(a)  The lex specialis principle

The option of complementing international obligations with a specific set of secondary rules instead of adhering to a ‘one-size-fits-all’ approach on State responsibility is a prerogative inherent in the idea of sovereignty. Mostly, the sovereign will of States will be expressed in special treaty provisions. It is not excluded, however, that special secondary rules are established by particular (eg regional) custom.¹ There is no systemic reason why derogation from the rules on State responsibility should only be permissible by way of ‘contractual instruments’, as Special Rapporteur Arangio-Ruiz had suggested.² Either way, the raison d’être of special secondary norms remains the same. They are crafted with a view to enhancing the efficacy of the primary rules. An early expression of this rationale dates back to Emer de Vattel:

De deux Loix, ou de deux Conventions, toutes choses d’ailleurs égales, on doit préférer celle qui est la moins générale, & qui approche le plus de l’affaire dont il s’agit. Parce que ce qui est spécial souffre moins d’exceptions que ce qui est général; il est ordonné plus précisément, & il paroît qu’on l’a voulu plus fortement.³

Efficacy, for de Vattel, is a consequence of fewer exceptions, more regulatory precision, and, most interestingly, the assumption that what has been laid down in a more specific manner carries a stronger expression of State will.

The rule lex specialis derogat legi generali has been referred to as a well-recognized principle of international law.⁴ However, despite its general acceptance, the lex generalis-lex specialis distinction has only occasionally played a prominent role in international jurisprudence. The International Court of Justice has affirmed that a treaty concluded between Hungary and Czechoslovakia governed the relations between the parties as a lex specialis vis-à-vis the rules of State responsibility.⁵ Similarly, the Court ruled in the Nicaragua judgment that ‘[i]n general, treaty rules being lex specialis, it would not be appropriate that a State should bring a claim based on an a customary-law rule if it has by treaty already provided means for settlement of such a claim’.⁶ In its INA Corporation decision, the Iran-US Claims Tribunal Page Id: 140ReferencesAmbatielos Claim, Greece v United Kingdom, Award of the commission of arbitration established by the agreement concluded on 24th February 1955, (1963) XII RIAA 83, (1960) 23 ILR 306, 6th March 1956Gabčikovo-Nagymaros Project, Hungary v Slovakia, Merits, ICJ GL No 92, [1997] ICJ Rep 7, ICGJ 66 (ICJ 1997), (1998) 37 ILM 162, 25th September 1997, United Nations [UN]; International Court of Justice [ICJ] ICGJINA Corporation v Iran, Final award, Award No 184-161-1, (1987) 8 Iran-US CTR 373, 12th August 1985, Iran-United States Claims TribunalMilitary and Paramilitary Activities in and Against Nicaragua, Nicaragua v United States, Merits, ICJ GL No 70, [1986] ICJ Rep 14, ICGJ 112 (ICJ 1986), OXIO 88, 27th June 1986, United Nations [UN]; International Court of Justice [ICJ] ICGJ OXIORight of Passage over Indian Territory, Portugal v India, Judgment, merits, ICJ GL No 32, [1960] ICJ Rep 6, ICGJ 174 (ICJ 1960), 12th April 1960, United Nations [UN]; International Court of Justice [ICJ] ICGJ(p. 141) decided that the standard of full compensation laid down in a Treaty of Amity prevailed over the more liberal standard of compensation for nationalization of property under general international law.⁷

Nonetheless, case law making express reference to the lex specialis principle is relatively scarce. One possible explanation would be that reference to a ‘special’ rule presupposes the perspective of general international law. Both the International Court of Justice and the Iran-US Claims Tribunal, in a first step, examined the content of the rule of general international law and considered, in a second step, whether States in the particular case had derogated from this standard by creating a more special set of rules. Tribunals established under a special legal subsystem—such as World Trade Organization (WTO) panels or the European Court of Justice (ECJ)—generally adhere to the reverse order of examination. They are primarily concerned with the content of ‘their’ special law. Only in a second step, if this special regime proves insufficient to resolve a case, is resort had to general international rules. While tribunals working on the basis of general international law resort to the lex specialis principle to justify the non-application of general international law, special tribunals are not required to provide a comparable justification for applying the special rules under which they were created.

(b)  The problem of ‘specialty’ of norms

What appears to be a relatively straightforward provision, however, has a major built-in problem. When exactly can it be said that one rule is more special than another, and how far does the specialty extend?

First, as Sir Gerald Fitzmaurice has observed, ‘[t]he generalia rule can only apply where both the specific and general provision concerned deal with the same substantive matter’.⁸ In our context, however, whether a special norm relates to the same subject-matter as the State responsibility rules can be problematic. For instance, does a non-compliance procedure under a multilateral environmental agreement (MEA) concern the same subject-matter as the regime of State responsibility? The subject-matter of the rules of State responsibility is, in essence, the legal consequences of unlawful conduct. State responsibility, thus, deals with consequences of ‘breach’, the MEA’s regime with procedures for ‘non-compliance’. If non-compliance does not necessarily imply unlawfulness, which ‘breach’ does, it would be conceivable to apply the ‘hard’ State responsibility regime in parallel, because the two sets of norms do not purport to regulate the same subject-matter. Alternatively, it could be argued that both the regime of State responsibility and a MEA’s non-compliance procedure spell out consequences of a deviation from normative expectations. Then, the procedure under the MEA could be considered a lex specialis.

