Invocation of State Responsibility for Violation of Obligations Owed to the International Community as a Whole

The article discusses the features of the application of paragraph 1 (b) of Art. 48 of the Draft Articles on State Responsibility, developed by the UN International Law Commission and taken into consideration by the UN General Assembly by its resolution 56/83 of December 12, 2001. The norm of this article enshrines the right of any state that is not a victim to call to international legal responsibility state that has committed a breach of an obligation owed to the international community as a whole. This rule contributes to the establishment in modern international law of the ancient Roman theory of actio popularis, according to which any citizen could file a claim in the public interest. The UN International Law Commission is considering paragraph 1 (b) of Art. 48 of the 2001 Draft Articles on State Responsibility as a result of the progressive development of International Law. This is manifested primarily in a new approach to the interpretation of concepts such as “the international community as a whole” and “obligation owed to the international community as a whole”. The article notes that the concept of "the international community as a whole" should no longer be considered as a community of sovereign states, since it already presupposes a more active participation in maintaining international legitimacy of all participants of international relations – subjects of international law. In addition, attention is drawn to the fact that the concept of “obligation owed to the international community as a whole” is a new category proposed by the International Law Commission as a part of the progressive development of the theory of erga omnes and jus cogens norms. The author compares these types of obligations and points out a number of problems that may arise while interpreting this concept in order to apply this rule in practice.

Codification, Progressive Development, New Law, Doctrine, and the Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens): Personal Reflections of the Special Rapporteur

FIU Law Review ◽

10.25148/lawrev.13.6.13 ◽

2019 ◽

Vol 13 (6) ◽

Author(s):

Dire Tladi

Keyword(s):

International Law ◽

Special Rapporteur ◽

Progressive Development ◽

Personal Reflections ◽

Jus Cogens ◽

Peremptory Norms ◽

Unilateral acts and peremptory norms (Jus Cogens) in the international law commission’s work

Review of Economics and Political Science ◽

10.1108/reps-11-2018-0030 ◽

2019 ◽

Vol 4 (3) ◽

pp. 182-196

Author(s):

Ibrahim Sief Abdel Hameed Menshawy

Keyword(s):

International Law ◽

International Community ◽

Common Interest ◽

Content Type ◽

The Common ◽

Jus Cogens ◽

Peremptory Norms ◽

Practical Implications ◽

Purpose This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral acts. Design/methodology/approach The study depended on analyzing the work of the International Law Commission on two topics: Unilateral Acts 2006 and Reservations to treaties 2011 to reveal the relation between jus cogens and unilateral acts. Findings Jus cogens restrict unilateral acts like treaties due to the recognition of the importance and necessity of the concept of Jus cogens in protecting the fundamental interests of the international community. Practical implications States must be compatible with jus cogens when making any reservation on a treaty and also when taking any unilateral act. Originality/value This paper reveals the importance of jus cogens in promoting the values of the international community and the need of such notion to protect the common interest of that community.

The Case for a Convention on State Responsibility

Nordic Journal of International Law ◽

10.1163/15718107-08304003 ◽

2014 ◽

Vol 83 (4) ◽

pp. 439-475 ◽

Cited By ~ 1

Author(s):

Laurence T. Pacht

Keyword(s):

United Nations ◽

International Law ◽

Public Space ◽

General Assembly ◽

State Responsibility ◽

Main Argument ◽

The Public ◽

Law Commission ◽

Do So

At the time of adopting the Articles on the Responsibility of States for Internationally Wrongful Acts, in 2001, the International Law Commission recommended, inter alia, that the General Assembly of the United Nations consider the possibility of negotiating a convention on the basis of the Articles. On four occasions, since 2001, the member states in the Sixth Committee of the General Assembly have been divided on whether to do so. Nonetheless, the most recent such debate, held in 2013, revealed a strong undercurrent of support among the states for convening a diplomatic conference to negotiate a treaty. However, this trend is not reflected in much of what has been written and argued in the public space, which has been almost entirely in opposition to a convention. The main argument for such opposition has been that a treaty negotiation would set back the development of the law either through the adoption of a flawed text or through failure to reach agreement. The present article seeks to scrutinise the viability of such a prognosis, by both responding to the arguments made against a treaty negotiation and by offering some reasons for supporting the negotiation of a convention on the responsibility of states for internationally wrongful acts.

The ILC and State Responsibility

The American Journal of International Law ◽

10.2307/3070678 ◽

2002 ◽

Vol 96 (4) ◽

pp. 792-797 ◽

Cited By ~ 5

Author(s):

Robert Rosenstock

Keyword(s):

International Law ◽

Strict Liability ◽

International Community ◽

State Responsibility ◽

Occam’S Razor ◽

The Law ◽

Multilateral Treaty ◽

Over Time ◽

The handling by the International Law Commission (ILC) of state responsibility, hazardous activities, and strict liability reveals in many ways the Commission’s strengths and limitations. This work also tells much about the development of international law and the extent to which there is—or is not—an international community. The Commission’s work on state responsibility in particular also illustrates the validity of Holmes’s immortal statement about logic and the life of the law, the utility of Occam’s razor, and the value of William James’s pragmatism. Even if Philip Allott were close to the mark—as he often is—in calling the draft articles, as they then were, “bland gruel,” it is hard to ignore the need for the articles or their contribution to the unification of international law. Both are witnessed by tribunals’ eagerness to cite the Commission’s texts even before their formal adoption. While this practice has upset some as premature, it reflects the symbiotic process that has evolved over time as both the Commission and courts and tribunals labor to clarify existing law. Codification of lex lata may be no less effective if contained in a paragraph of a report rather than in an article of a multilateral treaty.

