The legal Dimension of the international community: How community interests are protected in international law

European Journal of International Law

Volumn 21, Issue 2, 2010, Pages 387-419

  Villalpando, Santiago ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 77954342360     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq038     Document Type: Article

References (144)

1. In other words, whether the emergence of community interests and some resulting limitations on state sovereignty are a positive evolution of the international legal system. The theory described hereinafter aims at proposing an objective description of a phenomenon which has transformed certain inter-state relations and the law that regulates them, independently of any assessment on the opportuneness (political or ethical) of this evolution.
2. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment [2002] ICJ Rep. 3.
3. Armed Activities on the Territory of the Congo (New Application: 2002)(Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment of 3 Feb. 2006, notably at paras 56-70.
4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004 [2004] ICJ Rep. 136.
5. See Jurisdictional Immunities of the State (Germany v. Italy), Application instituting proceedings, 23 Dec. 2008, available at: www.icj-cij.org/docket/files/143/14923.pdf.
6. See Report of the International Law Commission on the Work of its Sixtieth Session (2008), UN Doc A/63/10, Ch IX ('Protection of Persons in the Event of Disasters'), notably at paras 241-250. For the debates in the Sixth Committee on this issue at the 63rd session of the GA see the summary records of the 20th to 25th plenary meetings, held from 30 Oct. to 5 Nov. 2008, UN Doc. A/C.6/63/SR.20-25.
7. See Report of the International Law Commission on the Work of its Fifty-eighth Session (2007), UN Doc. A/62/10, at paras 354-355, and the debates in the Sixth Committee: summary records of the 22nd to 26th plenary meetings, held from 1 to 6 Nov. 2007 (62nd session of the GA) and summary records of the 20th to 25th plenary meetings, held from 30 Oct. to 5 Nov. 2008 UN Doc A/C.6/63/SR.20-25 (63rd session). The same issue is raised in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), in which Belgium argues that Senegal is obliged, under the 1984 Convention against Torture and under customary international law, to bring criminal proceedings against Hissène Habré, the former President of Chad, or, failing prosecution, to extradite him to Belgium (see the Application instituting proceedings, 16 Feb. 2009, available at: www.icj-cij.org/docket/files/144/15054.pdf).
8. See Report, supra note 6, at 294-298. For the debates in the Sixth Committee on this issue at the 63rd session of the General Assembly see the summary records of the 20th to 25th plenary meetings, supra note 6.
9. Island of Palmas (Netherlands/United States of America), arbitral award of 4 Apr. 1928, UN Rep Int'l Arbitral Awards, ii, at 838.
10. The difference between these two latter kinds of social relations depends on the kind of interests fulfilled, but not on the individual character of such interests. In the synallagmatic relation, the parties have different personal interests, which happen to be complementary or reciprocal (do ut des): England trades textiles for wine with Portugal, thus fulfilling its own need for wine and Portugal's need for textiles. In the cooperation of the kind proper to a customs union, all the parties fulfil the same interest, which is equivalent for each of them: all the participants in the union protect their internal industry (e.g., agricultural production) from external competition.
11. For a more detailed description of the advantages and problems encountered in the application of sociological models to international relations see S. Villalpando, L'émergence de la communauté internationale dans la responsabilité des Etats (2005), at 9-41.
12. For similar application of such models at the international level see Truyol y Serra, 'Genèse et structure de la société internationale', 96 Recueil des Cours (1959-I) 553, at 572-574
13. R.-J. Dupuy, La communauté internationale entre le mythe et l'histoire (1986), at 14-16
14. 'Communauté internationale et disparités de développement', 165 Recueil des Cours (1979-IV) 9, at 25-26
15. A. Paulus, Die internationale Gemeinschaft im Völkerrecht. Eine Untersuchung zur Entwicklung des Völkerrechts im Zeitalter des Globalisierung (2001). See also Schindler, 'Contribution à l'étude des facteurs sociologiques et psychologiques du droit international', 46 Recueil des Cours (1933-IV) 229
16. Landheer, 'Les théories de la sociologie contemporaine et le droit international', 92 Recueil des Cours (1957-II) 519.
17. In sociology, the concepts of 'society' (Gesellschaft), reflecting large-scale competitive social relations, and 'community' (Gemeinschaft), a smaller neighbourhood-based group, were first explored in these terms by Ferdinand Tönnies in his Gemeinschaft und Gesellschaft (first published in 1887 and later revised by the author in a 2nd edn of 1912; for a recent reprint of the 1957 English translation see F. Tönnies, Community and Society (2002)). Similar distinctions have been used by other sociologists, such as Emile Durk heim ('mechanical' and 'organic' solidarity in De la division du travail social (1893)), Max Weber ('associative' (Vergesellschaftung) and 'communal' (Vergemeinschaftung) relations in Economy and Society: An Outline of Interpretative Sociology (original edn 1925; English translation (G. Roth and C. Wittich (eds), 1978), at 40-43), Talcott Parsons (with his 5 pattern variables (affectivity v. neutral affectivity; self-orientation v. collectivity orientation; universalism v. particularism; achievement v. ascription; specificity v. diffuseness), for instance, in Parsons and Shills, 'Values, Motives, and Systems of Action', in T. Parsons, Toward a General Theory of Action (1962; original edn 1952), at 76-79), etc.
18. For Durkheim's definition of 'organic solidarity' see Durkheim, supra note 12, at 98-102.
19. This evolution is akin to the structural change in international law described by Wolfgang Friedmann from a law of 'coexistence' (based on society-like social relations) to a law of 'cooperation' (based on community-like social relations): see W. Friedmann, The Changing Structure of International Law (1964), notably at 60-62 and 367 (where he explicitly links the law of cooperation with the recognition of a community of interests). See also G. Schwarzenberger, The Dynamics of International Law (1976), at 110, who proposes the distinction between the law of power, law of coordination, and law of reciprocity, which is explicitly based on the sociological concepts of 'society' and 'community' (as defined in a glossary in ibid., at 2 and 4).
20. For the use of this expression in a similar context see P. Jessup, A Modern Law of Nations. An Introduction (1948), at 12 and 37.