Second, if it can be established that a special norm concerns the same subject matter as the articles on State responsibility, the question remains how far the specialty of that particular norm extends. In this context, to give some contentious examples, the question has been raised whether a State can claim retrospective compensation pursuant to the general rules of State responsibility for breaches of WTO law, although the WTO Agreements do not authorize (nor forbid) such compensation. Another question would be whether a violation of EC law can ultimately be addressed with unilateral countermeasures, although (p. 142) the EC Treaty contains a comprehensive dispute settlement machinery. If we try to imagine a sliding scale of specialty, one could conceive at the one end a legal provision that is only designed to replace a single provision of the State responsibility articles while leaving the application of this framework otherwise untouched. On the other end of the scale, a strong form of lex specialis could exclude the application of the general regime of State responsibility altogether, either by explicit provision or impliedly by virtue of a regime’s particular structure or its object and purpose.

(c)  Definitions of self-contained regimes

(d)  Self-contained regimes: a systematic critique

(a)  Diplomatic law

The rules of international law most commonly associated with the notion of self-containment, the rules of diplomatic law, are at the same time the least convincing example of a closed system of secondary rules. In what may well be referred to as a jurisprudential overkill, that is, an unnecessarily broad statement, the Court in the Tehran Hostages judgment ruled that diplomatic law ‘specifies the means at the disposal of the receiving State to counter any such abuse’ of diplomatic privileges and that, therefore, diplomatic law constituted a self-contained regime.⁴¹ We do not contest that the possibility to declare a diplomat persona non grata is a special remedy of diplomatic law, recourse to which will usually be the appropriate reaction to an abuse of diplomatic privileges. However, the Court’s dictum goes too far:

1. (1)  The Court was only concerned with the question whether a receiving State is entitled to resort to countermeasures as a reaction to a breach of the Vienna Convention. However, if one perceives diplomatic law as a closed system, recourse to the rules of State responsibility would equally be excluded for the sending State. This is neither logical from a systematic point of view nor is it necessary for safeguarding diplomatic relations. There is no reason why the sending State should be precluded from initiating countermeasures (not affecting diplomatic personnel) if the receiving State fails to respect the immunities of the sending State’s diplomatic personnel. For instance, international law did not preclude the United States in that situation from resorting to countermeasures outside the Vienna Convention, including the suspension of a treaty of amity, in order to induce Iran to free its personnel.

2. (2)  Even assuming an abuse of diplomatic privileges similar to the conduct of which Iran accused the diplomats in Tehran Hostages, there may be a need to resort to remedies under general international law. The Vienna Convention does not contain a provision on reparation. If a diplomat, however, by abusing his privileges inflicts economic damage on the receiving State, there is no reason why the receiving State should be precluded from recovering that damage, in addition to declaring the perpetrator persona non grata. In Tehran Hostages, the Court itself affirmed Iran’s duty to make reparation to the United States.

3. (3)  Diplomatic law has always been the classic playground of reciprocity. At least at the time when the Vienna Convention was drafted, the ILC appears to have been of the Page Id: 150ReferencesUnited States Diplomatic and Consular Staff in Tehran, United States v Iran, Merits, ICJ GL No 64, [1980] ICJ Rep 3, ICGJ 124 (ICJ 1980), 24th May 1980, United Nations [UN]; International Court of Justice [ICJ] ICGJVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227(p. 151) view that the symmetry of obligations under diplomatic law would allow reciprocal reprisals.⁴² Given the traditional acceptance of countermeasures as a ‘fact of life’, it is to be strongly doubted whether diplomatic law has since evolved into a non-reciprocal regime justifying the categorical exclusion of all forms of unilateral reaction. Paul Reuter’s comment in the ILC plenary of 1984 still merits consideration: ‘He was of the view that, in so far as more general obligations such as humanitarian obligations were not involved, the injured State could respond in kind to a manifest violation of the rules on privileges and immunities. For instance, in the event of the violation of the unanimously accepted rule concerning the diplomatic bag, the injured State should be entitled to act in the same way as the State responsible for the violation. In such circumstances, the regime of privileges and immunities did not seem to be particularly self-contained.’⁴³

4. (4)  Finally, resort to countermeasures may be necessary under the fallback scenarios outlined above. This may include cases in which the sending State fails to withdraw a diplomat who was declared persona non grata; or cases in which a temporary infringing upon diplomatic immunity is the only way to prevent a diplomat from committing a serious crime. To the same token, the ILC had stated in the commentary to its draft convention on diplomatic relations that diplomatic inviolability ‘does not exclude … either measures of self-defence or, in exceptional circumstances, measures to prevent [a diplomat] from committing crimes or offences’.⁴⁴

Given the ‘permeability’ of diplomatic law, in fact its dependence on the remedies of the general rules of State responsibility, there is no ground for arguing that diplomatic law contains an exhaustive set of secondary rules. Rather, the exemption of diplomatic immunity from the scope of lawful ‘targets’ of countermeasures is a limitation within the general law of State responsibility, which follows from the purposes for which the diplomatic immunities are granted. Diplomatic channels may be useful—even, and a fortiori, in times of crisis.⁴⁵ Moreover, diplomatic relations would be severely impeded if diplomatic personnel were potentially to ‘constitute resident hostages’.⁴⁶ The definition of certain limitations to unilateral countermeasures is all that the Tehran Hostages ruling was about in substance. It is unfortunate that the Court’s unnecessarily broad dictum is suggestive of a closed-circuit system of legal consequences. In Dominicé’s words, ‘pour affirmer qu’une violation initiale du droit diplomatique ne peut en aucune manière autoriser l’Etat qui en est la victime à le transgresser à son tour, l’argument du régime se suffisant à lui-même n’est pas nécessaire’.⁴⁷

