- Responsibility of states — Erga omnes obligations — Interest
While article 42 ARSIWA concerns the invocation of responsibility by States specially affected by the breach of an international obligation owed to a group of States or the international community as a whole, article 48 concerns the situation of States other than injured States, but to whom the obligation breached is also owed. The term ‘injured State’ could be used also in relation to this category of States, for they are also affected by the breach. But the ARSIWA, with a choice of terminology that may be regarded as questionable, call ‘injured States’ only those States falling within the categories outlined in article 42. In any event, what seems important is the entitlement which the States referred to in article 48 benefit from, rather than the term employed to define these States.
1 Breach of erga omnes and erga omnes partes obligations
the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.3
In relation to the breach of some of these obligations, there is no State that may be considered as injured. This is the case, for instance, of the obligation to protect the fundamental rights of the human person. The injured subjects in this case are the individuals concerned; only if they are foreigners in relation to the State responsible for the breach, one could argue that their national State is specially affected by the breach.
In other cases, as has been mentioned in respect of article 42, there is an injured State: for instance, in the case of aggression, the State which was the object of the aggression is assimilated to the State to whom a bilateral obligation is due. But the position of States other than the injured State is not in principle different from that which would apply in the absence of an injured State. Since the obligation is owed to all States or all the States party to a treaty, all these States are necessarily affected. They are affected directly, for the obligation breached is owed to them as well: the terminology of ‘indirect injury’, sometimes used, is inappropriate since it evokes, in the presence of an injured State, the idea that an indirect injury depends on a direct injury; it is even less adequate when no State may be considered as injured.
Article 48 establishes the right of the States to whom the obligation is owed, but who do not fall within the category of injured States, to invoke the responsibility of the State author of the breach. Although the definition of the categories of injured States in article 42 renders the identification of the other cases in which the obligation is owed unnecessary, article 48 describes in a pedagogical way the cases in which a State which is not injured in the sense of article 42 is entitled to invoke responsibility.
Article 48(1)(b) incorporates the situations mentioned by the International Court of Justice in Barcelona Traction: that is the case of breach of obligations ‘owed to the international community as a whole’. The reference of the Court to the ‘international community as a whole’ concerns all States other than the responsible State, and not a superior and distinct entity. The situation has not evolved much since the judgment, other than in the growing tendency to admit that certain subjects other than States also form part of the international community. It would thus be difficult to maintain that responsibility can only be invoked by ‘a distinct entity’, situated above States.4 Further, it does not follow from the articles that in cases of breach of erga omnes obligations States can invoke responsibility only collectively. If this were so, the significance of article 48 would be drastically limited.
Insofar as the reaction to a breach is taken by the organized international community within the framework of the United Nations, the initiatives that a State could take against the responsible State would be restricted. Similarly, interferences could also result from the Security Council taking measures without specific consideration for the existence of a breach of the obligation. These possible restrictions are recalled, although in a synthetic manner, in article 59, which in a ‘without prejudice’ provision refers to the Charter of the United Nations.
