, diplo- different kinds: territorial disputes, extradition, violations of the matic rows, disagreements over of miscellaneous laws of war, and disputes over interpretation treaties and conventions.find them- Small States could easily from advantageous rela- selves cut off by their own sanctions of their preferred trading tionships with a substantial number partners. 2011] action to take be called it might that the disputes all of identify on. of the dispute.the merits to would have The island nation in African boundaries about West documents gather historical assess experts to historical and other hiring many languages, them. have to be resolved about Disagreements, also, would of international law—altogethercontested issues costly and a imperfect enterprise.that, despite these difficul- But assume pushes ahead. ties, our island nation victim State.the rights of the the most common Probably is withhold- use to pressure other countries method that States economic or social relationships. ing access to advantageous \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 39 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 22 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 22 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 22 Side B 12/07/2011 07:07:40 a vio- [Vol. 44:1 was AND POLITICS . its project would then collapse under The INTERNATIONAL LAW ad infinitum Then there is the likelihood that the small island nation small that the is the likelihood there Then The burden of universalizing affirmative duties to protect The burden of universalizing affirmative not seem unreasona- As a matter of principle, first, it does Exclusion of States with No Involvement Exclusion of States 40 of in- no violation that there was conclude might erroneously that there conclude law (or erroneously ternational \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 40 6-DEC-11 13:00 victims speaks strongly against using a State bystander ap- victims speaks strongly against as a general matter. proach to assess non-party responsibilities force, however, once third The “practicability” objection loses situations in which the third State obligations are limited to State has willingly become involved. definition Our proposed practicability objection be- of third State obligations avoids the they have contributed to the cause States are only liable where eliminates States violation, and this requirement automatically dispute. that have no involvement in the on a new foreign policy ble to expect that, before embarking to make a judgment initiative, a State should be prepared is doing.about the legal merits of what it expected States are to international law’s require- to conform their own behavior to make judgments on the ments; it is not any more difficult and to base one’s position merits about other States’ conduct, on their disputes on those judgments. third In a world where the legal rights of the parties States have obligations to respect just as they are possible in a to a dispute, mistakes are possible, world where third States do not. would be But surely fewer made in the former than the latter. Moreover, a State that willingly involves itself in a conflict outside its borders cannot reasonably complain about having to make a determination about the conflict’s underlying legal rights and wrongs. If a lation).either case—whether In applies a sanc- it erroneously not—its does tion or erroneously the wrong conclu- coming to trouble.sion means decision not an erroneous For example, of the to pressure the current occupier to undertake measures from all of down on its head sanctions territory could bring necessary. concluded that sanctions were the States that had If would call for conclusion, this reasoning followed to its logical for fail- to impose sanctions, and sanctions sanctions for failure . . . and for failure to impose sanctions ure to impose sanctions so on, own weight—assuming so. that it had not already done 2. 31113-nyi_44-1 Sheet No. 22 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 22 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 23 Side A 12/07/2011 07:07:40 41 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT As a practical matter, moreover, the fact that third State the fact matter, moreover, As a practical amount about the con- States also are likely to know a fair States with no in- Little is lost, in any event, by excusing State obligations ex- The test that we propose for third 2011] to get capacity it has the involved, to get capacity has the State on the right side. involved somehow contributed a State has apply only where obligations bur- that the blunts the objection successfully to the violation acting is unreasonable. and den of monitoring This is so for several related reasons. State bystander obliga- Universalized volume of in part, because of the sheer tions are unworkable, around the globe.disputes that exist Limiting obligations to the vol- the State was involved would reduce disputes in which ume substantially. involvement comes in This is true whether provision assistance, diplomatic pressure, the form of military aid, or to act as a