The ILC’s draft articles on State responsibility impliedly confirm the theory that the exemption of diplomatic immunity from countermeasures is merely a question of the proper application of the general rules of State responsibility. The Commission’s earlier debate mirrors the confusion caused by the Court’s Tehran Hostages pronouncement. Special Rapporteur Riphagen, speaking, more in passing, of a ‘self-contained regime of Page Id: 151ReferencesDraft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the Commission at its fifty-third session in 2001 (Final Outcome) (International Law Commission [ILC]) UN Doc A/56/10, para.76, UN Doc A/RES/56/83, Annex, [2001] II(2) UNYBILC 26, UN Doc A/CN.4/L.602/Rev.1, GAOR 56th Session Supp 10, 26Pt.1 The Internationally Wrongful Act of a State, Ch.III Breach of International Obligations, Art.14Pt.3 The Implementation of the International Responsibility of a State, Ch.II Countermeasures, Art.50Pt.3 The Implementation of the International Responsibility of a State, Ch.II Countermeasures, Art.50, (2)(p. 152) diplomatic law’,⁴⁸ seemed to be inclined to construe diplomatic law as a closed circuit containing its own conclusive secondary rules. Special Rapporteur Arangio-Ruiz questioned whether limitations on the use of countermeasures really flow from a self-contained nature of diplomatic law. Rather, he suggested, such limitations are a consequence of the application of the general rules and principles constituting the regime of countermeasures.⁴⁹ Consequently, he introduced a provision in the regime of countermeasures that specifically prohibits measures affecting diplomatic inviolability (Article 14 of the 1995 draft). The commentary adopted in 1995, however, did not fully reflect Arangio-Ruiz’s criticism. In the commentary, the ILC suggested that the prohibition of reprisals is either derived from the self-containment of diplomatic law or from an alleged peremptory character of some of its essential norms.⁵⁰ Special Rapporteur Crawford and, following him, the Commission discarded the latter hypothesis. Article 50 now makes an explicit distinction between jus cogens and other obligations the performance of which may be particularly useful in times of conflict, namely obligations flowing from diplomatic immunities and contractual dispute settlement obligations. While such an exemption of diplomatic immunity from countermeasures on functional grounds was generally endorsed, the Commission avoided grounding it in any view of the self-contained character of diplomatic law.

Systematically, the most convincing solution is to perceive the limitations to countermeasures in article 50(2) of the ILC project simply as an expression of the proportionality principle laid down in its article 51. Countermeasures affecting diplomatic inviolability or the suspension of dispute settlement obligations are, in principle, deemed disproportionate. If article 50(2) is understood as a presumption of disproportionality, however, this presumption can be refuted in an individual case if a State demonstrates that overriding interests are at stake. The Court has had occasion to confirm that insistence on dispute settlement duties may be ‘wholly artificial’ and ‘excessively formalistic’—in short: disproportionate in individual cases.⁵¹ Similarly, in the cases sketched above, insistence on the inviolability of diplomatic personnel may be a disproportional limitation to a State’s right to unilateral reaction. The threshold for infringing the physical freedom of diplomats, however, would obviously have to be very high.

(b)  The European Community legal system

While diplomatic law is a rather unlikely candidate for self-containment (if it were not for an unfortunate dictum of the Court), the legal system set up by the ‘Treaty establishing the European Community’ bears very strong characteristics of self-containment. The point of view of the European Court of Justice is as well-known as it is unequivocal: the Community Treaty has ‘created its own legal system’⁵² which ‘constitutes a new legal order of international law’.⁵³ Therefore, ‘the basic concept of the Treaty requires that member States shall not fail to carry out their obligations and shall not take the law into their own Page Id: 152ReferencesCommission v Luxembourg and Belgium, Case No 90/63, Case No 91/63, [1964] ECR 625, Court of Justice of the European Union [CJEU]; European Court of Justice [ECJ]Costa v Ente Nazionale Energia Elettrica, Judgment, reference for a preliminary ruling, Case 6/64, ECLI:EU:C:1964:66, [1964] ECR 585, OXIO 604, [1964] CMLR 425, 15th July 1964, Court of Justice of the European Union [CJEU]; European Court of Justice [ECJ] OXIONV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, Judgment, reference for a preliminary ruling, Case 26/62, ECLI:EU:C:1963:1, [1963] ECR 1, [1963] 1 CMLR 105, 5th February 1963, Court of Justice of the European Union [CJEU]; European Court of Justice [ECJ]Treaty on the Functioning of the European Union (European Union [EU]) [2008] OJ C115/47, [2010] OJ C83/47, [2012] OJ C326/47, [2016] OJ C202/47 OCL OCL OCL(p. 153) hands’ following reciprocity considerations.⁵⁴ ‘A member State cannot under any circumstances unilaterally adopt, on its own authority, corrective measures or measures to protect trade designed to prevent any failure on the part of another member State to comply with the rules laid down by the Treaty.’⁵⁵ The continuous assertion of the Community’s sui generis character, however, does not by itself create an ‘own legal order’. From a public international law perspective, the EC legal system remains a subsystem of international law.⁵⁶ Since any amendment of the constituting treaties still depends on the consent of the Union’s sovereign member States, ‘the Community legal order is still dominated by the spirit of international law’.⁵⁷

From a purely systematic point of view, the rules on State responsibility are, hence, residually applicable. But is there still a need for such residual application? Our proposition was that States only intend to relinquish their facultés under general international law in favour of a special regime’s procedures to the extent that and as long as a subsystem’s procedures prove efficacious. Consequently, a fallback on the general rules of State responsibility presupposes that the mechanisms under the EC Treaty fail to give effect to the obligations members have assumed under the Treaty. The indemnity regime under the EC Treaty is comprehensive and mostly effective. As Conway has correctly pointed out, most of the gaps of the indemnity regime still existing 20 years ago have now been filled.⁵⁸ The Francovich and Brasserie du Pêcheur principles have vested individuals with a remedy to recover damage resulting from breaches of EC law by member States.⁵⁹ Article 228 EC Treaty has been introduced to give the declaratory judgments of the Court rendered according to articles 226 and 227 the ‘bite’ of a pecuniary sanction, if a member State disregards them; and article 7 of the EU Treaty provides for an institutionalized procedure for the suspension of membership in case of a grave and continuous violation of Community law. As far as we can see, only two hypothetical scenarios can be identified in which lacunae in Community law may prompt a fallback on State responsibility.