21. For a similar approach see Kraus, 'La morale internationale', 16 Recueil des Cours (1927-I) 385, at 507-511
22. Abi-Saab, 'Cours général de droit international public', 207 Recueil des Cours (1987-VII) 9, at 98-99.
23. The concept was originally proposed in Samuelson, 'The Pure Theory of Public Expenditure', 36 Review of Economics and Statistics (1954) 387. Common examples of 'public goods' are national defence and law enforcement (or public peace and security), lighthouses, environmental goods, etc. The particular interest of such goods for economists lies in the fact that they produce 'positive externalities' which cannot be remunerated (it is the well-known problem of the 'free rider', who enjoys the benefits of the commodity without any need to participate in its costs); it follows that the government would normally be called upon to intervene in the production of such goods since no rational private actor would readily do so. And this could also have some impact on the law, since the issue of repartition of costs needs to be somehow regulated, which in itself promotes a certain kind of social cohesion.
24. I.e., once these goods are made available, users cannot be kept away from their consumption and anyone can have access to them.
25. I.e., their enjoyment by one consumer does not deprive any other user of the commodity, nor does it reduce the amount of the good available for consumption by others.
26. It would not be unreasonable to conceive that such cohesive forces also apply to international relations. As a matter of fact, the Respubblica Christiana which preceded the Treaty of Westphalia corresponded quite closely to the model of a 'community' in sociological studies: it was a static social group founded on geographical proximity, common traditions, and religion; its legal system was based on allegiances and repressive sanctions, and the relations among monarchs were dominated by the interests of Christianity (represented by the Pope and/or the Emperor) and defence against external dangers. The term 'community' has indeed often been used to refer to that system: D. Anzilotti, Corso di diritto internazionale (1912) (reproduced in Opere di Dionisio Anzilotti II. Scritti di diritto internazionale pubblico (1956), i, at 3-4)
27. Giuliano, 'La "Respubblica Cristiana" medioevale e le pretese origini della società e del diritto internazionale', in J. Tittel (ed.), Multitudo legum ius unum. Festrichft für Wilhelm Wengler zu seinem 65.
28. Geburstdag. Band I: Allgemeine Rechtslehre und Völkerrecht (1973), at 159 and 161-162.
29. See also Zimmermann, 'La crise de l'organisation internationale à la fin du Moyen-Age', 44 Recueil des Cours (1933-II) 315, quoting authors of the Middle Ages, such as Augustino Triumpho de Ancona ('communitas', at 328) or Saint Thomas Aquinas ('tota communitas universi gubernator ratione divina', at 321).
30. It follows from this particularity that the trend towards the protection of community interests does not necessarily correspond to a 'moralization' of international relations (in the sense in which this expression is used, for example, in Pastor Ridruejo, 'Le droit international à la veille du vingt et unième siècle: normes, faits et valeurs. Cours général de droit international public', 274 Recueil des Cours (1998) 9). The preservation of public goods derives from a utilitarian necessity linked to the intensification of social intercourse which, as explained below, could be encouraged by a common ethical sense but is not necessarily related to it (see Villalpando, supra note 11, at 64-67).
31. On how this communitarian model co-exists with the enduring protection (and central character) of individual interests of states (including their sovereignty) see sect. 4 below.
32. Compare with the concept of 'identical collective interests' proposed by Herbert Kraus, supra note 17, at 490. It is true that, in contemporary international law, the protection of certain public goods has occasionally been entrusted to a single collective entity, which has sometimes been vested with binding powers: this is the case, for instance, of the Security Council, which has the 'primary responsibility for the maintenance of international peace and security' (Art. 24(1) of the Charter) and may decide action with respect to threats to the peace, breaches of the peace, and acts of aggression (Ch. VII), which members of the UN agree to accept and carry out (Art. 25). However, this stage is reached only subsequently at the international level, when states conventionally agree to entrust the fulfilment of their collective interests to a single authority (and, if necessary, accept certain limitations on their own rights and powers). In addition, by so doing, states do not renounce their identical community interests, which they continue to hold.
33. See particularly Friedmann, supra note 14, who links the emergence of a law of cooperation to technical and scientific development and identifies it in the fields of labour and health matters, communications, economical development, human rights, collective security, etc. See also the main structure of W.C. Jenks, The Common Law of Mankind (1958).
34. In the judgment in the Hostages case, the Court affirmed that the respect of the obligations in that field of law was 'vital for the security and well-being of the complex international community of the present days': United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, [1980] ICJ Rep 3, at 43, para. 92. In the previous paragraph of the judgment, the Court had indicated that the corresponding obligations were 'of cardinal importance for the maintenance of good relations between States in the interdependent world of today', since they were essential for effective co-operation in the international community and for states to achieve mutual understanding and the resolution of their differences by peaceful means (ibid., at 42, para. 91), referring to the Court's order of 15 Dec. 1979 in the same case ([1979] ICJ Rep 19).
35. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal [2002] ICJ Rep, at 85, at para. 75.
36. As some authors have (for a description of those theories see B. Stern, Le préjudice dans la théorie de la responsabilité internationale (1973), at 57-58).
37. United States Diplomatic and Consular Staff in Tehran, Judgment, supra note 27, at 40, para. 86.
38. See the separate opinion of Judge Padilla Nervo in Barcelona Traction, Light and Power Company, Limited, Judgment [1970] ICJ Rep. 3, at 246; de Visscher, 'La responsabilité des Etats', in Bibliotheca visseriana dissertationum ius internationale illustrantium (1924) ii, 87, at 117-188; Jessup, supra note 15, at 95-96.
39. In this field, 'States have, with regard to their nationals, a discretionary power to grant diplomatic protection or to refuse it': Barcelona Traction, Light and Power Company, Limited, Judgment, supra note 31, at 50, para. 99. This seems reasonable if diplomatic protection is considered as a means to protect the States' personal interests, but more problematic if it is seen as 'an instrument for the furtherance of the international protection of human rights', i.e., of a common good (see Dugard, 'First Report on Diplomatic Protection', UN Doc A/CN.4506, 7 Mar. 2000, at para. 77). For this reason, Special Rapporteur Dugard had proposed that the International Law Commission adopt a draft article which would have imposed on states a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury resulted from a grave breach of a jus cogens norm (Art. 4(1), at ibid., para. 74). This proposal, however, was not accepted by the Commission (see Report of the International Law Commission on the Work of its Fifty-second session, UN Doc A/55/10 (2000), at paras 447-456) and the articles finally adopted contain only a provision with a 'recommended practice' whereby a state entitled to exercise diplomatic protection should '[g]ive due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred' (see Art. 19(a) and paras 2 and 3 of the commentary thereto, Report of the International Law Commission on the Work of its Fifty-seventh Session, UN Doc A/61/10, 2006, at 94 and 95-97).
