266 009-336

9
THE LEGAL FOUNDATIONS

OF THE INTERNATIONAL SYSTEM
General Course on Public International Law
by
KARL ZEMANEK
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K. ZEMANEK
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TABLE OF CONTENTS
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
III. Orientation of the course . . . . . . . . . . . . . . . . . . . . . . 23
III. Aim and method of the course . . . . . . . . . . . . . . . . . . . 24
Part I. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Chapter I. The structure of the international system . . . . . . . . . . . 29
III. Characteristics of a legally ordered community . . . . . . . . . . 29
III. International law as accepted order . . . . . . . . . . . . . . . . 32
III. International law as a coercive order . . . . . . . . . . . . . . . . 36
IV. The submission underlying the course . . . . . . . . . . . . . . . 38
IV. The international system and the global village . . . . . . . . . 40
Chapter II. The legal organization of the international system . . . . . . 43
III. Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
A. States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
B. International organizations . . . . . . . . . . . . . . . . . . . 44
C. Transnational actors . . . . . . . . . . . . . . . . . . . . . . 45
III. Fundamental principles . . . . . . . . . . . . . . . . . . . . . . 47
A. The Friendly Relations Declaration . . . . . . . . . . . . . . 47
B. Non-use of force . . . . . . . . . . . . . . . . . . . . . . . . 50
C. Non-intervention . . . . . . . . . . . . . . . . . . . . . . . . 55
D. Peaceful settlement of disputes . . . . . . . . . . . . . . . . . 59
E. Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
III. Unity and universality of international law . . . . . . . . . . . . 61
Chapter III. States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
III. The State between supra-nationality and disintegration . . . . . . 66
III. Jurisdiction of States . . . . . . . . . . . . . . . . . . . . . . . . 68
A. Eroding territoriality . . . . . . . . . . . . . . . . . . . . . . 68
B. Reconciling conflicting jurisdictions . . . . . . . . . . . . . . 70
C. Exceptions to territorial jurisdiction . . . . . . . . . . . . . . 74
III. New States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
A. Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
B. Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
C. Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Chapter IV. International organizations . . . . . . . . . . . . . . . . . . 88
III. Functions and powers . . . . . . . . . . . . . . . . . . . . . . . 88
A. International legal personality . . . . . . . . . . . . . . . . . 88
B. The nature of powers . . . . . . . . . . . . . . . . . . . . . . 90
1. The interpretative framework of constituent instruments . 90
2. Ultra vires acts . . . . . . . . . . . . . . . . . . . . . . . 91
3. Power or authority ? . . . . . . . . . . . . . . . . . . . . . 97
14 K. Zemanek
II. Sovereign equality and membership . . . . . . . . . . . . . . . . 100

A. Equal rights and the veto . . . . . . . . . . . . . . . . . . . . 100
B. Equal voting rights or weighted voting ? . . . . . . . . . . . . 101
C. Majority decisions or consensus . . . . . . . . . . . . . . . . 103
III. Tools of (powerful) States or instruments of the community ? . . 107
A. The influence of States through representative organs . . . . 107
B. Secretariats : administrators or agenda setters ? . . . . . . . . 109
Chapter V. The changing focus of international law . . . . . . . . . . . 112
III. Sovereign self-reliance versus solidarity . . . . . . . . . . . . . 112
III. From State to individual . . . . . . . . . . . . . . . . . . . . . . 113
A. Human rights . . . . . . . . . . . . . . . . . . . . . . . . . . 113
B. The protection of minorities . . . . . . . . . . . . . . . . . . 117
III. New challenges and threats . . . . . . . . . . . . . . . . . . . . 120
A. Internal armed conflicts . . . . . . . . . . . . . . . . . . . . 120
B. The proliferation of nuclear, chemical and biological weapons . 123
C. Terrorism and transnational criminal activities . . . . . . . . 124
D. Mass-migration . . . . . . . . . . . . . . . . . . . . . . . . . 125
E. Free trade versus protection of the environment . . . . . . . . 126
IV. Conflicts between old and new . . . . . . . . . . . . . . . . . . . 128
Part II. Law-making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Chapter VI. The law-making processes of the international system . . 131
III. The sources in Article 38 of the Statute of the ICJ . . . . . . . . 131
A. The significance of the sequence of sources . . . . . . . . . . 131
B. Is the list of sources exhaustive ? . . . . . . . . . . . . . . . . 134
C. Does Article 38, paragraph 1 (d), reflect reality ? . . . . . . . 136
1. Judicial decisions . . . . . . . . . . . . . . . . . . . . . . 136
2. Teachings . . . . . . . . . . . . . . . . . . . . . . . . . . 137
III. Instruments for the development of international law . . . . . . . 138
A. Codification . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
B. New regulations . . . . . . . . . . . . . . . . . . . . . . . . 140
C. Soft law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
III. Should all development of international law aim at universal
acceptance ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
A. The choice of an appropriate procedure . . . . . . . . . . . . 145
B. Need regulations necessarily be universal ? . . . . . . . . . . 146
Chapter VII. Custom and general principles . . . . . . . . . . . . . . . 149
III. The complexity of custom . . . . . . . . . . . . . . . . . . . . . 149
III. The formation of custom . . . . . . . . . . . . . . . . . . . . . . 151
A. A changing process . . . . . . . . . . . . . . . . . . . . . . . 151
B. The ingredients of custom . . . . . . . . . . . . . . . . . . . 152
1. Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
2. Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
3. State practice . . . . . . . . . . . . . . . . . . . . . . . . 156
III. Establishing custom . . . . . . . . . . . . . . . . . . . . . . . . 157
A. The task . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
B. Evidences of custom . . . . . . . . . . . . . . . . . . . . . . 158
1. Records of practice . . . . . . . . . . . . . . . . . . . . . 158
General Course on Public International Law 15
2. Types of practice . . . . . . . . . . . . . . . . . . . . . . 160

3. Evaluation of practice . . . . . . . . . . . . . . . . . . . . 163
C. Who makes State practice ? . . . . . . . . . . . . . . . . . . 164
IV. Is the term custom appropriate ? . . . . . . . . . . . . . . . . . 165
Chapter VIII. Multilateral conventions as substitute legislation . . . . . 168
III. Changed conditions . . . . . . . . . . . . . . . . . . . . . . . . 168
A. The function of treaties in the international system . . . . . . 168
B. The theoretical framework . . . . . . . . . . . . . . . . . . . 170
III. Techniques for selecting international rights and/or obligations . 173
A. Basic agreements . . . . . . . . . . . . . . . . . . . . . . . . 173
B. Partial acceptance . . . . . . . . . . . . . . . . . . . . . . . 173
C. Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . 175
1. The history of the reservation provisions in the VCLT . . . 177
2. When is a reservation incompatible with object and pur-
pose ? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
3. What is the effect of a reservation which is incompatible
with object and purpose of a convention ? . . . . . . . . 182
4. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . 188
III. Can uniform application be improved ? . . . . . . . . . . . . . . 190
A. Control through domestic procedures . . . . . . . . . . . . . 190
B. Is international control required ? . . . . . . . . . . . . . . . 192
Chapter IX. Law-making processes not mentioned in Article 38 . . . . 193
III. Unilateral acts . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
A. Different categories of unilateral acts . . . . . . . . . . . . . 193
1. Autonomous and adjunctive unilateral legal acts . . . . . . 193
2. Unilateral acts in the treaty-making process . . . . . . . . 194
3. Unilateral acts in the custom-forming process . . . . . . . 194
4. Autonomous unilateral legal acts . . . . . . . . . . . . . . 195
B. Tests for the legally binding character of unilateral acts . . . 197
III. Authoritative legal acts of international organizations . . . . . . . 201
A. Rudiments of organized law-making for the non-institutional
conduct of (member) States. . . . . . . . . . . . . . . . . . . 201
1. Explicit norm-setting procedures . . . . . . . . . . . . . . 201
2. The powers of the Security Council under Chapter VII . . 203
3. The Tribunal for the Former Yugoslavia : a case study . . . 204
B. Law-making for institutional purposes . . . . . . . . . . . . . 209
1. The rules of the organization . . . . . . . . . . . . . . . 209
2. Rules addressed to States . . . . . . . . . . . . . . . . . . 210
3. Rules addressed to individuals . . . . . . . . . . . . . . . 212
Chapter X. Inter-source relationships . . . . . . . . . . . . . . . . . . . 214
III. Custom and treaty . . . . . . . . . . . . . . . . . . . . . . . . . 214
A. Codification . . . . . . . . . . . . . . . . . . . . . . . . . . 214
1. The motives of codification . . . . . . . . . . . . . . . . . 214
2. Evaluation of the record . . . . . . . . . . . . . . . . . . . 217
3. Lessons to be learned . . . . . . . . . . . . . . . . . . . . 218
B. Interaction of custom and treaty . . . . . . . . . . . . . . . . 220
1. The relation of a codification convention to the custom
which it codifies . . . . . . . . . . . . . . . . . . . . . . . 220
16 K. Zemanek
2. Do codification conventions generate custom ? . . . . . . . 221

3. Bilateral treaties and custom . . . . . . . . . . . . . . . . 223
III. Two or more successive multilateral treaties on the same subject-
matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
III. Charter obligations and other international obligations . . . . . . 229
Part III. Law-enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Chapter XI. Remedies in primary law . . . . . . . . . . . . . . . . . . 233
III. The system of primary and secondary norms . . . . . . . . . . . 233
A. The concept . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
B. Types of primary norm systems . . . . . . . . . . . . . . . . 234
III. Selected examples of primary norm remedies . . . . . . . . . . . 236
A. Environmental law . . . . . . . . . . . . . . . . . . . . . . . 236
B. Humanitarian law . . . . . . . . . . . . . . . . . . . . . . . . 240
1. Individual responsibility in humanitarian law . . . . . . . 240
2. The Tribunal for the Former Yugoslavia . . . . . . . . . . 242
3. The Tribunal for Rwanda . . . . . . . . . . . . . . . . . . 247
4. The International Criminal Court . . . . . . . . . . . . . . 249
5. Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Chapter XII. State responsibility . . . . . . . . . . . . . . . . . . . . . 253
III. The work of the ILC . . . . . . . . . . . . . . . . . . . . . . . . 253
III. The cause of international responsibility : the breach of an inter-
national obligation . . . . . . . . . . . . . . . . . . . . . . . . . 254
A. The internationally wrongful act . . . . . . . . . . . . . . . . 254
B. The breach of erga omnes obligations . . . . . . . . . . . . . 256
C. International crimes of States . . . . . . . . . . . . . . . . . 257
III. The attribution of internationally wrongful acts . . . . . . . . . . 259
A. Determining the author . . . . . . . . . . . . . . . . . . . . . 259
B. Forms of responsibility . . . . . . . . . . . . . . . . . . . . . 262
C. Determining the injured State . . . . . . . . . . . . . . . . . 266
IV. The consequences of responsibility . . . . . . . . . . . . . . . . 268
A. Cessation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
B. Reparation . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
C. Consequences of international crimes . . . . . . . . . . . . . 272
Chapter XIII. Redress through settlement procedures . . . . . . . . . . 274
III. The effectiveness of prescriptions for the settlement of inter-
national disputes . . . . . . . . . . . . . . . . . . . . . . . . . . 274
A. The role of settlement procedures in the international system . 274
B. The plan of the Charter . . . . . . . . . . . . . . . . . . . . . 275
1. Available United Nations procedures . . . . . . . . . . . . 275
2. Freedom of choice . . . . . . . . . . . . . . . . . . . . . . 277
C. Methods to limit the choice in legal disputes . . . . . . . . . 279
D. Mechanisms under sectional and/or sectorial rules . . . . . . 282
III. Should the nature of a dispute determine the appropriate pro-
cedure for its settlement ? . . . . . . . . . . . . . . . . . . . . . . 284
A. Different kinds of disputes . . . . . . . . . . . . . . . . . . . 284
B. Suitable mechanisms . . . . . . . . . . . . . . . . . . . . . . 287
1. Should existing procedures be improved ? . . . . . . . . . 287
2. Are new procedures required ?. . . . . . . . . . . . . . . . 291
Chapter XIV. Collective enforcement . . . . . . . . . . . . . . . . . . 293