1. (1)  The first scenario would involve a continuous violation of Community law by an EC member State. Obviously, the lex specialis principle would require another member State (or the Commission) to exhaust the more ‘special’ mechanisms under the EC Treaty. A starting point would be for an affected State to bring the matter before the Commission and, if the Commission does not take up the case itself, to the European Court of Justice pursuant to article 227 EC. If the violating State chooses not to change its conduct despite a judgment of the Court, the Commission has the authority to seize the Court once more with an application for a pecuniary penalty pursuant to article 228(2) EC. If the violation persists, the member State may attempt to have the membership of the violating State suspended pursuant to article 7 EU. The latter remedy, which operates on the political rather than the legal plane, will not prove to Page Id: 153ReferencesBrasserie du Pêcheur SA v Germany, Judgment, reference for a preliminary ruling, Case C-46/93, Case C-48/93, ECLI:EU:C:1996:79, [1996] ECR I-1029, [1996] QB 404, [1996] 2 WLR 506, [1996] All ER (EC) 301, [1996] 1 CMLR 889, [1996] IRLR 267, [1996] CEC 295, 5th March 1996, Court of Justice of the European Union [CJEU]; European Court of Justice [ECJ]Consolidated Treaty on European Union (European Union [EU]) [2006] OJ C321E/5Title I Common Provisions, Art.7Francovich v Italy, Judgment, references for a preliminary ruling, Case C-6/90, ECLI:EU:C:1991:428, [1991] ECR I-5357, [1993] 2 CMLR 66, [1995] ICR 722, [1992] IRLR 84, 19th November 1991, Court of Justice of the European Union [CJEU]; European Court of Justice [ECJ]Treaty on the Functioning of the European Union (European Union [EU]) [2008] OJ C115/47, [2010] OJ C83/47, [2012] OJ C326/47, [2016] OJ C202/47Part VI Institutional and Financial Provisions, Title I Institutional Provisions, Ch.1 The Institutions, Section 1 The European Parliament, Art.226Part VI Institutional and Financial Provisions, Title I Institutional Provisions, Ch.1 The Institutions, Section 1 The European Parliament, Art.227Part VI Institutional and Financial Provisions, Title I Institutional Provisions, Ch.1 The Institutions, Section 1 The European Parliament, Art.228Part VI Institutional and Financial Provisions, Title I Institutional Provisions, Ch.1 The Institutions, Section 1 The European Parliament, Art.228, (2)(p. 154) be successful, however, unless the ‘injured’ State can obtain a declaration of a grave and continuous breach by unanimous vote of the Council. Arguably, in this extreme scenario, the only option to induce compliance that remains for the ‘injured’ State is a fallback on unilateral countermeasures.

2. (2)  The second scenario revolves around the issue of State-to-State reparation for breaches of EC law. Claims for compensation of damages suffered by nationals, ie cases of diplomatic protection, do not fall under this category; following Brasserie du Pêcheur and Francovich, individuals are vested with a cause of action of their own. Cases where economic losses may be incurred by a member State’s domestic economy as such, rather than by certain individuals, may resemble the so-called ‘guerre de moutons’. In this instance, the United Kingdom indicated that the damage caused by French non-compliance with a Court judgment resulted in economic losses of £20 million.⁶⁰ Yet, the EC Treaty makes no explicit provision for a mechanism that would allow inter-State claims of reparation. The literature has proposed several dogmatic bridges to fill up this lacuna and accommodate inter-State claims for reparation within the EC system. The first is to resort to an extensive interpretation of articles 227 and 228, according to which a declaration of breach by the European Court entails the duty ‘to re-establish the status quo ante (restitutio in integrum) and, where necessary, pay compensation for any injury suffered.’⁶¹

Some authors, however, doubt that the Commission’s involvement under article 228 is suitable for indemnity cases and consequently suggest grounding claims for reparation directly on article 220, which emphasizes the Court’s role as a guardian of the law.⁶² A third dogmatic foundation of inter-State claims would be an application mutatis mutandis of the Francovich principles.⁶³ Resort to the rules on State responsibility will not be necessary if the European Court of Justice accepts one of these dogmatic bridges to accommodate inter-State claims for damages within the European legal system. Nonetheless, a fall-back on countermeasures would still be conceivable to enforce a member State’s claim of reparation. Member States may well have to resort to the mechanisms of State responsibility if the mechanisms within the EC do not prove effective.

Thus, systematically, a fallback on countermeasures remains conceivable, albeit only in two narrow ‘emergency’ scenarios. Some authors claim, however, that the specific teleology of the Community order precludes such unilateral action. One argument points to the exclusive jurisdiction of the European Court of Justice in adjudicating disputes on Community law (article 292 EC Treaty). However, the fallback scenarios envisaged take due account of the Court’s central role, since unilateral action is reserved for cases of noncompliance with the Court’s decision. A more weighty argument relates to the alleged lack of reciprocity in the legal relations among the member States. The European Court has asserted that the new legal order created by the EC Treaty leaves no room for reciprocity Page Id: 154ReferencesTreaty on the Functioning of the European Union (European Union [EU]) [2008] OJ C115/47, [2010] OJ C83/47, [2012] OJ C326/47, [2016] OJ C202/47Part V The Union's External Action, Title VI The Union's Relations with International Organisations and Third Countries and Union Delegations, Art.220Part VI Institutional and Financial Provisions, Title I Institutional Provisions, Ch.2 Legal Acts of the Union, Adoption Procedures and Other Provisions, Section 1 The Legal Acts of the Union, Art.292(p. 155) considerations. Reciprocity, however, is not something States can choose to ‘abolish’; it is an inherent structural characteristic of obligations that operate on a do ut des basis. Many of the substantive provisions of the Treaty, such as the fundamental freedoms, are structurally reciprocal guarantees. Whether member States have renounced their rights to enforce these guarantees by reciprocal measures is quite a different question. They certainly have done so to a great extent. But here we return to our basic proposition: member States only intended to relinquish their reciprocal facultés under general international law to the extent that the EC’s special procedures prove effective. Consequently, the non-reciprocity argument does not preclude countermeasures in the two ‘emergency’ scenarios outlined above, in which the procedures inherent in the EC system fail.