mediator, economic of expertise, proposals something else. which disputes they are States generally know search the the need to periodically involved with, eliminating to take a conflicts on which they might need globe looking for position. flicts in which they are involved. State obli- In such cases, third of an entire new body of evi- gations do not require collection dence. about It seems reasonable to hope that information already be in the hands of the merits of the legal claim would the merits of the claim ought the third State; evidence about involved in the first place. to be part of the decision to get volvement. or the A State that is not involved with the parties not to have much influence substance of the dispute is likely over the violator. island The hypothetical example of a Pacific dispute in West Africa nation taking a position on a territorial illustrates this point. that It cannot reasonably be thought to contribute substantially. such States would have the capacity a contribution from, for It is far more reasonable to expect with a history of regional he- example, a West African power gemony. to the dispute.cludes States that are truly strangers Third only in situations where State obligations, we propose, arise the third State has had some involvement in the dispute on behalf of the violator. Third State obligations are not so much an affirmative duty to take action as they are a negative duty not to contribute to the violation. They do not require action \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 41 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 23 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 23 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 23 Side B 12/07/2011 07:07:40 R The [Vol. 44:1 106 AND POLITICS While this argument is true as While this argument note 99, at 3–16. 104 Legal Grounding supra , B. ROWNLIE B Without some grounding in State acceptance, Without some grounding in State INTERNATIONAL LAW notes 27–29 and accompanying text. 105 . See supra Id See generally Earlier we argued that non-party obligations can be ex- that non-party obligations can Earlier we argued The second basic difficulty is the status of the obligations is the status of basic difficulty The second The status of first party obligations is not merely a prod- The status of first party obligations The analogy between non-party and first party norms The analogy between non-party The Need for Legal Status The Need for Legal 104. 106. 105. plained in terms similar to first party legal duties, in particular similar to first party legal duties, plained in terms action. the logic of collective 42 for this and the dispute to strangers are truly that by States burden. no unreasonable reason impose they moral, ethical, they legal or are have; are that non-parties sense, per- something else (simple common philosophical, or haps)? in such a way as to Third State obligations are defined are foundations; State bystander approaches have solid legal not. 1. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 42 6-DEC-11 13:00 far as it goes, it does not really go far enough. far as it goes, it does not really Not all collective or public uct of collective goods reasoning. even when it is true goods arguments result in legalization, them more reliably advan- that legal enforcement would make tageous. prohibi- The familiar rules of international law (e.g., treaty obligations) are not tion of aggression, compliance with matter; they have also been only advantageous as a substantive in written instruments or agreed to by States either formally through State practice. to their This acceptance is essential status as law. non-party obligations are simply recommendations about what non-party obligations are simply the law ought to be. therefore does not really hold. value in In addition to their party norms have an advan- producing collective goods, first a history of commu- tage not shared by third State obligations: nity acceptance as law. interna- The two methods of creating tional legal norms—through of agreements (treaties adoption State practice (customary and conventions) and through law)—provide first party norms. a positive law basis for 31113-nyi_44-1 Sheet No. 23 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 23 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 24 Side A 12/07/2011 07:07:40 43 jus But these doctrines are not universally ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT erga omnes. and Not all involvement is good; and not all involvement is Not all involvement is good; and State bystander obligations do not differentiate between Third State obligations, however, are defined in such a however, are defined in Third State obligations, This objection stands squarely opposed to the simple ex- opposed stands squarely This objection Negative Involvement and Positive Involvement Negative Involvement and Positive bad. Involvement in a dispute can either increase the likeli- bad. Involvement in a dispute can law—ahood of compliance with international positive involve- ment—orof noncompliance with in- increase the likelihood ternational law—a