III. The practice of collective enforcement . . . . . . . . . . . . . . 293
A. Provisions for collective enforcement . . . . . . . . . . . . . 293
1. Indirect enforcement . . . . . . . . . . . . . . . . . . . . 293
2. Enforcement by the Security Council . . . . . . . . . . . . 294
3. Areas requiring collective enforcement . . . . . . . . . . . 296
B. Means of enforcement by the Security Council . . . . . . . . 297
1. The use of military force : the plan of the Charter . . . . . 297
2. The use of military force : lessons from the Gulf War . . . 299
3. Non-military measures : embargos . . . . . . . . . . . . . 302
III. The new challenge : peace-keeping or peace-making ? . . . . . . 304
A. Traditional peace-keeping . . . . . . . . . . . . . . . . . . . 304
B. The new challenge . . . . . . . . . . . . . . . . . . . . . . . 305
1. Selected recent cases . . . . . . . . . . . . . . . . . . . . 306
2. Evaluation of the cases . . . . . . . . . . . . . . . . . . . 311
3. Is the United Nations up to the task ? . . . . . . . . . . . . 313
Chapter XV. Individual enforcement . . . . . . . . . . . . . . . . . . . 316
III. The concomitant of a decentralized system . . . . . . . . . . . . 316
A. A necessary evil . . . . . . . . . . . . . . . . . . . . . . . . 316
B. Individual enforcement and countermeasures . . . . . . . . . 317
III. When are countermeasures legitimate ? . . . . . . . . . . . . . . 319
A. The emergence of an international dispute . . . . . . . . . . 319
B. Countermeasures and political expediency . . . . . . . . . . 320
C. Is the existence of a dispute a condition for legitimately apply-
ing countermeasures ? . . . . . . . . . . . . . . . . . . . . . . 321
D. The ILCs proposition . . . . . . . . . . . . . . . . . . . . . 323
III. The limits of countermeasures . . . . . . . . . . . . . . . . . . . 327
A. Norms of jus cogens . . . . . . . . . . . . . . . . . . . . . . 327
B. Protection of the human person . . . . . . . . . . . . . . . . 330
1. Humanitarian law . . . . . . . . . . . . . . . . . . . . . . 330
2. Human rights . . . . . . . . . . . . . . . . . . . . . . . . 331
C. Self-contained rgimes . . . . . . . . . . . . . . . . . . . . . 332
D. Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . 333
Valediction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
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BIOGRAPHICAL NOTE
Karl Zemanek, born on 18 November 1929 in Vienna, Austria.

Doctor iuris, University of Vienna (1952). Research Assistant, University of
the Saar (1954).
Universittsdozent (venia legendi) (1957), Associate Professor (1958).
Professor of International Law and International Organizations, Faculty of
Law, University of Vienna (1964). Member of the Institut de droit international
and of the International Academy of Astronautics.
Legal Consultant of the Austrian Ministry of Foreign Affairs (since 1967).
Member of the Austrian Delegation to several sessions of the General Assembly
of the United Nations and Representative on its Sixth Committee (from 1959
onwards). Austrian Representative on the Legal Sub-Committee of the United
Nations Committee on the Peaceful Uses of Outer Space (1962-1976).
Member of the Austrian Commission for Unesco, Vice President (1983-1985),
Acting President (1985-1986). Member of the Austrian Delegation to the General
Conferences of Unesco 1978, 1980, 1982 and 1985.
Member of the Delegation of the Holy See to the United Nations Conference
on Diplomatic Intercourse 1961 and to the United Nations Conference on Consu-
lar Relations 1963 ; Vice-Chairman of the Austrian Delegation to the United
Nations Conference on the Law of Treaties 1968 and 1969 ; Co-Chairman of the
Austrian Delegation to the United Nations Conference on the Representation of
States in their Relations with International Organizations 1975.
President of the United Nations Conference on the Succession of States in Res-
pect of Treaties 1977 and 1978 and of the United Nations Conference on the Law
of Treaties between States and International Organizations or between Internatio-
nal Organizations 1986.
Member of the Permanent Court of Arbitration (since 1977). Judge at the
European Nuclear Energy Tribunal (1973-1978 and 1990-1995) ; Member of the
Panel of Legal Experts of INTELSAT (1982-1987).
19
PRINCIPAL PUBLICATIONS
(Only major or recent publications are listed.)
Das Vertragsrecht der internationalen Organisationen, Vienna, 1957.

State Succession after Decolonization, 116 Recueil des cours (1965-III), 187-
300.
LEstatut Internacional dAndorra. Situaci actual i perspectives de reforma,
Andorra, 1981.
Majority Rule and Consensus Technique in Law-Making Diplomacy, in R. St.
J. Macdonald and D. M. Johnston (eds.), The Structure and Process of Inter-
national Law, The Hague, 1983, 857-887.
La responsabilit des Etats pour faits internationalement illicites, ainsi que pour
faits internationalement licites, in P. Weil (ed.), Responsabilit internationale,
Paris, 1987, 1-88.
Codification of International Law : Salvation or Dead End ?, in P. Lamberti
Zanardi et al. (eds.), International Law at the Time of Its Codification, Essays
in Honour of R. Ago, Vol. I, Milan, 1987, 581-601.
The Unilateral Enforcement of International Law, 47 ZaRV (1987), 32-43.
State Responsibility and Liability, in W. Lang et al. (eds.), Environmental Pro-
tection and International Law, London, 1991, 187-201.
The Changing International System : A New Look at Collective Security and
Permanent Neutrality, 42 AJPIL (1991), 277-294.
Peace-Keeping or Peace-Making ?, in N. Blokker and S. Muller (eds.),
Towards More Effective Supervision by International Organizations, Essays in
Honour of H. G. Schermers, Vol. I, Dordrecht, 1994, 29-47.
What is State Practice and Who Makes It ?, in U. Beyerlin et al. (eds.), Recht
zwischen Umbruch und Bewahrung, Festschrift fr R. Bernhardt, Berlin, 1995,
289-306.
Does Codification Lead to Wider Acceptance ?, in Proceedings of the United
Nations Congress on Public International Law (New York, 13-17 March
1995), The Hague, 1996, 224-229.
20
BLANCHE
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FOREWORD
In the foreword to her own general course a few years ago, Rosa-
lyn Higgins stated that being invited to give the General Course at
the Hague Academy is probably the greatest honour that can be
bestowed on an international lawyer. I am conscious of that honour
and thank the Curatorium sincerely for their invitation, particularly
for their courage to invite a non-native speaker as lecturer.
I want to dedicate this course to the memory of two men, both
deceased, to whom I am greatly indebted. One was my teacher in
international law, Alfred Verdross, who stimulated my interest in the
subject and guided my first steps. The other was Manfred Lachs,
who was a guardian angel during my initiation into the practice of
law-forming in the United Nations and to whom, I presume, I owe
the initiative for this invitation. I can only hope that the course
comes up to what would have been their expectations.
22
BLANCHE
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INTRODUCTION
I. Orientation of the Course
1. It is obvious that the time assigned to this course does not per-
mit a review of the whole range of present international law, espe-
cially of that vast area which one may call international administra-
tive law, dealing with the allocation of resources and with the
regulation of worldwide trade, traffic, communication, etc. It is
therefore necessary to make a selection.
Since the General Course is a recurrent event, I have decided to
devote this one to problems which have either recently appeared in
the practice of States or international organizations or are currently
the subject of academic debate. Yet the course would not serve its
purpose if these problems were simply exposed and analysed one
after the other interesting as each of them may be without
being organized by a focal point. Without it the presentation would
have the same effect as spotlighting individual stones of a mosaic
without showing the whole design.
The focus which I have chosen for the present course is expressed
in the title : I propose to examine the legal foundations of the inter-
national system and I owe you an explanation of what is meant by
these terms.
2. Since the time when some scholars have applied system analy-
sis to international law 1, the term international system has become
quite fashionable. I use the term, but I do not intend to use system
analysis as a method because it seems to tend towards unrealistic
conclusions as far as the law is concerned. While I concur in the
assessment of system analysts that the undeniable factual interdepen-
dence of the world creates social necessities, it is inadmissible to
infer from a few isolated instances where they have led to interna-
tional regulation that social necessities generate corresponding rules
1. Cf. e.g. A. C. Kiss and D. Shelton, System Analysis of International Law :

A Methodological Inquiry, 17 NYIL (1986), 45-73, particularly at 70 :
A further consequence of the system approach is a recognition of the
inevitable necessity of international legal rules formulated by, and appli-
cable to, the whole international community in response to social prob-
lems. (Emphasis added.)
24 K. Zemanek
of general international law by themselves, simply because they are

needed. It is not rare that a gap exists between an objective necessity
and the readiness of States to react adequately to it. The protracted
and only half-successful negotiations to prohibit the use of land
mines (anti-personnel mines) or to increase the protection of the
ozone layer are examples. In the course of time social necessity may
lead to an international regulation, but to present this as an instanta-
neous and inevitable process raises unsustainable expectations.
3. Thus, while I use the term international system, I use it in the
sense of Stanley Hoffmann who described it as
a pattern of relations between the basic units of world politics,
which is characterized by the scope of the objectives pursued
by those units and of the task performed among them, as well
as by the means used in order to achieve those goals and per-
form those tasks. This pattern is largely determined by the
structure of the world, the nature of the forces which operate
across or within the major units, and the capabilities, pattern of
power, and political culture of those units. 2
4. The legal foundations of that system are the rules which one
may call political international law, in other words rules which, in
a State, would form its constitutional framework. These are rules
which govern the processes of interaction between the basic units
and not the substance of that interaction.
Three major parts of these legal foundations will be explored in
the course : the first part will focus on the manner in which the inter-
national system is organized ; the second part will then examine how
the rules which regulate interaction among the players are made ;
and a third part will finally analyse the means which are intended to
secure compliance with these rules.
II. Aim and Method of the Course
5. The aim of the course is to assess the role which these basic
rules play in the functioning of the international system. Since they
are the foundations of a political system, they must be viewed in
2. S. Hoffmann, International Systems and International Law, in R. A. Falk

and S. H. Mendlovitz (eds.), The Strategy of World Order 2, New York, 1966,
134-166, at 136.
their political context, because separating law from politics is as

great a conceptual sin as separating and thereby liberating pol-
itics from law.
6. That approach makes it necessary to address the relation
between international law and international politics. The present
context is not a proper place to comment in depth on a recent schol-
arly dispute 3 about whether international law is on the way of being
deconstructed because, as the argument runs, decision-makers
turn away from general principles and formal rules and embrace
contextually determined equity 4. It is certainly true that such a
trend is apparent in some recent decisions of the International Court
of Justice (ICJ) delimiting boundaries 5. But as the Court has stated
in the North Sea Continental Shelf case 6 :
Whatever the legal reasoning of a court of justice, its deci-
sions must by definition be just, and therefore in that sense
equitable. Nevertheless, when mention is made of a court dis-
pensing justice or declaring the law, what is meant is that the
decision finds its objective justification in considerations lying
not outside but within the rules, and in this field it is precisely
a rule of law that calls for the application of equitable prin-
ciples. 7
7. It is difficult to understand why this reasoning should support
the deconstructional argument mentioned before. All the more so as
delimitation cases, although quite frequent before the Court in the
recent past, have a specific character and are too narrow a basis for
drawing conclusions on the general state of international law. One
must further add that the administration of justice by the ICJ is one
thing, while the daily application of international law by national
3. See M. Koskenniemi, The Politics of International Law, 1 EJIL (1990),