40. On the alterations suffered by human values when transferred to inter-state relations and international law see Arangio-Ruiz, 'The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, with an Appendix on the Concept of International Law and the Theory of International Organisation', 137 Recueil des Cours (1972-III) 419, at 656-657.
41. In the words of the International Court of Justice, 'in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of the damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage'; according to the Court, 'the growing awareness of the risks for mankind - for present and future generations -' of pursuit of human intervention on the environment triggered the development of new norms and standards in that field (Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment [1997] ICJ Rep. 7, at 78, para. 140). See also [1976] II Yrbk Int'l Law Comm. 101, at para. 15 of the commentary to draft Art. 19.
42. E.g., paras 1 and 4 of the preamble to the Kellogg-Briand Pact explicitly linked the renunciation of war as an instrument of national policy to the 'solemn duty [of the signatory Powers] to promote the welfare of mankind' and qualified it as a 'humane endeavor': Treaty providing for the renunciation of war as an instrument of national policy, signed at Paris, 27 Aug. 1928, League of Nations Treaty Series No. 2137, vol. XCIV, at 57).
43. E.g., the Universal Declaration of Human Rights proclaims that 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world' and that 'disregard and contempt for human rights have resulted in barbarous acts, which have outraged the conscience of mankind', establishing the link with the 'development of friendly relations between nations' (paras 1, 2, and 4 of the preamble to GA Res 217 (III) of 10 Dec. 1948). See also the 1st preambular para. to the Vienna Declaration and Programme of Action (adopted at the World Conference on Human Rights on 25 June 1993, UN Doc A/CONF.157/23), whereby 'the promotion and protection of human rights is a matter of priority for the international community'.
44. E.g., the Rome Statute of the International Criminal Court declares that the states parties are '[c]onscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time', recalls that 'during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity', and recognizes that 'such grave crimes threaten the peace, security and well-being of the world' (respectively, paras 1, 2, and 3 of the preamble to the Rome Statute, UN Doc A/CONF.183/9, 17 July 1998).
45. E.g., the Stockholm Declaration emphasizes that 'in the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale' and that '[t]he protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world' (respectively, paras 1 and 2 of the preamble to the Declaration of the United Nations Conference on the Human Environment, 16 June 1972 (UN publication, sales no. E. 73.II.A.14 and corrigendum), ch. 1).
46. See the 1st para. of the preamble to the Charter of the United Nations.
47. Compare with Yrbk Int'l Law Comm., supra note 35, at para. 15 of the commentary to draft article 19 (International crimes and international delicts) on the draft Arts on State Responsibility: '[t]he terrible memory of the unprecedented ravages of the Second World War, the frightful cost of that war in human lives and in property and wealth of every kind, the fear of a possible recurrence of the suffering endured earlier and even of the disappearance of large fractions of mankind, and every trace of civilization, which would result from a new conflict in which the entire arsenal of weapons of mass destruction would be used - all these are factors which have implanted in peoples the conviction of the paramount importance of prohibiting the use of force as a means of settling international disputes'.
48. Compare with ibid.: '[t]he feeling of horror left by the systematic massacres of millions of human beings perpetrated by the Nazi regime, and the outrage felt at utterly brutal assaults on human life and dignity, have both pointed to the need to ensure that not only the internal law of States but, above all, the law of the international community itself should lay down peremptory rules guaranteeing that the fundamental rights of peoples and of the human person will be safeguarded and respected; all this has prompted the most vigorous affirmation of the prohibition of crimes such as genocide, apartheid and other inhuman practices of that kind'.
49. See Report of the International Law Commission on the Work of its Fifty-eighth Session, UN Doc. A/61/10, at para. 257 and Annex C (containing an outline of the topic, which explicitly refers to the tsunami in paras 3 and 4).
50. See Report, supra note 6, notably at paras 247-250 and the summary records, also supra note 6.
51. This has in fact the frightening a contrario implication that if the Nazi regime had limited its policy of repression to its own boundaries, its crimes would have remained of 'internal concern'. And indeed, the Tribunal found in its Judgment that '[t]he policy of persecution, repression and murder of civilians in Germany before the war of 1939' and the persecution of Jews during the same period, though having been 'established beyond all doubt', did not constitute 'crimes against humanity within the meaning of the Charter' since it 'ha[d] not been satisfactorily proved that they were done in execution of, or in connection with,' the other two crimes under its jurisdiction, notably the conduct of an aggressive war (Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946, at 171).
52. See Res 253 (1968) and 277 (1970) on the political repression in Southern Rhodesia; Res 418 (1977) on the massive violence against and killings of the African people in South Africa in relation to apartheid; Res 670 (1990) on the treatment by Iraqi forces of Kuwaiti nationals, including measures to force them to leave their own country and mistreatment of persons and property in Kuwait in violation of international law; Res 688 (1991) on the repression of the Iraqi population (notably in Kurdish-populated areas) in parts of Iraq; Res 1199 (1998) on the repression by Yugoslav authorities in Kosovo; Res 1264 (1999) on the situation in East Timor.
53. See Res 216 (1965) on the 'unilateral declaration of independence made by a racist minority in Southern Rhodesia'.
54. See Res 666 (1990) and 670 (1990) on the situation during the invasion of Kuwait by Iraq; Res 757 (1992), 787 (1992), and 827 (1993) on the situation in Bosnia and Herzegovina; Res 918 (1994) on the situation in Rwanda; Res 1199 (1998) on the on the repression by Yugoslav authorities in Kosovo; Res 1264 (1999) on the situation in East Timor.
55. See Res 731 (1992) and 748 (1992) on the Lockerbie attack; Res 1054 (1996) on the assassination attempt on the life of the President of the Arab Republic of Egypt in Addis Ababa on 26 June 1995.
56. See Res 1308 (2000), in which the Council found that 'the HIV/AIDS pandemic, if unchecked, may pose a risk to stability and security'.