The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’

Global Responsibility to Protect ◽

10.1163/1875-984x-20200002 ◽

2020 ◽

Vol 12 (3) ◽

pp. 299-335

Author(s):

Rana M. Essawy

Keyword(s):

International Law ◽

Security Council ◽

State Responsibility ◽

Legal Nature ◽

Un Security Council ◽

Jus Cogens ◽

Peremptory Norms ◽

In this article, I argue that contemporary international law imposes an obligation upon the UN Security Council permanent members to refrain from using their veto repeatedly in ways that impede the Council from acting against violations of peremptory norms. This obligation not to veto emanates from the duty to cooperate to end violations of peremptory norms as enshrined in Article 41(1) of the International Law Commission Articles on State Responsibility. For this purpose, I demonstrate that the duty to cooperate itself possesses a peremptory character under the theory of ‘consequential jus cogens’, whereby effects of jus cogens norms are themselves peremptory. In doing so, this article contributes to the ongoing debates concerning the legal nature of the effects of jus cogens norms by showing that the theory of ‘consequential jus cogens’ is an application of the generally accepted maxim accessorium sequitur principale and thus forms part of positive international law.

On the Road to Vienna

10.1093/oso/9780198795940.003.0005 ◽

2017 ◽

Author(s):

Kai Bruns

Keyword(s):

Cold War ◽

International Law ◽

The Road ◽

Progressive Development ◽

History Of ◽

On The Road ◽

The Cold War ◽

This chapter focuses on the negotiations that preceded the 1961 Vienna Conference (which led to the conclusion of the VCDR). The author challenges the view that the successful codification was an obvious step and refers in this regard to a history of intense negotiation which spanned fifteen years. With particular reference to the International Law Commission (ILC), the chapter explores the difficult task faced by ILC members to strike a balance between the codification of existing practice and progressive development of diplomatic law. It reaches the finding that the ILC negotiations were crucial for the success of the Conference, but notes also that certain States supported a less-binding form of codification. The chapter also underlines the fact that many issues that had caused friction between the Cold War parties were settled during the preparatory meetings and remained largely untouched during the 1961 negotiations.

Reflections On the Draft Articles of the International Law Commission On State Responsibility: Articles 14; 15; & 19 in the Context of the Contemporary International Law of Self-Determination

Nordic Journal of International Law ◽

10.1163/187529385x00138 ◽

1985 ◽

Vol 54 (1-2) ◽

pp. 85-110

Author(s):

Eyassu Gayim

Keyword(s):

International Law ◽

Self Determination ◽

State Responsibility ◽

Customary International Law

10.4337/9781788118910 ◽

2021 ◽

Author(s):

Pierre-Marie Dupuy ◽

Keyword(s):

General Practice ◽

International Law ◽

Complex Relationship ◽

Customary International Law ◽

Progressive Development ◽

The World ◽

International custom “as evidence of a general practice accepted as law”, is considered one of the two main sources of international law as it primarily derives from the conduct of sovereign States, but is also closely connected with the role of the international judge when identifying the applicable customary rule, a function it shares with the bodies in charge of its codification (and progressive development), starting with the International Law Commission. Though mainly considered to be general international law, international custom has a complex relationship with many specific fields of law and specific regions of the world. The editor provides comprehensive research published in the last seven decades, invaluable to everyone interested in the field of customary international law.

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

African Yearbook on International Humanitarian Law ◽

10.47348/ayih/2020/a1 ◽

2020 ◽

Vol 2020 ◽

pp. 1-14

Author(s):

Dire Tladi

Keyword(s):

International Law ◽

Crimes Against Humanity ◽

Peremptory Norm ◽

Jus Cogens ◽

Peremptory Norms ◽

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

5 Rules of Attribution

The Energy Charter Treaty ◽

10.1093/law/9780199660995.003.0005 ◽

2020 ◽

Author(s):

Hobér Kaj

Keyword(s):

United Nations ◽

International Law ◽

The State ◽

State Responsibility ◽

Final Version ◽

Legal Principles ◽

Form Part ◽

Energy Charter Treaty ◽

This chapter focuses on the rules of attribution. The State is not responsible for all acts and omissions of its nationals, but only for those which can be attributed to the State. It is thus necessary to establish this link between the State and the person, or persons, committing an unlawful act or omission. The legal principles used to establish this link are usually referred to as rules of attribution. The rules of attribution form part of the law of state responsibility, which, to a large part, is reflected in the work of the International Law Commission (ILC) of the United Nations. At its fifty-third session in 2001, the ILC adopted its final version of the ILC Articles on Responsibility of States for Internationally Wrongful Acts. The ILC Articles are intended to cover all aspects of state responsibility under international law. The rules of attribution are laid down in Chapter II of the ILC Articles. From an Energy Charter Treaty perspective, Articles 4—8 are the most relevant ones. The central provision with respect to attribution is Article 4, which confirms the well-established principle of international law that the State is responsible for the acts of its own organs acting in the capacity of the State.