4-32 ; and the critical reply by D. Georgiev, Politics or Rule of Law : Decon-
struction and Legitimacy in International Law, 4 EJIL (1993), 1-14. Cf. also
Koskenniemis From Apology to Utopia. The Structure of International Legal
Argument, Helsinki, 1989.
4. Koskenniemi, Politics, supra footnote 3, at 31.
5. Cf. V.-D. Degan, Equitable Principles in Maritime Delimitations, in
P. Lamberti Zanardi et al. (eds.), International Law at the Time of Its Codifica-
tion, Essays in Honour of R. Ago, Milan, 1987, Vol. II, 107-137 ; E. Jimnez de
Archaga, The Conception of Equity in Maritime Delimitation, ibid., 229-
239 ; and M. Virally, Lquit dans le droit. A propos de dlimitation mari-
time, ibid., 523-534.
6. ICJ Reports 1969, 3-54 ; para. 88.
7. Emphasis added.
26 K. Zemanek
decision-makers is another. That application has to do with the self-

interest of States in securing a stable, safe and predictable world in
which they can better pursue their broad political and economic
goals 8. In other words : States have a shared interest in the mainte-
nance of predictable behaviour patterns 9. That in their conduct they
are influenced by policy considerations and are not simply and
mechanically applying legal rules, is a truism. But that States should
pre-empt contextually determined equity, which inherently
requires an uninvolved third party for its determination, in their own
political decision-making supposes an orientation towards the inter-
national common good which is seldom apparent in governmental
decisions.
8. I shall attempt to evaluate the relationship between interna-
tional law and international politics without looking through either
of the four preconceived dogmatic glasses which Martti Kosken-
niemi has so conveniently classified 10 : I neither use the rules
approach, which stresses the laws normativity, its capacity to
oppose State policy as the key to its constraining relevance ; nor do
I follow the policy approach, which considers international law only
relevant if it is firmly based in the social context of international pol-
icy. But mine is also not a sceptical position, which assumes that
international law can neither be seen as normatively controlling nor
widely applied in practice ; and I am not an idealist who believes
that the laws binding force as well as its correspondence with devel-
opments in international practice are a matter of course. I rather pro-
pose to pursue the relation between international law and interna-
tional politics throughout the course by checking dogmatic pre-
dictions and other teachings against State practice, by confronting
the law as it is declared with the law as it is or is not applied, and to
look for the reasons. One could call that a realistic analytical
method.
8. Sir A. Watts, The International Rule of Law, 36 GYIL (1993), 15-45, at

41-42 ; see also H. Neuhold, Die Einhaltung des Vlkerrechts in einer
auenpolitischen Kosten-Nutzen-Analyse , 19 GYIL (1976), 317-351, 325.
9. See J. S. Watson, A Realistic Jurisprudence of International Law, 30 YB
World Affairs (1980), 265-285, 283.
10. Koskenniemi, Politics, supra footnote 3, at 10-11. Cf. also the chapter
on The Schools of Jurisprudence, with contributions by A. Verdross and H. F.
Koeck, M. Bos, V. Kartashkin, M. S. McDougal and W. M. Reisman, W. L.
Morrison, in R. St. J. Macdonald and D. M. Johnston (eds.), The Structure and
Process of International Law, The Hague, 1983, 17-176.
It should put us, at the end of the course, in a position to assess

the relationship between international law and international politics.
It may then turn out that the dialectic relation between law and pol-
itics is not a unique feature of the international system but is inher-
ent in any form of human organization. It is simply more dominant
in the international than in the domestic context because of the inter-
national systems peculiar organization.
28
BLANCHE
29
PART I
ORGANIZATION
CHAPTER I
THE STRUCTURE OF THE INTERNATIONAL SYSTEM
I. Characteristics of a Legally Ordered Community
If one looks for features which distinguish a legally ordered com-

munity from other forms of human organization, two seem more
determinant than others :
9. The interaction of the communitys members should be gov-
erned by rules which are rooted in values and interests shared by
them. The scope of these shared values and interests delimits the
area in which rules may be created and expected to be observed,
while the depth of these shared values and interests determines the
degree of integration which the community may achieve. If but a
few values and interests are shared, only a loose form of association
will be possible ; if values and interests are shared solely in respect
of a limited objective, only a functional organization for the specific
purpose will be feasible. The modern State, as a fully integrated
community, requires a broad consensus of its people on the objec-
tives to be achieved, on the principles to be respected in the process,
and on the way to achieve it.
10. However, as will be shown in more detail later 11, that consen-
sus, once taken for granted in existing States, is recently eroding.
This erosion accounts for secessionist movements of ethnic groups
which claim if not independence then at least extensive autonomy ;
for the predominance of local interests which leads to the disintegra-
tion of multi-ethnic Empires ; and for failed States or governments
which means institutions that can no longer fulfil the functions for
which they were established. It also explains the focus on regional-
11. See Chap. III, para. 92.

30 K. Zemanek
ism and subsidiarity in the European Union and the frequency of

local civil action groups.
11. A second essential feature is the organization of power within
the community in a way which ensures that order is maintained and
the communitys rules are regularly and effectively policed. Regular-
ity and effectiveness depend to some extent on the degree in which
power is centralized in institutions. Empires disintegrate and States
fail because their central institutions are no longer able to deal effec-
tively with power centres that emerge outside the official framework,
thus reversing the process through which modern States were
created. Sierra Leone, Somalia and Zaire are probably the most
remarkable recent examples of collapsing States.
12. In a decentralized legal system only the individual partici-
pants, or in an oligarchy, some of them, hold power and exercise it
autonomously, albeit under the constraints of a common legal order,
either by acting together (e.g. in law-making ; and occasionally in
adjudication) or bilaterally (settlement of disputes) or unilaterally
(enforcement). No, or only imperfect, institutions exist for these pur-
poses. It is evident that in such a system the enforcement of the law,
but to some extent also the creation of rules by the participants, and
even the readiness to submit to adjudication and to accept the ensu-
ing decision of a dispute, are a function of the power of the system
participants involved 12. Powerful participants may be able to fashion
the law in a way that reflects their own interests by imposing it on
the other system-partners, and if they evade the peaceful settlement
of disputes the less powerful will hesitate to challenge them. Nor
will the less powerful be able to enforce a legitimate claim against a
more powerful wrongdoer. It goes without saying that this combina-
tion of auto-judgment and self-enforcement lends itself easily to
abuse.
13. Yet it is from such circumstances that, in a slow process,
nearly all modern domestic legal systems evolved. History docu-
ments the protracted attempts during the Middle Ages and Renais-
sance of nominal overlords, be they emperor, kings or princes, to
curb the (military) power of their mighty barons, which constantly
engaged in feuds among themselves when not engaged in wars
alongside of their overlords or against them. Not until the era of
absolutism in the seventeenth century were sovereigns able to
12. Already apparent in the Scriptures, Genesis 4: 23 : The Song of Lamech.

monopolize power and to establish an effectively centralized admin-

istration. This was the birth of the modern European State. Nothing
comparable has as yet happened in the international system.
14. Legal theory is widely divided as to the respective relevance
of the two elements for the definition of law. Some schools,
notably Hans Kelsens Pure Theory of Law, explain law exclu-
sively by its coercive aspect. As Kelsen writes :
. . . law . . . is a set of norms by which a coercive act, the
sanction, is attached, as a consequence, to a conduct, the delict,
as a condition of the sanction. . . . The law is a normative order,
and since legal norms provide for coercive acts as sanctions,
the law is a coercive order. 13
In his opinion a system thus only qualifies for law if delicts entail
regularly, which he calls effectively, the corresponding sanction.
15. That view, it is submitted, unduly narrows the concept of
law 14. It is, of course, true as Rosalyn Higgins has stated that [f]or
authority to sustain a system of law it must be sufficiently effective
to sustain expectations of conforming decisions in the future 15. But
effectiveness is not solely grounded on the possibility of coercion. It
is important that the subjects accept the law, convinced that it
reflects their shared values and interests, and recognize 16 its legiti-
13. H. Kelsen, Principles of International Law, New York, 1952, 6 ; see

further J. Austin, The Province of Jurisprudence Determined, and, The Uses of
the Study of Jurisprudence, New York, 1954, 10-15 ; H. Kelsen, General Theory
of Law and State, Cambridge (Mass.), 1945, 118-120 ; H. L. A. Hart, The Con-
cept of Law, Oxford, 1961, 208-231.
14. For a similar critique, albeit with a different reasoning, cf. Watson, supra
footnote 9, at 265-285 ; and R. Fisher, Bringing Law to Bear on Governments,
in R. A. Falk and S. H. Mendlovitz (eds.), supra footnote 2, at 75-85. Cf. also
W. Friedmann, General Course in Public International Law, 127 Recueil des
cours (1969-II), 47-243, 65 : Legal philosophers are far from united on the
question whether enforceability is an essential element of law. Further D.
Alland, International Responsibility and Sanctions : Self-Defence and Counter-
measures in the ILC Codification of Rules Governing International Responsibil-
ity, in M. Spinedi and B. Simma (eds.), United Nations Codification of State
Responsibility, New York, 1987, 143-195, 171-173.
15. R. Higgins, Integration of Authority and Control : Trends in the Litera-
ture of International Law and International Relations, in W. M. Reisman and
B. H. Weston (eds.), Towards World Order and Human Dignity, Essays in Honor
of M. S. McDougal, New York, 1976, 79-94, 81.
16. See W. Friedmann, supra footnote 14, at 65 : In municipal as in interna-
tional law, an important school of legal philosophers places the emphasis on
social acceptance and recognition, rather than the punitive (civil or criminal)
sanction of enforceability.
32 K. Zemanek
macy 17 by their determination to belong to the community which is

so ordered. That does not only secure the broad observance of the
law, but is essential for constituting authority. Today no State would
be in a position to deal forcefully with widespread and massive civil
disobedience, and if it tried, it would pay a heavy toll, internally and
externally. When introducing novel legislation with a view of chang-
ing rooted societal behaviour, States are frequently forced to consent
to a probationary period during which the law is, in reality, used as an
instrument of education, to accustom people to it. And many a law
has remained a dead letter because acceptance was not forthcoming.
Thus, to define law only through its coercive aspect, neglecting
the role of legitimacy and acceptance, and dismissing the joint con-
sideration of all factors as methodical syncretism, suits perhaps a
particular theory, but neither fully explains the phenomenon law,
which is the primary purpose of any legal theory, nor does it depict
reality 18.
II. International Law as Accepted Order
16. Shared values and interests reflect what is broadly a common

outlook, arising from broadly the same cultural tradition and directed
at broadly the same set of aims and ideals. The scope and depth of
shared values and interests and, consequently, the extent of human
activity which they cover within any given community, may, how-
ever, vary with the times.
That happened and happens to the international system. From the
17. Cf. the interesting explanation by T. M. Franck, Legitimacy in the Inter-

national System, 82 AJIL (1988), 705-759, 706 :
. . . in a community organized around rules, compliance is secured to
whatever degree it is at least in part by perception of a rule as legitimate
by those to whom it is addressed . . . Legitimacy is used here to mean that
quality of a rule which derives from a perception on the part of those to
whom it is addressed that it has come into being in accordance with right
process.
He later (712) identifies the indicators of rule legitimacy as determinacy, sym-
bolic validation, coherence and adherence. In connection with the latter he
states at 753 : Obligation is perceived to be owed to a community of states as a
necessary reciprocal incident of membership in the community.
18. Cf. also the critique of Kelsens approach by R. A. Falk, The Relevance
of Political Context to the Nature and Functioning of International Law : An
Intermediate View, in K. W. Deutsch and S. Hoffmann (eds.), The Relevance of
International Law, Essays in Honor of L. Gross, Cambridge (Mass.), 1968, 133-
152, 135.
beginning of the modern era European States accumulated power to

such an extent that Europe dominated the international system
throughout the nineteenth and into the first half of the twentieth cen-
tury. The great European powers shaped the law governing inter-
action in the system, at that time called jus publicum Europeanum,
by transforming values of their Judaeo-Graeco-Roman-Christian heri-
tage into legal rules as it befitted their interests. Because of the
European dominance this regional creation became the general law
underlying the international system of the time 19.
17. Research shows, however, a surprising similarity of funda-
mental rules between this and other international systems, either of
earlier times or of other areas 20. Decolonization in the 1950s and
1960s marked nevertheless a watershed, since the international com-
munity became for the first time truly pluralistic, insofar as its mem-
bers had now, in the United Nations, a forum where to voice their
values and interests. Although this has not led to considerable changes
in the basic rules, their interpretation has become more diverse.
18. Occidental values are now supplemented and sometimes
replaced by values derived from other religious beliefs, like Islam
or Buddhism, or from ethical systems like Confucianism or African
traditions. Communism, a temporarily successful ideology opposed
to Western ideals, sponsored a few new aims and in its decline
revived old European follies, like nationalism, long believed to have
been outgrown. In areas in which the consolidation and development
of international law would be urgently required, like human rights 21,
the protection of the environment, the use of force, or the peaceful
settlement of disputes, the values emanating from this plurality of
sources are sometimes incompatible or even mutually exclusive.
Even if one doesnt subscribe to Samuel Huntingtons predilection
for consequential action, one may still share his prediction of a clash
of civilizations 22.
19. Cf. the thought-provoking paper by Y. Onuma, Eurocentrism in the His-