57. These structural transformations are similar to those criticized by Prosper Weil in 'Towards Relative Normativity in International Law', 77 AJIL (1983) 413 (see also his general course: 'Le droit international en quête de son identité. Cours général de droit international public', 237 Recueil des Cours (1992-VI) 9, notably at 227-312). On the relationship between 'relative normativity' and the phenomenon of the emergence of community interests see Villalpando, supra note 11, at 67-70: according to the thesis defended here, the emergence of community interests remains under the control of the legal order, although it implies an abandonment of the voluntarist conception of international law defended by Prosper Weil.
58. For studies of this aspect of the phenomenon see, e.g., M. Ragazzi, The Concept of International Obligations Erga Omnes (1997)
59. C.J. Tams, Enforcing Obligations Erga Omnes in International Law (2005)
60. Crawford, 'Multilateral Rights and Obligations in International Law', 319 Recueil des Cours (2006) 325.
61. This 'perfect reciprocity of rights and duties' (according to the expression used by De Visscher, supra note 31, at 90) was the basis of the classical theory of international responsibility: see A.W. Heffter, Le droit international de l'Europe. Quatrième edition française augmentée et annotée par F. Heinrich Geffcken (1883; original German edn, 1844), at 226
62. C. Calvo, Le droit international théorique et pratique. Tome Premier (2nd edn, 1870), at 399-400
63. Anzilotti, 'La responsabilité internationale des Etats à raison des dommages soufferts par des étrangers', XIII RGDIP (1906) 5, at 13
64. P. Fauchille, Traité de droit international public. Tome Ier, Première partie: Paix (8th edn, 1922), at 513-515
65. C. Eagleton, The Responsibility of States in International Law (1928), at 3 and 5
66. Ago, 'Le délit international', 68 Recueil des Cours (1939-II) 415, at 433 and 441-444.
67. See Barcelona Traction, Judgment, supra note 31, at 32, para. 33. In this judgment, the Court considered diplomatic protection as the clearest example of these legal relations; in the case at stake, this implied that the legal standing of Belgium (the Applicant) before the Court was dependent upon the demonstration of its right to exercise diplomatic protection of Belgian shareholders in a company not of Belgian nationality (ibid., at 32-33, para. 35). Having not determined the existence of such a right, the Court rejected the claim (ibid., at 51, para. 103).
68. Reservations to the Convention on Genocide, Advisory opinion [1951] ICJ Rep. 23.
69. South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment [1966] ICJ Rep. 51, at paras 99 and 100. According to the Court, 'under the mandates system, and within the general framework of the League system, the various mandatories were responsible for their conduct of the mandates solely to the League [and later, the United Nations] - in particular to its Council - and were not additionally and separately responsible to each and every individual State member of the League' (ibid., at 29, para. 34); however, neither the League of Nations nor the UN had access to the Court, in conformity with Art. 34 of its Statute.
70. Ibid. The Court finds the justification for this particular regime in the 'importance of the rights involved', thus referring to the concurring factors for the emergence of community interests identified above in sect. 2B (the essential significance that states attribute to the public good in their public relations or the particular ethical value attached to the public good by humankind). In other words, the Court distinguishes, on the one hand, some rights which are of lesser importance and need only to be preserved through the classic mechanism of diplomatic protection (in the logic of the judgment in the Barcelona Traction case, those include the rights of shareholders in a company, but also protection against denial of justice, for which the Court notes that 'the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality': ibid., at 47, para. 91) and, on the other hand, some 'basic rights of the human person' protected through obligations erga omnes (e.g., protection from slavery and racial discrimination).
71. The immediate implication would be that the breach of an obligation erga omnes could in itself demonstrate the applicant's legal interest and its legal standing in a case before the Court. Although it is true that this potentiality of the concept has seldom been used, one good example of its application is found in the Genocide case, where Bosnia and Herzegovina had invoked the breach of the Genocide Convention not only in the person of its own nationals, but also of nationals of the respondent of Muslim origin and residing in the territory of Serbia (see notably Reply of Bosnia and Herzegovina, 23 Apr. 1998, Ch. 8, sect. 12, at 730-758; in its final submissions at the hearings, Bosnia and Herzegovina requested the Court to adjudge and declare that Serbia and Montenegro had violated the Genocide Convention 'by intentionally destroying in part the non-Serb national, ethnical or religious group within, but not limited to, the territory of Bosnia and Herzegovina, including in particular the Muslim population': CR 2006/37, 24 Apr. 2006, at 59, emphasis added), and Serbia and Montenegro based its counterclaim on the breach of the Convention in the person of Bosnian nationals of Serb origin on the territory of Bosnia and Herzegovina (see Counter-Memorial of Serbia and Montenegro, 22 July 1997, Ch. VII, at 349-1077). Although the counterclaim was withdrawn (Letter of the Agent of Serbia and Montenegro to the Registrar of the Court, dated 20 Apr. 2001) and the Court refrained from making a pronouncement on the abovementioned claims by Bosnia and Herzegovina (Judgment of 26 Feb. 2007, at para. 185), neither party pleaded the inadmissibility of its adversary's claims arguing a lack of legal right or interest, thus implicitly accepting the erga omnes character of the obligations involved.
72. These are notably codified in Pt II (Conclusion and Entry into Force of Treaties) and Pt V (Invalidity, Termination and Suspension of the Operation of Treaties) of the Vienna Convention on the Law of Treaties (VCLT).
73. On this point see 'Report on the Law of Treaties' by H. Lauterpacht, Special Rapporteur, UN Doc A/CN.4/63, reproduced in [1953] II Yrbk Int'l Law Comm. 154, at paras 1-2 of the commentary to draft Art. 15. The corresponding rules are codified in Arts 34-38 VCLT.
74. Para. 1 of the commentary to draft Art. 50 (Treaties conflicting with a peremptory norm of general international law (jus cogens) of a convention on the law of treaties) [1966] II Yrbk Int'l Law Comm. 247.
75. Paras 2 and 3 of ibid., at 248. In the debates at the Commission, several members pointed out the relationship between jus cogens and the protection of the interests of the international community as a whole: see [1963] I Yrbk Int'l Law Comm.: 683rd meeting, at 63 (Mr Yasseen) and 65 (Radhabinod Pal); 684th meeting, at 684 (Manfred Lachs), 69 (Grigory Tunkin), and 71-72 (Antonio de Luna); 685th meeting, at 73-75 (Shabtai Rosenne) and 76-77 (Milan Bartos).