As a third argument against unilateral action, Weiler has pointed to the adverse effects of reprisals on individuals. ‘[T]he recourse to counter-measures would inevitably affect individuals removed from the dispute, militating against the very notion of a “new legal order of international law … the subjects of which comprise not only Member States but also their nationals”’.⁶⁴ It is true that countermeasures will usually impair certain individual benefits. Weiler seems to disregard, however, that this is equally true for the continuous violation of EC law that provokes unilateral reaction. A grave and enduring breach of Community law constitutes not only a measure of disrespect for the other member States’ rights but at the same time inevitably affects the benefits of ‘individuals removed from the dispute’ in those member States.

To sum up: it is reasonable to conclude that EC law operates as a closed system of secondary rules for most practical purposes. Conceptually, however, it is not a self-contained regime since there remain scenarios where a fallback on State responsibility remains feasible and necessary, and since such a fallback is not precluded by peculiar characteristics of the Community order. Only after the European Union has attained such a degree of integration that recourse to general international law is not conceivable without putting into question the whole raison d’être of the treaty framework, the conclusion of self-containment might be justified. But this, it is submitted, is not (yet) the state of European integration.

(c)  The WTO system

Kuyper has contrasted the GATT, ‘which was a self-contained regime of international law only in aspiration but not in reality’ with the (then) newly created WTO, which ‘has moved decisively in the direction of such a self-contained regime’.⁶⁵ In the GATT era, there was a clear need for unilateral enforcement, since a single Contracting Party, including the defeated respondent, was able to block the adoption of a panel report (or the establishment of a panel in the first place). The Marrakesh Agreement with its Dispute Settlement Understanding (DSU) has eliminated this loophole by establishing a negative consensus procedure. Moreover, Article 23 DSU obliges members to submit (all of) their disputes to the WTO’s dispute settlement machinery: ‘When Members seek the redress of a violation … they shall have recourse to, and abide by, the rules and procedures of this Understanding.’

The ILC in its commentaries on State responsibility interprets this provision as an explicit derogation from the rules of State responsibility. ‘In some cases it will be clear from the language of a treaty or other text that only the consequences specified are to flowPage Id: 155ReferencesUnderstanding on Rules and Procedures Governing the Settlement of Disputes (World Trade Organization [WTO]) 1869 UNTS 401, UNTS Reg No I-31874Main Text, Art.23 Strengthening Of The Multilateral System(p. 156) … . An example … is the World Trade Organization Dispute Settlement Understanding as it relates to certain remedies.’⁶⁶ Other authors have affirmed the contrary, namely that ‘[n]othing in Article 23 of the DSU, according to which WTO Member States shall have recourse to the DSU and abide by its rules, amounts to an express derogation from the right to adopt countermeasures when a losing party fails to implement a decision of the dispute settlement organs and the remedies provided for in the treaty have been exhausted without any positive result.’⁶⁷ It is true that the wording of article 23 establishes the primacy of WTO dispute settlement. On the other hand, the wording neither specifically permits nor prohibits recourse to additional remedies under general international law beyond those provided by WTO law. However, are there remedies under State responsibility that WTO law would not contain in a more tailor-made form?

It is clear that the DSU contains a lex specialis on cessation of the breach and on continued performance of the obligation. Pursuant to article 19.1 DSU, panels are empowered to order a Member to ‘bring the measures into conformity’ with WTO law. It is far from clear whether the WTO system contains remedies akin to reparation and countermeasures. Article 22 DSU addresses ‘compensation’ and the ‘suspension of concessions’ (also known as ‘sanctions’ or ‘retaliation’). From a systematic point of view, however, both remedies can be regarded as a special variant of the inadimplenti non est adimplendum principle of the law of treaties. In case of a breach, the general rules of the law of treaties permit the temporary suspension of a treaty to restore the symmetry of obligations. The compensation provision of article 22.1 introduces an element of flexibility. It allows a State to temporarily uphold a violation in exchange for concessions in other areas, provided that the injured State agrees. Similarly, suspension of concessions pursuant to article 22.4 constitutes merely a partial non-performance of the treaty, subject to prior authorization from and subsequent monitoring by the Dispute Settlement Body. Since ‘compensation’ and ‘retaliation’ are designed to restore the (economic) reciprocity balance within one and the same Agreement (with the potential exception of cross-retaliation), they systematically ‘deal with the same substantive matter’ as article 60 of the Vienna Convention; being essentially ‘remedies’ under the law of treaties, they would not necessarily derogate as leges speciales the rules of State responsibility.