tory of International Law, in Y. Onuma (ed.), A Normative Approach to War,
Oxford, 1993, Appendix, 371-386.
20. See S. Verosta, International Law in Europe and Western Asia between
100 and 650 A.D., 113 Recueil des cours (1964-III), 491-613 ; and id.,
Geschichte des Vlkerrechts, in A. Verdross, Vlkerrecht, 5th ed., Vienna,
1964, 31-83.
21. See Islamic Council, Universal Islamic Declaration of Human Rights,
London, 1981.
22. S. Huntington, The Clash of Civilizations, New York, 1996. See also id.,
72 Foreign Affairs (1993), No. 3, 22-49.
34 K. Zemanek
19. The matter cannot be pursued in depth here, but one example
shall at least illustrate the problem, and Islam is probably the best
choice in view of the attention which it attracts in the media. Some
experts doubt that certain Islamic doctrines, like the community of
Muslims (arab. umma) which excludes all non-believers, or the
necessary identity of secular and religious community organization
(arab. din wa dawla), make it possible for Muslims to accept, on a
conceptual level, a universal legal community which is not based on
Islamic law (arab. sharia) 23. The frequency with which some
Islamic States have recently reserved sharia while acceding to
Human Rights Conventions 24 lends support to that view.
Other scholars are more optimistic, believing that the more con-
structive teachings of the highly respected Al Azhar University in
Cairo will prevail, according to which the divine law, although
immutable, can be filled with new content by interpreting legal
reality in its light 25. Still other Islamic scholars point out that
sharia has never been fully implemented in any period of Islamic
history and that much of it has remained legal fiction 26.
20. Whether this holds true in spite of the advance of Islamic fun-
damentalism has yet to be seen. Because it is in the aims of the fun-
damentalist Christian and Islamic movements that the contradiction
appears most clearly : whereas Christian fundamentalists revert to a
literal understanding of the Sermon of the Mount, emulating
Buddhism in their pacifism, Islamic fundamentalists tend to become
more and more intolerant towards their own and more militant
towards non-believers (arab. jihad) 27.
These differences are aggravated by divergent interests 28. Most
new States which have joined the international system after decolo-
nization were just beginning their political, economic and social
23. See the Qurans Al Maida Surah and cf. A. B. Bozeman, The Future of
Law in a Multicultural World, Princeton, 1971, 63-81.
24. See infra, para. 356.
25. See D. F. R. Pohl, Islam und Friedensvlkerrechtsordnung. Die dogma-
tischen Grundlagen der Teilnahme eines islamischen Staates am modernen
Vlkerrechtssystem am Beispiel gyptens, Vienna, 1988, 151-154.
26. See H. Eayat, Modern Islamic Political Thought The Response of the
Shii and Sunni Muslims to the Twentieth Century, London, 1982.
27. Cf. R. Peters, Islam and Colonialism. The Doctrine of Jihad in Modern
History, The Hague, 1979.
28. A. Pardo and C. A. Christol, The Common Interest : Tension between the
Whole and the Parts, in R. St. J. Macdonald and D. M. Johnston (eds.), supra
footnote 10, at 643-660, give a good insight into the problem in a detailed study
of the Common Heritage of Mankind principle.
development. They sometimes view the existing international eco-

nomic order or the crusades for the universal implementation of civil
and political human rights or for the protection of the environment,
objects of real concern to Western societies, as devices to obstruct
their development. Nor must the interests of States of Central and
Eastern Europe, or of Central Asia, which have shaken off the Soviet
ideology and the hegemony sustained by it, necessarily coincide in
all aspects with the interests of Western industrialized nations.
21. It is, thus, not surprising that the scope of globally shared
values and interests is still rather modest and nothing indicates a
substantive increase in the near future ; rather the opposite must be
feared.
This absence of common aims and of agreement on how to reach
them becomes apparent when future-oriented new regulations are
discussed in international fora and the process moves from verbal-
ism to a stage where firm commitments on subsequent action have to
be undertaken. Majority decisions have proven futile under these cir-
cumstances. The minority will rarely feel bound by the will of the
majority when it believes that it impairs its values or interests.
Unless the majority seeks only the legitimization of an operational
activity or is content with leading the way in rule-making, hoping
that in due course the dissenters will follow, no useful purpose is
served by a majority decision. More is usually achieved by seeking
consensus, even at the price of obtaining it at a lower than the
desired level, than by adopting a more perfect text by majority which
is ignored by a substantial part of the other system-partners. For that
reason the consensus technique has since roughly three decades
replaced majority voting in law-making diplomacy 29.
22. The narrow basis of shared values and interests contrasts
sharply with the social necessities arising from the ever-growing
interdependence of States. Interdependence, which began in the eco-
nomic field, now embraces nearly all human activities and will
deepen further with the global development of the communication
and information society 30. Interdependence limits a States ability to
fulfil its functions autonomously because forces beyond its control
29. See K. Zemanek, Majority Rule and Consensus Technique in Law-

Making Diplomacy, in R. St. J. Macdonald and D. M. Johnston (eds), supra
footnote 10, at 857-887 ; and infra, paras. 173-181.
30. See K. Zemanek, Interdependence, 7 EPIL (1984), 275-278 ; or Vol. II
(1995), 1021-1023.
36 K. Zemanek
affect the well-being and advancement of its people. Powerful States

try sometimes to control some of these effects through excessive
claims to extraterritorial jurisdiction 31, but this is not an adequate
answer to the challenge. Control of these forces, e.g. gases affecting
the atmosphere, requires concerted action and, above all, solidarity.
However, as one can learn from recent and current international
events, States and, as far as democracies are concerned, one must
regrettably assume that they are acting in accordance with the mood
of their peoples still put their own interests ahead while paying
lip-service to international solidarity, which they actually show only
when it suits their interests.
III. International Law as a Coercive Order
23. Until the end of the First World War the international system
was totally decentralized : no centralization of power in institutions
(Institutionelle Entlastung 32 (institutionalization) in the language
of legal sociology) comparable to that achieved in States had hap-
pened on the international level. States acted at once as law-givers
and as subjects of that same law, as judges of its correct application
and, when the case arose, as its enforcers. Only States were in a
position to use force, whether legitimately or illegally.
24. For some time legal theory was preoccupied with the query
whether that system should therefore be called primitive. That dis-
course seems more or less redundant. Stanley Hoffmann has justly
observed that a highly integrated society may still have primitive law
or, conversely, that primitive from the point of view of institution-
alization does not imply that the substantive law is also primi-
tive 33. It seems however that the dispute is mainly about semantics.
The term primitive system links the adjective primitive to sys-
tem and hence to institutionalization, not to its substantive rules.
Moreover, early stages of domestic legal systems, which resemble
the present organization of the international system, are called
31. See infra, paras. 94-97.

32. Cf. H. Schelsky, Zur soziologischen Theorie der Institutionen, in
H. Schelsky (ed.), Zur Theorie der Institutionen, Dsseldorf, 1970.
33. See S. Hoffmann, International Law and the Control of Force, in
K. W. Deutsch and S. Hoffmann (eds.), supra footnote 18, at 21-46, 24-25 ; and
C. Seplveda, Methods and Procedures for the Creation of Legal Norms in the
International System of States : An Inquiry into the Progressive Development of
International Law in the Present Era, 33 GYIL (1990), 432-459, 441-442.
primitive by legal historians when they compare them with the

present organization of legal orders. Yet it is probably advisable to
avoid the term primitive if it does lead to misunderstandings. The
term is not important as long as the implications of a decentralized
system are clearly understood. According to Stanley Hoffmann :
International law is the law of a milieu that has no central
power because of the fragmentation and will to fragmentation
of its parts, and where self-help, while capable at times of
giving to international anarchy an appearance of order,
often threatens to plunge the milieu into sheer chaos. 34
25. This observation answers also, at least in part, the perennial
question whether international law is really law 35. Though dog-
matically important, the question is, from a practical point of view,
misconceived. If one starts from the assumption that there is one
and only one organizational concept for a legally ordered com-
munity, and that the present legal organization of States represents
that model, then international law does indeed not qualify. But, as
has already been argued, the negative conclusion drawn from the
comparison is invalidated by legal history. It is the structure and
degree of integration of a society which determines its legal frame-
work 36, not the other way round. And since the international society
differs fundamentally from present domestic societies, international
law differs in character from domestic law.
26. Since the milieu is different, the experience derived from the
evolution of primitive domestic legal systems into the present
institutionalized legal orders cannot directly be applied to the inter-
national system. Yet, some analogies are nevertheless instructive.
Attempts to check the power of individuals in a domestic system
through the latters institutionalization have on the whole been
undertaken in either of two ways. One way led to the establishment
of what in the international arena would be called hegemony, that is
the accumulation of sufficient power by one player to dominate the
34. Hoffmann, supra footnote 33, at 24.
35. Cf. for different rationales M. A. Kaplan and N. de B. Katzenbach, Law
in the International Community, in R. A. Falk and S. H. Mendlovitz (eds.),
supra footnote 2, at 19-43, esp. 21-26 ; H. Kelsen, The Essence of International
Law, in K. W. Deutsch and S. Hoffmann (eds.), supra footnote 18, at 85-92 ;
and A. DAmato, Is International Law Really Law ?, 79 Northwestern Uni-
versity Law Review (1984-1985), 1293-1314 ; reprinted in A. DAmato, Interna-
tional Law : Process and Prospect, Irvington, NY, 1995, 1-26.
36. In the same sense W. Friedmann, supra footnote 14, at 47.
38 K. Zemanek
rest of the system. In that way most European kingdoms or princi-

palities were turned into States. Absolutist France is perhaps the
best-known example. Another, but rarer path led to the free associa-
tion of hitherto autonomous units into a larger entity by covenant.
Switzerland and the United States are such rare examples.
27. It is interesting to note that, on the international level, suc-
cessfully established hegemonies, whether they dominated the entire
international system of their time or only a sub-system, and indepen-
dently of the time through which they lasted, are usually associated
with peace : one recalls appellations like Pax Romana or Pax Britan-
nica. And the Soviet hegemony over East and Central Europe,
although established at the price of appalling human rights viola-
tions, was successful in containing the ethnic conflicts which have
come to the open after its demise, but which must have been latent
throughout its duration. It thus maintained peace, if defined as the
absence of armed conflict, in its sphere of influence. One is tempted
to suggest that the accumulated overwhelming power, which is the
condition of a successful hegemony, combined with the belief that
this power will eventually be used, even brutally, deters revolution-
ary or secessionist movements as long as it is credible. Hegemony
thus achieves peace but at the price of fear.
28. Closer co-operation through association has only twice been
attempted on a global scale, in the League of Nations and in the
United Nations Organization. The latter still provides the main legal
frame for the international system, supplemented by numerous regio-
nal or sub-regional organizations, nearly all of them with special-
ized functions. With the exception of the EC-pillar of the European
Union, none of these structures has led to a basic change in decen-
tralized law-making, law-determination, or law-enforcement within
the international system. Even the United Nations does not centralize
power but only monopolizes the legitimization of the use of armed
force. States still are the tenants of power because they alone dispose
of the necessary resources and military forces. Collective measures
of the United Nations depend therefore on their co-operation.
IV. The Submission Underlying the Course
29. The foregoing analysis leads to the submission that the organi-
zation of the international system has not significantly evolved from
its state before the First World War. The system remains basically
decentralized since only a few functions have been transferred to

institutions with rather weak powers. Because of the modest scope
of globally shared values and interests the degree of integration is
low. In such a system power political, economic or military
remains very influential, and the role of law, though real, corre-
spondingly modest. 37 But by and large, international law is more
efficient than the media make us believe particularly in a crisis 38.
International law does have its proper sanctions 39 which are applied
if the occasion arises. That this is perhaps not done with the same
regularity and effectiveness that one expects in a modern domestic
legal system which lays claim to the rule of law is due to the decen-
tralized organization which allows a variety of mostly political
reasons, which will be examined later 40, to determine the application
of sanctions.
30. In view of this state of the international system the use of the
term Rule of Law for the function of law in that system 41 is bound
to lead to disappointment. First of all, because there is no real agree-
ment on the meaning of the term. Such features as completeness and
certainty of the law, equality before the law and effective application
of the law through judicial settlement and enforcement may be com-
mon ground. But, for instance, redress by courts against law-making
by Parliament or against decisions of the executive, which would be
considered essential in the United States or in continental Europe,
may appear alien in the United Kingdom where constitutional guar-
antees of fundamental human rights or the judicial review of Acts of
Parliament do not exist. It is significant that no equivalent for the
German term Rechtsstaat, which designates a State whose govern-
ment machinery is subject to the rule of law, exists in English. But
quite apart from what may be considered essential in a particular
37. Watts, supra footnote 8, at 42.