76. Mr Amado (Brazil), UN Conference on the Law of Treaties, 1st Session. Vienna, 26 Mar.-24 May 1968, Official Records, Summary Records of the Plenary meetings and of the Meetings of the Committee of the Whole, UN Doc A/CONF.39/11, 55th plenary meeting, 7 May 1968, at 317, para. 21. Numerous delegations of all regions of the world intervened at the Vienna Conference to the same effect: see Mexico (ibid., 52nd plenary meeting, 4 May 1968, at 294, para. 7: 'the rules of jus cogens were those rules which derived from principles that the legal conscience of mankind deemed absolutely essential to coexistence in the international community at a given stage of its historical development'); Finland (ibid., at 295, para. 14); United States of America (ibid., at 295, para. 17); Iraq (ibid., at 296, para. 23: 'higher norms which were essential to the like of the international community and were deeply rooted in the conscience of mankind'); Kenya (ibid., at 296, para. 29: '[a]t a time when the international community was developing mutual co-operation, understanding and inter-dependence, the will of the contracting States alone could not be made the sole criterion for determining what could lawfully be contracted upon by States'); Lebanon (ibid., at 297, para. 44); Madagascar (ibid., 53rd plenary meeting, 6 May 1968, at 301, para. 22); Uruguay (ibid., at 303, para. 48: '[t]he international community recognized certain principles which chimed with its essential interests and its fundamental moral ideas'); Sweden (ibid., 54th plenary meeting, 6 May 1968, at 306-307, paras 2-3); France (ibid., at 309, para. 32: '[t]he substance of jus cogens was what represented the undeniable expression of the universal conscience, the common denominator of what men of all nationalities regarded as sacrosanct'); Hungary (ibid., at 311, para. 45: '[t]he principle contained in the article was not based on the theory of natural law, but on the reality of the relations between States. . . . [Rules of a peremptory character] were a necessity dictated by the complexity of international relations and by the interdependence of the subjects of international law'); New Zealand (ibid., at 312, para. 51: 'treaties that were detrimental to an important public interest'); Romania (ibid., at 312, para. 54); Japan (ibid., 55th plenary meeting, 7 May 1968, at 318, para. 28: 'as international intercourse increased, the need for peremptory norms became greater. . . . [T]he question of conflicts between a treaty and a peremptory norm of international law . . . concerned the general interest of the whole community of nations'); Ecuador (ibid., at 320, para. 43); Ivory Coast (ibid., at 321, para. 50: 'a new solidarity of nations, based on the inter-dependence of States, international co-operation, peaceful coexistence and assistance by the wealthier to the less-favoured nations'); Zambia (ibid., 56th plenary meeting, 7 May 1968, at 322, para. 9: 'to safeguard the interests of the international community as a whole'); Philippines (ibid., at 322-323, para. 15: the jus cogens principle 'represented a formulation of the positive concept of law in the international community'); Switzerland (ibid., at 324, para. 27: 'any agreement in conflict with those main principles should be considered unlawful, since it constituted an attack on the heritage of all mankind. Against such a violation, every member of the community could, and should protest'); Norway (ibid., at 324, para. 35: 'certain fundamental principles designed to safeguard the interests of all'); Malaysia (ibid., at 326, para. 50: '[t]ransferred to the international sphere, public policy became what could be called jus cogens, which was indispensable for an increasingly organized international society in which relations tended to become multilateral rather than bilateral, and in which the interest of the international community as a whole consequently prevailed over the individual interests of each State'); Mali (ibid., at 327, para. 69: '[i]nternational law was thus becoming, to an increasing extent, a community law. The notion of jus cogens faithfully reflected the political and sociological changes that had taken place in international society'). Several delegations also referred to the notion of an international public policy (ordre public international): Greece (ibid., 52nd plenary meeting, 4 May 1968, at 295, para. 20); Lebanon (ibid., at 297, para. 44); Nigeria (ibid., at 298, para. 48); Colombia (ibid., 53rd plenary meeting, 6 May 1968, at 301, para. 26); Czechoslovakia (ibid., 55th plenary meeting, 7 May 1968, at 318, para. 25); Germany (ibid., at 318, para. 31); Switzerland (ibid., 56th plenary meeting, 7 May 1968, at 323, para. 26); Monaco (ibid., at 324, para. 32).
77. See, e.g., Virally, 'Réflexions sur le "jus cogens"', XII Annuaire français de droit international (1966) 5, at 11-12
78. Verdross, 'Jus Dispositivum and Jus Cogens in International Law', 60 AJIL (1966) 55, at 58; Suy, 'The Concept of Jus Cogens', in Carnegie Endowment for International Peace, Conference on International Law. Lagonissi (Greece), April 3-8 1966. Papers and Proceedings. II The Concept of Jus Cogens in International Law (1967), at 17, 70-71
79. Ago, 'Droit des traités à la lumière de la Convention de Vienne', 134 Recueil des Cours (1971-III) 297, at 323-324
80. de Visscher, 'Positivisme et "jus cogens"', 75 RGDIP (1971) 5, at 11
81. Mann, 'The Doctrine of Jus Cogens in International Law', in H. Emke et al. (eds), Festrichft für Ulrich Scheuner zum 70. Geburstag (1973), at 399, 441
82. C. Rozakis, The Concept of Jus Cogens in the Law of Treaties (1976), at 2
83. Scheuner, 'Conflict of Treaty Provisions with a Peremptory Norm of General International Law and its Consequences', 27 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1976) 520, at 524
84. Ronzitti, 'La disciplina dello jus cogens nella Convenzione di Vienna sul diritto dei trattati', XV Comunicazioni e Studi (1978) 241, at 256
85. Gómez Robledo, 'Le ius cogens international: sa genèse, sa nature, ses fonctions', 172 Recueil des Cours (1981-III) 9, at 185-187 and 188-208
86. Alexidze, 'Legal Nature of Jus Cogens in Contemporary International Law', 172 Recueil des Cours (1981-III) 219, at 260-262
87. F. Lattanzi, Garanzie dei diritti dell'uomo nel diritto internazionale generale (1983), at 312
88. L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law. Historical Development, Criteria, Present Status (1988), at 18 and 282-283
89. Christenson, 'Jus Cogens: Guarding Interests Fundamental to International Society', 28 Virginia J Int'l L (1988) 585, at 587
90. Simma, 'From Bilateralism to Community Interest in International Law', 250 Recueil des Cours (1994-VI) 217, at 288
91. Carrillo Salcedo, 'Reflections on the Existence of a Hierarchy of Norms in International Law', 8 EJIL (1997) 583, at 588-591
92. Verhoeven, 'Jus Cogens and Reservations or "Counter-Reservations" to the Jurisdiction of the International Court of Justice', in K. Wellens (ed.), International Law : Theory and Practice. Essays in Honour of Eric Suy (1998), at 195, 196
93. A. Orakhelashvili, Peremptory Norms in International Law (2006), at 7-35. Contra R. Kolb, Théorie du ius cogens. Essai de relecture du concept (2001), notably at 172-184, who, while recognizing the dominant trend above, proposes a larger notion of jus cogens based on the idea of utilitas publica.