negative involvement. obliga- Third State violated only by negative tions, as we define them, are side of the innocent victim is involvement; weighing in on the not unlawful.States that Restricting third State obligations to or facilitating the un- were somehow encouraging, protecting, the problem of identify- derlying violation effectively resolves ing a legal foundation. taking the Examples might include encouraging it to per- side of the loser in an ICJ case, thereby into a military alliance sist in its noncompliance, or entering invade one of its neighbors. with a State that is planning to third State obligation rests is The legal source on which the the underlying substantive norm which the first party is violat- ing and which the third State is now engaged in frustrating. States that contributed to the violation and States that are applicable. non-party responsibilities They would not explain or territorial over treaty interpretation concerning disputes to justify is no other apparent legal source rights and there a broader context. applying them in challenge.way as to meet this proposed definition speci- The if its involve- State violates its obligations only fies that a third the violation of somehow contributing to ment has the effect of the victim’s legal rights. third The legal basis for imposing is involved in the violation State liability is that the third State primary violator. of the same substantive law as the 2. cogens 2011] lacking to be seems or acceptance agreement of State element duties of nonparties. with the non-party obligations approaches to State bystander tension of generally. obligations in with non-party There is no problem Ge- Conventions: The or Geneva of the Genocide the context legal status, as Conventions obviously have nocide and Geneva such as international law doctrines do accepted customary \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 43 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 24 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 24 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 24 Side B 12/07/2011 07:07:40 R The [Vol. 44:1 107 AND POLITICS INTERNATIONAL LAW note 103 and accompanying text. See supra Our proposed definition of third State obligations is sim- of third State obligations Our proposed definition against our earlier hypo- We can test this generalization If the existing involvement is in favor of the victim (a posi- If the existing involvement is in favor 107. 44 innocent.wholly is not assistance to provide obligation The the State supported whether the third by reference to defined the indeed, whether violator or, encouraged the victim or at all. had any involvement third State while third State Thus, from contributing third States effectively prohibit obligations support international and thus way to the violation in some not depen- bystander obligations (which are legal norms, State not. the non-party contributed) do dent on whether not attractive: A State has a legal obligation ple and intuitively victim’s legal another State’s violation of the to contribute to rights. an affirmative obliga- This definition does not impose around the become involved in disputes all tion on States to to ascertain to engage in extensive research world, let alone such disputes’ existence. that third State liability is We believe involved when the State has already somehow appropriate only in support of the violator.itself in the dispute Limiting liabil- frustrates substan- ity to those third States whose involvement of placing legal re- tive international law has the consequence States whose conduct should sponsibility on exactly those third be changed. it simply A State can avoid legal responsibility if but if it does become does not become involved in a dispute; the right side, the one that involved, then it has a duty to take respects international law. territorial dispute. thetical example of a West African \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 44 6-DEC-11 13:00 Pacific Island nation with no involvement in the dispute has Pacific Island nation with no involvement this theory, but what about no third State responsibility under a history of involvement? a regional West African power with whether the involvement Here, it is necessary to determine the victim or to the interests contributed to the legal rights of of the violator of international law. count as a violation of third tive involvement) then it does not State obligation. have The third State might, for example, out of the disputed terri- tried to induce the violator to move adjudication before a fair and tory or to submit the dispute to competent tribunal. It might be giving the victim military or financial assistance, technical expertise, or diplomatic support. 