¹ Corbett, P. E., Law and Society in the Relations of States (New York: Harcourt, 1951 ) at 12–13.Google Scholar

² Convention on the Prevention and Punishment of the Crime of Genocide, GA Resolution 260(A) (III), UN GAOR, 3rdSess., Supp. No. 1921,9 December 1948, 78 U.N.T.S. 227 [Genocide Convention].

³ Charter of the United Nations, 26 June 1945, Can. T.S. 1955 No. 7 [UN Charter].

⁴ Thus, proceeding from the assumption that nations are no less subject to the law of nature than are individuals, Vattel concluded that what one man owes to other men, each nation, in turn, owes to all other nations: “Since Nations are bound mutually to promote the society of the human race, they owe one another all the duties which the safety and welfare of that society require… and protect an unfortunate people from an unjust tyrant.” See de Vattel, E., The Law of Nations on the Principles of Natural Law, trans. Fenwick, C., 1964, (Philadelphia: T and J.W. Johnson, 1758) at xii.Google Scholar

⁵ This question was left open by Secretary General Kofi Annan upon revealing his five-point action plan to prevent genocide, which includes (1) preventing armed conflict that usually provides the context for genocide; (2) protecting civilians in armed conflict including a mandate for UN peacekeepers to protect civilians; (3) ending impunity through judicial action in both national and international courts; (4) information gathering and early warning through a UN Special Advisor for Genocide Prevention making recommendations to the UN Security Council on actions to prevent or halt genocide; and (5) swift and decisive action along a continuum of steps, including military action. For the full text of the recommendations, see Press Release SG/SM/9197, available online at <http://www.un.org/News/Press/docs/2004/sgsm9245.doc.htm> (date accessed: 16 October 2004). The Genocide Convention itself is ambiguous as perfunctory references to prevention are all that remain of the considerably more extensive proposals in the Secretariat draft. Thus, to weaken the preven-tive effect of the treaty, a modification of the more substantial provisions of the earlier draft relating to actions to be taken by the UN was introduced in the final text by omitting the legal obligation of the contracting parties to “do everything in their power” to assist the UN in its measures to suppress or prevent acts of genocide. See on this point Fifth Report on State Responsibility by Mr. Roberto Ago, Special Rapporteur (“Content of the obligation breached”), UN Doc. A/CN.4/291 and Add.1 and 2, reprinted in Yearbook of the International Law Commission 1976, vol. 2, Part 1, New York, 1976, at 48 ff [Fifth Report of Roberto Ago].

⁶ This expression can be attributed to Grotius: “Kings… have the right of demanding punishments not only on account of injuries committed against them-selves or their subjects, but also on account of injuries which do not direcdy affect them but excessively violate the law of nature or of nations in regard to any person whatsoever.” See H. Grotius, De jure belli ac pacts libri tres, Book II, ed. by Carnegie, trans. F. Kelsey, 1625, Chapter XX at XL. I prefer this expression to that of “non-injured states” retained by the ILC in its 2001 draft, for the latter misconceives the fact that all states are injured, some because they have undergone damage affecting their subjective rights, others because they have suffered harm that involves a non-material, legal feature (infringement of a right).

⁷ See A MoreSecure World: Our Shared Responsibility, Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change, at paras. 248–49 and 256, available online at <http://www.un.org/secureworld/report2.pdf> (date accessed: 9 December 2004) [More Secure World].

⁸ It has been generally accepted that the UN would normally be liable to third parties for damages incurred as a result of acts performed by it or by its agents acting in their official capacity. See, for example, on this point Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, [1999] I-C.J. Rep. 62 at 88–89, para. 66; Condorelli, L., “Le Statut des Forces de l’ONU et le Droit International Humanitaire” (1995) 78 Rivista di Diritto Internazionale 881 at 897Google Scholar; Amerasinghe, C. F., Principles of the Institutional Law of International Organizations (Cambridge: Cambridge University Press, 1996) at 241 Google Scholar, footnotes 51 and 52 and references therein. There is no reason why an omission to act should not similarly attract the UN’s liability when the latter has a duty to act.

⁹ As the latter type of operation is not the same as a UN operation stricto sensu, this essentially raises the question to what extent a coalition omission to act that causes damage to third parties is attributable to the UN as the “authorizer” of the operation.

¹⁰ It would appear that under general international law, a state is not automatically responsible for the conduct of an international organization to which it belongs. See the resolution adopted by the Institut de droit international on 1 September 1995, “Les Conséquences Juridiques pour les États Membres de l’Inexécution par des Organisations Internationales de leurs Obligations envers des Tiers” (1996-II) 66 Ann. inst. dr. int 1, at 448, Article 6(a); and Higgins, R., “Provisional Report: The Legal Consequences for Member States of the Non-Fulfilment by International Organizations of Their Obligations toward Third Party” (1995–I) 66 Ann. inst. dr. int 249 at 281–83.Google Scholar For a thorough analysis of possible legal grounds for such responsibility, see Klein, P., La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Bruxelles: Bruylant, 1998) at 430–520.Google Scholar

¹¹ According to certain commentators, a purely political act such as a vote is sufficient to establish the complicity of a state with respect to the illegal acts of another. See Graefrath, B., “Complicity in the Law of State Responsibility” (1996) 29 Rev. B.D.I. 370 at 374Google Scholar; Quigley, J. , “Complicity in International Law: A New Direction in the Law of State Responsibility” (1986) 57 Brit. Y.B. Int’l L. 77 at 86–87.Google Scholar By extension, it might be argued that the vote by a state within the decision-making organs of an international organization, to the extent that it allows the adoption by the latter of a decision contrary to international law may constitute an act of complicity with the international organization for which responsibility would be borne both by the “voting” state and the organization. See on this point Butkiewicz, E., “The Premises of International Responsibility of Inter-Governmental Organizations” (1981–2) 11 Pol. Y.B. Int’l L. 117 at 125Google Scholar; Klein, supra note 10 at 468–70, 489–90; Amerasinghe, supra note 8 at 258–59.

¹² Such a possibility was alluded to in passing by Special Rapporteur Giorgio Gaja in his first report on responsibility of international organizations presented to the International Law Commission (ILC). See First Report on Responsibility of International Organizations by Mr. Giorgio Gaja, Special Rapporteur, ILC, 55th Sess., UN Doc. A/CN.4/532 (May 2003), at 5, para. 8, and 17, para. 33.

¹³ Questions of attribution of conduct were recendy debated within the ILC in its work on the controversial topic of responsibility of international organizations. At its 2,610^th meeting, which was held on 4 June 2004, the commission considered the report of the chairman of the Drafting Committee and adopted on first reading the following draft articles: Article 4 (general rule on attribution of conduct to an international organization), Article 5 (conduct of organs or agents placed at the disposal of an internadonal organization by a state or another international organization), Article 6 (excess of authority or contravention of instructions), and Article 7 (conduct acknowledged and adopted by an international organization as its own). The draft articles are accessible online at <http:// www.un.org/law/ilc/sessions/56/56docs.htm> (date accessed: 31 July, 2004). See also Second Report on Responsibility of International Organizations by Mr. Giorgio Gaja, Special Rapporteur, ILC, 556^th Sess., UN Doc. A/CN.4/541 (May 2004). Questions of attribution of responsibility will be addressed in the special rapporteur’s third, fourth, and fifth reports.

¹⁴ Bollecker-Stern, B., Le préjudice dans la théorie de la responsabilité internationale (Paris: Pédone, 1973) at 50 ffGoogle Scholar, particularly at 58; Weil, P., “Towards Relative Normativity in International Law?” (1983) 77 A.J.I.L. 413 at 431Google Scholar; Virally, M., “Le Principe de Réciprocité en Droit International Contemporain” (1967) 122 Rec. des Cours 1 at 26Google Scholar; and Chinkin, C., Third Parties in International Law (Oxford: Clarendon Press, 1993) at 1–7.Google Scholar

¹⁵ Simma, B., “Bilateralism and Community Interest in the Law of State Responsibility,” in Dinstein, Y. and Tabory, M., eds., International Law at a Time of Perplexity: Essays in the Honor of S. Rosenne (Dordrecht: Kluwer Academic Publishers, 1989) at 822 ff.Google Scholar

¹⁶ Dupuy, R.-J., La communauté internationale entre le mythe et l’histoire (Paris: Economica, 1986) at 180 Google Scholar; Charney, J., “Universal International Law” (1993) 87 A.J.I.L. 529 at 530 ff.Google Scholar Louis Henkin characterizes this development as a move from state values to human values and from a liberal state system to a welfare system. See Henkin, L., “Human Rights and State Sovereignty” (1995) 25 Ga. J. Int’l & Comp. L. 31 at 34–35.Google Scholar

¹⁷ Macdonald, R. St.-J., “The Principle of Solidarity in Public International Law,” in Dominicé, C., Patry, R., and Reymond, C., eds., Études de droit international en l’honneur de Pierre Lalive (Bâle: Francfort-sur-le-main, 1993) at 295, 301.Google Scholar See also Abi-Saab, G. M., “International Law and the International Community: The Long Road to Universality,” in Macdonald, R. St-J., ed., Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994) at 97 ff.Google Scholar; and Allott, P., Eunomia: New Order fora New World (NewYork: Oxford University Press, 1990) at 254–57, 285–88.Google Scholar

¹⁸ Durkheim, E., The Division of Labour in Society (New York: Free Press, 1964) at 73.Google Scholar A central tenet of Durkheim’s work is that society is held together by certain shared sentiments and beliefs. The solidarity and cohesion of society is threatened by a breach of these common sentiments, which consequently necessitates a collective response against the offender in order to repair and reinforce the injured conscience. This basic aspect of Durkheim ’s much broader theory helps explain to some extent the functioning of positive morality in international society.