Systematic arguments aside and seen from a functional perspective, sanctions pursuant to article 22 DSU operate in a way that is very similar to countermeasures. As Pauwelyn has pointed out, concessions are suspended primarily with a view to inducing compliance. Once the principal objective is compliance (and not the restoration of contractual equity), however, the WTO sanctions ‘have shifted into the area of State responsibility’.⁶⁸ The US—Foreign Sales Corporations and US—Steel disputes between the EC and the US confirm the finding that States employ suspensions of concession similarly to countermeasures under general international law. In the Steel case, the mere threat of sanctions worth more than $2 billion persuaded the US administration to cut back domestic steel Page Id: 156ReferencesUnderstanding on Rules and Procedures Governing the Settlement of Disputes (World Trade Organization [WTO]) 1869 UNTS 401, UNTS Reg No I-31874Main Text, Art.19 Panel and Appellate Body Recommendations, (1)Main Text, Art.22 Compensation and the Suspension of ConcessionsUnited States - Definitive Safeguard Measures on Imports of Certain Steel Products, European Communities v United States, Report of the Appellate Body, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, Report No AB-2003-3, Doc No 03-5966, DSR 2003:VII, 3117, 10th November 2003, Appellate BodyUnited States - Sections 301-310 of the Trade Act 1974, European Communities v United States, Report of the Panel, WT/DS152/R, Doc No 99-5454, ITL 057 (WTO 2000), DSR 2000:II, 815, 22nd December 1999, World Trade Organization [WTO] ITLVienna Convention on the Law of Treaties (United Nations [UN]) 1155 UNTS 331, UNTS Reg No I-18232Part V Invalidity, Termination and Suspension of the Operation of Treaties, Section 3 Termination and Suspension of the Operation of Treaties, Art.60 Termination or suspension of the operation of a treaty as a consequence of its breach IC(p. 157) subsidies after the Appellate Body had confirmed their illegality.⁶⁹ Consequently, there are strong grounds for regarding the WTO rules on retaliation as leges speciales vis-à-vis counter measures under general international law. Recourse to reprisals parallel to or in lieu of WTO-authorized sanctions is thus precluded. Similarly, the panel in US—Section 301 concluded that ‘WTO members [are prevented] from unilaterally resolving their disputes in respect of WTO rights and obligations’.⁷⁰

Most contentious, however, is the question whether a fallback on reprisals under State responsibility remains an option once the suspension of concessions proves ineffective. The ILC commentaries are critical of such a fallback from the WTO type of countermeasures to the State-responsibility type. Having discussed WTO sanctions, the ILC adds that ‘[t]o the extent that derogation clauses … are properly interpreted as indicating that the treaty provisions are “intransgressible”, they may entail the exclusion of countermeasures’.⁷¹

In our view, however, a conceptual distinction must be drawn between a far-reaching lex specialis, on the one hand, and the notion of ‘intransgressibility’, on the other hand. While the DSU clearly contains a lex specialis, the conclusion of intransgressibility is not warranted. When it comes to inducing compliance with WTO law, the special mechanisms of WTO law preclude recourse to the regime of countermeasures under general international law for most practical purposes. Yet, conceptually, countermeasures under general international law remain the ultima ratio in case of continuous non-compliance and provided that there is a prospect that unilateral action will effectively induce compliance. To the large trading powers, reprisals will hardly be an option. WTO-authorized trade sanctions will generally be the most effective means of instigating compliance. If trade sanctions worth $4 billion annually cannot persuade the United States to amend its Foreign Sales Corporations subsidies legislation, it would be surprising if the suspension of a bilateral treaty could. Recourse to countermeasures under general international law would, thus, be precluded. For smaller and developing countries, however, countermeasures outside the WTO system may be a necessary last resort. If a large trading nation fails to comply with a WTO ruling, the temporary non-performance of a non-WTO treaty may well strengthen the position of a smaller injured State.

The WTO Agreements contain no functional equivalent of retrospective reparation. Can States, consequently, fall back on the rules of State responsibility and demand restitutio in integrum and monetary compensation either in panel proceedings or outside the dispute settlement machinery? Member States have argued partly in favour of, partly against an obligation to make reparation for injury.⁷² Textual arguments for both positions are relatively weak. The question whether reparation is a helpful tool in the context of trade law is essentially one of Rechtspolitik. Panels have shown an inclination to recognize an obligation to grant restitutio in integrum, where restitution was feasible. This was particularly the case with respect to illegal subsidies (which the beneficiary could pay back) and unlawfully imposed antidumping duties (which the collecting State could reimburse to the unjustly (p. 158) targeted company).⁷³ For the bulk of trade-restricting measures, however, restitution is not a feasible option. Monetary compensation, by contrast, raises a number of problems. Which damages would States claim? Claiming losses of nationals would introduce an element of diplomatic protection, which may be alien to the ‘objective’ trade regime. Moreover, total damages would easily amount to billions if the breach extends over several years. Had the negotiating States during the Uruguay round envisaged an obligation to make such retrospective compensation, they would have defined the terms of operation of such a massive indemnity regime (calculation of damages, statutory limitation, etc). Given the current state of WTO law, it seems reasonable to infer that compensation beyond a balancing of trade losses through the treaty-law mechanisms of article 22 DSU is precluded.

With the introduction of ‘suspensions of concessions’ as a countermeasures equivalent, the WTO system has indeed ‘moved decisively in the direction of … a self-contained regime’. The object and purpose of the DSU do not permit a State to have parallel recourse to indemnity claims or countermeasures under State responsibility. As an ultima ratio in cases of continuous non-compliance, however, countermeasures outside the WTO framework remain an option. Thus, conceptually, not even the WTO is completely decoupled from the secondary rules of general international law.

