(p. 590) 27 Multilateral Public Order and Issues of Responsibility1
1. The Varying Content of Illegality
The law of responsibility has had a precarious existence in a decentralized system of international relations lacking compulsory jurisdiction and generally applicable enforcement procedures. Much of international law consists of rules concerning competence and functional co-operation, and the most common mechanism for airing and maybe resolving disputes is not a court or tribunal but diplomatic exchanges and negotiated settlement. Thus acceptance of the delictual character of breaches of treaty and of other rules, and the appearance of developed principles of responsibility focusing on performance or damages rather than political ‘indemnity’ or ‘satisfaction’, are relatively recent. Customary international law historically developed through the form of liberties and prohibitions, and has remained imprecise with respect to the scope and consequences especially of serious, systemic illegality.
True, the contrast between old and new should not be overdrawn, nor the capacity of the classical system for innovation completely discounted. In addition to responsibility for one state’s causing material harm to another, there were always situations in which illegality was formulated in more general, per se terms, even within the normal framework of international responsibility. Acts of trespass, for example temporary intrusion into the airspace or territorial sea of another state, are delictual without proof of special damage.2 Indeed the principle pacta sunt servanda implies as much; in international law a breach of treaty is actionable without proof of special damage,References(p. 591) unless the treaty otherwise provides. There are many cases where the performance interests of states as promisees greatly outweigh any material loss they might individually suffer from a breach—this is true of most environmental treaties and all human rights treaties. The collective action problem at the international level is serious enough as things stand, without disabling rules about special damage based on inappropriate domestic analogies.3
Moreover classical international law accepted that state conduct could not only be unlawful but invalid, even invalid erga omnes. Any other position would have amounted to a form of multilateral disarmament in the face of unilateral action, no matter how outrageous. But beyond those scenarios, open under the bilateral, ‘billiardball’ international law of the period from Vattel to Mavrommatis,4 there can now be envisaged broader possibilities of collective action under law. The process by which these have emerged has not been based on logic but on some mixture of hope and experience.5 Both the ILC and the Court have played significant roles. The trajectory may be marked as follows:
League of Nations Covenant (embodying responses to breaches of the Covenant, co-ordinated by the Council);6 1928: Kellogg–Briand Pact (outlawing use of force in international relations, closing ‘gap’ in the Covenant);7 1932: Stimson doctrine of non-recognition (propounding collective non-recognition of Japanese aggression in Manchuria and puppet state of Manchukuo);8
Ineffective sanctions against Italy for invasion of Ethiopia (involving failure and subsequent collapse of League’s collective security system leading to Second World War);9
UN Charter (reinstituting a collective security system acceptable to the US, USSR, and others, reaffirming general prohibition on use of force in international relations);10
South West Africa cases (rejecting public interest standing of Ethiopia and Liberia to determine legality of apartheid in South West Africa);11
References(p. 592) 1969:
Inclusion of peremptory norms in VCLT Articles 53, 64 (recognizing category of norms of general international law from which no derogation is permissible);12
Namibia Advisory Opinion (confirming validity of General Assembly’s revocation of mandate; specifying collective non-recognition of South Africa’s authority over territory);14
ILC adopts draft Article 19 (recognizing collective interest in certain fundamental norms, although under the questionable rubric ‘international crimes of states’);15
Collective action consequential upon Iraqi invasion and purported annexation of Kuwait (providing for collective non-recognition; restoration of Kuwaiti sovereignty; machinery for substantial compensation of affected interests under Security Council auspices);16
Rome Statute for an International Criminal Court (creating institutional machinery for the prosecution of certain crimes under international law, including of state officials);17
Independence of Timor Leste (achieved despite earlier Indonesian ‘annexation’; collective non-recognition helped keep issue alive);18
ILC Articles on State Responsibility, Articles 40, 41, 48, 54 (endorsing consequences for third parties of serious breach of peremptory norms; implementing Barcelona Traction dictum; reserves possibility of collective countermeasures);19
Wall Advisory Opinion (pronouncing ergaomnes illegality of Wall, indicating consequences for third states, borrowing language from ILC Article 41);20
References(p. 593) 2006:
Congo/Rwanda (Court for the first time explicitly endorsing category of peremptory norms);21
Kampala Conference (agreeing definition of crime of aggression in ICC Statute).22
These developments have not been unalloyed or unequivocal. Following the rather swift and effective response to the Iraq invasion of Kuwait, the Security Council did nothing to avert the Rwanda genocide (1994). It stood back during the Iran–Iraq (1980–88) and Eritrea–Ethiopia (1998–2000) wars, to mention only two examples of catastrophic human conflicts that could have been stopped. The Security Council’s authority is both large and at large: it has broad discretion as to the appreciation of a situation and how to respond to it, with no explicit limitation on its authority in case of a Chapter VII situation.23 The Charter enjoins it to have regard to international law,24 but there is no sanction for not doing so and virtually no recourse if it does not. Perhaps the individual components of the system—the states, the EU, other actors— may insist on compliance with fundamental rights as a condition of giving effect to Security Council sanctions affecting individuals, but even that is controversial.25 There is a price to be paid for the equivocal relation of the Security Council to the law and so far there is, it seems, no way of avoiding paying it.
Furthermore there have been retreats as well as advances. Among the developments listed above, it was proposed, in draft article 19 of the ILC Articles on State Responsibility as adopted on first reading in 1996, to recognize a category of international crimes of state.26 But no penal consequences could be allowed to flow from this, nor any requirements of due process: the exercise would have been little more than name-calling and amidst some controversy the category was abandoned.27 Of course, irrespective of the putative criminality of an act qua act of state, individual criminal responsibility of those participating (including state officials) may arise underReferences(p. 594) international law.28 But if sometimes the appropriate maxim might be reculer pour mieux sauter, sometimes the opposite seems to fit better!29
2. Objective Consequences of Illegal Acts
In the literature the principle of effectiveness (ex factis ius oritur) is often set against the principle of legality (ex iniuria ius non oritur).30 A decentralized custom-based system in which sovereignty is a cardinal value must necessarily have regard to considerations of effectiveness—but not at any price. The notion of delicta iuris gentium, as opposed to the idea of torts as obligations of reparation between tortfeasor and claimant, has thus developed. A number of elements are now engaged.
(A) Peremptory Norms (Ius Cogens)
Jurists have from time to time attempted to classify rules, or rights and duties, on the international plane by using terms like ‘fundamental’ or, with respect to rights, ‘inalienable’ or ‘inherent’. Such classifications have not had much success, but have intermittently affected the tribunals’ interpretation of treaties. But during the 1960s scholarly opinion came to support the view that there can exist overriding norms of international law, referred to as peremptory norms (ius cogens).31 Their key distinguishing feature is their relative indelibility. According to VCLT Article 53, they are rules of customary law that cannot be set aside by treaty or by acquiescence but only through the formation of a subsequent customary rule of the same character.
The concept of peremptory norms (ius cogens) was accepted by the ILC32 and incorporated in the final draft on the law of treaties in 1966. Draft Article 50 provided that: ‘a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.33 This was inelegantReferences(p. 595) in that it appeared to leave open the possibility of a peremptory norm not having a non-derogable character: the final text of Article 53 (cited below) in this respect is preferable.
The ILC’s commentary makes it clear that ‘derogation’ refers to an agreement to contract out of rules of general international law.34 Thus an agreement by a state to allow another state to stop and search its ships on the high seas would be valid,35 but an agreement with a neighbouring state to carry out a joint operation against a racial group straddling the frontier in a manner that would constitute genocide is void, since the prohibition with which the treaty conflicts is peremptory in character. Aft er some controversy, the Vienna Conference on the Law of Treaties reached agreement on a provision, Article 53.36 The principal difference is that for the purposes of the VCLT a peremptory norm of general international law is defined as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.
Other rules that have this special status include the principle of self-determination, at least in its application to colonial countries and peoples or peoples under alien domination.42
(33) The content of jus cogens. The most frequently cited examples of jus cogens norms are the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination apartheid and torture, as well as basic rules of international humanitarian law applicable in armed conflict, and the right to self-determination. Also other rules may have a jus cogens character inasmuch as they are accepted and recognized by the international community of States as a whole as norms from which no derogation is permitted.43
More authority exists for the concept of peremptory norms than for its particular consequences.44 But certain suggestions may be made. For example, if outright state consent cannot derogate from a peremptory norm, the same must be true for congeners of consent such as acquiescence. This would imply that protest or recognition are irrelevant where the breach of a peremptory norm is at issue. Nor, presumably, can prescription remove the illegality—although at some level it must be possible for the states concerned to regulate the consequences of such a breach, provided this is done in a way which does not amount to mere ratification of the breach.
Moreover, consequences must flow from a breach of a peremptory norm, beyond the confines of the law of treaties. An aggressor should not benefit from the rule that belligerents are not responsible for damage caused to subjects of neutral states in military operations.45 Yet many problems of application remain, for example with regard to the effect of self-determination on the transfer of territory. If a state uses force to implement the principle of self-determination, is it possible to assume that one peremptory norm is more peremptory than another? Particular corollaries of the concept are still being explored.46
The Court observes…that ‘the erga omnes character of a norm and the rule of consent to jurisdiction are two different things’ (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29), and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute.
The same applies to the relationship between peremptory norms of general international law (jus cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties…47