Protecting Community Interests: Solidarity Measures within the State Responsibility Regime?

The ultimate test to assess any new development of international law is simple: has it made the world a better place? In 2001, the invisible college of international lawyers had welcomed the International Law Commission (ILC)’s bold decision to codify, within its Articles, a regime of State responsibility towards the international community as a whole, devoting to the topic countless lectures, colloquia, articles and even entire monographs. But, twenty years later, has this codification made the world a better place?

The foundation of the regime of responsibility towards the international community as a whole, which goes beyond the traditional canons of bilateralism and self-help, rests on two levels of solidarity.

There is, first, active solidarity, enshrined in certain secondary rules applicable to all breaches of obligations owed to the international community as a whole (erga omnes). According to the Articles, any State has a right to invoke the responsibility of the wrongdoer, which implies a prerogative to claim the cessation of the wrongful act and assurances and guarantees of non-repetition, as well as the performance of the obligation of reparation in the interest of the injured State or the beneficiaries of the obligation breached (Article 48). Initially, the ILC had suggested that, in such cases, any State would also be entitled to take countermeasures. However, the – let’s call it ‘sceptical’ – reaction of the Sixth Committee convinced the Commission to fall back on a milder provision (Article 54), which states that the Articles “[do] not prejudice the right of any State …  to take lawful measures against [the State breaching an obligation erga omnes] to ensure the cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligations breached.” In its commentary, the ILC explained that “[p]ractice on this subject is limited and rather embryonic,” but went on to describe several “examples” of such “lawful measures,” some of which clearly constituted countermeasures.

The problem is that active solidarity remains subject to the goodwill of States that are not directly affected by the wrongful act to support the cause of the injured State or the beneficiaries of the obligation breached. Indeed, the omnes have a right to invoke responsibility, but no duty to do so. And while the international community has reacted to certain breaches of obligations erga omnes (unlawful uses of force, human rights violations, war crimes, etc.), calling for their end and redress to the victims, it has often remained indifferent to other geopolitical or humanitarian tragedies, sacrificed at the altar of Realpolitik. One should add a verse in John Lennon’s Imagine about imagining all the people exercising their right to invoke responsibility towards the international community as a whole…

Still, there are some signs that times are a-changing. On two recent opportunities in which it was seized by ‘States other than an injured State’ (respectively, Belgium and The Gambia) alleging breaches of the Torture and the Genocide Conventions, the International Court of Justice (ICJ) has unambiguously – and without much controversy – recognized their locus standi, on the understanding that these conventions impose obligations “owed by any State party to all the other States parties” and therefore allow “any State party …, and not only a specially affected State, to invoke the responsibility of another State with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.” Long gone is the summer of ’66!

There is also another level, this one of passive solidarity, which inspires a second set of rules in the Articles applicable to serious breaches of obligations under peremptory norms of general international law (jus cogens). When there is a gross and systematic failure by a State to fulfil obligations deriving from jus cogens, all States have, in addition to the rights above, a number of obligations, namely: to cooperate to bring to an end through lawful measures (again!) the serious breach; not to recognize as lawful a situation created by such serious breach; and not to render aid or assistance in maintaining that situation (Article 41). In other words, in certain serious cases, States are not simply afforded the opportunity to react to breaches of obligations owed to the international community as a whole, but are actually required to behave in a certain way, so as to obtain their cessation and curtail their negative effects.

The limited scope of this set of obligations should not fool us. Their very existence enshrines an enhanced level of solidarity, which The Three Musketeers would surely have recognized. Indeed, one could argue that all States are made accountable to the international community as a whole for the performance of such secondary obligations, which are therefore ‘obligations omnium erga omnes’, i.e. owed by all States to all States. All for One and One for All. Unfortunately, Twenty Years After, the translation of these ideals into geopolitical reality is, once again, rather grim, with the international community ignoring some blatant serious breaches, or simply paying lip service to calls for their cessation. There are also some bright spots here, though, such as the ICJ’s reaffirmation of elements of its 1971 Namibia precedent (which had inspired this part of the ILC Articles) in the context of the 2004 Wall advisory opinion (although one would still have to wait two further years for the Court to recognize, in 2006, the underpinning concept of jus cogens).

Now, if the question is whether all this has made the world a better place, there may be little reason to celebrate. Aggression, genocide, mass breaches of human rights and humanitarian law, racial discrimination or torture (let’s not even get into the thorny topic of massive pollution of the atmosphere or of the seas, at one point mentioned by the ILC) have not ended, nor noticeably decreased. Moreover, the efforts of the international community to react to such heinous acts do not seem to have taken hold on the ILC’s Articles, probably too byzantine for the public. The ‘responsibility to protect’ has come into fashion (and gone out of it, apparently), promoting ideas of solidarity similar to those proclaimed by the Articles, but purposefully staying away from the strictures of the law. Rather than ‘responsibility’, modern regimes prefer to rely on ‘compliance’ and ‘cooperation’ to promote the common good. And the ILC’s toning down of the controversial notion of ‘crimes of State’ has failed to convince either diplomatic circles to pursue a convention – a matter which is still pending in Waiting for Godot fashion – nor international judges to invoke those specific provisions with the same enthusiasm they have shown towards other Articles.

In sum, there is still a lot of work to be done. Twenty years after, it might be time for the invisible college of international lawyers to go beyond its passive admiration of the Articles and, taking advantage of the fact that these are not (yet) straightjacketed into a convention, push the cause a step forward. There are indeed many aspects of the regime of State responsibility towards the international community as a whole, which the ILC has left largely unexplored. For instance:

• What are the rules that govern the invocation of international responsibility by the ‘beneficiaries of the obligation breached’, when these are persons or entities other than States (a matter which Article 33, paragraph 2, cautiously kept for another day)?
• What precisely may the injured State and those that the ILC elliptically called ‘States other than the injured State’ do to react to breaches of obligations erga omnes? Two decades after Article 54, is there any room to finally go beyond a mere ‘without prejudice’ clause?
• Are the basic obligations omnium erga omnes identified by the ILC and the ICJ really enough, and shouldn’t they be progressively developed to provide better protection of collective interests?
• To what extent are the classical forms of reparation and assurances and guarantees of non-repetition able to provide adequate redress for serious breaches of international law, taking into account that the collective injury caused by those breaches is often irreversible or of astronomical proportions?
• Shouldn’t the ILC’s old idea– proposed in the first reading of the Articles, but then abandoned – of establishing institutional mechanisms for the implementation of responsibility towards the international community as a whole be reconsidered so as to ensure the effectiveness of the ILC’s codification?

Of course, in the short run, this may do little to convince political circles to act to safeguard the common good. But providing theoretically solid and practically viable legal tools to pave the way to make the world a better place is what we are supposed to do as international lawyers. After all, as the preamble of UNESCO’s Constitution proclaims: “since wars begin in the minds of men [and women], it is in the minds of men [and women] that the defences of peace must be constructed.” We have done this several times in the past – with the concepts of actio popularis, jus cogens, obligations erga omnes, crimes of State, and indeed the ILC Articles – and there is no reason not to carry on. Or we could turn to gardening, which certainly makes the world a better place.

Note: The author is responsible for the choice and presentation of the facts contained in this contribution and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the Organization.