31113-nyi_44-1 Sheet No. 24 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 24 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 25 Side A 12/07/2011 07:07:40 45 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT Third State obligations are, in certain respects, analogous Third State obligations are, in certain A third State that supports the violator, contributing to Where, in contrast, the involvement runs counter to inter- to runs counter involvement the in contrast, Where, of legal assisting an ally at the expense The strategies for support ex- Basic principles of shared responsibility Primary and Secondary Violators of International Law Primary and Secondary Violators of to laws against accessories or accomplices. State is The third contributor to another State’s not the primary violator, but is a unlawful acts. practical Thus framed, these obligations are and reasonable, as well as a close corollary of basic principles of international responsibility. the defeat of the victim’s international legal rights, shares in 2011] has regional power involvement) the law (a negative national its third State obligation.violated for example that Assume of long-standing ally third State) is a power (the the regional international law. that is violating the State Using its influence behind the scenes been lobbying it might have in the region, to its ally’s position, sympathetic of mediators for designation that proposals for resolving the controversy or formulating to its ally’s view of the facts.were sympathetic It could have its ille- assistance to its ally to support been supplying military or using the of the victim’s territory, gal military occupation its ally’s posi- propaganda favoring local media to disseminate tion. that use are as varied as the States rights of its opponents them. use its influence in global A wealthy country may try to from other institutions to buy support or regional financial diplomatically might be able States, and a State that is skilled helpful to the side of the dis- to obtain diplomatic concessions pute it favors. Council A permanent member of the Security or sanction by systematic use can protect an ally from censure of its veto power.State, the The more powerful the third longer the list of possible tactics. whose involvement in the tending liability to the third State party that is violating interna- dispute includes support for the tional law. the indi- In both domestic and international law, to an unlawful act by another vidual or State that contributes actor may be secondarily liable. The third State’s legal respon- of an accessory, an sibility is comparable to the responsibility accomplice, or a co-conspirator. 3. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 45 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 25 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 25 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 25 Side B 12/07/2011 07:07:40 N. RIMINAL C ONALD [Vol. 44:1 , R ROSS C OEL N ., g . e note 21. , 75–78, 90–91 (2010) (refer- See supra AND POLITICS NTRODUCTION I N : A Domestic civil law likewise attaches legal Domestic civil law likewise attaches 110 USTICE INTERNATIONAL LAW J . We owe this interesting example to Carlos Vazquez. . We owe this interesting example to Carlos 466–68 (11th ed. 2010). The terms “secondary offenders” and Id ., RIMINAL C In both the domestic and the international context, a and the international context, In both the domestic 109 (a) That State does so with knowledge of the circumstances of (a) That State does so with knowledge the internationally wrongful act; and if committed by (b) The act would be internationally wrongful that State. Domestic criminal law characterizes accomplices, accesso- law characterizes accomplices, Domestic criminal 108 A State which aids or assists another State in the commission of an A State which aids or assists another State is internationally responsi- internationally wrongful act by the latter ble for doing so if: 110. have distinguished between In the United States, for example, courts 109. third State should be liable if An interesting question is whether the 108. Articles on State Article 16 of the International Law Commission’s OYCE ET AL AW AND B ring to secondary offenders and principal offenders). Both the ICTY and principals and accessories, the latter category consisting of accomplices, ac- principals and accessories, the latter category aid and assistance. cessories after the fact, and those that provide it contributes to the first State violating a legal obligation that applies to the it contributes to the first State violating first party but not the third State. first party For example, assume that the has not.has signed a treaty that the third State assists the If the third State the third State be liable to the vic- first party in violating the treaty, should tim? merits We are inclined to answer in the affirmative, but understand the of the opposing view. Responsibil- Article 16(b) of the ILC Articles on State wrongful if committed by ity states that “the act [must] be internationally that State.” “secondary participants” are frequently used. Responsibility (“Aid or assistance in the commission of an internationally Responsibility (“Aid or assistance in the wrongful act”) states: Articles on Responsibility of States (2001), L ries and co-conspirators as “secondary offenders” or “secon- as “secondary offenders” ries and co-conspirators dary participants.” 