94. Under Art. 103, in the event of a conflict between the obligations of the Members of the UN under the Charter and their obligations under any other international agreement, the former shall prevail. This provision echoes Art. 20 of the Covenant of the League of Nations, under which the Members of the League agreed that the Covenant 'is accepted as abrogating all obligations or understandings inter se which are inconsistent with the terms thereof, and solemnly undertake that they will not hereafter enter into any engagements inconsistent with the terms thereof'.
95. See Sciso, 'On Article 103 of the Charter of the United Nations in the Light of the Vienna Convention on the Law of Treaties', 38 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht (1987-1988) 161; Bernhardt, 'Article 103', in B. Simma (ed.), The Charter of the United Nations. A Commentary 1292 (2nd edn, 2002), at 1292, 1295, and 1302; Toublanc, 'L'article 103 et la valeur juridique de la Charte des Nations Unies', 108 RGDIP (2004) 439; Thouvenin, 'Article 103', in J.-P. Cot, A. Pellet, and M. Forteau (eds), La Charte des Nations Unies. Commentaire article par article 2133 (3rd edn, 2005), at 2134; Simma, 'La Charte des Nations Unies et le jus cogens', in R. Chemain and A. Pellet (eds), La Charte des Nations Unies, constitution mondiale? (2006), at 207-209
96. The most straightforward consequence would be that the implementation of the obligations under conflicting international agreements would constitute a breach of the Charter and thus entail the responsibility of the state vis-à-vis other member states.
97. See supra note 26. In its commentary to the Articles on the Responsibility of States for internationally wrongful acts, the International Law Commission takes note of this theory, while opening up the possibility for the emergence of community interests: '[i]n international law the idea of breach of an obligation has often been equated with conduct contrary to the rights of others. . . . [S]ome have considered the correlation of obligations and rights as a general feature of international law: there are no international obligations of a subject of international law which are not matched by an international right of another subject or subjects, or even of the totality of the other subjects (the international community as a whole)': [2001] II Yrbk Int'l Law Comm., Pt 2, at 35, para. 8 of the commentary to Art. 2.
98. See [1976] II Yrbk Int'l Law Comm., at 95-122. Under para. (2) of draft Art. 19, an 'international crime' was defined as '[a]n internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole', thus making a dual relationship with the international community both substantively (its fundamental interests being harmed) and formally (the community should recognize the act as a crime). Para. (3) gave a series of examples of such crimes, which included aggression, the establishment or maintenance by force of colonial domination, slavery, genocide, apartheid, and massive pollution of the atmosphere or of the seas. In the commentary, the Commission made clear references to the phenomenon described in the previous sect.: see, for instance, ibid., at 101, para. 15 ('the imperative need to protect the most essential common property of mankind'); at 102, para. 15 ('these rules impose upon States obligations which are to be respected because of an increased collective interest on the part of the entire international community'); at 104, para. 21 ('The specially important content of certain international obligations and the fact that their fulfilment affects the realities of life in the international community'); etc.
99. In its commentary to draft Art. 19 in 1976, the Commission rejected the analogy with criminal law, but remained somehow ambiguous as to the possibility of imposing repressive and punitive sanctions on states: see, e.g., ibid., at 104, para. 21, n. 473. The consequences of an international crime identified on first reading in 1996 did not establish a criminal regime of responsibility, but did contain some repressive features: the wrongdoing state was under an obligation to provide restitution in kind even when it would involve a burden out of all proportion to the benefit which the injured state would gain from obtaining restitution in kind instead of compensation, or would seriously jeopardize its political independence or economic stability whereas the injured state would not be similarly affected if it did not obtain restitution in kind, and to provide satisfaction even if it impaired its dignity: see draft Art. 52 in [1966] II Yrbk Int'l Law Comm., Pt 2, at 71. The Commission abandoned the concept of criminal state responsibility at the beginning of its second reading on the draft Arts: [1998] II Yrbk Int'l Law Comm., Pt 2, at 75, paras 317-318 and at 77, paras 329 and 331.
100. Ibid., at 67, para. 265 (see also ibid., at 68, para. 270; at 70, para. 283; at 73, para. 301). References were also made to community interests (ibid., at 68, para. 266; at 70, paras 280 and 283; at 72, para. 297; at 73-74, paras 303-305; at 77, para. 329) and the reinforcement of solidarity (ibid., at 69, para. 274; at 73, para. 301; at 75, para. 318).
101. Despite their apparent limited character, these supplementary obligations play a significant role for the system: while in the general regime states have discretion whether to implement the responsibility for breaches of obligations erga omnes (they have a right to claim cessation and reparation), the aggravated regime imposes upon all of them (including the injured state) obligations aimed at limiting the effects of the serious breach of an obligation under jus cogens, thus ensuring a minimum guarantee of the affected public good (see Villalpando, supra note 11, at 381-391). For a study of other consequences under the aggravated regime not codified by the International Law Commission see ibid., at 391-413.
102. See, e.g., the commentary by Geffcken in Heffter, supra note 58, at 231; P. Fiore, Nouveau droit international public suivant les besoins de la civilization moderne (2nd edn, trans. Antoine, 1885), ii, at 17; M. Travers, Le droit pénal international et sa mise en œuvre en temps de paix et en temps de guerre (1920), at 79-80
103. Pella, 'La repression de la piraterie', 15 Recueil des Cours (1926-V) 145, at 220-221.
104. See Boschiero, 'La traite transatlantique et la responsabilité internationale des Etats', in L. Boisson de Chazournes, J.-F. Quéguiner, and S. Villalpando (eds), Réparer les crimes de l'histoire? Réponses du droit et de la justice (2004), at 203-262.