References(p. 959) The breach of obligations erga omnes, or rather a sub-category of these obligations, is also addressed in another provision: article 40, concerning the ‘serious breach … of an obligation arising from a peremptory norm of general international law’. The term used in this provision underlines the importance of the content of the rule for the international community and in consequence the seriousness of a breach, whereas the reference to the international community in article 48 indicates that the obligation is owed by a State to all other States. This is explained by the fact that articles 40 and 41 deal with the consequences of the unlawful act, whereas article 48 concerns the invocation of responsibility, thus specifying which States are entitled to invoke it. Even if there are diverging views about the relation between peremptory norms and rules imposing obligations erga omnes, it is clear that the latter comprise peremptory norms in the sense of article 53 of the Vienna Convention on the Law of Treaties.5 It does not seem that these provisions admit the interpretation that has been given, according to which article 40 would be a special rule excluding the applicability of article 48, and that in consequence the latter article does not apply to the invocation of responsibility for a serious breach of an obligation arising from a peremptory norm.6
In relation to obligations erga omnes, article 48 implies that States have a collective interest in compliance with the obligation. The existence of a collective interest is expressly required by article 48(1)(a), which concerns the case where the obligation breached is owed ‘to a group of States’ and ‘the obligation is established for the protection of a collective interest of the group’. The reference in this text to the collective interest is probably intended to specify that it concerns the category of multilateral treaties (or customary rules) which establish obligations which in any specific circumstance are owed to all the other States party to the treaty (or addressees of the rule) and thus do not give rise only to a set of bilateral obligations. In other words, this is the case of obligations whose breach affects in any event all the other addressees of the international legal rule. Special Rapporteur Crawford suggested that even a rule that generally sets forth bilateral obligations could protect a collective interest in the case of a breach of a certain degree of seriousness.7
I have already pointed out, in relation to article 42, the difficulty in defining the scope of obligations imposed by a multilateral treaty. The character of the obligation can in fact give rise to controversy. It is sufficient to recall here the judgment of the International Court of Justice in the South West Africa cases, where the Court excluded, with the narrowest majority, the right of States formerly members of the League of Nations to invoke the responsibility of a mandatory State.8 The commentary of the ILC maintains that article 48 ‘is a deliberate departure’ from this judgment.9 In fact, article 48 seems neutral in respect of the existence of a collective interest of the group concerning the obligation imposed by a multilateral treaty. The answer can only be given through the interpretation of the treaty. It would seem that what the ILC intended to say is that, in its opinion, a collective interest should have been recognized by the Court in relation to the mandate for South West Africa.
[a]s to the question of standing of a claimant State for violations of human rights committed against persons which might or might not possess the nationality of that State, the jurisdiction of the Court not being at issue, the contemporary law of State responsibility provides a positive answer as well. The International Law Commission’s 2001 draft on Responsibility of States for Internationally Wrongful Acts provides not only for the invocation of responsibility by an injured State (which quality Uganda would possess if it had been able to establish the Ugandan nationality of the individuals at the airport) but also for the possibility that such responsibility can be invoked by a State other than an injured State … The obligations deriving from the human rights treaties cited above and breached by the DRC are instances par excellence of obligations that are owed to a group of States including Uganda, and are established for the protection of a collective interest of the States parties to the Covenant.14
… the Court deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties …15
This does not mean that the Court could not examine the breach of one of these obligations in a context where its jurisdiction was established, for example, by a treaty.
2 The legal position of States other than the injured State in cases of breach of obligations owed to them
The fact that the obligation breached is owed to a State entails that this State can request the cessation of the unlawful act. It is in fact an essential aspect of the existence of an obligation imposed by the primary rule. The same conclusion may be reached in respect of assurances and guarantees of non-repetition, which equally concern compliance with the References(p. 961) same obligation, rather than the fulfilment of new obligations arising as a consequence of the wrongful act.
A State which has not been injured, but which may invoke the responsibility of the wrongdoing State, does so essentially in the exercise of a collective interest. It will rarely have suffered damage (moral or material) that affects it individually. This could be the case of a State which, even if its coastal and maritime areas are not affected by the consequences of pollution in the high seas, incurs expenses to combat pollution.
Normally, damage resulting from the breach of obligations erga omnes or obligations erga omnes partes does not affect any State other than an injured State, if there is one. It would be inconceivable that another State would be entitled to claim compensation for its own benefit to make reparation for damage that it has not suffered.
The question is whether a State other than the injured State would be entitled to invoke responsibility in order to request that the obligation of reparation be fulfilled. Restitution or compensation and, depending on the case, satisfaction would be claimed by any State other than the injured State, not for its own benefit, but for the benefit of the injured State or any other injured subject. Article 48(2)(b) resolves this question by allowing every State to demand ‘performance of the obligation of reparation … in the interest of the injured State or of the beneficiaries of the obligation breached’. The latter case is normally that in which the obligation is owed to States and also to other subjects, like individuals and peoples. It could also be that the obligation exists only towards other States and no State is injured by its breach, but reparation is necessary in the interest of the international community. An example of this situation could be heavy pollution of the high seas which requires a form of restitution.
The solution adopted by the ILC, to allow a State other than the injured State to claim reparation, has given rise to criticism within the Sixth Committee. Mr B Ebotou, delegate of Cameroon, considered that article 48 was one of the ‘aspects of the progressive development of international law which were a source of legitimate concern’;16 even stronger criticism was expressed by the Chinese delegate, H Xue.17 The Commission admits in its commentary that the solution proposed ‘involves a measure of progressive development’.18 And yet this provision responds to practical and logical exigencies.
On the logical plane, in the absence of such provision, the responsible State could avoid fulfilling any obligation of reparation when there is no injured State. No State would in fact be able to invoke the responsibility of the wrongdoing State. In the case of heavy pollution of the high seas or unlawful harm to the ozone layer, the responsible State would have an obligation of reparation that would not be owed to any other State and would therefore remain theoretical. This would also imply that the obligations not to pollute the high seas and not to cause harm to the ozone layer would also be theoretical, for they could easily be breached without consequences. Similarly, in the case of human rights violations, at least when the violations concern nationals of the responsible State, there would be no State which could claim the reparation owed. Again, the obligation to protect human rights would not have any practical significance. It therefore seems that where an obligation is imposed on a State to protect a collective interest, it must follow that other States are entitled to request reparation in case of a breach of that obligation.
References(p. 962) The possible presence of an injured State should not alter the legal situation of the other States to whom the obligation is owed. The injured State may claim reparation on its own account, while the other States may only make a claim for the benefit of another subject, such as the injured State.
It is true that practice shows few examples of cases in which a non-injured State has claimed the performance of the obligation of reparation. In this respect, Resolution 687 of the Security Council, concerning the damages caused by the invasion of Kuwait, constitutes an important example. It is also interesting to note that article 41 of the European Convention on Human Rights expressly allows States which bring claims to the European Court of Human Rights to request reparation for the breach of obligations suffered by individuals. Even in the case of the breach of a bilateral obligation, reparation is very rarely claimed. This results from a choice that the claimant State makes, and does not necessarily affect the principle.
The existence of a State’s right to invoke international responsibility has certain implications in relation to its right to present a claim in this respect before the International Court of Justice, when a dispute arises between the State invoking responsibility and the allegedly responsible State. There is no reason to exclude this type of dispute from the application of the rules generally concerning the jurisdiction of the Court over disputes between these two States. The ILC’s Commentary seems however to take a different approach, when it states that for:
the filing of an application before a competent international tribunal, or even the taking of countermeasures … a State … should have a specific right to do so, e.g., a right of action specifically conferred by treaty, or it must be considered an injured State.19
This passage is closer to the position taken in certain separate and dissenting opinions by judges of the Court, insofar as it considers that one should not resolve the question of a right of action before the Court simply on the basis of the existence of a legal position corresponding to the erga omnes obligation.20
The question of the admissibility of countermeasures by a State which is not injured by the breach is even more controversial. Article 54 ARSIWA explicitly indicates that the chapter concerning countermeasures:
does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.
The question of countermeasures by States other than the injured State arose in practice in relation to serious breaches of obligations owed to the international community as a whole, and will be analysed in this context.21 It is however interesting to note that the ‘without prejudice’ clause in article 54 concerns in general all the situations covered by article 48, thus even cases where there is no serious breach. However, the clause does not imply that the problem of admissibility of countermeasures should be solved in a uniform manner in all cases where responsibility may be invoked by a State other than the injured State.
References(p. 963) In relation to the conditions for the invocation of responsibility by a State other than the injured State, according to article 48(3), the ‘requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1’. It is therefore clear that the specified requirements apply to the State invoking responsibility, whether it has suffered injury or not, without regard to the fact that the injured State may have also presented a claim.
On the basis of the reference to article 43, a State other than the injured State is also required to notify its request. The indication of the ‘form reparation should take’ does not affect the content of the obligation of the responsible State, even when this indication comes from the injured State. It seems reasonable that in principle the indication of the latter State, if there is one and if the indication exists, should prevail over that of other States, but it is not necessarily decisive.