46 violation. for the responsibility the substantive This is particu- have been possible would not when the violation larly clear the because without the third State the support of without not have occurred. the wrong would involvement, third State’s was a the third State in cases where remains even But the point any- have happened injury that would cause to an contributing way.the third State effectively In supporting the violation, violator. same substantive norm as the primary contravenes the of an posture is analogous to the position The third State’s criminal accessory to a crime in ordinary accomplice or an law. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 46 6-DEC-11 13:00 State or individual (as the case may be) can be liable even (as the case may be) can be State or individual examined in- would not be unlawful when though what it did responsible the actions of the primarily dependently, without party. 31113-nyi_44-1 Sheet No. 25 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 25 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 26 Side A 12/07/2011 07:07:40 , 47 NTERNA- ASES AND I NITIATIVE I : C NTERNATIONAL I ORTS International USTICE , 1 A third State’s J T EID 112 . ¶ 248 n.408 (citing 113 id ESPONSIBILITY IN L. R OCIETY AW OF Macedonia Called to Account R S Oct. 14, 2010, http://www. ., L , PEN AL ATALIE O . ORMS OF See & N International criminal law, as criminal law, International UARDIAN : F http://www.icj-cij.org/docket/files/91/ 111 G , ISCHOFF HULMAN ET IBRARY S L L. B ARRY case, the International Court of Justice rec- case, the International available at ., Prosecutor v. Radislave Krstic, Case No. IT-98-33-A, ., Prosecutor v. Radislave g , http://www.soros.org/initiatives/justice/litigation/ H AMES . 188–91 (2007). , J AW See See, e ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT L OAS RACTITIONER The Court did not require that the contribution The Court did not B P Genocide 114 AW Macedonia . 428–35 (5th ed. 2010). RIMINAL L . ¶ 428. be responsi- Another situation in which third States might IDEON TIONAL Id G C In the ATERIALS 113. Prevention and Punishment of Application of the Convention on the 114. 112. 111. varying approaches to mul- Courts in the United States have adopted RIMINAL El-Masri v guardian.co.uk/world/2010/oct/14/macedonia-khaled-el-masri. The law- yers and organization representing el-Masri claim that Macedonia was “com- plicit” in the extraordinary rendition. the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, ¶ the Crime of Genocide (Bosn. & Herz. v. 430 (Feb. 26, 2007), 13685.pdf. without the violation caused by ble for conduct that would not be unlawful cases.the primary party is the extraordinary rendition cases, various In these where individuals suspected States provided the United States with facilities be tortured and detained; the tor- of links with terrorist organizations could Untied States and international law. ture and detention were in violation of European Court of Human Rights In one recent case, for example, the role in extraordinary rendition of called on Macedonia to account for its Khaled el-Masri, a German national. el-Masri and Macedonia seized Khaled at the request of the CIA in 2003 kept him incommunicado for 23 days and later transferred to Afghanistan before he was handed over to the CIA where he was abused. Richard Norton-Taylor, Over Extraordinary Rendition Case tiple tortfeasors under “joint and several liability” but they recognize the tiple tortfeasors under “joint and several concept as valid. cases that use terms such as “secondary or indirect forms of participation”). cases that use terms such as “secondary Appeals Judgment, ¶ 141 n.242 (Int’l Crim. Trib. for the Former Yugoslavia ¶ 141 n.242 (Int’l Crim. Trib. for the Former Appeals Judgment, liability”); Apr.19, 2004) (referring to “secondary M C ICTR have used the term “secondary perpetrator” or “secondary liability” in term “secondary perpetrator” or “secondary ICTR have used the their judgments. 2011] defendant a primary that assisted to defendants responsibility tort. of a in the commission \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 47 6-DEC-11 13:00 well, imposes individual criminal responsibility for secondary criminal responsibility individual well, imposes of a crime. in the commission participants case law supports the extension of secondary liability to third liability to of secondary supports the extension case law do themselves, a violation while not committing States that, of a violation. the occurrence contribute to effectively falling of a spectrum of State behavior ognized the existence commission of genocide. short of the actual contribution to a violation, the Court indicated, may fall any- a violation, the Court indicated, contribution to to actual simple failure to prevent genocide where between complicity. 