¹⁹ For a thoughtful account of Grotius’s theory of self-preservation and human sociability in his work on the law of nations, see Kingsbury, B., “A Grotian Tradition of Theory and Practice?: Grotius, Law and Moral Skeptícism in the Thought of Hedley Bull” (1997) 17 Q.L.R. 3.Google Scholar

²⁰ Alberico Gentili is celebrated for the pragmatic pluralism of his concept of an international society open to all organized poliücal communities and based upon essential minimal rules for coexistence and the pursuit of common interests. This idea also finds echo in modern legal scholarship. See Bull, H., The Anarchical Society: A Study of Order in World Politics, 1 st ed. (New York: Columbia University Press, 1977) at 13, 16–18, 22Google Scholar; Franck, T. M., The Power of Legitimacy among Nations (New York: Oxford University Press, 1990) at 189–94, 195–98Google Scholar; Henkin, L., “The Mythology of Sovereignty,” in Macdonald, , ed., Essays in Honour of Wang Tieya, supra note 17 at 354–55, 358–59Google Scholar; Tomuschat, C., “Obligations Arising for States without or against Their Will” (1993–IV) 241 Ree. des Cours 195 at 211Google Scholar; Charney, supra note 16 at 531; Tesón, F., “International Obligation and the Theory of Hypothetical Consent” (1990) 15 Yale J. Int’l L. 84 at 112–18Google Scholar; and Bleckmann, A., “General Theory of Obligations under Public International Law” (1996) 38 Germ. Y.B. Int’l L. 26 at 32.Google Scholar

²¹ This language is borrowed from Schachter, O., “Entangled Treaty and Custom,” in Dinstein and Tabor, supra note 15 at 733–35.Google Scholar

²² Chodosh, H., “Neither Treaty or Custom: The Emergence of Declarative International Law” (1991) 26 Tex. Int’l L.J. 87 Google Scholar; Simma, B. and Alston, P., “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 Aus. Y.B. Int’l L. 82 at 98–99 Google Scholar; Meron, T., “On a Hierarchy of International Human Rights” (1986) 80 A.J.I.L. 1 at 19–20.Google Scholar

²³ Weil, supra note 14 at 442. Weil, who can hardly be recognized as an enthusiastic supporter of the concept of obligations erga omnes, nevertheless acknowledged in his 1992 General Course at the Hague Academy of International Law that they have become a key component of the conceptual apparatus of contemporary international law, which is more receptive to respectable ethical considerations than traditional international law ever was. I share Chinkin’s view that the fears and scepticism voiced by Weil are only justified “if international law is to be confined within the parameters of the statist model“ and not “if it is to develop to regulate activities of States… with respect to a broader range of subject-matter, reflecting international community (not exclusively statist) concerns and morality.” See Chinkin, supra note 14 at 293.

²⁴ Frowein, J. A., “Reactions by Not Directly Affected States to Breaches of Public International Law” (1994–IV) 248 Ree. des Cours 344 at 365Google Scholar; Ragazzi, M., The Concept of International Obligations Erga Omnes (Oxford: Oxford University Press, 1997) at 187 Google Scholar Tomuschat, supra note 20 at 214–15; Jenks, W., “The Will of the World Community as the Basis of Obligation in International Law,” in Basdevant, J., ed., Hommage d’une Génération de Juristes au Président Basdevant (Paris: A. Pédone, 1960) 1 at 15.Google Scholar

²⁵ Case Concerning the Barcelona Traction, Light and Power Company (Belgium v. Spain), Second Phase, [1970] I.CJ. Rep. 3 at 32, paras. 33, 34 [Barcelona Traction case].

²⁶ Ibid. For an analysis of compliance with, and enforcement of, these obligations, see Tams, C. J., Enforcement of Erga Omnes Obligations (Cambridge: Cambridge University Press, 2005)Google Scholar; Zemanek, K. , “New Trends in the Enforcement of Erga Omnes Obligations” (2000) 4 Max. Plank Y.B. UN L. 1.Google Scholar

²⁷ Case Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, [1951] I.C.J. Rep. 15 at 46–47 (dissenting opinion of Judges Guerrero, McNair, Read, and Hsu Mo) [Reservations to the Genocide Convention case].

²⁸ These are the prohibition against the commission of genocide as well as the obligations of prevention and punishment. See Barcelona Traction case, supra note 25 and the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Preliminary Objections),Judgment of 11 July 1996, [1996] I.C.J. Rep. 4 at 24–25, para. 31. See also Judge Oda’s declaration, ibid, at 35–36, para. 4.

²⁹ The convention recognizes the impact on state interests of a violation purely internal to one state, yet fails to provide effective enforcement mechanisms for the prevention of genocide. Taken literally, this would lead to the absurd conclusion that the contracting parties’ obligations remain unenforceable. Although the matter is still highly debated within academic circles and the ILC, human rights treaties generally have not been viewed as “self-contained regimes” and therefore do not exclude ab initio recourse to general international law to sanction their breach through inter-state measures. See on this point Study on the “Function and Scope of the Lex Specialis Rule and the Question of ‘Self Contained Regimes ’”: Preliminary Report by Mr. Mariti Koskenniemi, Chairman of the Study Group, ILC, 56th Sess., UN Doc. ILC (LVI)/SG/FIL/CCCRD.1/Add.1 at 27–28 [unpublished text; on file with author]; Fourth Report on State Responsibility by Mr. Gaetano Arangio-Ruiz, Special Rapporteur, UN Doc. A/CN.4/444/Add. 1–3, reprinted in Yearbook of the International Law Commission 1992, vol. 2, Part. 1, paras. 97–127, New York, 1995, UN Doc. A/CN.4/SER.A/1992/Add.1 (Part 1); Cassese, A. , International Law (Oxford: Oxford University Press; 2001) at 208 Google Scholar; Kamminga, M. T., Inter-State Accountability for Violations of Human Rights (Philadelphia: University of Pennsylvania Press, 1992) at 179–83Google Scholar; Simma, B., “Self-Contained Regimes” (1985) 16 Neth. Y.B. Int’l L. 111 at 129–35Google Scholar; Frowein, “Reactions by Not Directly Affected States,” supra note 24 at 400.

³⁰ See Dominicé, C., “The International Responsibility of States for Breaches of Multilateral Obligations” (1999) 10 EJ.I.L. 353 at 354–55, 359Google Scholar; Crawford, J., Bodeau, P., and Peel, J., “The ILC’s Draft Articles on State Responsibility: Toward Completion of a Second Reading” (2000) 94:4 A.J.I.L. 660 at 672–73.Google Scholar

³¹ See State Responsibility: Titles and Texts of the Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by the Drafting Committee on Second Reading, ILC, 53rd Sess., UN Doc. A/CN.4/L.602/Rev. 1 (26 July 2001), Part III, Articles 48 ( 1 ) (b) and 54 [Draft Articles on Second Reading]. Article 54 is a savings clause and represents the compromise reached within the commission in view of the reluctance to include a provision expressly recognizing and regulating the practice of counter-measures in the collective interest. Article 48(1) (b) (to which Article 54 refers) deals with the invocation of responsibility in the collective interest, in particular, with respect to breaches of human rights obligations owed to the international community as a whole, giving effect to the court’s dictum in the Barcelona Traction case. See on this point Third Report on State Responsibility by Mr. James Crawford, Special Rapporteur, ILC, 52nd Sess., UN Doc. A/CN.4/507/ Adds-4 (2000) at 391–94 [Third Report of James Crawford]; Alland, D., “Counter-measures of General Interest” (2002) 13:5 E.J.I.L. 1221 at 1232–33.Google Scholar

³² Draft Articles on Second Reading, supra note 31 at Article 40(1).

³³ The commentary indicates that “gross” refers to the intensity of the violation or its effects, meaning flagrant violations. A “systematic” violation is one carried out in an organized and deliberate way. See Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (November 2001) at 285, para. 8 [Report on Fifty-Third Session] . No procedures are indicated in the draft for determining when such a breach has occurred.

³⁴ This language is borrowed from the Procedure for Dealing with Communications Relating to Violations of Human Rights and Fundamental Freedoms, 27 May 1970, ECOSOC Resolution 1503 (XLVIII), 48 UN ESCOR, Supp. (No. lA) 8, UN Doc. E/4832/Add.1 (1970).

³⁵ Report of the International Law Commission on the Work of Its Thirty-Seventh Session, UN Doc. A/40/10, reprinted in Yearbook of the International Law Commission 1985, vol. 2, Part 2 at 27, New York, 1986, UN Doc. A/CN.4/SER.A/ig85/Add.i (Part 2 ). See also Responsibilities of States: Commentaries and Observations by Governments, ILC, 50th Sess., UN Doc. A/CN.4/488 (1998) at 95–102; Sixth Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles), by Mr. Willem Riphagen, Special Rapporteur, UN Doc. A/CN.4/389 and Corr. 1, reprinted in Yearbook of the International Law Commission 1985, vol. 2, Part 1, commentary on Art. 5 ( 2 ) (e) (iii), New York, UN Doc. A/40/100 ( 1985); WAkehurst, D., “Reprisals by Third States” (1970) 44 Brit. Y.B. Int’l L. 1 at 15Google Scholar; Conforti, B., “Cours Général de Droit International Public” (1988–IV) 212 Ree. des Cours 9 at 196–201Google Scholar; Kamminga, supra note 29 at 168–71.

³⁶ Third Report of James Crawford, supra note 31 at 391–400. Citing no fewer than eight incidents, Special Rapporteur Crawford argues that state practice regarding collective countermeasures suggests the following observations: (1) no distinction based on the legal source (conventional or customary) of the collective obligation that was violated appears to exist, and (2) responses are generally made only in opposition to severe violations of collective obligations, notably breaches of human rights obligations owed to the international community as a whole that affect only the nationals of the responsible state. See also Zoller, E., Peaceful Unilateral Remedies: An Analysis of Countermeasures (New York: Transnational Publishers, 1984) at 117 Google Scholar; Sicilianos, L.-A., Les reactions décentralisées à l’illicite (Paris: L.G.D.J., 1990) at 110–75Google Scholar; Yousif Elagab, O., The Legality of Non-Forcible Counter-Measures in International Law (Oxford: Clarendon Press, 1988) at 56–57 Google Scholar; Thierry, H., “L’Évolution du droit international. Cours général de droit international public” (1990–II) 222 Ree. des Cours 9 at 104–7Google Scholar; Dupuy, P.-M., “Observations sur la pratique récente des sanctions de l’illicite” (1983) 87 Rev. D.I.P. 505 at 537–38Google Scholar; Frowein, , “Reactions by Not Directly Affected States,” supra note 24 at 416–20.Google Scholar

³⁷ Report on Fifty-Third Session, supra note 33 at 283, para. 3, and 285, para. 8. See also Spinedi, M., “From One Codification to Another: Bilateralism and Multilateralism in the Genesis of the Law of Treaties and the Law of State Responsibility” (2002) 13:5 EJ.I.L. 1099 Google Scholar; Abi-Saab, G., “The Uses of Article 19” (1999) 10:2 EJ.I.L. 339 at 350.Google Scholar

³⁸ Article 40 of the new draft thus seems to have moved some distance from its immediate predecessor, Article 41, which was aligned very faithfully on the old Article 19 of the draft produced by then Special Rapporteur Roberto Ago in the late 1970s, terming a “serious breach” the breach of an “international obli-gation so essential for the protection of fundamental interests of the international community.”

³⁹ See Report on Fifty-Third Session, supra note 33 at 281, para. (7) (Commentary to Part Two, Chapter III) and the Third Report of James Crawford, supra note 31, at 7, para. 374.