38. See J. H. E. Fried, How Efficient is International Law, in K. W.
Deutsch and S. Hoffmann (eds.), supra footnote 18, at 93-132.
39. On the different means see E. Fukatsu, Coercion and the Theory of
Sanctions in International Law, in R. St. J. Macdonald and D. M. Johnston
(eds.), supra footnote 10, at 1187-1205.
40. See Chap. XV, para. 682.
41. The Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the Charter of the
United Nations (Friendly Relations Declaration), GA res. 2625 (XXV) of
24 October 1970, refers in its Preamble to the paramount importance of the
Charter of the United Nations in the promotion of the rule of law among
nations. The concept is also used by Koskenniemi, Politics, and by Georgiev,
supra footnote 3, passim ; and by Watts, supra footnote 8, passim.
40 K. Zemanek
legal system, all aforementioned features are linked to the institu-

tions of the modern State and require them for their implementation.
A decentralized system like the international cannot achieve that
because all governmental functions remain functions of individual
States and all checks associated with the Rule of Law are lacking.
It seems better not to use a term so decisively shaped by domestic
developments in an environment in which nearly all its conditions
are absent 42.
31. The decentralized structure of the international system
explains also the prevailing choice of first values guiding it. Despite
proclamations in the Charter of the United Nations to the contrary,
international solidarity, especially when it requires contributing
forces to collective measures or funds for development, is not a para-
mount value. In reality, all States are conscious of and accept that
the pursuit of individual interests is the foremost and legitimate
objective of States. Only when, in a momentary constellation, indi-
vidual interests coincide with objectives dictated by international
solidarity is the latter ostensibly honoured. Since the system cannot
ensure the effective application of the law through mandatory judi-
cial settlement and collective enforcement, it must necessarily put
security above justice as its first goal, and rather tolerate and
more often than not legitimize illegal acts and the situations
created by them if the establishment of justice would require the use
of force which it cannot muster.
V. The International System and the Global Village
32. The preceding scenario is, however, changing under the influ-
ence of a new force which is rarely taken into account by scholars of
international law who apparently underestimate its potential for revo-
lutionizing the international system 43. This force is created by the
rapidly developing communication and information media and the
widespread dissemination of information by them. The internet,
42. The conclusions of Sir Arthur Wattss paper, supra footnote 8, support my
proposition rather than the expectation raised in the papers title.
43. A rare exception is K. Vankata Raman, Towards a New World Informa-
tion and Communication Order : Problems of Access and Cultural Develop-
ment, in R. St. J. Macdonald and D. M. Johnston (eds.), supra footnote 10, at
1027-1068, 1027-1035. Cf. also L. B. Sohn, Making International Law More
User-Friendly, in UN, Proceedings of the United Nations Congress on Public
International Law (New York, 1995), The Hague, 1996, 411-417.
which cannot be controlled by individual States, provides a new

quantum leap in this respect. What has become known as the
Global Village influences the international system in many ways.
33. One such way is opened by the widely available information
about international affairs and, in particular, about grave violations
of international law which lead to severe political crises. That this
information is selective and depends mainly on the presence of mass
media representatives on the spot does not diminish its impact, even
when it has been stated jokingly, but not without reason, that an
international crisis is only perceived as one if it is covered by CNN.
One needs only remember the unnoticed or forgotten dramas in
Angola, Cambodia, Liberia, Rwanda, or Somalia to prove the point.
34. Nonetheless, incomplete as such coverage may be, it has
caused significant change. International law is not longer an esoteric
playground for diplomats and scholars 44. Its effectiveness is judged
by a wide public audience which as it now turns out, unfortu-
nately has never been informed of its true nature. Unconsciously
the public grants international law with an effectiveness equal to that
expected of its own domestic legal system and entertains totally
unwarranted expectations about what the international system in its
present state can do. Regrettably this illusion is sustained by equally
uninformed media, tending moreover to oversimplification and hasty
judgments without reliable data. Disappointment is unavoidable and
carries the risk that the consequential frustration of the public may
lead to a cynical repudiation of international law as such. It would
however be unfair to lay the blame for this deplorable state solely at
the doorsteps of the media. Public speakers of all countries, includ-
ing representatives on the Security Council of the United Nations,
feed them the opportunities for this misrepresentation by assuring
the public of being fully in control of every crisis, although they
must know this not to be the case.
35. Not only do the media shape the public outlook on the effec-
tiveness of international law, they actually influence national or
international decisions in a crisis by the tone which they choose for
their reporting. They may thus emphasize or de-emphasize a partic-
44. Cf. F. A. v. d. Heydte, ffentliche Meinung und Vlkerrecht, Interna-

tionales Recht und Diplomatie, 1956, 207-216 ; and J. A. Frowein, Demokratie
und Vlkerrecht in Europa, in K. Ginther et al. (eds.), Vlkerrecht zwischen
normativem Anspruch und politischer Realitt, Festschrift fr K. Zemanek, Ber-
lin, 1994, 365-375.
42 K. Zemanek
ular event. In democratic States public pressure on the government

may be generated through gruesome television images or lurid radio
and newspaper stories. As a result, government decisions on grave
international matters are often not determined by the so-called rea-
son of State or by reference to international law but by computing
the public support they will find. The vacillation of the States which
contributed contingents to UNPROFOR and the changing attitude of
the United States towards their engagement in Somalia, depending
on whether dying children or wounded Blue Helmets were shown
on television, come to mind as recent examples.
36. Yet a third instance of media influence affects international
negotiations when they are, as most are, conducted in public. When
negotiators are questioned about the outcome of negotiations before
they even start, they are put at a disadvantage. If they state their
bottom-line publicly, it will immediately become the highest bid of
their opponents, and the chance of achieving a better result may be
squandered. Yet if they announce a higher goal, fully realizing that it
will very likely not be achieved, the lower result then obtained may
expose them to domestic criticism of having botched the negotia-
tions. One would suppose that negotiators would refuse to be inter-
viewed about their negotiating goals but that seems to be incompat-
ible with their image in democratic societies. Yet it is obvious that
media statements could also be used as decoys in negotiations but
that instrument is not yet well played by many politicians and diplo-
mats. One understands, on the other hand, why such enormous care
is taken to keep really sensitive negotiations secret, as was done with
the Israeli-Palestinian negotiations in 1993 in Norway.
37. Finally, the modern media enable NGOs to make an impact
on the international system in specific areas, like Amnesty Interna-
tional does in the field of human rights, or Greenpeace in that of
environmental protection. NGOs exist and have tried to lobby for
their causes for a long time. But now their reports or actions reach a
larger audience which amplifies their influence by stimulating inter-
national or domestic pressure on governments. That in turn may trig-
ger one of the effects just described. However, it also gives NGOs
sometimes an undue influence, since the facts which they report,
whether they concern human rights violations or threats to the envi-
ronment, cannot be verified. And they are not always accurate
remember the Shell oil rig affair.
43
CHAPTER II
THE LEGAL ORGANIZATION OF

THE INTERNATIONAL SYSTEM
I. Actors
A. States
38. As international law stands today, States are still the pillars of
the international system although many forces erode their once
unique power. They are the only direct subjects of international law
and claim the original power to determine their internal (domestic)
order and to transact with entities of the same kind on a basis of
equality. Their sovereignty is, however, confined by international
law 45. Until the Age of Enlightenment sovereignty was considered
to rest with princes ; modern philosophies vest it in a people consti-
tuted as nation.
39. In their sovereignty States are equal 46. This sovereign equal-
ity is one of the fundamental principles of the international system,
enshrined in Article 2, paragraph 1, of the Charter and elaborated in
the Friendly Relations Declaration 47. It is also one of the most
ancient principles of international law, already enunciated in
Bartoluss Tractatus Repressaliarum48 in 1354. It is the source of a
number of further principles prohibiting interference with the sov-
ereign existence of equals, like non-intervention or self-determina-
tion. It has also generated some implementing rules, for instance
those concerning State immunity.
40. Although States are juridically equal, they are factually
unequal 49 in respect of their political, economic 50, and military
45. See L. Wildhaber, Sovereignty and International Law, in R. St. J. Mac-

donald and D. M. Johnston (eds.), supra footnote 10, at 425-452.
46. See W. Schaumann, Die Gleichheit der Staaten, Vienna, 1967 ; and P. H.
Kooijmans, The Doctrine of Legal Equality of States, Leyden, 1964.
47. Infra, paras. 49-55.
48. Quaestio I/3, 10 : Par in parem non habet imperium.
49. See V. Pechota, Equality : Political Justice in an Unequal World, in
R. St. J. Macdonald and D. M. Johnston (eds.), supra footnote 10, at 453-484.
50. Cf. G. de Lacharrire, Linfluence de lingalit de dveloppement des
Etats sur le droit international, 139 Recueil des cours (1973-II), 227-268.
44 K. Zemanek
power and have thus an unequal influence on the international

system 51. And while the international system is traditionally
described as self-regulatory, great powers have in each period of his-
tory had a dominating influence on it. This has not changed with the
United Nations. The fact that five States have permanent seats and
special voting rights in the Security Council of the United Nations is
only inadequately explained, when measured by the standard of
sovereign equality, by their supposed special obligations for the
maintenance of peace 52 which they have, moreover, so far largely
failed to honour.
41. Because of the basically decentralized organization of the
international system States are at one and the same time the primary
(decentralized) organs of international law and its subjects.
B. International organizations
42. International (inter-governmental) organizations are estab-

lished by treaty among States for a certain purpose. They are deriva-
tive subjects of international law, more correctly : international
legal persons. Even organizations whose purpose is formulated in
very general terms, like the United Nations and a few regional
organizations, may only act within the limits of their constituent
instrument and do not possess the plenitude of powers vested in
States.
43. No organization includes all States of the world, although the
United Nations comes close to it. Within the international system a
relatively large number of international organizations of various
types co-exist 53. According to the intended membership and to the
area of operation, one may distinguish between global (UN),
regional (OAU) and sub-regional (ASEAN) organizations. They may
also be classified by the scope of their purpose either in organiza-
tions having a mandate for a multitude of subject matters (UN, OAS)
or in functional (sectional) organizations which deal with a special
area of policy (FAO, WHO).
51. See R. Padirac, Lgalit des tats et lorganisation internationale, Paris,

1953.
52. Reference is usually made to Article 106 of the Charter.
53. See M. Virally, Dfinition et classification des organisations internatio-
nales : approche juridique, in G. Abi-Saab (ed.), Le concept dorganisation
internationale, Unesco, 1980, 51-67.
44. More than 350 existing international organizations would

require an efficient system of co-ordination if duplication of their
activities and waste of resources were to be avoided 54. In fact, how-
ever, a formal structure exists only for co-ordinating activities within
the United Nations system, including the specialized agencies and
the IAEA 55. The vertical co-operation between global and regional
organizations 56 and the horizontal co-operation between correspond-
ing regional organizations is rather occasional and mostly informal.
C. Transnational actors
45. Although States and international organizations seem to domi-

nate the international system, they are by no means its only actors 57.
Within the framework of public international law world trade and
global financial affairs are largely managed by economic entities 58
like transnational corporations 59 or international banks whose activ-
ities and inter se transactions are difficult if not impossible to control
by a single State 60. Neither can their compliance with the rules of
the framework thus be ensured. In contrast, they influence the eco-
nomic policies of States, in particular of those with developing econ-
omies, and the policies of the international economic and financial
institutions through their dealings 61.
54. See C. W. Jenks, Co-ordination : A New Problem of International