31113-nyi_44-1 Sheet No. 26 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 26 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 26 Side B 12/07/2011 07:07:40 116 [Vol. 44:1 AND POLITICS 115 INTERNATIONAL LAW case, ¶ 448. . ¶ 449. Genocide Id Doctrines of secondary liability confirm that liability can Doctrines of secondary liability For example, the Court alluded to Serbia’s culpable fail- alluded to Serbia’s the Court For example, the but attach a certain weight to [T]he Court cannot corroborative, information plentiful, and mutually Mladic, indicted by the ICTY suggesting that General one of those principally responsible for genocide, as of massacres, was on the territory for the Srebrenica for at least on several occasions and the Respondent is during the last few years and substantial periods without the Serb authorities doing still there now, and can reasonably do to ascertain what they could him. . . . the in- exactly where he is living and arrest knew where Mladic telligence services of that State from informing the was living in Serbia, but refrained arrest because cer- authorities competent to order his had allegedly re- tain members of those services mained loyal to the fugitive. 449. It therefore appears to the Court sufficiently established that 449. It therefore appears to the Court fully with the ICTY. the Respondent failed in its duty to co-operate Respondent of its duties This failure constitutes a violation by the and as a Member of the as a party to the Dayton Agreement, of its obligations under United Nations, and accordingly a violation Article VI of the Genocide Convention. The Court is of course to declare that the Respon- without jurisdiction in the present case than those under the Con- dent has breached any obligations other vention. But as the Court has jurisdiction to declare a breach of Article VI insofar as it obliges States to co-operate with the “interna- tional penal tribunal”, the Court may find for that purpose that the requirements for the existence of such a breach have been met. One of those requirements is that the State whose responsibility is 115. 116. be predicated upon conduct that does not involve acts pre- be predicated upon conduct that of the primary defendant. cisely comparable to the conduct that the CIA would mistreat macedonia (describing Macedonia’s knowledge El-Masri). 48 of the behavior unlawful as the conduct type of same be the those not limited to was violator; legal responsibility primary primary crime. in the who participated on Serbia’s territory. while he was General Mladic ure to arrest order of magnitude not of the same was obviously This failure of culpable but it did suffice as evidence as the actual killing the first party’s crime: contribution to \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 48 6-DEC-11 13:00 31113-nyi_44-1 Sheet No. 26 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 26 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 27 Side A 12/07/2011 07:07:40 49 case, the standard Genocide case, and the support for secondary liability case, and the support ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT Genocide 117 This modicum of support does not establish that the con- support does not establish that This modicum of The International Law Commission’s Articles on State Re- Articles Law Commission’s The International The obligation not to provide aid or assistance to facilitate the com- The obligation not to provide aid or assistance act by another State is not mission of an internationally wrongful force.limited to the prohibition on the use of For instance, a State State to circumvent may incur responsibility if it assists another sanctions imposed by the United Nations Security Council or pro- vides material aid to a State that uses the aid to commit human rights violations. in issue must have “accepted [the] jurisdiction” of that “interna- in issue must have “accepted [the] jurisdiction” finds that the Respondent tional penal tribunal”; the Court thus tribunal concerned pursu- was under a duty to co-operate with the than the Convention, and ant to international instruments other failed in that duty.relat- On this point, the Applicant’s submissions of Articles I and VI of the ing to the violation by the Respondent Convention must therefore be upheld. that the Respon- 450. It follows from the foregoing considerations to prevent and its dent failed to comply both with its obligation from the Convention, and obligation to punish genocide deriving engaged. that its international responsibility is thereby 117. 158–59. ILC Report (2001), supra note 20, at Paragraph 9 of the . . ¶¶ 449–50. comment to Article 16 reads: Id Id cept of third State obligations (or something similar) has obligations (or something cept of third State law. acceptance in international achieved conventional The inferred of support for secondary liability, ICJ’s small measure from the 2011] State sup- a third that it is enough responsibility, legal To bear viola- of the actual the commission or protects ports, facilitates tion. States treating third some support to likewise lend sponsibility or co-conspirators. accomplices, to accessories, as analogous is appro- confirms that legal responsibility The Commentary violator with where a State provides the priate, for example, com- remedies imposed by the international protection from munity.Commentary is assisting an- The example given in the the Security sanctions imposed by other State to circumvent