(d)  Treaties for the protection of human rights

Page Id: 158ReferencesAfrican Charter on Human and Peoples' Rights (Organization of African Unity (historical) [OAU]) 1520 UNTS 217, UNTS Reg No I-26363, OAU Doc CAB/LEG/67/3 rev.5 OXIOAmerican Convention on Human Rights (Organization of American States [OAS]) OASTS No 36, 1144 UNTS 123, B-32, OEA/Ser.L.V/II.82 doc.6 rev.1, 25Australia - Subsidies Provided to Producers and Exporters of Automotive Leather, United States v Australia, Recourse to Article 21.5 of the DSU by the United States - Report of the Panel, WT/DS126/RW, Doc No 00-0227, DSR 2000:III, 1189, 21st January 2000, Panel ReportsConvention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No 11 (Council of Europe) 213 UNTS 222, ETS No 5, UN Reg No I-2889Guatemala - Definitive Anti-Dumping Measure on Grey Portland Cement from Mexico, Mexico v Guatemala, Report of the Panel, WT/DS156/R, Doc No 00-4282, DSR 2000:XI, 5295, 24th October 2000, World Trade Organization [WTO]International Convention on the Elimination of All Forms of Racial Discrimination (Committee on the Elimination of Racial Discrimination [CERD]) 660 UNTS 195, UNTS Reg No I-9464, UN Doc A/RES/2106(XX)A, Annex OXIOInternational Covenant on Civil and Political Rights (United Nations [UN]) 999 UNTS 171, UN Doc A/6316, UN Doc A/RES/2200(XXI), Annex, UNTS Reg No I-14668 OXIOInternational Covenant on Economic, Social and Cultural Rights (United Nations [UN]) 993 UNTS 3, CTS 1976/46, S Exec Doc D, 95-2 (1978), GAOR 21st Session Supp 16, 49, UN Doc A/6316, UN Doc A/RES/2200(XXI), Annex, UNTS Reg No I-14531 OXIOUnderstanding on Rules and Procedures Governing the Settlement of Disputes (World Trade Organization [WTO]) 1869 UNTS 401, UNTS Reg No I-31874Main Text, Art.22 Compensation and the Suspension of Concessions(p. 159) However, a closer look qualifies any quick conclusion of exclusiveness. Remedies under human rights treaties, according to the Court, are not exclusive per se. Rather, the Court found that the special treaty mechanisms excluded unilateral enforcement mechanisms under general international law because ‘the mechanisms provided for have functioned’. Bearing this qualifier in mind, however, the Court stated precisely what is being advocated here: treaty mechanisms exclude the rules on State responsibility as long as they function effectively. Where this is no longer the case, States may have recourse to the remedies provided for under the general law of State responsibility. Once the exclusiveness theory has been thus discarded, we can turn to two familiar questions: Which of the mechanisms under human rights treaties are leges speciales to the rules on State responsibility in the first place? How far does their specialty extend?

Human rights treaties have created innovative procedures for monitoring and enforcing compliance with the obligations under the convention. Such procedures include periodic reporting, which forces parties to justify their human-rights record before treaty bodies, individual complaint procedures as well as political and judicial inter-State proceedings. To what extent are these procedures leges speciales to the rules on State responsibility? Conceptually, the responsibility of States arises irrespective of who has the right to invoke it in which fashion. The various procedures have no bearing on the question whether a State is responsible for a breach. Instead, they operate on the level of invocation of responsibility, dealing with the question of who may present a claim against the responsible State and request which remedies. Thus, they compete with articles 42 and 48 of the ILC’s codification.

In our view, most of these procedures do not constitute leges speciales to articles 42/48. Individual claims procedures are not ‘concerned with the same substantive matter’ as the rules of State responsibility—to pick up on Fitzmaurice’s definition of special rules. The scope of the ILC Articles is limited to the right of States to invoke the responsibility of other States. They have no bearing on the question whether, and under which conditions, individuals are entitled to present claims or to request remedies. Vice versa, the mere existence of an individual claims procedure cannot warrant the conclusion that inter-State invocation is consequently precluded. Rather, the invocation of State responsibility then rests on two pillars.

Moreover, reporting procedures cannot be deemed leges speciales vis-à-vis the rules on State responsibility. The Articles on State Responsibility are concerned with the legal consequences of concrete breaches. Reporting procedures before treaty bodies are not. Their function is to provide a comprehensive monitoring and critique of the human rights situation in a particular member State. They are designed to help improve the overall human rights record of States by using an innovative mix of judicial assessment akin to a tribunal, political pressure and legal assistance. It is true that both reporting procedures and inter-State invocation of responsibility for breaches of human rights serve the overarching goal of improving compliance with human rights standards. However, they involve different actors and operate with different techniques of persuasion. Crucially, reporting procedures do not result in the treaty body ordering any specific remedies. Thus, such procedures complement the right to invoke State responsibility rather than replacing it. The fact that reporting procedures do not involve ‘the same substantive matter’ as inter-State complaints is reaffirmed by the Conventions themselves. Where inter-States complaint procedures are available, such procedures exist alongside a periodic reporting system.

Page Id: 159ReferencesDraft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the Commission at its fifty-third session in 2001 (Final Outcome) (International Law Commission [ILC]) UN Doc A/56/10, para.76, UN Doc A/RES/56/83, Annex, [2001] II(2) UNYBILC 26, UN Doc A/CN.4/L.602/Rev.1, GAOR 56th Session Supp 10, 26Pt.3 The Implementation of the International Responsibility of a State, Ch.I Invocation of the Responsibility of a State, Art.42Pt.3 The Implementation of the International Responsibility of a State, Ch.I Invocation of the Responsibility of a State, Art.48(p. 160) To reach a first conclusion: only State-to-State procedures of a judicial character that address concrete violations of the treaty are leges speciales to the rules on invocation of State responsibility. To the extent that a human rights treaty contains such procedures for inter-State claims, States are barred from invoking the responsibility of another State through other channels. The decision-making power of the respectively competent treaty body must not be bypassed by unilateral auto-interpretation. Where no such procedures are provided, States are free to invoke the responsibility of a violator State pursuant to the provision of article 48 of the ILC Articles as a ‘State other than an injured State’. Such a State can claim only a limited range of remedies including cessation, and guarantees of non-repetition. Moreover, it may request reparation in the interest of the persons whose rights were violated.