Organization, 77 Recueil des cours (1950-II), 157-301 ; id., Co-ordination in
International Organization : An Introductory Survey, 28 BYIL (1951), 28-89.
55. Cf. D. M. McRae, Co-operation Agreements and the Law Relating to
Agreements Concluded by International Organizations, in K. Zemanek (ed.),
Agreements of International Organizations and the Vienna Convention on the
Law of Treaties, Vienna, 1971, 1-55 ; and M. Virally, Lorganisation mondiale,
Paris, 1972, 294-299.
56. See C. Schreuer, Regionalism v. Universalism, 6 EJIL (1995), 477-499.
57. R. W. Mansbach, Y. H. Ferguson and D. E. Lampert, The Web of World
Politics, Non-State Actors in the Global System, Englewood Cliffs, N.J., 1976.
58. See J. J. Lador-Lederer, International Non-Governmental Organizations
and Economic Entities, Leyden, 1963, esp. 256-262.
59. See H. G. Angelo, Multinational Corporate Enterprises, 125 Recueil
des cours (1968-III), 447-600 ; and I. Seidl-Hohenveldern, International Eco-
nomic Law, 198 Recueil des cours (1986-II), 21-264, 35-42. I prefer the term
trans-national to multi-national because, very often, the entitys governing
centre has its seat in one country and only crosses national borders by its activ-
ities.
60. See Don Wallace, International Regulation of Multinational Corpora-
tions, New York, 1976 ; and Cynthia D. Wallace, Legal Control of the Multina-
tional Enterprise, The Hague, 1982.
61. See R. J. Bernett and R. E. Mller, Global Reach : The Power of the Mul-
tinational Corporations, New York, 1974.
46 K. Zemanek
46. Non-profit international non-governmental organizations

(NGOs) 62 often act as international pressure groups and have to a
considerable extent influenced the development of international law
in such important areas as the implementation of international
human rights or the framing of development and environmental
policies. In some areas they collaborate with States, sometimes in
the form of international organizations.
This largely unchannelled influence may be abused, as has been
argued above 63, since the information which the pressure groups
provide, and on the strength of which they urge Governments or
international institutions to act, can often not be verified because
official institutions rarely have access to the same sources. Thus
even if the participation of such entities in the international system
does not go beyond the informal exercise of influence on other
actors, their relevant conduct should be governed by rules of interna-
tional law in order to establish a legal frame for the interaction, pre-
vent abuses and confer legitimacy.
47. But there is more. Occasionally transnational companies and
NGOs transact with States on the basis of equality, but only the
relevant activities of the International Committee of the Red Cross 64
have so far been recognized in instruments of public international
law. Usually such relations, and also the interaction of the entities,
are considered in the context of private or commercial international
law or of international administrative law ; only rarely are they
treated as quasi-international agreements 65.
48. Philip Jessup has proposed to eliminate the resulting uncer-
tainty by the blending of public and private international law into
one body which would regulate actions or events that transcend
national frontiers, for which he introduced the term transnational
law :
Obviously there is a delicate shading between the situations
to which international law traditionally applies and those to
which it does not . . . The use of transnational law would supply
a larger storehouse of rules on which to draw, and it would
62. See L. C. White, International Non-Governmental Organizations, New

Brunswick, 1951 ; and Lador-Lederer, supra footnote 58.
63. Supra, paras. 32 et seq.
64. In the Geneva Conventions of 1949.
65. See A. Verdross, Quasi-International Agreements and International Eco-
nomic Transactions, 18 YB World Affairs (1964), 230-247.
be unnecessary to worry whether public or private law applies

in certain cases. 66
A few writers have pursued similar ideas 67 and international organi-
zations have taken some pragmatic steps in this direction 68. But the
practice of States is not responsive and most writers, while admitting
the relevance of these actors and their influence on the international
system, fail to integrate them in their consideration of international
law.
II. Fundamental Principles
A. The Friendly Relations Declaration
49. Nearly all principles which underlie the international system

are expressed in Articles 1, 2 and 55 of the United Nations Charter.
Since 185 States are members of the United Nations, one may pre-
sume that these principles have universal validity, notwithstanding
the few States that remain outside the Organization. The principles
of non-use of force and of non-intervention, at stake in the Nicara-
gua case 69, were held by the ICJ to be part of general customary law.
The Courts reasoning can be applied mutatis mutandis to most other
principles in question.
50. Article 103 of the Charter which establishes for member
States the priority of Charter obligations over obligations under any
other international agreement 70, implies that such agreements have
to be interpreted in the light of the principles enshrined in the Char-
66. P. C. Jessup, Transnational Law, New Haven, 1956, 2, 51, 61 ; see also
id., The Present State of Transnational Law, in M. Bos (ed.), The Present
State of International Law, International Law Association 1873-1973, Deventer,
1973, 339-344.
67. E.g. K. Zemanek, ber das dualistische Denken in der Vlkerrechts-
wissenschaft, in F. A. v. d. Heydte et al. (eds.), Vlkerrecht und Rechtliches
Weltbild, Festschrift fr A. Verdross, Vienna, 1960, 321-337 ; P. Weil, Pro-
blmes relatifs aux contrats passs entre un Etat et un particulier, 128 Recueil
des cours (1969-III), 101-234, 148, 95 ; W. Friedmann, supra footnote 14, at
107-109, 121-124 ; and I. Seidl-Hohenveldern, supra footnote 59, at 35-42, 71-
75.
68. E.g. by granting consultative status to NGOs. Examples in respect of
transnational corporations are the OECD Guidelines, the work of the ECOSOC
Commission on Transnational Corporations and of UNCITRAL ; see details in
Seidl-Hohenveldern, ibid., 38, 41, 68-70, 121.
69. ICJ Reports 1986, 14-150 ; para. 292, points (3) and (4) of the Judgment.
70. Infra, paras. 465-470.
48 K. Zemanek
ter. It has been suggested that the same applies to obligations arising
from customary international law. Many States and scholars go so
far as to claim the principles as the very epitome of jus cogens 71.
51. However, the Charter does not enunciate all principles under-
lying the functioning of the international system. But since the other
relevant General Principles transcend the whole international legal
order, they need not be considered here, because their role in the
functioning of the system does not differ from their general role.
From among this group only the principle of good faith found
expression in the Friendly Relations Declaration, yet none of its
more precise consequences, like the protection of trust or estoppel,
are specified in that instrument.
52. The formulation of the principles in the Charter is unavoid-
ably vague and leaves great latitude to interpretation. On the initiative
of the (then) Soviet Union, which saw them as the essence of
peaceful co-existence, a protracted process of negotiations in a
Special Committee of the General Assembly was undertaken and
led to an agreed consolidation which enabled the General Assembly
in 1970 to adopt the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations 72 by consensus.
A comparable catalogue of principles was, incidentally, included in
the Final Act of the Conference on Security and Co-operation in
Europe of 1975 (Helsinki Final Act) under the heading Declara-
tion on Principles guiding Relations between Participating States 73.
53. The legal force of General Assembly resolutions or declara-
tions in general will be dealt with later in other contexts 74. For the
declaration under consideration it may suffice to refer to the signifi-
cance of the chosen term Declaration which indicates that no con-
71. Infra, paras. 325-327.

72. General Assembly resolution 2625 (XXV). Cf. generally H. Neuhold,
Internationale Konflikte Verbotene und erlaubte Mittel ihrer Austragung,
Vienna, 1977, 48-54.
That consolidation was not the only reason is obvious. Newly independent
developing countries saw it as an opportunity to eliminate the remnants of
inequity in the relations between States ; see P.-H. Houben, Principles of Inter-
national Law concerning Friendly Relations and Co-operation among States,
61 AJIL (1967), 703-736, 703-704.
73. Cf. H. Neuhold, Die Prinzipien des KSZE-Dekalogs und der Friendly-
Relations-Deklaration der UNO-Generalversammlung, in B. Simma and E.
Blenk-Knocke (eds.), Zwischen Intervention und Zusammenarbeit, Berlin, 1979,
441-502.
74. See Chap. IV, para. 179, and Chap. VI, paras. 259-260.
stitutive act of law-making was intended : one can only declare

something that already exists 75, which in this case was the consensus
of the community of States as to the legal content of the relevant
principles 76 ; in other words : the opinio juris77 of the member States.
54. This view is supported by international practice, of which two
examples shall be mentioned. One is Protocol I to the Geneva Con-
ventions of 1949, adopted in 1977 78, which refers in Article 1, para-
graph 4, to the
. . . right of self-determination, as enshrined in the Charter of
the United Nations and the Declaration on Principles of Inter-
national Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United
Nations.
The second is the Nicaragua case in which the ICJ held :
This opinio juris may, though with all due caution, be
deduced from, inter alia, the attitude of the Parties and the atti-
tude of States towards certain General Assembly resolutions,
and particularly resolution 2625 (XXV) entitled Declaration
on Principles of International Law concerning Friendly Rela-
tions and Co-operation among States in accordance with the
Charter of the United Nations. The effect of consent to the text
of such resolutions cannot be understood as merely that of
reiteration and elucidation of the treaty commitments under-
taken in the Charter. On the contrary, it may be understood as
an acceptance of the validity of the rule or set of rules declared
by the resolution by themselves. 79
75. Cf. e.g. the use of the term with regard to human rights.
76. M. Sahovic, Codification of the Legal Principles of Coexistence and the
Development of Contemporary International Law, in M. Sahovic (ed.), Prin-
ciples of International Law concerning Friendly Relations and Cooperation, Bel-
grade, 1972, 9-50, thinks that . . . the unanimous adoption of the Declaration
places it in the category of official interpretative acts, whose binding force
derives from consensus of all members of the United Nations (emphasis
added). One may doubt whether each and every sentence of the Declaration is
really the result of an interpretation of the Charter. It seems preferable to con-
sider the Declaration as expression of opinio juris because opinio juris needs no
foundation in a text as interpretation does.
77. Contrary opinion G. Arangio-Ruiz, The Normative Role of the General
Assembly and the Declaration of Principles of Friendly Relations, 137 Recueil
des cours (1972-III), 419-731, 471-486.
78. Text reprinted in 72 AJIL (1978), 457-502, 458.
79. Supra footnote 69, para. 188.
50 K. Zemanek
55. The foregoing permits the conclusion that the fundamental

principles of the Charter are part of the general corpus of customary
international law in the understanding given to them in the Friendly
Relations Declaration, if the practice of States confirms the opinio
juris expressed 80. That is, with insignificant minor exceptions,
mainly in respect of detail, the case in respect of principles taken
over from Article 2 of the Charter, while State practice concerning
the principle of equal rights and self-determination of peoples or the
duty of States to co-operate with one another is perhaps less conclu-
sive.
Some of these principles will be examined in greater detail
below ; others have been or will be dealt with in a different con-
text 81.
B. Non-use of force
56. Article 2, paragraph 4, of the Charter prohibits the use of

force in international relations against two specified objects, the
territorial integrity and the political independence of States,
to which or in any other manner inconsistent with the purposes of
the United Nations is enigmatically added.
57. The Friendly Relations Declaration solved some of the
enigma but many points remain contentious. Sometimes the con-
tinued vagueness is intentional. The powers of the Security Council
under Article 39 of the Charter, to determine ultimately whether the
use of force in a particular situation is or was lawful or unlawful, are
on the whole discretionary and the Security Council or, more spe-
cifically, its permanent members are manifestly not interested in
having this discretion restricted through abstract clarifications or
definitions. Thus, when the General Assembly undertook to define
80. B. Graf zu Dohna, Die Grundprinzipien des Vlkerrechts ber die

freundschaftlichen Beziehungen und die Zusammenarbeit zwischen den Staaten,
Berlin, 1973, 249-257 argues, in principle, along the same lines. However, his
dictum on 257 : . . . da die Deklaration Bindungswirkung nur insoweit entfal-
tet, als sie geltendes Vlkerrecht wiedergibt (emphasis added), misjudges the
potential of the principles, as opinio juris, to generate new customary law if con-
firmed by appropriate State practice. Dohna lists the paragraphs of principles
which, in his opinion, reflect existing law on pages 103, 134, 158, 178, 192, 222
and 240. The list proves that a development has taken place since his book was
published.
81. Sovereign Equality supra, paras. 39-40 ; Self-Determination of
Peoples, Chap. V, paras. 206-207.
aggression 82, it was persuaded to include a saving clause for the