⁴⁰ Sicilianos, L.-A., “The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility” (2002) 13(5) E.J.I.L. 1127 at 1137.Google Scholar

⁴¹ This question arises from the confusion created by the commission’s view that “the core cases of obligations erga omnes are those non-derogable obligations of a general character which arise either direcdy under general international law or under generally accepted multilateral treaties (e.g. in the field of human rights). They are virtually coextensive with peremptory obligations (arising under norms of jus cogens). For if a particular obligation can be set aside or displaced as between two States, it is hard to see how that obligation is owed to the international community as a whole.”

See Report on Fifty-Third Session, supra note 33 at 281, para. (7) (Commentary to Article 48) and the Third Report of James Crawford, supra note 31 at 49, para. 106(a).

⁴² See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 at 200, para. 159, accessible online at <http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm> (date accessed: 29 May 2005) [Legal Consequences of the Construction of a Wall]. See also the separate opinion of Judge Kooijmans (at 231, para. 41).

⁴³ The problem emerges from the transposition of a concept relating to the theory of nullity of legal acts — non-derogability — to the area of wrongfulness of “material” conduct. This convergence has given rise to an equivalence that I cannot dwell on in this article. Suffice it to say that it is not the bindingness of the norms that countermeasures in the collective interest would defend but the essentíal nature of the principles they contain. This has led commentators such as Alland to argue that when it comes to peremptory norms, countermeasures of general interest could not possibly look like suitable consequences. See Alland, D., Justice privée et ordre juridique international. Étude théorique des contre-mesures en droit international public (Paris: Pédone, 1994) at para. 290.Google Scholar

⁴⁴ Or, as its predecessor was called, an “international crime of state.” As Eric Wyler has indeed been able to verify, there is essentially only a “cosmetic” or terminological modification between yesterday’s “crime” on the one hand and, on the other, the serious breach of an obligation arising under a peremptory norm of international law in the final text of the draft articles. The confirmation of the identity between the two concepts is to be found in the fact that we remain attached to a combination of two aggravating factors, one which Wyler calls “circumstantial severity” and having to do with the perpetrator’s conduct, and the other specifically normative and called “substantive severity.” See Wyler, E., “From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’” (2002) 13:2 E.J.I.L. 1147 at 1151–54Google Scholar; and also Pellet, A., “Le nouveau projet de la C.D.I, sur la responsabilité de l’État pour fait internationalement illicite: ‘requiem’ pour le crime?” in Chand Vohrah, L., ed., Man ’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer, 2003) at 655.Google Scholar

⁴⁵ The commentary to Draft Article 40 suggests that “serious breaches” include aggression, slavery, genocide, racial discrimination, apartheid, torture, and violation of “the basic rules of international humanitarian law” and of the right to self-determination — a list in almost all respects identical to that of the former category of “international crimes.” See Report on Fifty-Third Session, supra note 33 at 283–84. Dinah Shelton has suggested reservations about the prominence given to peremptory norms in Article 40 rather than to obligations erga omnes, whose wider ambit would have allowed for a broader range of claims to be made. See Shelton, D., “Righting Wrongs: Reparations in the Articles on State Responsibility” (2002) 96:4 A.J.I.L. 833 at 841–44.Google Scholar Indeed, the ICJ’s dictum in the Barcelona Traction case, supra note 25 at para. 34, that obligations erga omnes result, inter alia, “from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination” clearly suggests that there are several other principles and rules relating to human rights that give rise to this type of obligations. The commission’s emphasis on peremptory norms certainly restricts the domain within which the invocation of state responsibility in the general interest will operate in the future.

⁴⁶ But as Simma validly argues, “if we take the concept of obligations erga omnes at face value, the breach of such obligations ought to lead to injury on the part of all other States without the ‘crimes’ concept having to come into play.” See Simma, B., “From Bilateralism to Community Interest in International Law” (1994–VI) 250 Ree. des Cours 234 at 314Google Scholar and from the same author, “International Crimes: Injury and Countermeasures. Comments on Part 2 of the ILC Work on State Responsibility,” in Cassese, A., Weiler, J. H. H., and Spinedi, M., eds., International Crimes of State. A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin and New York: Walter de Gruyter, 1989) at 299.Google Scholar

⁴⁷ If in order to inflict injury upon all states and thus lead to the taking of counter-measures, breaches of obligations erga omnes have to assume the format of “international crimes,” those obligations whose breach does not fall within this category nor entails any material injury in the traditional bilateralist sense would presumably remain unenforceable. Thus, for instance, if a state commits over a long period of time sporadic but flagrant human rights violations revealing a state policy to wipe out an entire ethnic group, but which fall short of the critical “quantity and quality” threshold of genocide, the concept of “international crime” would bar other states from taking countermeasures immediately to enforce compliance. The substitution of this concept with that of “serious breaches of obligations under peremptory norms of general international law” represents the compromise reached by the commission between reservations about collective countermeasures in the general interest and the inappropriateness of allowing gross breaches of human rights to continue without allowing any state to intervene. See on this last point First Report on State Responsibility by Mr. James Crawford, Special Rapporteur, UN Doc. ILC, 50th Sess., UN Doc. A/CN.4/490/ Add.2 (1998) at para. 43, 61; Crawford, Bodeau, and Peel, supra note 30 at 672–73 and, more generally, Annacker, C., “The Legal Regime of Erga Omnes Obligations in International Law” (1993–4) 46 Austrian J. Pub. & Int’l L. 131 at 148, 157.Google Scholar This development in the law of responsibility certainly avoids the problematic terminology of “crimes,” but not the substantive implications of limiting reactions to this category of breaches.

⁴⁸ This interpretation is confirmed by the consideration that the majority of the ILC members were of the opinion at the time that general international law prohibited only gross violations of human rights (genocide, apartheid, slavery, and so on). Breach of customary obligations concerning the protection of fun-damental human rights accordingly coincided for them with the category of international crimes.

⁴⁹ For an analysis of the “threshold of gravity,” see Salmon, J., “Les obligations quantitatives et l’illicéité,” in Boisson de Chazournes, L. and Gowlland-Debbas, V., eds., The International Legal System in Quest of Equity and Universality/L’Ordre juridique international, un système en quête d’équité et d’universalité, Liber Amicorum Georges AbiSaab (The Hague: Kluwer Law International, 2002) at 311 ff.Google Scholar

⁵⁰ This, at least, is the impression one is left with when reading the ILC commentary to draft Article 40, which states: “The word ‘serious’ signifies that a certain order of magnitude of violation is necessary in order not to trivialize the breach and it is not intended to suggest that any violation of these obligations is not serious or is somehow excusable. But relatively less serious cases of breach of peremptory norms can be envisaged, and it is necessary to limit the scope of this chapter to the more serious or systematic breaches.” See Report on Fifty-Third Session, supra note 33 at 285, para. 7 [emphasis added]. It really does not help the special rapporteur to argue that this distinction between serious and less serious cases of breach of peremptory norms is supported by state practice, especially when no evidence of such practice is given.

⁵¹ It is noteworthy that in its commentary on Article 19, which it adopted in 1976, the ILC had expressly stated its understanding “that the category of international obligations admitting of no derogation [which can be said to “arise under a peremptory norm of international law” as well as being of an erga omnes nature] is much broader than the category of obligations whose breach is necessarily an international crime,” the latter being the precursor of the new category of “serious breaches.” See Yearbook of the International Law Commission 1976, vol. 2, Part 2, New York, 1976, 118 at 119–20. See also Gaja, G., “Should All References to International Crimes Disappear from the ILC Draft Articles on State Responsibility?” (1999) 10:2 EJ.I.L. 365 at 367Google Scholar; Ragazzi, supra note 24 at 189 ff. This position was to change, however, in the 2001 draft where the ILC considers that the serious breach of any obligation arising under a peremptory rule entails a special regime of responsibility, including rights and obligations for all states.

⁵² These are in fact the two conditions identified by the ILC to distinguish between “ordinary” and “serious” breaches. See Report on Fifty-Third Session, supra note 33 at 282, para. (1). It is noteworthy that it was already the commission’s view in 1976 that infringements relating to human rights had to, in order to give rise to a special regime of aggravated responsibility, be particularly grave in the specific case, that is, a circumstantial gravity. The criteria indicated by the commission (which were cumulative) related to the intensity and repetition of the breach: the breach had to be “massive,” “flagrant,” “persistent,” “systematic,” and “large scale.” See Fifth Report of Roberto Ago, supra note 5 at 53, para. 150 and the Yearbook of the International Law Commission 1976, vol. 2, Part 2, New York, 1976, at 110, para. 34 and 120, paras. 70–71.

⁵³ My contention appears to be in line with the commission’s own determination in the 2001 draft that the scope and number of individual violations is but one of the factors that may establish the “seriousness” of a breach, the others being the intent to violate the norm and the gravity of consequences of the violations for the victims. See on this point Report on Fifty-Third Session, supra note 33 at 285, para. 8. Thus, the “severity” of the breach now apparently covers both “substantial severity” and “circumstantial severity” and for infringements of human rights to reach the threshold of “severity,” they must be particularly grave also in the latter sense of the term.

⁵⁴ The suitability of countermeasures as preventive measures that ought to be conceived as instrumental appears to have been emphasized by the ICJ in its valuable discussion in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), [1997] I CJ. Rep. 7 at para. 87. The court referred, in passing, to “one other condition for the lawfulness of a countermeasure, namely that its purpose must be to induce the wrongdoing state to comply with its obligatíons under international law, and that the measure must therefore be reversible.” Thus, countermeasures are part of a “dynamic” process of obtaining cessation and reparation for wrongful conduct; they do not involve freestanding rights. This is a useful clarification, and like Part 2 of the new Draft Articles on State Responsibility, completely leaves out questions of punishment or reprisal. See on this point, Abi-Saab, G. M., “De la Sanction en Droit International: Essai de Clarification,” in Makarczyk, J., Theory of International Law at the Threshold of the Twenty-First Century: Essays in Honour of Krzysztof Skubiszewski (The Hague: Kluwer Law International, 1991) at 67–70 Google Scholar; Dupuy, P.-M., “The International Law of State Responsibility: Revolution or Evolution?” (1989) 11 Mich. J. Int’l L. 96 Google Scholar; Elagab, supra note 36 at 46; Schachter, O., “International Law in Theory and Practice. General Course of Public International Law” 178 (1982) Ree. des Cours 9 at 182–84Google Scholar; Spinedi, M., “International Crimes of State: The Legislative History,” in Cassese, Weiler, and Spinedi, supra note 46 at 71–77.Google Scholar

⁵⁵ See generally Kuperman, A. J., The Limits of Humanitarian Intervention: Genocide in Rwanda (Washington, DC: Brookings Institution Press, 2001).Google Scholar

⁵⁶ Fourth Report on State Responsibility by Mr. James Crawford, Special Rapporteur, UN Doc. ILC, 53rd Sess., UN Doc. A/CN.4/517 (2001) at 27–28, paras. 71–73 [Fourth Report of fames Crawford].