So far so good. But what if a State fails to cease an ongoing violation of human rights or denies the victims of a human rights violation adequate reparation? The question of enforceability of human rights has remained most controversial—so much so that it almost jeopardized the adoption of the final draft Articles by the ILC during its 2001 session. Human rights treaties do not contain special provisions regarding the right of States to enforce obligations under these treaties. In accordance with the proposition outlined above, it could be easily concluded that States have a right to ensure that international law be respected, including a restricted right to unilateral enforcement action (countermeasures).

However, it has been suggested that human rights are different and, therefore, de-coupled from the general regime of legal consequences of internationally wrongful acts. The arguments advanced in support of such a contention fall within two principal strands. The first argument is a teleological one: unilateral enforcement of human rights may create ‘disorder’ in international relations, especially in light of the fact that such enforcement rights are prone to political abuse.⁷⁵ The second argument is a doctrinal one. Given the structural nonreciprocity of human rights obligations, it is being argued, bilateral inter-State enforcement through countermeasures would be systematically flawed.⁷⁶

In our view the Court’s statement should not be interpreted as suggesting that human rights are of a non-reciprocal character. While human rights have an objective, public-lawlike, perhaps even constitutional character,⁷⁹ technically, they nonetheless formally remain ‘reciprocal engagements between contracting States’. It is crucial to distinguish between Page Id: 160ReferencesIreland v United Kingdom, Merits and just satisfaction, App No 5310/71, A/25, IHRL 16 (ECHR 1978), [1978] ECHR 1, (1979-80) 2 EHRR 25, (1980) 58 ILR 188, EuGRZ 1979, 149, 18th January 1978, Council of Europe; European Court of Human Rights [ECHR] IHRL(p. 161) reciprocity as a formal characteristic of a norm on the one hand, and reciprocity as a substantive do-ut-des relationship on the other hand. Human rights treaties do not involve such a substantive exchange, since their ultimate beneficiaries are the individuals under the jurisdiction of the State undertaking the obligation. However, since human rights remain ‘mutual, bilateral undertakings’ owed to the other States parties to the respective convention, there is no compelling systematic reason why States should be precluded from bilateral enforcement of human rights (provided, of course, that the human rights treaty’s rules on invocation of responsibility have been exhausted). In Virally’s words: ‘Chaque Etat partie à un tel traité a le droit d’exiger des autres parties qu’elles respectent ces engagements, pris envers lui-même’.⁸⁰

As to the second strand of argument, are countermeasures prone to creating particular disorder if they are employed with the purpose of inducing compliance with human rights obligations? From a developed-countries perspective, Frowein expressed the concern that unilateral enforcement would create considerable legal uncertainty. Koskenniemi added (with a surprising touch of Morgenthau-style realism) that elevating the enforcement of human rights from politics to the level of law ‘would vest diplomacy with pressures and expectations it cannot carry’.⁸¹ Authors from developing countries, by contrast, stress the danger of political coercion of developing countries by rich and powerful States.⁸² While it is true that countermeasures for the enforcement of human rights have so far remained a domain of ‘Western’ industrialized States, Tomuschat has argued that the regime of countermeasures ‘does not place new States in a position of inferiority’, pointing out as an example that developing countries could freeze foreign assets to induce compliance.⁸³

The ILC Drafting Committee of 2000 had proposed a provision pursuant to which ‘any State may take countermeasures, in accordance with the present Chapter in the interest of the beneficiaries of the obligation breached’.⁸⁴ At the same time, however, the draft contained various safeguards to accommodate the concerns of developing countries and prevent political abuse. Article 41 of the draft articles provisionally adopted in 2000 restricted countermeasures to cases of wrongful acts ‘that constitute a serious breach’, meaning a ‘gross and systematic failure by the responsible State to fulfil its obligation, risking substantial harm to the fundamental interests protected thereby’. However, the proposal was received critically by a majority of States in the Sixth Committee of the 2000 General Assembly. Thus, in its 2001 session, the ILC was seeking a compromise that would eliminate the risk that the Assembly would not ‘pass’ the draft Articles. The present article 54, a general saving clause, is an attempt to leave the question open without Page Id: 161ReferencesDraft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the Commission at its fifty-third session in 2001 (Final Outcome) (International Law Commission [ILC]) UN Doc A/56/10, para.76, UN Doc A/RES/56/83, Annex, [2001] II(2) UNYBILC 26, UN Doc A/CN.4/L.602/Rev.1, GAOR 56th Session Supp 10, 26Pt.3 The Implementation of the International Responsibility of a State, Ch.II Countermeasures, Art.54(p. 162) prejudicing the evolution of a future opinio iuris regarding the permissibility of countermeasures in the collective interest.

In our view, the ILC draft of 2000 may still provide valuable guidance as to what the evolving law on countermeasures in the collective interest could look like. There is no return to an international law that puts on an indifferent face to human rights. Human rights cannot be fenced in an exclusive domaine reservé anymore; once their genie is out of the bottle, human rights necessarily transcend to the realm of general international law. Against this backdrop, it is only consequential not to deny States the means to induce compliance with obligations under human rights treaties, once the collective enforcement mechanisms of the treaty have failed.⁸⁵

The concerns raised by some authors (and States) neglect the realities of human rights protection: So far, States have hardly shown the excessive human rights ‘vigilantism’ dreaded by some.⁸⁶ For instance, in the history of the European Convention, States have generally lodged inter-State complaints almost exclusively in situations where their interests were specially affected. The two exceptions were the application against Greece in 1967,⁸⁷ and the application against Turkey in 1982.⁸⁸ Far from obsessively policing human rights violations across the world, the attitude of States towards human rights violations is all too often characterized by a remarkable lack of vigour to counter such treaty breaches.