105. E.g., in the preamble to the London Agreement of 8 Aug. 1945, creating the International Military Tribunal with jurisdiction over crimes against peace, war crimes, and crimes against humanity, the Contracting Parties qualified the acts to be judged and punished as 'abominable deeds' and declared themselves to be 'acting in the interests of all the United Nations'. The preamble to the Convention for the Prevention and Punishment of the Crime of Genocide of 9 Dec. 1948 referred to genocide as 'a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world' and as 'an odious scourge' for the elimination of which international cooperation is required.
106. E.g., Pella, supra note 81, at 220-222; S. Glaser, Introduction à l'étude du droit international penal (1954), at 8 and 13
107. S. Plawski, Etude des principes fondamentaux du droit international pénal (1972), at 10; Lattanzi, supra note 71, at 354-355
108. Dinstein, 'International Criminal Law', 20 Israel L Rev (1985) 206, at 221
109. L. Sunga, The Emerging System of International Criminal Law. Development in Codification and Implementation (1997), at 229-247
110. Barboza, 'International Criminal Law', 278 Recueil des Cours (1999) 9, at 24-25
111. Abellán Honrubia, 'La responsabilité internationale de l'individu', 280 Recueil des Cours (1999) 135, at 199-203. In its draft statute of the International Criminal Court, the International Law Commission had initially considered vesting the Court with jurisdiction over crimes 'under a norm of international law accepted and recognized by the international community of States as a whole as being of such a fundamental character that its violation attracts the criminal responsibility of individuals'; while the Commission then preferred to define specific crimes, thus abandoning this proposal because of its vagueness, the idea underlying it was not challenged: see [1994] II Yrbk Int'l Law Comm., Pt 2, at 36, para. 5 of the commentary to Pt III.
112. See Israeli Supreme Court, Attorney-General of the Government of Israel v. Adolf Eichmann, Judgment of 29 May 1962, 36 Int'l L Rep. 291; US, Filartiga v. Peña Irala, 630 F2d 876 (2nd Cir 1980), reproduced at 19 ILM (1980) 980.
113. Rome Statute of the Intenational Criminal Court, UN Doc A/CONF.183/9, 17 July 1998, 4th para. of the preamble.
114. The link between the Barcelona Traction dictum and the South West Africa judgment is highlighted, for instance, in Schachter, 'International Law in Theory and in Practice', 178 Recueil des Cours (1982-V) 9, at 341
115. Thirlway, 'The Law and Procedure of the International Court of Justice', LX British Yrbk Int'l L (1989) 1, at 94
116. T. Meron, Human Rights and Humanitarian Norms as Customary Law (1989), at 190; Simma, supra note 71, at 295.
117. Judgment, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 Nov. 1945-1 Oct. 1946, supra note 45, at 223.
118. The Commission invoked the passage of the Barcelona Traction judgment on obligations erga omnes in para. 10 of the commentary to draft Art. 19: [1976] II Yrbk Int'l Law Comm. 99. It later mentioned jus cogens and criminal responsibility for international crimes as evidence of the conviction that any breach of obligations 'which are to be respected because of an increased collective interest on the part of the entire international community' is particularly serious and subject to a different regime of responsibility: ibid., at 102-104, paras 15-21.
119. On the reasons for this choice of terminology see ibid., at 118-119, para. 59 ('the Commission chose this designation because it has come into common use in the practice of States and in contemporary learned works and because it is frequently employed in resolutions adopted by organs, first, of the League of Nations and, later, of the United Nations, as well as in important international instruments'). There is no explanation in the commentary as to why reference to obligations erga omnes or jus cogens was not used.
120. See Crawford, supra note 57, at 452-477. In its interim conclusions on draft Art. 19, following its debate in 1998, the International Law Commission notably agreed that draft Art. 19 would be put to one side and that 'consideration should be given to whether the systematic development in the draft articles of key notions such as obligations (erga omnes), peremptory norms (jus cogens) and a possible category of the most serious breaches of international obligation could be sufficient to resolve the issues raised by article 19': [1998] II Yrbk Int'l Law Comm., Pt 2, at 77, para. 331.
121. See, e.g., International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Prosecutor v. Anto Furundzija, IT-95-17/1-T, Judgment of 10 Dec. 1998, at paras 151-152 (where the Chamber finds that the prohibition of torture imposes obligations erga omnes, from which it follows that '[w]here there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture, these bodies enjoy priority over individual States in establishing
122. In the 1966 South West Africa judgment, supra note 62, at 51, para. 99, the Court had rejected the claims of Ethiopia and Liberia on the basis that the applicants had not 'established any legal right or interest appertaining to them in the subject-matter of the present claims'. In its reasoning, the Court had made it clear that even legal rights or interests which did not relate to anything material or 'tangible' could be a basis for legal standing before it, as long as 'such rights or interests . . . be clearly vested in those who claim them, by some text or instrument, or rule of law': ibid., at 32, para. 44. The Barcelona Traction judgment, supra note 31, at 32, para. 35, bases its definition of obligations erga omnes (as well as its findings on Belgium's legal standing in the case) on the same test. It is telling in this regard that the 1970 judgment did not directly contradict the 1966 finding whereby 'the equivalent of an "actio popularis", or right resident in any member of a community to take legal action in vindication of a public interest' was 'not known to international law as it stands at present': South West Africa, supra note 62, at 47, para. 88.
123. The Court could alternatively have coined a new mechanism, closer to actio popularis' as traditionally conceived, by which any state could have legal standing before the Court (i.e., a procedural right) to protect an affected community interest, regardless of any substantive legal right or interest vested in it. For a proposal in this sense prior to the 1970 Barcelona Traction case see G. Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale. Etude des notions fondamentales de procédure et des moyens de leur mise en œuvre (1967), at 130-145, notably at 142-145.
124. The Vienna Conference could alternatively have vested in an international organ (for instance, the GA or the SC) the power to annul the treaty in contradiction to a peremptory norm falling under its competence (e.g., the prohibition of the use of force or of genocide).