⁵⁷ It was thus, on the one hand, arguments associated with the logic of the system (the response of the “organized” international community to acts seriously threatening its fundamental values) and, on the other, a finding drawn from the practice of UN organs in response to situations constituting international crimes, that led then Special Rapporteur Riphagen to conclude that the consequences of international crimes could be dealt with only within the framework of the structures and mechanisms of the UN. See Fourth Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles), by Mr. Willem Riphagen, Special Rapporteur, UN Doc. A/CN.4/SER.A/i982/Add.i, reprinted in Yearbook of the International Law Commission 1983, vol. 2,Part l.NewYork, 1982 at 11, para. 60 [Fourth Report of Willem Riphagen].

⁵⁸ Case Concerning East Timor (Portugal v. Australia), Judgement of 30 June 1995, [1995] I.C.J. Rep. 90 [East Timor cuse].

⁵⁹ Ibid, at 103–4. Thus, in the absence of such binding resolutions imposing an obligation on states not to recognize Indonesian authority over East Timor, Australia was under no obligation to refrain from dealings with Indonesia over East Timor.

⁶⁰ Annacker, supra note 47 at 139. For a view that considers the UN to be the sole recipient of erga omnes rights of protection, see De Hoogh, A. J. J., “The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective” (1991) 42 Austrian J. Pub. & Int’l L. 183 at 208–11.Google Scholar

⁶¹ Coffman, P. D., “Obligations Erga Omnes and the Absent Third State” (1996) 39 Germ. Y.B. Int’l L. 285 at 306–7, 314–15.Google Scholar A tentative explanation why the court adopted its reasoning with respect to the enforcement of erga omnes obligations may lie in a lack of consensus over the exact contours and scope of the right of self-determination generally and its relationship to other norms of international law such as non-intervention, territorial integrity, and the prohibition against genocide. A better approach, I would suggest, was adopted by the ICJ in the Namibia case where it observed that the termination of the mandate and the declaration of the illegality of South Africa’s presence in Namibia were “opposable to all states in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law.” See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa ) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [ig7i] I.C.J. Rep. 16 at 56 [Namibia case].

⁶² Legal Consequences of the Construction of a Wall, supra note 42 at 199, paras. 155–57.

⁶³ Ibid, at 200, para. 160 and 202, para. 163(3)E. If one reads the object of the request for the Advisory Opinion as a need for the General Assembly to obtain assistance from the Court for the proper exercise of its functions under the UN Charter, it is only logical that a specific paragraph of the dispositif is addressed to the General Assembly. That the same paragraph is also addressed to the Security Council is logical as well in view of its primary responsibility in matters of international peace and security.

⁶⁴ Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [Fourth Geneva Convention].

⁶⁵ Legal Consequences of the Construction of a Wall, supra note 42 at 200, para. 159. Two judges of the court took issue with this aspect of the court’s opinion. At para. 40 of his separate opinion, Judge Kooijmans questioned why a violation of an obligation erga omnes by one state should necessarily lead to an obligation for third states. Judge Higgins was more categorical, arguing at para. 37 of her opinion that the concept deals with the very specific issue of jurisdictional locus standi and had nothing to do with imposing substantive obligations on third parties to a case. While leaving resolution of this question for another day, it must at least be conceded that the cogency of the court’s reasoning on this point is rather weak, for the obligation of states to “ensure respect” for humanitarian law is not a legal consequence of the violation of erga omnes obligations but rather a duty flowing from Article I of the Fourth Geneva Convention of 1949.

⁶⁶ See Jorgensen, N. H., The Responsibility of States for International Crimes (Oxford: Oxford University Press, 2000) at 137, 213, and 218.CrossRefGoogle Scholar The recognition of the exclusive power of the Security Council to establish the existence of a serious breach would prove particularly problematic in this connection, since it would inevitably imply that situations presenting all the constituent features of such a breach might no longer be treated as such because of an abstention of the council.

⁶⁷ Annacker, supra note 47 at 140–41, 157–61. Thus, according to the late Philip Jessup, “it would seem that the only possible argument against the substitution of collective measures under the Security Council for individual measures by a single state would be the inability of the international organization to act with the speed requisite to preserve life.” See Jessup, P. C., A Modern Law of Nations: An Introduction (New York: MacMillan, 1948) at 170.Google Scholar See also Gaja, G., “Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts,” in Weiler, , Cassese, , and Spinedi, , supra note 46 at 273–74Google Scholar, and particularly footnote 17.

⁶⁸ During the debates that preceded the adoption of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, Georg Schwarzenberger had invoked the idea that the enforcement of peremptory norms in the legal order was not realistic since international society was deprived of a supranational authority that could sanction them. See Schwarzenberger, G., “International Jus Cogens?” (1965) 43 Tex. L. Rev. 455 at 467–69.Google Scholar See also Annacker, supra note 47 at 148, 160; Gray, C., Judicial Remedies in International Law (Oxford: Oxford University Press, 1987) at 212–15Google Scholar; Gaja, , “Obligations Erga Omnes, In-ternational Crimes and Jus Cogens,” supra note 67 at 273.Google Scholar

⁶⁹ Farer, T. J., “An Inquiry into the Legitimacy of Humanitarian Intervention,” in Fisler-Damrosch, L. and Scheffer, D. J., Law and Force in the New International Order (Boulder: Westview Press, 1991) at 192 Google Scholar; Cassese, A., “La Communauté Internationale et le Génocide,” in Bardonnet, D. et al., eds., Le droit international au service de la paix, de la justice et du développement. Mélanges Michel Virally (Paris: Pédone, 1991) at 187–92.Google Scholar

⁷⁰ Hutchinson, D. N., “Solidarity and Breaches of Multilateral Treaties” (1988) Brit. YB. Int’l L. 151 at 202Google Scholar (quoting Bruno Simma for the term “a sort of international vigilantism.” See Simma, , “International Crimes: Injury and Countermeasures,” supra note 46 at 299).Google Scholar It could be argued that to guard against the possibility that a state might be subjected to countermeasures based on a spurious legal claim that it has breached an obligation toward the international community as a whole, the chapter on countermeasures, in new Article 54, has limited the right of any state entitled to invoke the responsibility of another state under Article 48(1) to “lawful measures.” The ILC commentaries indicate that the reference to this expression rather than “countermeasures” is deliberate; it permits practice to evolve in this area. See Report on Fifty-Third Session, supra note 33 at 355; and Bederman, D. J., “Counterintuiting Countermeasures” (2002) 96:4 AJ.I.L. 817 at 827–28.Google Scholar

⁷¹ The old Article 40 of the 1996 draft, the predecessor to new Article 48, did not distinguish between states in cases of breach of bilateral obligations and those in cases of breach of erga omnes obligations and treated all of them as “injured.” This terminology posed problems because not all states were equally injured in the traditional usage of that word. Some suffered direct harm whereas others simply “suffered” from the fact that an obligation to which they had subscribed had been breached and therefore the integrity of the rule was threatened. The ILC’s fiction of the “injured state” has received its share of criticism and subsequently been confined to those states directly affected by a breach (as defined in new Article 42). For a sharp critique, see, for example, Allott, P., “State Responsibility and the Unmaking of Internaüonal Law” (1988) 29 Harv. J. Int’l L. 1.Google Scholar One must laud the sagacity of Special Rapporteur Crawford who, noting that this “equal” treatment of states was not conducive to developing public international law (rather than what he calls a “private spectre of international law”), has argued that it is important to distinguish between the primary beneficiaries (the right holders) and those states with a legal interest in compliance, “irrespective of how or whether the breach has affected [them].” To do so, according to him, would be “the first step in disentangling the tangle article 40… creates, by which, for example, any state in the world can take countermeasures for a breach of human rights even though the victim of that breach does not want the countermeasures to be taken, and may actually be harmed by them.” See Crawford, J., “Responsibility to the International Community as a Whole” (2001) 8 Ind. J. Global Legal Studies 303 at 320–21.Google Scholar

⁷² Seventh Report on State Responsibility, by Mr. Gaetano Arangio Ruiz, Special Rapporteur, UN Doc. A/CN.4/469 and Add. 1 and 2, reprinted in Yearbook of the International Law Commission 1995, vol. 2, Part 1, New York, 1995 at 46 ff, paras. 245 ff [Seventh Report of Gaetano Arangio-Ruiz]. For a critique of these proposals for their obvious political unrealism, see Dupuy, P.-M., “Implications of the Institutionalization of International Crimes of States,” in Weiler, , Cassese, , and Spinedi, , supra note 46 at 182.Google Scholar

⁷³ Under the same provisions, the “guilty” state would additionally be subject to countermeasures decided collectively but implemented individually by each state injured by the perpetration of the crime. The complexity of the machinery contemplated would undoubtedly justify reproducing in its entirety draft Article 19 of the second part of the articles proposed by Special Rapporteur Arangio-Ruiz, but for considerations of space and emphasis I shall refrain from doing so. The text of this article is reproduced in the Yearbook of the International Law Commission 1995, supra note 72 at 46, note 117. For a summary of the debates at the ILC leading to its rejection, see ibid, at 55, para. 305.

⁷⁴ All that is left now is a “without prejudice” clause. See Draft Articles on Second Reading, supra note 31 at Article 46 and 5g. On the circumstances of the dis-carding of this part of the draft by the ILC, see Pellet, A., “Can a State Commit a Crime? Definitely, Yes!” (1999) 10 EJ.I.L. 425 at 42gGoogle Scholar and Klein, P., “Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law” (2002) 13:5 E.J.I.L. 1241 at 1252–53.Google Scholar

⁷⁵ The other reasons being, more generally, the unsuitability of existing UN mechanisms for implementing a system of aggravated responsibility and, more specifically, the relativity of the qualifications likely to be applied by the Security Council and the legitimacy of the latter as a body acting in the name of the international community. On this point, see Klein, supra note 74 at 1247–50. See also Villalpando, S. M., L’émergence de la communauté internationale dans la responsabilité des États (Paris: P.U.F., 2005) at 415–50.CrossRefGoogle Scholar

⁷⁶ Draft Articles on Second Reading, supra note 31 at Article 46 and 59.