discretionary powers of the Security Council in the text 83.
58. Annexation is a further illustrative point. The Friendly Rela-
tions Declaration is explicit in this respect, stating that (n)o territo-
rial acquisition resulting from the threat or use of force shall be
recognized as legal. While this prohibition is apparently addressed
to the world at large, to States as well as to the organs of the United
Nations, a saving clause was again added for the benefit of the
Security Council 84.
59. The latters practice in the matter cannot yet be conclusively
assessed because the instances are few and diverse. In the case of
Iraqs aggression against Kuwait and the formers subsequent declara-
tion of comprehensive and eternal merger with the latter, the
Security Council not only condemned the invasion 85, but decided in
resolution 662 (1990) that annexation of Kuwait by Iraq under any
form and whatever pretext has no legal validity, and is considered
null and void and further demanded that Iraq rescind its actions
purporting to annex Kuwait.
60. The case of the former Yugoslavia is less clear because in it
international armed conflicts and civil wars were combined. As the
Appeals Chamber of the International Tribunal for the Former Yugo-
slavia held in The Prosecutor v. Dusko Tadic a/k/a/ Dule :
. . . when the Statute was drafted, the conflicts in the former
Yugoslavia could have been characterized as both internal and
international, or alternatively, as an internal conflict alongside
an international one, or as an international conflict that had
subsequently been replaced by one or more internal conflicts,
or some combination thereof 86.
Evaluations expressed in several Security Council resolutions seem
82. For the problems facing such a definition see J. Stone, Aggression and
World Order, London, 1958, 15-25 ; and S. Schwebel, Aggression, Intervention
and Self-Defense in Modern International Law, 136 Recueil des cours (1972-
II), 419-488, 420-472.
83. Annex to General Assembly resolution 3314 (XXIX), Article 4 : The
acts enumerated above are not exhaustive and the Security Council may deter-
mine that other acts constitute aggression under the provisions of the Charter.
84. Nothing in the foregoing shall be construed as affecting . . . (b) The
powers of the Security Council under the Charter ; Friendly Relations Declara-
tion, supra footnote 72.
85. Resolution 660 (1990), op. para. 1.
86. Case No. IT-94-1-AR72 (2 October 1995), para. 72 ; Publication of the
Tribunal.
52 K. Zemanek
to imply that from the very beginning a strong case for determining
the existence of aggression by Serbia-Montenegro against Croatia and
Bosnia-Herzegovina (until the formal withdrawal of the Yugoslav
National Army on 19 May 1992) and by Croatia against Bosnia-Her-
zegovina existed. Moreover, the intention of some involved parties
to annex part of the territory of other parties was obvious. Yet the
Security Council only called (repeatedly) for respect of the territor-
ial integrity of the republics 87, insisted that territorial gains or change
brought about by violence were unacceptable 88 and demanded
that any taking of territory by force cease immediately 89.
61. It is interesting to note that the Security Council resolutions
did not distinguish between situations created by an international
armed conflict and those issuing from civil war, thus confirming the
opinion that civil wars may threaten international peace and security
and thereby come under Article 39 of the Charter. This attitude also
explains why the Security Councils approach to the problem did not
change with the admission of Bosnia-Herzegovina and Croatia to
membership in the United Nations on 22 May 1992.
On the other hand, the Security Council never determined whether
cases of aggression or of (at least attempted) annexation existed nor
did it enforce its aforementioned resolutions. And the Dayton Agree-
ments of November 1995 do not confirm that territorial gains
brought about by violence are unacceptable since the map of the
Bosnia and Herzegovina is shaped by them.
62. The fact that the reaction of the international system to the
unlawful use of force depends on a determination by the Security
Council which, as a political organ 90, is only inter alia concerned
with maintaining international law, has increased the importance of
Article 51 of the Charter which reserves the inherent right of indi-
vidual and collective self-defence 91 if an armed attack on a member
87. Resolution 787 (1992) in respect of Bosnia-Herzegovina ; resolution 815

(1993) in respect of Croatia.
88. E.g. resolution 819 (1993), op. para. 5 : Reaffirms that any taking or
acquisition of territory by the threat or use of force, including the practice of
ethnic cleansing, is unlawful and unacceptable.
89. Resolution 824 (1993), op. para. 2.
90. See Chap. XIV, paras. 617 et seq. On the long-term practice of the Secur-
ity Council cf. R. Higgins, The Development of International Law through the
Political Organs of the UN, London, 1963, 167-222.
91. Cf. D. W. Bowett, Self-Defence in International Law, New York, 1958 ;
J. Delivanis, La lgitime dfense en droit international moderne, Paris, 1971 ;
and S. Schwebel, supra footnote 82, at 478-488.
of the United Nations occurs, until the Security Council takes the
necessary decisions.
63. Since this provision, which is an exception to the monopoly
of the Security Council, allows States to exercise, at least temporar-
ily, their own judgment, it has been invoked on many occasions in
justification of the use of force 92, beyond the paradigmatic case of
an armed attack on the territory or instrumentality of that State 93.
Although the circumstances of each case vary considerably and these
differences have influenced the choice of legal arguments to justify
it, some main lines of argument have emerged. All arguments intend
to expand a States right to use force maintaining that the instant
and overwhelming necessity to act 94 was the decisive criterion 95.
This is a favourite argument of more powerful States less power-
ful ones lack the means and therefore the incentive to circumvent
the prohibition of using force in reprisals 96 or of undertaking puni-
tive action. Various arguments will be reviewed in the context of
the individual enforcement of the law 97, but for the present purpose
they may be summarized as follows 98.
64. The boldest argument disputes the validity of the concept,
arguing that the survival of States was not a matter of law, and
power not subordinated to law 99. Other pleas defend military actions
for maintaining a particular socio-political system 100, or to recover
lost territories that were allegedly taken by illegal force 101. Again
92. For a systematic analysis of instances see C. Alibert, Du droit de se faire

justice dans la socit internationale depuis 1945, Paris, 1983 ; and L.-A. Sici-
lianos, Les ractions dcentralises lillicite Des contre-mesures la
lgitime dfense, Paris, 1990, 366-426, 456-494.
93. See O. Schachter, Self-Defense and the Rule of Law, 83 AJIL (1989),
259-277, 271-272.
94. Letter from Secretary of State Webster to the British Plenipotentiary,
dated 6 August 1842, following the Caroline incident ; in J. B. Moore, A Digest
of International Law, Washington, 1906, Vol. II, 412.
95. See the critical evaluation by J. Salmon, Faut-il codifier ltat de
ncessit en droit international, in J. Makarczyk (ed.), Essays in International
Law in Honour of Judge M. Lachs, The Hague, 1984, 235-270.
96. Specifically prohibited in the Friendly Relations Declaration, supra foot-
note 72. Cf. on self-defence as a device to replace reprisals D. W. Bowett,
Reprisals Involving Recourse to Armed Force, 66 AJIL (1972), 1-36.
97. See Chap. XV, paras. 683-685 and 705-706.
98. For a more detailed analysis see Schachter, supra footnote 93.
99. Former Secretary of State Dean Acheson before the American Society of
International Law in 1963, quoted in Schachter, ibid., 260 and note 8.
100. Viz. the Breshnev Doctrine ; see Schwebel, supra footnote 82, at 487.
101. Viz. Indias seizure of Goa ; or Argentinas attempt to occupy the Malvi-
nas-Falkland Islands.
54 K. Zemanek
others stress the limited purpose of some military action which

would not affect the territorial integrity or political indepen-
dence of the target State. On some occasions the United States
relied also on well-established principles of international law
regarding the protection of ones nationals 102 or, in another case, on
the necessity to protect American lives in imminent danger 103. The
United States further invoked the alleged sponsoring of terrorist acts
by the target State of a military action as violation of Article 2, para-
graph 4, of the Charter, which entitled it to self-defence 104.
Looking back at the time before the United Nations, it is apparent
that the principle has caused some changes in State practice since
States do no longer invade other States for most objectives that were
considered in prior periods as legitimate and appropriate 105. But the
aforementioned arguments and the situations in which they were
developed show that as long as the decentralized organization of the
international system continues, one must regrettably admit that the
use of force by individual States, in particular the more powerful
ones, for national purposes cannot be brought fully under the control
of the law.
65. A related point to be examined is the term force. It is undis-
puted that the notion refers in any case to armed force, but many
non-aligned States and some scholars have argued that it covers also
economic force 106.
66. As far as this discourse is about the meaning of the law, it
seems to have its origin in the overlapping of the principles of non-
use of force and of non-intervention, caused by their undefined ele-
ments and, in particular, by the enigmatic final part of Article 2,
102. Deputy Secretary of State Dam in respect of the 1983 US invasion of

Grenada ; 78 AJIL (1984), 203. Protection of nationals abroad is examined by
N. Ronzitti, Rescuing Nationals Abroad through Military Coercion and Inter-
vention on Grounds of Humanity, Dordrecht, 1985.
103. Letter from President Bush to House Speaker Foley, concerning the
invasion of Panama, dated 21 December 1989, cited by R. Wedgwood, The Use
of Armed Force in International Affairs : Self-Defense and the Panama Inva-
sion, 29 Columbia J. of Transnational Law (1991), 609-628, note 1.
104. Letter from the Acting United States Permanent Representative to the
President of the Security Council, dated 14 April 1986, and reporting US air
strikes against Libya, 80 AJIL (1986), 633.
105. Schachter, supra footnote 93, at 268-269.
106. Cf. e.g. the Declaration on the Prohibition of Military, Political or
Economic Coercion in the Conclusion of Treaties adopted by the Vienna Con-
ference on the Law of Treaties on 22 May 1969 ; Annex to the Final Act, doc.
A/CONF.39/26. For the relevant discussion in the Friendly Relations Committee
see Dohna, supra footnote 80, at 54-58.
paragraph 4, of the Charter. The language of media reporting and

even that of United Nations organs or scholars 107 testifies to the con-
fusion regarding their mutual relationship. That relationship would
become clearer if one were to differentiate between the objects
which they protect the sovereign existence of the State on the one
hand and the sovereign functioning of the State machinery on the
other instead of distinguishing them by the manner of interfer-
ence. However, as matters stand intervention, carried out by mili-
tary force, violates both principles.
But the reverse is not true. The structure of the Charter and the
context established by its Preamble 108, Article 1, paragraph 1, and
Chapter VII suggest that the term force is used in Article 2, para-
graph 4, in the sense of violence and therefore armed force.
Economic coercion 109 may qualify as intervention and will be
treated as such below.
C. Non-intervention
67. Article 2, paragraph 7, of the Charter formulates the principle

of non-intervention only as limitation of the powers of the United
Nations vis--vis its member States.
The question of which matters are essentially within the domestic
jurisdiction of any State was the subject of a thorough scholarly
discourse during the first decades of the United Nations. It is not
necessary to reopen that debate because the practice of United
Nations organs 110, particularly in the field of human rights, has con-
firmed the thesis defended by Alfred Verdross 111, according to which
the absence of rules of international law does not prevent the organs
107. See e.g. the title of Ronzittis book, supra footnote 102.
108. . . . to ensure, by the acceptance of principles and the institution of
methods, that armed force shall not be used, save in the common interest . . ..
109. See D. W. Bowett, International Law and Economic Coercion, 16
Virg. JIL (1975-1976), 245-259, 246.
110. On this practice see Higgins, supra footnote 90, at 76-130 ; H.-F. Kck,
Ist Art.2 Ziff.7 der Satzung der Vereinten Nationen tot ?, 22 ZR (1971),
327-361 ; A. A. Canado Trindade, The Domestic Jurisdiction of States in the
Practice of the United Nations and Regional Organisations, 25 ICLQ (1976),
715-765 ; and G. Arangio-Ruiz, Le domaine rserv, 225 Recueil des cours
(1990-VI), 29-479, 320-378.
111. See A. Verdross, Domestic Jurisdiction under International Law, Uni-
versity of Toledo Law Review, 1971, (issue in memoriam J. L. Kunz), 119-126 ;
and cf. H. Lauterpacht, The International Protection of Human Rights, 70
Recueil des cours (1947-I), 5-105, 23-33.
56 K. Zemanek
of the United Nations acting in the matter. Matters which are, for the
time being, regulated by domestic law may become the object of
international rules, and their implementation the object of interna-
tional control, as long as the essence of States, their sovereign
existence and the autonomous functioning of their instrumentality 112,
is not impaired 113. This dynamic interpretation permits the considera-
tion of questions of international concern by the United Nations
even in the absence of existing international regulation and contri-
butes thus to the development of future rules of international law.
68. The Charter does not expressly mention non-intervention in
inter-State relations, but the Friendly Relations Declaration main-
tains none the less that the duty exists in accordance with the Char-
ter. And indeed, the principle is rooted in the sovereign equality of
States on which, according to Article 2, paragraph 1, the Organiza-
tion is based.
69. Because of its link with sovereign equality the prohibition of
intervention has a long history in inter-State relations and a different
function than that which it has in the relation between States and
international organizations. In the second case it protects the sov-
ereign existence of States against law-making or controlling activities
by institutions. In inter-State relations its purpose is the protection of
one State against another States coercion whose aim is, in the words
of the Friendly Relations Declaration, to obtain . . . the subordina-
tion of the exercise of [the formers] sovereign rights and to secure
from it advantages of any kind 114. The last part of the phrase is
ambiguous and could, if taken literally, make diplomatic relations
impossible 115. Construed correctly, the principle prohibits coercion
112. I do not think that one can reduce this essence, as Arangio-Ruiz
(supra footnote 110, at 138) does, to the
relations interindividuelles entre personnes physiques ou morales (pri-
ves ou publiques) de droit national qui constituent le tissu ou la matire
liante de cette entit collective factuelle quest la personne internationale de
lEtat.
113. Cf. the Decision of the German Bundesverfassungsgericht of 12 Octo-
ber 1993, on the compatibility of the Treaty of Maastricht with the German
Grundgesetz, reviewed by G. Ress in 88 AJIL (1994), 539-549.
114. Loc. cit., supra footnote 72.
115. Cf. the reformulation of the Principle of Non-intervention in the Final
Act of the Conference on Security and Co-operation in Europe, adopted at Hel-
sinki on 1 August 1975 : . . . coercion designed to subordinate to their own
interest the exercise by another participating state of the rights inherent in its
sovereignty and thus to secure advantages of any kind (emphasis added).
aimed at obtaining a decision or concession which may not be