Council. \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 49 6-DEC-11 13:00 suggested by the ILC articles dealing with accessories and ac- suggested by the ILC articles dealing of a general theory complices, are not outright endorsements of third State responsibility. In the 31113-nyi_44-1 Sheet No. 27 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 27 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 27 Side B 12/07/2011 07:07:40 N- I RIMES The , 2 C EID [Vol. 44:1 118 L. R LEMENTS OF ATALIE 120 : E note 46, at 83 (noting & N supra IBRARY L ISCHOFF AND POLITICS L. B , Reisman, AMES note 20, at 156. Paragraph 3 of the com- RACTITIONER , J P see also supra 188 (2008). OAS AW B AW L L IDEON INTERNATIONAL LAW G 119 case, ¶ 431; case, ¶ 432. RIMINAL C TERNATIONAL NTERNATIONAL Article 16 provides that, Genocide Genocide I A State which aids or assists another State in the com- A State which aids or assists another act by the lat- mission of an internationally wrongful for doing so if: ter is internationally responsible [T]here cannot be a finding of complicity against a of complicity cannot be a finding [T]here ge- least its organs were aware that State unless at the way, to be committed or was under nocide was about mo- assistance supplied, from the and if the aid and so aware onwards, to the perpetra- ment they became the acts or to those who were on tors of the criminal the them, enabled or facilitated point of committing acts. In other words, an accom- commission of the ge- given support in perpetrating the plice must have knowledge of the facts. nocide with full First, the relevant State organ or agency providing aid or assistance First, the relevant State organ or agency the conduct of the as- must be aware of the circumstances making the aid or assistance sisted State internationally wrongful; secondly, the commission of that act, must be given with a view to facilitating and must actually do so; and thirdly, the completed act must be such that it would have been wrongful had it been committed by the assisting State itself. 121 120. 119. 121. ILC Report (2001), 118.following definition for “conspir- One authority, similarly, adopts the . NDER that a state bears a duty to use all means to prevent or stop a genocide under that a state bears a duty to use all means learns of or should normally have the circumstances once the state either learned of a serious risk of genocide). ment to Article 16 reads: Id acy to commit genocide”: “An agreement between two or more persons that acy to commit genocide”: “An agreement shall be committed concluded genocide or any of its underlying offences destroy a national, ethnic, racial, or with the intent to partially or completely religious group.” U The Articles on State Responsibility likewise takes the position State Responsibility likewise takes The Articles on for liabil- and intent are prerequisites that actual knowledge ity. 50 high. is set quite responsibility shared for establishing \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 50 6-DEC-11 13:00 Court opined that complicity is proven only if both the third only if both the is proven that complicity Court opined aware actually after it has become its assistance State continues to the commission contributes and the assistance of the facts, of the crimes. 31113-nyi_44-1 Sheet No. 27 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 27 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 28 Side A 12/07/2011 07:07:40 51 123 note 21, art. 16. supra 122 ONCLUSION IV. C ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT committed by that State. committed cumstances of the internationally wrongful of the internationally cumstances act; and (a) cir- of the with knowledge does so State That (b) if wrongful would be internationally The act Proponents of the view that international law is “really Proponents of the view that international Despite this disclaimer that “there is no general obliga- that “there is no general Despite this disclaimer Another concerns the issue which is described in some systems of Another concerns the issue which is described fact.internal law as being an accessory after the It seems that there third States to cooperate in is no general obligation on the part of conduct of another State suppressing internationally wrongful which may already have occurred. Again it is a matter for specific treaty obligations to establish any such obligation of suppression after the event. 122. Articles on Responsibility of States (2001), 123. 154. ILC Report (2001), supra note 20, at intro- Paragraph 9 of the . law” should be quick to recognize the significance of the ques- law” should be quick to recognize tion of third State obligations. more pow- International law is erful—more “law-like”—tothat it has suitable reme- the extent is less “law-like” to the extent dies for noncompliance, and it tion,” the authorities cited above go a long way towards estab- cited above go a long way tion,” the authorities of general obligation that we propose.lishing the sort The short of the preferred to stop somewhat drafters apparently in this State obligations that we propose acceptance of third article. the Court and the Interna- The ambivalence of both to the long may in part be attributable tional Law Commission of affirmative responsi- shadow cast by the universal extension bilities, with its extreme impracticability. caution is But this the matter from the unnecessary if one does not approach but instead from the point of point of view of State bystanders, view of third State obligations. 