⁷⁷ It is noteworthy that the ambiguity (mentioned earlier) of the nature of the obligation breached (obligations arising under peremptory norms in Article 40 and obligations owed to the international community as a whole in Article 48), combined with the related problem of the threshold of seriousness of breaches (which only appears in Article 40) leads to the following absurd result: the serious breach of a small number of peremptory obligations entails the fairly mild “particular consequences” enumerated in Article 41. At the same time, a breach (whether serious or not) of a broader range of obligations — erga omnes — creates the notably more serious consequences appearing in Articles 48 and 54 (the taking of countermeasures or “lawful measures”).

⁷⁸ See Report of the International Law Commission on the Work of Its Thirty-Seventh Session, UN Doc. A/40/10, reprinted in Yearbook of the International Law Commission 1985, vol. 2, Pan I, Article 14(3), New York, 1986, UN Doc. A/CN.4/SER.A/ 1985/Add.1 (Part I) [Report on Thirty-Seventh Session].

⁷⁹ Ibid, at 14, para. 10 (commentary to Draft Article 14) [emphasis added]. Simma has observed that Riphagen’s draft Article 14 had tried to “develop community reactions without really leaving the field of traditional bilateralism” and concluded by expressing his concern that “these new conceptions are being grafted upon international law without support through, and any attempt at, adequate institution-building.” See Simma, “International Crimes: Injury and Counter-measures,” supra note 46 at 305, 315 respectively.

⁸⁰ Report on Fifty-Third Session, supra note 33 at 286–87.

⁸¹ Report of the International Law Commission on the Work of its Fifty-Second Session, UN GAOR, 55th Sess., Supp. No. 10, UN Doc. A/55/10 (2000) at 112–113, paras. 366–68, 116, para. 381.

⁸² Arguably, the strong procedural safeguards surrounding countermeasures would be applicable mutatis mutandis to whatever “solidarity measures” states envisage taking. These are found in new draft Articles 49–53. This would take care, at least in part, of the concern voiced by many that the consequences of the category of “serious breaches” allow for reactions by individual states acting without regard to the position of the “international community as a whole” — a legitimate concern in the face of the very alarming recent wanton use of force by certain states (on grounds of self-defence) on the basis of their own subjective determination of alleged violations by other states. Alland has argued, however, that these principles can operate only a posteriori, when the well foundedness of the counter-measures are evaluated to see if they are justified. The result, according to him, is that “such countermeasures are unsuited to any a priori legal conditioning: subjecting their exercise to pre-conditions is a contradictory undertaking that amounts quite simply to precluding countermeasures.” See Alland, supra note 31 at 1334–35.

⁸³ Report on Fifty-Third Session, supra note 33 at 287, para 2. In the same vein, the commission had already asserted that obligations incumbent on all states under Article 53 (former Article 41) of the 1996 draft articles “would arise for each State as and when it formed the view that a crime had been committed. Each state would bear responsibility for its own decision, although it may be added, there may be cases in which the duty of non-recognition or the duty of non-assistance, for example, might flow from mandatory resolutions of the Security Council or other collective actions duly taken.” See Report of the International Law Commission on the Work of Its Forty-Eighth Session, UN GAOR, 51st Sess., Supp. No. 10, UN Doc. A/CN.4/SER.A/1996/Add.1 (Part 2), reproduced in Yearbook of the International Law Commission 1996, vol. 2, Part. 2, New York, 1996 at 71, para. 4 [Report on Forty-Eighth Session].

⁸⁴ Report on Fifty-Third Session, supra note 33 [emphasis added]. To make things even more confusing, the ILC had stated in its commentary to Article 40 that “the serious breaches dealt with in this chapter are likely to be addressed by the competent international organizations including the Security Council and the General Assembly.” See ibid, at 286, para (9).

⁸⁵ Ibid, at 287, para 2. See also Dupuy, P.-M., “The Place and Role of Unilateralism in Contemporary International Law” (2000) 11(1) EJ.I.L. 19 at 24–25.Google Scholar

⁸⁶ Gattini argues that such an inference cannot be made given “the complete silence of the commentary on this point, and the explicit statement of the Chairman of the Drafting Committee that the paragraph was ‘not intended to exclude unilateral actions by states’.” See Gattini, A., “A Return Ticket to ‘Communitarisme.’ Please” (2002) 13:5 Eur. J. Int’l. L. 1181 at 1187.CrossRefGoogle Scholar

⁸⁷ Draft Article 53 of the first version of 1996 draft was no more explicit, stating that “[a]n international crime committed by a State entails an obligation for every other State:… (d) to cooperate with other States in the application of measures designed to eliminate the consequences of the crime.” The very brief commentary to this provision referred in particular to the cooperation of states in implementing sanctions adopted by the Security Council. It added, however, that “apart from any collective response of States through the organized international community, the Commission believes that a certain minimum response to a crime is called for on the part of all States.” See Report on Forty-Eighth Session, supra note 83 at 170. To what form of “minimum response” was the ILC alluding remains a mystery.

⁸⁸ One can recall here Article 5 of the North Atlantic Treaty Organization Treaty, which states in part:

Perhaps Special Rapporteur Riphagen had something similar in mind when he maintained that reaction to an international crime was “comparable to a measure of collective self-defence.” See Report on Thirty-Seventh Session, supra note 78 at 14, para. 9.

⁸⁹ The ILC Commentary itself reveals that the commission was not certain whether it codified or developed international law: “It may be open to question whether general international la at present prescribes a positive duty of cooperation, and paragraph 1 in that respect may reflect the progressive development of international law.” See Report on Fifty-Third Session, supra note 33 at 287, para. 3.

⁹⁰ Koskenniemi, M., “Solidarity Measures: State Responsibility as a New International Order?” (2002) 71 Brit. Y.B. Int’l L. 337 at 349–50, 355.Google Scholar See also Charney, J. I., “Third States Remedies in International law” (1989) 10 Mich. J. Int’l L. 57 at 101Google Scholar (noting that “a substantial expansion of international law remedies to give third states a significant role… might erode, rather than enhance, obedience to the rule of law,” and suggesting that third-state remedies under customary international law “may be appropriate in the case of a few subjects of international law under limited circumstances”).

⁹¹ Simma and Pulkowski thus argue that “[f]ar from obsessively policing human rights violations across the world, states’ attitude towards human rights violations is all too often characterized by a remarkable lack of vigor to counter such treaty breaches.” See Simma, B. and Pulkowski, D., “Leges Speciales and Self-Contained Regimes,” inj. Crawford and A. Pellet, Le droit de la responsabilité des États (Paris: Pédone, 2005).Google Scholar

⁹² Simma, , “Bilateralism and Community Interest,” supra note 46 at 267–68.Google Scholar See also Sarooshi, D., The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford: Clarendon Press, 1999) at 12–13, 153–63Google Scholar and, more specifically, Simma, B., “Does the UN Charter Provide an Adequate Basis for Individual or Collective Responses to Violations of Obligations Erga Omnes?” in Delbrück, J., ed., The Future of International Law Enforcement, New Scenarios-New Law? (Berlin: Duncker and Humblot, 1993) at 139 Google Scholar; Blokker, N., “Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ’Coalitions of the Able and Willing’” (2000) 11 (3) EJ.I.L. 541.Google Scholar

⁹³ Kelsen, H., Principles of International Law (New York: Rinehart, 1952) at 25 Google Scholar; Frowein, J. A., “Collective Enforcement of International Obligations” (1987) 47 ZaöRV 67 at 76–77 Google Scholar; Delbrück, J., “The Impact of the Allocation of International Law Enforcement Authority on the International Legal Order,” in Delbrück, J., ed., Allocation of Law Enforcement Authority in the International System: Proceedings of an International Symposium of the Kiel Institute of International Law, March 25 1994 (Berlin: Duncker and Humblot, 1995) at 135, 154.Google Scholar

⁹⁴ To provide for such a duty also presupposes a higher degree of solidarity among states than in case of the dispensing of rights of protection that may be exercised or not, according to factual expediency. This is certainly questionable in the current state of flux in international relations.

⁹⁵ Frowein, , “Reactions by Not Directly Affected States,” supra note 24 at 423, 431–33Google ScholarPubMed

⁹⁶ According to Michael Byers, “there are two parts to every erga omnes rule. First, as with ordinary rules, each erga omnes rule contains a series of rights and corresponding obligations concerning its substantive content. It is these rights and obligations which form the principle bilateral relationships between any of the many pairs of States which are subject to that rule. Secondly each State has, in the words of the Court, a ’corresponding right of protection’” [emphasis added]. He further writes: “[E]ach State not only has rights and obligations in respect of the substantive content of the rule, giving rise to State responsibility vis-à-vis injured States in the event of a violation, but it is also subject to a series of additional, bilateralised rights and obligations.” See Byers, M., Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999) at 197 CrossRefGoogle Scholar [emphasis added]. The conversion from the language of obligation to that of rules is quite unfortunate and appears to imply that all responsibility relations can be assimilated today to bundles of classical bilateral right-duty inter-state relations (an assumption contradicted by the ICJ in the Barcelona Traction case). To the contrary, the substantive erga omnes rights at the primary level of the relationship (at the level of the substantive content of the rule) are held by individuals, not states, though it may be argued that other states do have a right to expect performance of these obligations. States have the corresponding erga omnes obligations towards those individuals or groups not to violate these rights. Thus, the primary rights and obligations do not exist between states, but rather between states and individuals or groups. At the secondary level of the relationship (procedural aspect of the rule), these same erga omnes obligations are owed to “the international community as a whole,” and each state has a corresponding right of protection, which is opposable erga omnes — that is, the right to make claims against the state in case of breach. There is a fear that Byers’s essentially bilateralist depiction of the concept of erga omnes obligations that, it should be recalled, is grafted onto the notion of “community interest” will turn out to be too weak to come to terms with the full implications of such a concept, particularly for any future prospect of an organized, institutional reaction to their breach. On the third party rights of individuals at the primary level of the relationship, see Chinkin, supra note 14 at 13–15, 120–33.

⁹⁷ Tomuschat, C., “International Crimes by States: An Endangered Species,” in Wellens, K., ed., International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague: Martinus Nijhoff, 1998) at 265.Google Scholar

⁹⁸ Gowlland-Debbas, V., “The Limits of Unilateral Enforcement of Community Objectives in the Framework of United Nations Peace Maintenance” (2000) 11(1) EJ.I.L. 361 at 385–86.Google Scholar

⁹⁹ See on this point the Third Report of James Crawford, supra note 31 at 17—18, para. 396.

¹⁰⁰ Alland, supra note 31 at 1234 ff.