claimed under international law but which the target State is entitled
to grant or refuse by virtue of its sovereign independence. In contrast
to the relation between States and international organizations the
dividing line in these relations is established by international law
(custom or treaty), which excludes for example lawful counter-
measures (reprisals) 116 from its application.
70. The identification of acts which may qualify as intervention
leads to different results, depending on whether the author is an
international organization or a State.
As far as the relations between the United Nations and its mem-
bers are concerned, Hersch Lauterpacht has argued that Article 2,
paragraph 7, prohibits only dictatorial interference 117, i.e. interfer-
ence combined with the threat or use of coercion in case of non-
compliance. This interpretation is difficult to reconcile with the
wording of Article 2, paragraph 7, which exempts the only coercive
powers vested in the United Nations, measures under Chapter VII,
from the application of the principle. The inclusion of the principle
in the Charter would thus have been pointless. Logic suggests that
the prohibition is intended to cover all acts of the Organization,
including recommendations, when they concern matters that are
essentially within the domestic jurisdiction of States, excepting only
measures of the Security Council under Chapter VII of the Charter.
71. In respect of intervention in inter-State relations the task of
distinguishing lawful pressure from unlawful coercion in a general
and adequate manner has hitherto proved unsolvable.
In 1965 the General Assembly adopted a Declaration on the
Inadmissibility of Intervention in the Domestic Affairs of States and
the Protection of Their Independence and Sovereignty 118 whose
formulations were repeated and supplemented in the Friendly Rela-
tions Declaration 119. Both are vague and furthermore silent on core
issues. The Declaration on the Inadmissibility of Intervention and
Interference in Internal Affairs of States 120 which the General
116. See infra, Chap. XV.

117. Loc. cit., supra footnote 111, at 23. Cf. D. R. Gilmour, The Meaning of
Intervene within Article 2 (7) of the UN Charter An Historical Perspec-
tive, 16 ICLQ (1967), 330-351.
118. Resolution 2131 (XX).
119. Loc. cit., supra footnote 72.
120. Annex to resolution 36/103.
58 K. Zemanek
Assembly adopted in 1981 with 120 votes against 22 (mostly West-

ern States) and 6 abstentions makes too excessive demands to be
capable of building up a general opinio juris.
None of them has contributed to the clarification of the truly con-
tentious points. One may, moreover, doubt that this can be achieved
by listing cases of forbidden acts, because this may be an invitation
to human ingenuity to invent new, not yet mentioned methods.
72. Intervention may actually occur in many forms 121 and,
because of this complex nature, it is one of the darkest chapters of
international law. Some special forms will be treated elsewhere 122.
However, the key issue is the distinction between normal interaction,
with its diplomatic ploys and negotiating tactics, and coercion. Since
this distinction involves a variety of factors, like the relative poten-
tial of the actors, an already existing dependency, the previous his-
tory of the relation, and many others, assessment of which may be
tainted with subjective anxiety, it seems almost impossible to estab-
lish objective parameters, except for extreme cases.
73. This is particularly true for the disputed issue of economic
coercion. None of the ideas so far voiced seem to lead to a practi-
cable result. Neither the suggestion that States must judge under
their own responsibility where to draw the limits between a licit and
an illicit use of economic force 123, nor the proposition that eco-
nomic force should be considered unlawful (w)hen the motive is to
further or protect the States political interests 124 seems promising.
No existing or suggested parameter offers an answer to the question
when the use of legitimate economic leverage 125 turns into coercion.
The answer depends largely on the subjective perception of the ele-
ments mentioned before. Since the real source of the problem, the
political and economic inequality of States, will not disappear in the
foreseeable future, the omens for further progress in the matter are
not propitious.
121. Cf. E. Wehser, Die Intervention nach gegenwrtigem Vlkerrecht, in

B. Simma and E. Blenk-Knocke (eds.), supra footnote 73, at 23-54 ; and H. G.
Brauch, Sozialwissenschaftliche Interventionsbegriffe und externe Einwir-
kungsphnomene im Bereich der Internationalen Beziehungen, ibid., 55-120.
122. Chap. V, paras. 228-229, and Chap. XIV, para. 624.
123. I. Seidl-Hohenveldern, The United Nations and Economic Coercion,
18 RBDI (1984-1985), 9-18, 14.
124. Bowett, supra footnote 109, at 249.
125. See L. Fisler Damrosch, Politics across Borders : Non-intervention and
Non-forcible Influence over Domestic Affairs, 83 AJIL (1989), 1-50, 28-34
(Economic Leverage).
D. Peaceful settlement of disputes
74. In the formulation of Article 2, paragraph 3, of the Charter

and of the relevant part of the Friendly Relations Declaration the
principle suffers from two intrinsic weaknesses : (a) it does not
assure that the victim of an alleged violation of its international
rights will see its claim settled ; and (b) it focuses solely on disputes
likely to endanger international peace.
75. The principles of non-use of force and of non-intervention
have reformed the right of self-enforcement of legitimate interna-
tional claims by prohibiting the use of military force and by estab-
lishing limits to the use of non-military means 126. Regrettably the
principle of peaceful settlement of disputes does not do the same for
auto-judgment. Even worse, as Sir Gerald Fitzmaurice has pointed
out :
. . . whereas the alternative of possible hostilities of one kind or
another used once to operate as a strong inducement to settle-
ment ; and proposals for adjudication, if made, would be readily
accepted ; the same inducement no longer exists . . . 127.
76. Since the parties to a dispute must select a suitable procedure
for the settlement of their dispute from a long and still not exhaus-
tive list in Article 33 of the Charter and can only do that by agree-
ment, a recalcitrant author of an alleged violation may drag out the
dialogue on the choice of means indefinitely. And unless the dispute
reaches a level where it is likely to endanger the maintenance of
international peace, the Security Council cannot act under Chapter
VI of the Charter. Thus, an injured State may be left without a
settlement of its grievance and without effective means to enforce
its claim unilaterally. This confirms the United Nations Charters
preference of security over justice as first value mentioned
earlier 128. And although a number of devices enable States to accept
in advance a procedure for the settlement of future disputes 129,
these devices are insufficiently used.
126. See supra, paras. 71-73 ; and Chap. XV, paras. 698-715.
127. Sir Gerald Fitzmaurice in a review article of C. W. Jenks, The Prospects
of International Adjudication, London, 1964 ; also in 13 Kansas LR (1964-
1965), 442-450, 448.
128. See supra, para. 31.
60 K. Zemanek
Moreover, with the exception of judgments of the ICJ 130 which,

according to Article 94, paragraph 2, of the Charter, the Security
Council may enforce if it deems necessary, no globally institution-
alized mechanism exists for giving effect to third party decisions 131
if they are not carried out voluntarily 132.
77. Articles 2, paragraph 3, and 33 of the Charter refer to dis-
putes the continuance of which is likely to endanger the maintenance
of international peace and security. The powers of the Security
Council under Articles 36, paragraph 1, and 37, paragraph 2, of
the Charter, to recommend either appropriate procedures or methods
of adjustment or appropriate terms of settlement are similarly
restricted. While this does not preclude the inference that all dis-
putes should be settled peacefully, since the failure to do so could
endanger international peace, it does not assure that a procedure is
chosen or a settlement negotiated when the nature of the dispute or
the decidedly peaceful attitude of the parties involved make a danger
to international peace unlikely.
78. A further problem arises from the different ideas which vari-
ous cultures have about the purpose of settlement procedures 133.
Western civilization, as fruit of its cultural heritage, accepts as axio-
matic that the impartial decision of an issue renders justice and
thereby puts an end to the dispute. One cannot deny, though, that this
method does not necessarily settle the dispute between the parties in
fact, even in Western societies, although it does so for official pur-
poses.
130. See A. Tanzi, Problems of Enforcement of Decisions of the ICJ and the
Law of the United Nations, 6 EJIL (1995), 539-572. Other enforcement pro-
cedures exist in sub-systems ; see infra, Chap. XI.
131. See R. Jennings, The Judicial Enforcement of International Obliga-
tions, 47 ZaRV (1987), 3-16 ; D. W. Bowett, Contemporary Developments in
Legal Techniques in the Settlement of Disputes, 180 Recueil des cours (1983-
II), 173-233, 212-221 (The enforcement of international judicial and arbitral
decisions) ; E. Fukatsu, The Enforcement of Decisions of International Courts
and Tribunals, Tokyo, 1970, 87-117.
132. Although Fitzmaurice (supra footnote 127, at 443) doubts
that the existence of some possible uncertainty as to whether the decision
which is to be given by an international tribunal will be carried out, or
could be enforced, is a serious factor, or indeed weighs at all with States in
deciding whether to have recourse to the tribunal,
the absence of enforcement procedures is still a weakness of the system. Cf.,
however, M. K. Bultermann and M. Knijer, Compliance with Judgments of
International Courts, Dordrecht, 1995.
133. See Chap. I.
79. Other civilizations, especially in Africa and Asia, have differ-

ent value systems and/or cultural traditions and regard the recon-
ciliation of the parties as primary purpose of any settlement pro-
cedure 134. A potentially fuzzy outcome is thus preferred to the Western
type zero-sum game. With the growing number and influence of
States which follow these ideas, agreed settlement procedures in
multilateral conventions, for instance in codification conventions,
tend since some time towards conciliation procedures rather than
adjudication.
E. Solidarity
80. The principle that States owe each other solidarity finds only
feeble expression in Article 56 of the Charter, where it is limited to
economic and social co-operation 135 and to the achievement of uni-
versal respect for human rights, and is, furthermore, formulated as a
pledge rather than a duty. This narrow view is reflected in the corre-
sponding formulation of the Duty of States to co-operate with one
another in accordance with the Charter in the Friendly Relations
Declaration. Apart from repeating certain explicit Charter obliga-
tions, it only states truisms and, in spite of the word duty in its
title, is exhortative rather than normative 136.
The language confirms the reluctance of States to commit them-
selves firmly in this respect, a reluctance which is apparent in such
diverse fields as multilateral development schemes, or global pro-
grammes for the protection of the environment, and recently
even in the lack of material support for collective security or peace-
keeping.
III. Unity and Universality of International Law
81. Notwithstanding some stray followers of Hegelian philosophy

who still believe in the absolute sovereignty of the State and a few
134. Cf. e.g. B. Oyebade, The Organization of African Unity and Peace-
ful Settlement of Disputes : An Assessment, 9 Nigerian Forum (1989), 230-
235.
135. See H. Neuhold, Die Pflicht zur Zusammenarbeit zwischen den Staaten :
moralisches Postulat oder vlkerrechtliche Norm ?, in H. Miehsler et al. (eds.),
Jus Humanitatis, Festschrift fr A. Verdross, Berlin, 1980, 575-606 ; and cf.
R. Schtz, Solidaritt im Wirtschaftsvlkerrecht, Berlin, 1994.
136. States should . . ..
62 K. Zemanek
other esoteric theories 137, almost all schools of international law

concur today in the axiom that international law forms one legal
order which governs the interaction of States and of other interna-
tional legal persons. