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The Concept Of International Crimes of States: Walking the Thin Line Between Progressive Development and Disintegration of the International Legal Order

Published online by Cambridge University Press:  21 July 2009

Hans-Martten Ten Napel
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Abstract

Consideration is given of the ‘classical’ view on state responsibility for internationally wrongful acts and the reasons why, at least according to the International Law Commission of the United Nations, this view no longer corresponds to the realities of international legal life. The author then focuses on the novel concept of international crimes of states. Both the constituent elements and the legal consequences of international crimes, as conceived of by the International Law Commission, are discussed. According to the author, without the simultaneous acceptance of compulsory means of pacific settlement, the potentially fruitful concept of international crimes of states might prove disastrous for the international community.

Type
Student Contributions
Information
Leiden Journal of International Law , Volume 1 , Issue 2 , November 1988 , pp. 149 - 169
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1988

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References

1. Art. 13(l.a) jo. 22 and 7(2) Charter of the United Nations.

2. Arts. 1(1), 2(1), 3,10 and 15 Statute of the ILC.

3. In writing this article, I have drawn extensively on both the reports of special rapporteurs for state responsibility and the summary records of the meetings of successive sessions of the International Law Commission. The term “‘classical’; view's Fifth Report on Stale Responsibility, to be discussed below, see, e.g., [1976] 2(1) Yearbook ILC 26. Generally, this article covers the developments in the work of the International Law Commission up to 1988. It has not been possible for me also to take account of the documents of the Commission's most recent session.

4. Chorzow Factory Case (1928), PCU Ser. A, No. 17,29. Cf. Art. 36(2.d) Statute of the International Court of Justice.

5. Sometimes loss or damage is regarded as a third constituent element of an internationally wrongful act of a state. See, e.g., Jiménez de Aréchaga, International Responsibility, in M. Sørensen (ed.). Manual of Public International Law 534 (1968). Art. 3 of Parti of the draftarticles on state responsibility, however, shows that the ILC is of a different opinion.

6. Chorzow Factory Case (1928), supra, note 4, at 47. See also Jiméinez de Aréchaga, supra, note 5, at 564–572.

7. Corfu Channel Case, 1949ICJ Rep. 35.

8. See the award on the responsibility of Germany arising out of damage caused in the Portuguese colonies of Southern Africa (Naulilaa incident), rendered on 31 July 1928,2 Reports of International Arbitral Awards (R.I.A.A.) 1025 et seq. See also M. Akehurst, A Modem Introduction to International Law 5–7 (1985).

9. Art. 60-(l) Vienna Convention on the Law of Treaties.

10. South West Africa Cases, Second Phase, Judgement, 1966ICJ Rep. 47.

11. See Malekian, F. International Responsibility of States. A Study on the Evolution of State Responsibility with Particular Emphasis on the Concept of Crime and Criminal Responsibility 14–17 (1985).Google Scholar

12. [1949] Yearbook ILC 278–281. The Commission, however, decided to give priority to the following three topics: the law of treaties, arbitral procedure and the regime of the high seas.

13. [1955] 1 Yearbook ILC 190.

14. See, e.g., Official Records of the General Assembly, First part of the fifteenth session, Sixth Committee, 649th to 672nd meetings and id., Annexes, agenda item 65, document A/4605, paras. 19–24. Previously, the controversial matter of the law relating to foreigners had accounted for the failure of the 1930 Conference for the Codification of International Law at The Hague.

15. [1962]1 Yearbook ILC 45.

16. [1963] 1 Yearbook ILC 79 and [1963] 2 Yearbook ILC 223–224; [1977] 1 Yearbook ILC 215.

17. [1980] 2(2) Yearbook ILC 30–34. As a matter of fact, Art. 19 (at the time still Art. 18), which will be discussed below, had already been approved unanimously by the Commission in 1976, see [1976] 1 Yearbook ILC 253.

18. [1976] 1 Yearbook ILC 5.

19. [1976] 2(1) Yearbook ILC 31.

20. Id., at 31ff.

21. Marek, Criminalizing State Responsibility, 1978–1979 Revue Beige de Droit International 460–485, at 467–469.Google Scholar

22. Id., at 461–462.

23. See, e.g., [1976] 1 Yearbook ILC 19,61. Ago, however, usually added that the term ‘international crime’ as such, like ‘jus cogens‘the lone but highly authoritative voice’ of the Swiss jurist J.C. Bluntschli, Das modeme VOlkerrecht der civilisierten Staaten als Rechtsbuch dargestellt(1872).

24. See Kooijmans, Actie, HardeActie. Enkele Opmerldngen over de Volkenrechtelijke Toelaatbaarheid van Eenzijdige Sanctiemaatregelen, 1983 Internationale Spectator 771–777, at 773.Google Scholar

25. Barcelona Traction, Light and Power Company, Limited, Judgement, 1970 ICJ Rep. 32. Admittedly, in par. 91 of the very same judgment, the Court goes on to state that “on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality. It is therefore still on the regional level that a solution to this problem has to be sought’ intérét.pas d’ action, see Seidl-Hohen veldern, Actio Popularisim Völkerrecht, in Institute di Dirctto Internazionalc e Straniero dell’ Universit` di Milano (ed.), Communicazionc e Studi, 809–810,813 (1975). Nevertheless, it is difficult to completely argue away the dictum in the Barcelona Traction Case.

26. Draft arts. 1 to 35 of Part 1 are published in [1980] 2(2) Yearbook ILC 30–34.

27. [1976] 1 Yearbook ILC 239; [1976] 2(2) Yearbook ILC 118.