¹⁰¹ See in this sense Dupuy, P.-M., “A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of State Responsibility” (2002) 13(5) EJ.I.L. 1053 at 1078Google Scholar; Simma, , “Bilateralism and Community Interest,” supra note 46 at 249.Google Scholar Indeed, the very essence of human rights comes from the fact that, by being beyond the interplay of reciprocity, they are by definition resistant to a stricdy bilateral perception, and in any case are not inter-state things, since the beneficiary of the right is an individual, independent of ties of nationality.

¹⁰² Mosler, H., “The International Society as a Legal Community” (1974) 140 Rec. des Cours 1 at 32Google Scholar; Virally, M., “Panorama du droit international contemporain. Cours général de droit international public” (1983–V) 183 Ree. des Cours 1 at 28.Google Scholar

¹⁰³ Dupuy, R.-J., “Communauté internationale et disparités de développment” (1979) 165 Ree. des Cours 9 at 220.Google Scholar

¹⁰⁴ Tomuschat, supra note 20 at 227.

¹⁰⁵ In 1970, Roberto Ago explained that “international treaty law [provided] that in certain cases a particular internationally wrongful act may be source of new legal relations, not only between the guilty State and the injured State, but also between the former State and other States or, especially, between the former State and organizations of States.” He also stressed that the development of international organization had led, “as early as the League of Nations, but more particularly with the United Nadons… to consideration of the possibility for a State committing an internationally wrongful act of a certain kind and of a certain importance to be… subject to the faculty, or even the duty, of the Organization and its members to react against the internationally wrongful conduct by applying sanctions collectively decided upon.” See Second Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, UN Doc. A/CN.4/233, reprinted in Yearbook of the International Law Commission 1970, vol. 2, Part 1, New York, 1970 at 184 (UN Doc. A/8010/Rev.1 (A/25/10)) [emphasis added].

¹⁰⁶ Although in 1970, Ago denied the presence of such a personified international community, he considered such a possibility by linking the personification of the international community to the degree of institutionalization of international relations present at any given time. See ibid, at 177–97. However, he subsequently backed away from his initial stance, describing the emergence of “ [s]omething which already exists to some extent today… namely that the entity called the international community, distinct from its members who have rights and obligations, is able to enter into legal reladonship with its members. It is not all States, but rather the international community, that is envisaged as the possible bearer of a right of reaction to this particularly serious form of internationally wrongful act… The whole idea of obligations erga omnes is bound up… with the fact of recognition of the existence of that community as such.” See Ago, R., “Obligations Erga Omnes and the International Community,” in Weiler, , Cassese, , and Spinedi, , supra note 46 at 238 Google Scholar [emphasis added]; See also on this same point Annacker, supra note 47 at 157; Tomuschat, supra note 20 at 224, 227, 236. For a comprehensive discussion of Ago’s ideas on this point, see Spinedi, “From One Codification to Another,” supra note 37 at 1115–19.

¹⁰⁷ Namibia case, supra note 61 at 56. See also Special Rapporteur Crawford’s analysis of the South West Africa cases before the ICJ to the effect that the beneficiaries of the obligation invoked by Ethiopia and Liberia were the people of South West Africa themselves, and that “[a] legal system which seeks to reduce the legal relations between South Africa, the people of the territory, and the two applicant States to a bilateral form is deficient.” See Third Report of James Crawford, supra note 31 at 37–38, 40, para. 85.

¹⁰⁸ United States Diplomatic and Consular Staff at Tehran (United States of America v. Iran), [1980] I.C.J. Rep. 3 at 43.

¹⁰⁹ Ibid.

¹¹⁰ de Visscher, C., “Positivisme et “Jus Cogens” (1971) 75 Rev. D.LP. 5 at 8.Google Scholar

¹¹¹ Fourth Report of James Crawford, supra note 56 at 13, para. 37; Weil, P., “Le droit international en quête de son identité: Cours général de droit international public” (1992–VI) 237 Ree. des Cours 9 at 308–11Google Scholar; Namibia case, supra note 61 at 241, para. 33 (dissendng opinion of Fitzmaurice J.). Contrast this with the statement of Mohammed BedjaouiJ. in his declaration appended to the 1996 Advisory Opinion on Nuclear Weapons to the effect that “the progress made in terms of the institutionalization, not to say integration and ‘globalization’ of international society is undeniable” and referring to “an objective conception of international law, a law more readily seeking to reflect a collective juridical conscience and respond to the social necessities of States organized as a community.” Case Concerning the Legality of the Threat and Use of Nuclear Weapons, Advisory Opinion, [1996–I] I.C.J. Rep. 3 at 270 (para, 12), 271 (para. 13).

¹¹² Simma, , “Bilateralism and Community Interest,” supra note 46 at 235–37.Google Scholar See also Rosenne, S., “Bilateralism and Community Interest in the Codified Law of Treaties,” in Friedmann, W., Henkin, L., and Lissitzyn, O., eds., Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup (New York: Columbia University Press, 1972) at 208.Google Scholar

¹¹³ Simma, , “Bilateralism and Community Interest,” supra note 46 at 256 ff.Google Scholar See also Graefrath, B., “On the Reaction of the “International Community as a Whole”: A Perspective of Survival,” in Weiler, , Cassese, , and Spinedi, , supra note 46 at 253–55.Google Scholar

¹¹⁴ Abi-Saab, G. M., “Cours Général de Droit International Public” (1987–VII) 207 Ree. des Cours 15 at 93Google Scholar; Ago, R., “Obligations Erga Omnes and the International Community,” supra nole 106 at 238 Google Scholar; Simma, , “Bilateralism and Community” in Dinstein, and Tabory, , supra note 15 at 844.Google Scholar

¹¹⁵ Provost, R., “Reciprocity in Human Rights and Humanitarian Law” (1994) 65 Brit. Y.B. Int’l L. 384 at 384–85Google Scholar; Simma, , “Bilateralism and Community Interest,” supra note 46 at 244 Google Scholar; Tomuschat, supra note 20 at 218.

¹¹⁶ On this point, see Abi-Saab, G. M., ““La communauté internationale” saisie par le droit — Essai de radioscopie juridique,” in Abi-Saab, G. M. et al., eds., Boutros Boutros-Ghali, amicorum discipulorumque liber: paix, développement, démocratie, vol. I (Brussels: Bruylant, 1998) at 106.Google Scholar

¹¹⁷ De Hoogh, A. J. J., Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (The Hague: Kluwer Law International, 1996) at 106.Google Scholar

¹¹⁸ Ibid, at 108. See also Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 174 at 179 [Reparations case].

¹¹⁹ Article 35 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, UN Doc. A/CONF. 129/15; ( 1986) 25 I.L.M. 543, stipulates that a treaty obligation arises for a third organization only “if the parties to the treaty intend the provision to be the means of establishing the obligation (on the organization) and the… third organization expressly accepts that obligation in writing.” Neither of these conditions seems to be met in the case of Article I of the Genocide Convention.

¹²⁰ De Hoogh, Obligations Erga Omnes and International Crimes, supra note 117 at 111.

¹²¹ While this provision at least psychologically imposes a certain responsibility upon the UN, it has in effect been of little practical value since very little use of it has been made. It appears that in an effort to halt the genocide, the Bosnian government requested assistance from the UN Security Council, to no avail. See the letter dated 13 July 1992 from the permanent representative of Bosnia-Herzegovina to the Security Council, UN SCOR, UN Doc. S/24266 (1992), cited in Procida, N. M., “Ethnic Cleansing in Bosnia-Herzegovina, A Case Study: Employing United Nations Mechanisms to Enforce the Convention on the Prevention and Punishment of the Crime of Genocide” (1995) 18 Suffolk Transnat’l L. Rev. 655 at 675.Google Scholar The council was also challenged to take measures to prevent genocide in Rwanda in 1994 and in effect was called upon to act by the Czech Republic in accordance with Article VIII, but failed and dawdled as hundreds of thousands were killed. More recendy in September 2004, the UN secretary-general pleaded with Security Council members and secured a resolution ordering Sudan to stop the violence in its Darfur region and threatening to impose an oil embargo if it failed to act.

¹²² See Toufayan, M., “Deployment of Troops to Prevent Impending Genocide: A Contemporary Assessment of the UN Security Council’s Powers” (2002) 40 Can Y.B. Int’l L. 195 at 220–21.Google Scholar

¹²³ Hoogh, De, Obligations Erga Omnes and International Crimes, supra note 117 at 111–12.Google Scholar See also Reparations case, supra note 118 at 178–80.

¹²⁴ Toufayan, supra note 122 at 201–11.

¹²⁵ Genocide Convention, supra note 2 at preamble

¹²⁶ See generally Kirgis, F. L., “The Security Council’s First Fifty Years” (1995) 89 A.J.I.L. 506.Google Scholar

¹²⁷ Toufayan, supra note 122 at 229–45.

¹²⁸ Hoogh, De, Obligations Erga Omnes and International Crimes, supra note 117 at 119–22.Google Scholar See also Toufayan, supra note 122 at 241–42.

¹²⁹ Lachs, M., “Quelques réflexions sur la communauté internationale,” in Bardonnet, D. et al., Le droit international au service de la paix, de la justice et du développement, supra note 69 at 352.Google Scholar According to Giorgio Gaja, the action taken by the Security Council in the cases of Southern Rhodesia, Iraq, Former Yugoslavia, Somalia, and Haiti was “une forme de réaction de la communauté internationale organisée à des violations d’obligations essentielles,” including obligations arising from human rights and humanitarian law. See Gaja, G., “Reflexions sur le Rôle du Conseil de Sécurité dans le Nouvel Ordre Mondial: A propos des Rapports entre Maintien de la Paix et Crimes Internationaux des États” (1993) 97 Rev. D.I.P. 297 at 313.Google Scholar See also Dupuy, P.-M., “Après la Guerre du Golfe…” (1991) 95 Rev. D.I.P. 621 at 635Google Scholar (describing the involvement of the Security Council in the implementation of Iraqi responsibility in the aftermath of the Gulf war as that of the “organized international community”). For a specific reference to the “organized international community” in the jurisprudence of the ICJ and the work of the ILC, see respectively South West African cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] I.C.J. Rep. 6 at 467 (dissenting opinion of Judge Padilla Nervo); Third Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles), by Mr. Willem Riphagen, Special Rapporteur, UN Doc. A/CN.4/SER.A/1982/Add.1, reprinted in Yearbook of the International Law Commission 1982, vol. 2, Part 1, New York, 1983 at 48 and 49, paras. 5 and 14 [Third Report of Willem Riphagen].