125. The Commission could alternatively have proposed a regime of state criminal responsibility, respecting the principles of nullum crimen nulla poena sine lege and of due process and accompanied by procedures for the investigation and determination of crimes, appropriate sanctions, and rehabilitation. This was proposed, for the sake of argument, by Special Rapporteur Crawford ('First Report on State responsibility' by James Crawford, UN Doc A/CN.4/490/Add.3, at paras 89-92) and rejected by the Commission: [1998] II Yrbk Int'l Law Comm., Pt 2, at 74-75, paras 306-316.
126. See sect. 2B above. As explained therein, public goods may be found in every domain of international relations, but the need for a legal mechanism of protection based on multilateralism was felt only in certain fields.
127. The consequences for a treaty which becomes void and terminates by reason of the emergence of a new peremptory norm of general international law (Art. 64) are codified in Art. 71(2), whereby the termination of the treaty releases the parties from any obligation further to perform the treaty, but does not affect any right, obligation, or legal situation of the parties created through the execution of the treaty prior to its termination, provided that those rights, obligations, or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm.
128. For a criticism of this regime in the VCLT see Cahier, 'Les caractéristiques de la nullité en droit international et tout particulièrement dans la Convention de Vienne de 1969 sur le droit des traités', 76 RGDIP (1972) 481, at 488
129. Rosenne, 'Bilateralism and Community Interest in the Codified Law of Treaties', in W. Friedmann, L. Henkin, and O. Lissitzyn (eds), Transnational Law in a Changing Society. Essays in Honor of Philip C. Jessup (1972), at 221-222
130. J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties : A Critical Appraisal (1974), at 125-132 and 187-188; Rozakis, supra note 71, at 115-122; Scheuner, supra note 71, at 524; Ronzitti, supra note 71, at 272-273; Gómez Robledo, supra note 71, at 151-152
131. Gaja, 'Jus Cogens beyond the Vienna Convention', 172 Recueil des Cours (1981-III) 271, at 282-283; Hannikainen, supra note 71, at 294-296; Simma, supra note 71, at 288-289. Most of these authors contemplate the possibility that third states invoke the invalidity of a treaty in conflict with jus cogens beyond the rules of the VCLT (e.g., through state responsibility). For authors who support the regime of the VCLT see Picone, 'Obblighi reciproci and obblighi erga omnes degli Stati nel campo della protezione internazionale dell'ambiente marino dall'inquinamento', in V. Starace (ed.), Diritto internazionale e protezione dell'ambiente marino (983), at 15, 41-42, n. 57; Li, 'Jus Cogens and International Law' (originally published 1982), reproduced in S. Yee and W. Treya (eds), International Law in the Post-Cold War World. Essays in memory of Li Haopei (2001), at 499, 520.
132. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and admissibility, Judgment of 3 Feb. 2006, at para. 64.
133. The Court indeed concluded in that case that it could not exercise its jurisdiction by virtue of the declarations of the parties under Art. 36(2) of its Statute 'because, in order to decide the claims of Portugal, it would have to rule, as a prerequisite, on the lawfulness of Indonesia's conduct in the absence of that State's consent': East Timor (Portugal v. Australia), Judgment [1995] ICJ Rep 105, at para. 35. The Court did not therefore decide on Australia's further objection, which could have required some examination of obligations erga omnes, whereby Portugal lacked standing to bring the case since it did not have a sufficient interest of its own to institute the proceedings and could not claim any right to represent the people of East Timor: ibid., at 99, para. 20.
134. In 2000, the Commission had proposed a provision which recognized the entitlement of any state to take countermeasures at the request and on behalf of a state injured by a breach of an obligation owed to the international community as a whole or in the interest of the beneficiaries of an essential obligation to the international community which is seriously breached: see Art. 54 in [2000] II Yrbk Int'l Law Comm., Pt 2, at 70-71. Following the reactions in the Sixth Committee, the Commission finally adopted an Art. stating that the Chapter on countermeasures 'does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached': Art. 54 in [2001] II Yrbk Int'l Law Comm., Pt 2, at 137.
135. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, respectively at 266 (para. 105 E), 257 (para. 79), 263 (para. 96), and again 266 (para. 105 E).
136. See Regina v. Bartle and the Commissioner of Police for the Metropolis and others ex parte Pinochet, 24 Mar. 1999 (HL), reproduced at 38 ILM (1999) 581.
137. In the Arrest Warrant judgment, supra note 2, at 33, para. 78(2), where it found that 'the issue against Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law'.
138. See Report, supra note 6, at para. 296. Some of these members even went on to contend that 'the position of the International Court of Justice in the Arrest Warrant case ran against the general trend towards the condemnation of certain crimes by the international community as a whole . . . and that the Commission should not hesitate to either depart from that precedent or to pursue the matter as part of progressive development': ibid., at para. 295.
139. Assembly of Heads of State and Government of the African Union, Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Assembly/AU/Dec.199(XI), 11th session (30 June-1 July 2008), reproduced in Annex II to UN Doc S/2008/465.
140. Legality of the Threat or Use of Nuclear Weapons, supra note 105, at 262, para. 95.
141. See, respectively, App. No. 35763/97, Al-Adsani v. UK, Judgment of 21 Nov. 2001, at paras 52-67 and Jones (Respondent) v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) (Appellants) [2006] UKHL 26, per Lord Hoffmann, at paras 43-44. See also International Law Commission, 'Immunity of State officials from foreign criminal jurisdiction', Memorandum by the Secretariat, UN Doc A/CN.4/596, 31 Mar. 2008, at para. 195.
142. Arrest Warrant of 11 April 2000, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, supra note 28, at 85, para. 75.
143. An alternative mechanism (mentioned in passing by some Judges in their separate or dissenting opinions in that case) would have been that the incumbent high-ranking state official be granted personal immunity only when travelling abroad on official visits. This would have entailed that prosecution for international crimes would be possible against an incumbent state official, thus limiting the latter's ability to travel on private visits, but not the exercise of his or her official functions. This solution, however, does not seem to be supported by state practice.
144. See the commentary of the International Law Commission to Art. 54 (Measures taken by States other than an injured State) [2001] II Yrbk Int'l Law Comm., Pt 2, at 137-139. See also Tams, supra note 57, at 207-241; Dawidowicz, 'Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and their Relationship to the UN Security Council', 77 British Yrbk Int'l L (2006) 333.