2011] clear makes on State Responsibility the ILC Articles Moreover, seems that on third State obligations: “It its general position States to obligation on the part of third there is no general conduct of internationally wrongful cooperate in suppressing may already have occurred.” another State which \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 51 6-DEC-11 13:00 ductory comment to Chapter IV (Responsibility of a State in Connection ductory comment to Chapter IV (Responsibility with the Act of Another State) reads: Id 31113-nyi_44-1 Sheet No. 28 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 28 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 28 Side B 12/07/2011 07:07:40 124 not [Vol. 44:1 579, 579 “would un- ESTATEMENT L. R L ’ TATES NT prima facie S J. I NITED ALE Y U , 14 AND POLITICS AW OF THE L . 58 ELATIONS R Facilitating, encouraging, or protecting International Remedies note 2, at 126 But should we be satisfied with the world he But should we be satisfied with the INTERNATIONAL LAW OREIGN 125 F supra OF THE . ) Id Louis Henkin was probably correct that it is “unusual” for Louis Henkin was probably correct It is possible that the reason that third State obligations It is possible that taking consist of a prohibition on Third State obligations It is no surprise that existing law does not quite bridge the It is no surprise that existing law ECOND 125. Henkin, 126. 124. Lea Brilmayer, (1989) (noting that the “narrow legalistic view” adopted by the (1989) (noting that the “narrow legalistic dercut the claim that substantive norms of international conduct are ade- quately supported by legal enforcement mechanisms”). describes, in which “[f]or most international norms or obliga- describes, in which “[f]or most international by the community to tions there is no judgment or reaction deter violation” ? (S acceptable to choose sides based on self-interest or the inter- acceptable to choose sides based ests of one’s allies. even of a widely ac- third States “to respond to a violation cepted norm.” 52 it. to ignore are free States) third States (including that law law is not really that international argument The standard flaws in the existing out gaps and mainly by pointing proceeds structure. enforcement international State obligations Third those fix some of of those gaps and to fill some could help principle, realistically recognized in they could be flaws, if only defended. defined, and successfully idea of without recognition is a mistaken have gone so long have to look like.what they would first comes to mind is What to undertake on the part of every State, a global obligation, violation to pressure, prevent or punish every heroic measures law.of international for is less ambitious, What we are arguing ambitious enough. although still quite legal rights. that is infringing on other States’ sides with a State consis- is simply to support outcomes Their central objective and to avoid undermining tent with the parties’ legal rights international law. the le- Third States are not entitled to treat and it is gal merits of the dispute as irrelevant \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 52 6-DEC-11 13:00 the violation of international law by other States effectively un- the violation of international law is violated, a norm that is dercuts the substantive norm that binding on the third State. Why shouldn’t the international community react? law regarding third State gap between current international 31113-nyi_44-1 Sheet No. 28 Side B 12/07/2011 07:07:40 Side B 12/07/2011 Sheet No. 28 31113-nyi_44-1 31113-nyi_44-1 Sheet No. 29 Side A 12/07/2011 07:07:40 53 But the re- But the 127 ENFORCEMENT OF INTERNATIONAL LAW INTERNATIONAL OF ENFORCEMENT note 20 and accompanying text. See supra 127. 2011] State obligations. third for our proposal and responsibilities and international law that existing at the outset We recognized assist obligation to a general not yet accommodate theory did norms. legal of international with enforcement \\jciprod01\productn\N\NYI\44-1\NYI101.txt unknown Seq: 53 6-DEC-11 13:00 maining gap is not large.maining existing foun- most convincing The for substantive basis are the third State obligations dations for third fact that the together with the legal rights, the victim’s the victim’s a secondary manner, in causing State assisted, in injury. us most of the way to estab- These two ingredients carry not to assist the violator.lishing a legal obligation To fill the measure of a leave requires, at most, a small gap that these two development enthusiasm for the progressive third ingredient: law. of international 31113-nyi_44-1 Sheet No. 29 Side A 12/07/2011 07:07:40 Side A 12/07/2011 Sheet No. 29 31113-nyi_44-1