¹³⁰ The language is borrowed from Sir Humphrey Waldock. See Waldock, H., “General Course on Public International Law” (1962) 106 Ree. des Cours 1 at 19.Google Scholar For academic support for this view, see Franck, T. M., “Is the U.N. Charter a Constitution?” in Frowein, J. A., Scharioth, K., Winkelmann, I., and Wolfrum, R., eds., Negotiating for Peace: Liber Amicorum Tono Eitel (Berlin: Springer-Verlag, 2003) at 95 Google Scholar; MacDonald, R. St-J., “Fundamental Norms in Contemporary International Law” (1987) 25 Can. Y.B. Int’l L. 115 at 1 ig ffGoogle Scholar; Tomuschat, supra note 20; Simma, “Bilateralism and Community Interest,“ supra note 46 at 260; Kelsen, H., The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (London: Stevensand Sons, 1951) at 106–10Google Scholar; Verdross, A. and Simma, B., Universelles Volkerrecht. Theorie und Praxis, 3rd ed. (Berlin: Duncker & Humblot, 1984 Google Scholar; Ross, A., Constitution of the United Nations (New York: Rinehart, 1950)Google Scholar; Kindred, H. M. et al., eds., International Law: Chiefly as Interpreted and Applied in Canada, 6th ed. (Toronto: Emond Montgomery, 2000) at 19 Google Scholar, para 9; Fassbender, B., “The United Nations Charter as Constitution of the International Community” (1998) 36 Colum.J. Transn’l L. 529 Google Scholar; Onuf, N., “The Constitution of International Society” (1994) 5 EJ.I.L. 1 at 16–17.Google Scholar The number of authors taking the idea of the UN Charter as a “constitution“ seriously and trying to apply it consistently to practical questions of the international legal order such as genocide is, however, still very limited. For an assessment of the contributions of the ICJ to the interpretation of the UN Charter as a constitutional order, see de Visscher, C., Problèmes d’interprétation judiciaire en droit international public (Paris: Pédone, 1963) at 140 ff.Google Scholar

¹³¹ Simma, “Bilateralism and Community Interest,” supra note 46 at 235–37. Is is interesting to note that in an opinion appended to a case of the ICJ, the latter has been characterized as the “principal judicial organ of the international community” whereas Article 92 of the UN Charter defines it as “the principal judicial organ of the United Nations.” See Case Concerning the Arbitral Award of 5/ July 1989 (Guinea-Bissau v. Senegal), [1975J I.C.J. Rep. 53 at 121, para. 5 (dissenting opinion of Judges Aguilar Mawdsley and Ranjeva); See also East Timor case, supra note 58, “Counter-Memorial of Australia,” [1995] LCJ. Pleadings 1 at 97–98, where Australia contended that “East Timor’s rights imply a duty on behalf of the international community (i.e. the United Nations) but not on behalf of individual States such as Australia.” The very term “international community” is frequently used interchangeably with the name of the Organization today.

¹³² Tomuschat, supra note 20 at 330. See also Daillet, P. and Pellet, A., Droit International Public, 5th ed. (Paris: L.G.D.J., 1994) at 394 Google Scholar, where the authors state: “Si des précautions sont prises pour garantir la représentation objective de l’ensemble des Etats dans une structure institutionelle…il devient impossible de distinguer la “communauté internationale” de l’organisation internationale qui agit en son nom. Mais ce n’est que dans la mesure où la personnalité juridique de la communauté internationale s’affirmerait à Γ encontre de celle de l’organisation qui exprime sa volonté, que l’on pourrait admettre que cette communauté dispose d’une certaine capacité propre d’exercice de ces droits” [emphasis added].

¹³³ Toufayan, supra note 122 at 229–45, and references therein.

¹³⁴ Tomuschat, supra note 20 at 256; Dupuy, P.-M., “Sécurité Collective et Organisation de la Paix” (1993) 97 Rev. D.I.P. 626 at 671.Google Scholar

¹³⁵ This language is borrowed from the Corfu Channel case (United Kingdom v. Albania), [1949] I.C.J. Rep. 4 at 24. The substantive notion of constitutional norms of the international society here defended is akin to the one put forward by Georges Scelle. According to this author:

See Scelle, G., Précis de droit des gens: Principes et systématiques (Paris: Sirey, 1934) at 7.Google Scholar For a defense of the constitutional nature of the obligation to “respect and ensure respect” for humanitarian law, see Condorelli, L. and Boisson de Chazournes, L., “Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests” 837 Int’l Rev. Red Cross (31 March 2000) 67 at 69.Google Scholar

¹³⁶ Starace, V., “La responsabilité résultant de la violation des obligations à l’égard de la communauté internationale” (1976) 153 Ree. des Cours 265 at 289Google Scholar; Eagleton, C., “International Organization and the Law of Responsibility” (1950) 76 Rec. des Cours 319 at 323, 401, 423.Google Scholar

¹³⁷ This point has been noted by several scholars, although recent events in the Balkans crisis may not paint such a comforting picture. See namely Gaja, , “Réflexions sur le role du Conseil de Sécurité,” supra note 129 at 314 ffGoogle Scholar; Schachter, O., “United Nations Law in the Gulf Conflict” (1991) 85 A.J.I.L. 452 Google Scholar; and Dupuy, R-M., “Le Maintien de la Paix,” in Dupuy, R. J., ed., A Handbook on International Organizations, 1st ed., (Dordrecht: Martinus Nijhoff, 1998) at 593–98.Google Scholar

¹³⁸ As with regard to states, unilateral declarations by international organizations (IOs) may give rise to international legal obligations towards third parties. The elements of clear intention, publicity, and authority to make a statement, derived from the Nuclear Tests cases (Australia v. France; New Zealand v. France), Judgment of 20 December 1974 - Merits, [1974] I.CJ. Rep. 252 at 269–70, para. 43–51, in the case of unilateral declarations of states, constitute the preliminary requirements necessary to bind the organization legally by declarations made by its organs. See also on this point Virally, M., “Unilateral Acts of International Organizations,” in Bedjaoui, M., ed., International Law: Achievement and Prospects (Paris: UNESCO, 1991),241 at 256–57Google Scholar; Hirsch, M., The Responsibility of International Organizations towards ThirdParties (Dordrecht: Martinus Nijhoff, 1995) at 38.Google Scholar In the specific case of genocide, we can cite, among many others, the following unilateral declaration made by the UN secretary-general, the chief administrative organ of the organization pursuant to Article 97 of the UN Charter:

See K. Annan, Statement on Receiving the Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, 16 December 1999, at 1, available online at <http://www.un.org/News/ossg/sgsm_ rwanda.htm> (date accessed: 18 April 2004) [emphasis added]. This statement may in effect be seen as binding the organization in the future towards third parties.

¹³⁹ There is growing acceptance among commentators of the existence of international practice supporting such a concept of “universal international law” applicable to IOs — that is, treaty provisions whose global normative reach cannot be explained in terms of treaty law proper, or of customary law in the traditional sense. See, in particular, Skogly, S. I., The Human Rights Obligations of the World Bank and the International Monetary Fund (London: Cavendish Publishing Limited, 2001)Google Scholar, Chapters 4, 5, and 7; David, E., Droit des organisations internationales (Brussels: Bruylant, 1997) at 20–25 Google Scholar; Schermers, H., International Institutional Law (The Hague: Sitjoff and Noordhoff, 1980) at 657.Google Scholar

¹⁴⁰ As international organizations, including the UN, have begun to exercise expanded functions relative to their constituent instruments as originally interpreted, it is only logical to conclude that they must also be deemed subject to a commensurably expanded reach of customary or general international law. See Report of the International Law Commission on the Work of Its Thirty-Fourth Session (Question of Treaties Concluded between States and International Organizations or between Two or More International Organizations), UN Doc. A/CN.4/L.341, reprinted in Yearbook of the International Law Commission 1982, vol. 2, Part 2, at 56, para. 3 (commentary on Article 53), New York, 1982 (UN Doc. A/37/10 (1982)); David, E., “Le droit international applicable aux organisations internationales,” in Dony, M., ed., Mélanges en hommage à Michel Waelbroech (Brussels: Bruylant, 1999) at 3 Google Scholar; Morgenstern, F., Legal Problems of International Organizations (Cambridge: Groüus, 1986) at 32–36 Google Scholar; Cahin, G., La coutume internationale et les organisations internationales: L’incidence de la dimension institutionnelle sur le processus coutumier (Paris: Pédone, 2001) at 512–37Google Scholar; Virally, M., “L’O.N.U. devant le droit” (1972) 99 j. Dr. Int’l. 501 Google Scholar; Butkiewicz, supra note 11 at 118–19; Hirsch, supra note 138 at 31. The subject has attracted considerable attention with respect to the applicability of the customary laws of war to the peacekeeping operations of the UN. For an interesdng analysis of genocide in former Yugoslavia and the lawfulness of the Security Council’s actions, see Scott, C. et al., “A Memorial for Bosnia: Framework of Legal Arguments Concerning the Lawfulness of the Maintenance of the United Nations Security Council’s Arms Embargo on Bosnia and Herzegovina” (1994) 16 Mich. J. Int’l L. 1 at 112.Google Scholar

¹⁴¹ Tunkin, G., “The Legal Bases of International Organization Action,” in Dupuy, R. J., ed., A Handbook on International Organizations, 1st ed. (Hague Academy of Internationa] Law, Dordrecht: Martinus Nijhoff, 1988) at 261–62Google Scholar; Hoogh, De, Obligations Erga Omnes and International Crimes, supra note 117 at 98, 104, 112.Google Scholar

¹⁴² Namibia case, supra note 61 at 264 (dissenting opinion of Judge Fitzmaurice); Reparations case, supra note 118 at 177; Klein, supra note 10 at 340–49, 362; De Hoogh, supra note 117 at 98.

¹⁴³ Martenczuk, B., “The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?” (1999) 10 EJ.I.L. 517 at 546.Google Scholar

¹⁴⁴ See in this sense, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovinay. Yugoslavia (Serbia and Montenegro ) ) (Request for the indication of additional provisional measures ), Order of 13 September igg3, [igg3] I CJ. Rep. 325 at 440, para, too (separate opinion of ad hocjudge Lauterpacht).

¹⁴⁵ This language is borrowed from Mosler, supra note 102 at 17–19, and Jaenicke, G., “International Public Order,” in Bernhardt, R. et al., eds., Encyclopedia of Public International Law, Max Planck Institute of International Law (Amsterdam: North-Holland, 1987) at 314–18.Google Scholar For comparable language, see Hart, H. L. A., The Concept of Law (Oxford: Clarendon, 1961) at 187–89Google Scholar (on the minimum content of natural law).