28. Spinedi, M. Les Crimes Internationaux de l'etat dans les Travaux de Codification de la Responsabilité des Etats entrepris par les Nations Unies, EUI Working Paper No. 88, at 23 (1984).Google Scholar

29. North Sea Continental Shelf Cases, 1969ICJ Rep. 44.

30. [1976] 2(2) Yearbook ILC 119–120.

31. Id., at 102.

32. [1976] 1 Yearbook ILC 251–252.

33. Id., at 240.

34. Id., at 244 (El-Erian, Egypt).

35. [1976] 2(1) Yearbook E.C 52.

36. [1976] 1 Yearbook ILC 253.

37. [1976] 1 Yearbook ILC 252.

38. Id.

39. Trail Smelter Arbitration of 11 March 1941.3R.I.A.A. 1165. Italics added.

40. 1979ICJ Rep. 19–20.

41. 1980 ICJ Rep. 42–43. See also Frowein, Collective Enforcement of International Obligations, 1987 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 67–79, at 74.Google Scholar

42. Marek, supra, note 21, at 474–475. See also Dupuy, Action Publique et Crime International de l'- Etat: à Propos de l’ Article 19 du Projei de la Commission du Droit International sur la Responsabilité des Etats, 1979 Annuaire Franc.ais de Droit International 539–554, at 541. This is, indeed, not quite clear. The Commission would probably be better advised to follow the example of Art. 53 of the Vienna Convention on the Law of Treaties (VCLT) and refer the specific examples of international crimes to the Commentary lo Art. 19. Art. 53 of the VCLT, as a matter of fact, does not contain any rules of jus cogens. In the Commentary to Art. 53, however, some examples are mentioned. These include: (1) a treaty contemplating an unlawful use of force contrary to the principles of the Charter; (2) a treaty contemplating the performance of any other act criminal under international law (!); and (3) a treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy or genocide, in the suppression of which every state is called upon to cooperate. Cf. Schwelb, Some Aspects of International Jus Cogens as formulated by the ILC, 1967 A J.I.L. 946–975, at 963–964. Contra, Mohr, The ILC's Distinction between ‘International Crimes’ and ‘International Delicts’ and its Implications, in M. Spinedi and B. Simma (eds.), United Nations Codification of State Responsibility 115–141, at 123. Mohr believes, that the method chosen by the Commission in formulating Art. 19 (par. 2 and especially par. 3) offers some advantages compared with the purely abstract method reflected in Arts. 53 and 64 of the VCLT.Google Scholar

43. [1980] 1 Yearbook ILC 92.

44. [1983] 2(1) Yearbook ILC 12.

45. Id., at8.

46. Id., see also Simma Grundfragen der Staatenverantwortlichkeit in der Arbeit der International Law Commission, 1986 Archiv des Volkerrechts 357–407, at 358.

47. [1986] 2(2) Yearbook ILC 38–39.

48. Id., at 35–38.

49. Draft Arts. 1 to 5 of Part 2 are published in [1986] 2(2) Yearbook ILC 38–39. For Arts. 6 to 16 of Part 2 and Arts. 1 to 5 and the Annex of Part 3, see U.N. Doc.A/CN.4/380 and A/CN.4/380/Corr.l, U.N. Doc.A/CN.4/397 and A/CN.4/397/Corr.2 respectively. See also the appendices in M. Spinedi and B. Simma (eds.), United Nations Codification of State Responsibility, 325–347 (1987).

50. [1985] 1 Yearbook ILC 310–311.

51. The reference to Arts. 14 and 15 in Art. 5(3) is placed in square brackets, because these articles have not yet been provisionally adopted and new articles on international crimes might conceivably be added to the draft, Id.

52. According to Art. 6(1) of Part 2 of the draft articles, the injured state may actually also require the offending state to: (1) discontinue the act, to release and return the persons and objects held through such act, and to prevent continuing effects of such acts; (2) apply such remedies as are provided for in its internal law; and (3) provide appropriate guarantees against repetition of the act.

53. [1982] 1 Yearbook ILC 240.

54. [1982] 2(1) Yearbook ILC 48^9.

55. Id.

56. Id.; see also [1985] 1 Yearbook ILC 162.

57. [1982] 2(1) Yearbook ILC 50.

58. [1984] 1 Yearbook ILC 320.

59. [1985] 1 Yearbook ILC 118.

60. [1984] 1 Yearbook ILC 263.

61. [1985] 1 Yearbook ILC 106 (Thiam, Vietnam).

62. Id., at 101 (Calero Rodrigues, Brazil).

63. See Kooijmans, supra, note 24, at 774.

64. [1985] 1 Yearbook ILC 95.

65. Art. 39 el seq. Charter of the United Nations.

66. See Marek, supra, note 21, at 481; and Akehurst, Reprisals by Third States, 44 British Yearbook of International Law 15–16(1971).

67. See Art. 5 of Part 3 of the draft articles.

68. [1986] 1 Yearbook ILC 58.

69. See Art. 3-(l) and 4 of Part 3 of the draft articles as well as the Annex to Part 3.

70. [1986] 2-(2) Yearbook ILC 35–38. The Drafting Committee has, however, not yet been able to consider these texts.

71. [ 1986] 1 Yearbook ILC 60.

72. Mohr, supra, note 42, at 117.

73. Id., at 124–125.

74. Id.

75. [1986] 1 Yearbook ILC 59–60.

76. Report of the International Law Commission on the work of its thirty-ninth session, 42 U. N. G.A.O.R. Supp. (No. 10), U.N. Doc. A/42/10 (1987).