A waiver on the part of the injured State solely affects the claim of that State. It does not prevent other States from invoking responsibility. The reference to article 45 entails only that also these other States can waive their right to invoke responsibility.
The reference to article 44, concerning admissibility of claims, is only partly appropriate. In fact, the requirement of ‘nationality of claims’ does not apply when a State other than the injured State is entitled to invoke responsibility. The first State asserts a collective interest, and this is hardly reconcilable with the application of a requirement derived from nationality. It would be different where the claim is presented by a State as the injured State, if this quality depends on the fact that the injury affects one of its nationals.
Instead, the rule of exhaustion of domestic remedies could apply both to the injured State and to any other State invoking responsibility with the aim of protecting a collective interest. This could occur when responsibility is invoked by virtue of a breach of a human rights obligation, insofar as the invocation comes under the application of the rule.
- C Annacker, Die Durchsetzung von erga omnes Verpflichtungen vor dem Internationalen Gerichtshof (Hamburg, Kovac, 1994)
- C Annacker, ‘The Legal Régime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian Journal of Public and International Law 131
- A de Hoogh, Obligations Erga Omnes and International Crimes (The Hague, Kluwer, 1996)
- C Dominicé, ‘The International Responsibility of States for Breach of Multilateral Obligations’ (1999) 10 EJIL 353
- P-M Dupuy, ‘Bilan général des rencontres de la dimension multilatérale des obligations avec la codification du droit de la responsabilité’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 57
- S Forlati, ‘Azioni dinanzi alla Corte internazionale di giustizia rispetto a violazioni di obblighi erga omnes’ (2001) 84 Riv DI 69
- J Frowein, ‘Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung’, in R Bernhard et al (eds), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte. Festschrift für Hermann Mosler (Berlin, Springer-Verlag, 1983), 241
- J Frowein, ‘Reactions by not directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Recueil des cours 345
- CA Günther, Die Klagebefugnis der Staaten in internationalen Streitbeilegungsverfahren (Cologne, Heymanns, 1999)
- References(p. 964) M Kaplan, ‘Using Collective Interests to Ensure Human Rights: An Analysis of the Articles on State Responsibility’ (2004) 79 NYU Law Review 1902
- F Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale (Milan, Giuffré, 1983)
- P Picone, ‘Obblighi erga omnes e codificazione della responsabilità degli Stati’ (2005) 88 Riv DI 893
- P Picone, ‘Obblighi reciproci ed obblighi erga omnes degli Stati nel campo della protezione internazionale dell’ambiente marino dall’inquinamento’, in V Starace (ed), Diritto internazionale e protezione dell’ambiente marino (Milan, Giuffré, 1983), 15
- M Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, Clarendon Press, 1997)
- I Scobbie, ‘Invocation de la responsabilité pour la violation d’obligations découlant de normes impératives de droit international général’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 121
- L-A Sicilianos, ‘Classification des obligations et dimension multilatérale de la responsabilité internationale’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 57
- B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil des cours 219
- B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Y Dinstein (ed), International Law in a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Dordrecht, Martinus Nijhoff, 1989), 821
- B Stern, ‘Et si on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États’ (2001) 47 AFDI 3
- CJ Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005)
- K Zemanek, ‘New Trends in the Enforcement of Erga Omnes Obligations’ (2000) 4 Max Planck Yearbook of United Nations Law 1
6 See especially the interventions before the Sixth Committee of the delegates of Finland, M Koskenniemi, and Israel, Y Dinstein, on 29 and 31 October 2001, A/C.6/56/SR.11, paras 31-33 and SR.13, para 21. This interpretation was criticized, notably by the delegates of the Netherlands, J Lammers, on 31 October 2001 and of Jordan, MD Hmoud, on 1 November 2001, A/C.6/56/SR.12, para 29 and SR.15, paras 22-25.
20 Separate opinion of Judge Fitzmaurice, Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p 66; and the joint dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga, and Sir Humphrey Waldock, Nuclear Tests (Australia v France), Judgment, ICJ Reports 1974, p 312, 370.
21 See L-A Sicilianos, Chapter 80.