¹⁴⁶ In Prosecutor v. Dusko Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), 2 October 1995, Case no. IT-g4-1-AR72, reprinted in (1996) 35 I.L.M. 32 at para. 93, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia thus held that Article 1 of the four Geneva Conventions of ig49 is a principle that “lays down an obligation that is incumbent, not only on States, but also on other international entities including the United Nations.”

¹⁴⁷ Arsanjani, M. H., “Claims against International Organizations: Quis custodiet impsos custodes” (1981) 7 Yale. J. World Pub. Ord. 131 at 134.Google Scholar See also Schermers, H. and Blokker, N., International Institutional Law: Unity within Diversity, 3rd ed. (The Hague: Martinus Nijhoff, 1995) at 988.Google Scholar

¹⁴⁸ On such effects of human rights treaties, see, in particular, Higgins, R., Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994) at 20–22 Google Scholar; McDougal, M. S. and Lasswell, H. D., Jurisprudence for a Free Society: Studies in Law, Science and Policy (Dordrecht: Martinus Nijhoff, 1992) at 163–64.Google Scholar

¹⁴⁹ Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/ CONF.183/9, 37 I.L.M. 999, Articles 13 and 16.

¹⁵⁰ See the commentaries of the United Nations Secretariat on Article XII of the draft Genocide Convention (old Article VIII), UN ESCOR, UN Doc. E/447 (1947) at 45-46. See also Akhavan, P., “Justice in the Hague, Peace in the Former Yugoslavia?” (1999) 149 Hum. Rts. Q. 737 at 743–51Google Scholar; Wippman, D., “Atrocities, Deterrence, and the Limits of International Justice” (1999) 23(2) Fordham Int’l L.J. 473 at 476–88Google Scholar; Meron, T., “From Nuremberg to The Hague” (1995) 149 Mil. L. Rev. 107 at 110–11.Google Scholar

¹⁵¹ Fassbender, B., UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Legal Aspects of International Organization, vol. 32) (The Hague: Kluwer Law International, 1998) at 22177Google Scholar; Caron, D., “The Legitimacy of the Collective Authority of the Security Council” (1993) 87 AJ.I.L. 552 at 562–88.Google Scholar

¹⁵² Singer, M., “Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns” (1995–6) 36 Va. J. Int’l. L. 53 at 90Google Scholar; Arsanjani, supra note 147 at 132. See also the recent decisions of the European Court of Human Rights in Matthews v. The United Kingdom, Judgment (Merits), 18 February l999, Application no. 24833/94 at para. 32 and Beer and Regan v. Germany, Judgment (Merits), 18 February 1999, Application no. 00028934/95 at para. 57.

¹⁵³ Frowein, “Reactions By Not Directly Affected States,” supra note 24 at 423. See also Sir I. Sinclair, “State Crimes Implementation Problems: Who Reacts?“ in Weiler, Cassese, and Spinedi, supra note 46 at 257; Gaja, G., “lus Cogens beyond the Vienna Convention”(1981–III) 172 Ree. des Cours 280 at 299–301 Google Scholar; Graefrath, B., “International Crimes — A Specific Regime of International Responsibility of States and Its Legal Consequences,” in Weiler, , Cassese, , and Spinedi, , supra note 46 at 161.Google Scholar

¹⁵⁴ To the extent that we might regard “subsidiarity” as fundamentally concerned with the distribution of competences among higher and lower levels of governance (as is the case in the European Union), this is certainly a legitimate claim. I wish, however, to emphasize here the comprehensive reach of “subsidiarity,” flowing from its grounding in a notion of the common good as the totality of conditions necessary for the flourishing of every individual in society. Subsidiarity is relevant whenever a community cannot be said to be capable of achieving that common good in a self-sufficient manner. Applying the principle of subsidiarity (broadly understood as suggested here) to the “international community,” as with any other level of human association, would generate a responsibility for that order to intervene and assist, but would prohibit it from taking over what more local communities can accomplish by themselves.

¹⁵⁵ The extent to which states’ room for manoeuvre is restricted in such situations has been, however, the object of debate among scholars. See, in particular, De Hoogh, supra note 117 at 249–51 and Sicilianos, supra note 36 at 135–77.

¹⁵⁶ However, it is not uncommon in practice that states give themselves a power of self-interpretation of the Security Council’s resolutions to justify the adoption of “collective” countermeasures with only a remote relation, or none at all, to the UN sanctions, or even measures that might go counter to UN objectives. Hence, the need in having the regulation of “collective countermeasures” in the wake of impending genocide clarified.

¹⁵⁷ It is to be recalled that pursuant to Article 89 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3, the high contracting parties have undertaken to act, jointly and separately, in co-operation with the United Nations in certain circumstances, namely when and wherever “serious violations” of international humanitarian law occur. The language of this provision parallels Article 56 of the UN Charter whereby “all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55” [emphasis added]. According to the wording of Article 56, the member states are only under an obligation to give, jointly or separately, such support to the UN to achieve the purposes delineated in Article 55 as they see fit. Article 56, however, does require member states to cooperate with the UN in a constructive way, and obstructive policies in the national interest are thus excluded.

¹⁵⁸ See Eighth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur ( “Content of the Obligation Breached”), UN Doc. A/CN.4/291 and Add. 1 and 2, reprinted in Yearbook of the International Law Commission 1979, vol. 2, Part I, New York, 1976 at 43, para. 91. Ago’s position was that

See also the debate that took place within the ILC in Report of the International Law Commission on the Work of Its Twenty-Eighth Session, 3 May to 23 July 1976, UN Doc. A/CN.4/SER.A/1976 (77.V.4), reprinted in Yearbook of the International Law Commission 1979, vol. 2, Part t, New York, 1976 at 55–91, 239–53; tne Third Report of Willem Riphagen, supra note 129 at 48, paras. (4) and (14); and the Seventh Report (by) of Gaetano Arangio-Ruiz, supra note 72.

¹⁵⁹ See also in this sense Dupuy, P.-M., “Quarante ans de codification du droit de la responsabilité des États. Un bilan” (2003) 107(3) Rev. D.I.P. 305 at 341–42Google Scholar; Graefrath, B., “International Crimes and Collective Security,” in Wellens, , supra note 97 at 240.Google Scholar

¹⁶⁰ See, inter alia, in this connection Riphagen’s questions in Fourth Report of Willem Riphagen, supra note 57 at 31 and 32, para. 64.

¹⁶¹ Case Concerning the Interpretation of the Agreement of 25 March /951 between the WHO and Egypt, Advisory Opinion, [ 1980] I.C.J. Rep. 73 at 111 (separate opinion of Judge Lachs). See also Higgins, Problems and Process, supra note 148 at 46; Capotorti, F., “Cours Général de Droit International Public” (1994–IV) 248 Ree. des Cours 10 at 60Google Scholar; Lachs, M., “General Course in Public International Law” (1980) 169 Ree. des Cours 9 at 141Google Scholar; Seidl-Hohenveldern, I., Corporations in and under International Law (Cambridge: Grotius, 1988) at 72.Google Scholar

¹⁶² Rama-Montaldo, M., “International Legal Personality and Implied Powers of International Organizations” (1970) 44 Brit. Y.B. Int’l L. 111 at 146Google Scholar; Seidl-Hohenveldern, supra note 161 at 73. See also Cahier, P., “Le droit interne des organisations internationales” (1963) 67 Rev. D.I.P. 575 Google Scholar; Reuter, P., “Principes de droit international public” (1961) 103 Ree. des Cours 425 at 516–17.Google Scholar

¹⁶³ Simma, “Bilateralism and Community Interest,” supra note 46 at 312–13. Freudenschu, H., “Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council” (1993) 46 Austrian J. Pub. & Int’l L. 1 at 39.Google Scholar

¹⁶⁴ In this connection, see, in particular, the debates in the General Assembly on the “question of equitable representation on the Security Council and increasing the number of its Members,” October 2001, during the 55^th Session, available at <http://www.un.org/News/fr-press/docs/2001/AG1214.doc.htm> (date accessed: 7 October 2003). For a cridque on the illegitimacy of the Security Council in cases where the responsibility of states is called into question, see Gowlland-Debbas, V., “Security Council Enforcement and Issues of State Responsibility” (1994) 43 I.C.L.Q. 55 at 71.CrossRefGoogle Scholar

¹⁶⁵ Uniting for Peace, GA Resolution 377 (V) A, UN GAOR, 5th Sess., Supp. No. 20, 3 November 1950, at 10, UN Doc. A/1775 (1950).

¹⁶⁶ Under this provision, amendments to the UN Charter require the vote of two-thirds of the members of the General Assembly and ratífied in accordance with their respective constitutional processes by two-thirds of the members of the UN, including all the permanent members of the Security Council.

¹⁶⁷ More Secure World, supra note 7 at paras. 248–49 and 256.

¹⁶⁸ The panel’s recommendations are even more troubling when one considers other excerpts of its report where it stated that the Security Council “was created to be not just a representative but a responsible body, one that had the capacity for decisive action” (ibid, at para. 244) and that “the challenge for any reform is to increase both the effectiveness and the credibility of the Security Council and, most importandy, to enhance its capacity and willingness to act in the face of threats” (ibid, at para. 248). One thus wonders whether the necessity for a “collective responsibility to protect” strenuously advocated by the Panel can be met simply by a call upon the permanent members, in their individual capacities, “to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses” (ibid, at para. 256).

¹⁶⁹ Roberts, A. and Kingsbury, B., “Introduction: The UN’s Roles in International Society since 1945,” in Roberts, A. and Kingsbury, B., eds., United Nations, Divided World: The U.N. ’s Roles in International Relations, 2nd ed. (Oxford: Oxford University Press, 1993) at 45.Google Scholar

¹⁷⁰ Ibid, at 55.

¹⁷¹ The constant struggle of international organizations to strike a balance between obsessive concerns with internal institutional problems and exclusive concentration upon substantive issues of current world politics is well illustrated by Jr.Claude, Inis in his famous book Swords into Plowshares: The Problem and Progress of International Organization, 4th ed. (New York: Random House, 1984) at 6 ff.Google Scholar

¹⁷² This view is held by Éric David who calls into question the responsibility of different actors, including Belgium and the UN, who were bystanders to the Rwandan genocide for failing to prevent the commission of the crime. See David, E., “Aspects juridiques de la responsabilité des différents acteurs dans les événements du Rwanda (Avriljuillet 1994),” in Boustany, K. and Dormoy, D., eds., Génocide(s) (Brussels: Bruylant, 1999) at 403,Google Scholar and particularly at 430–35, 440.

¹⁷³ Reisman, W. M., “Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention on the Elimination of Racial Discrimination” (1971) 1 Den. J Int’l L. & Pol’y 29 at 64.Google Scholar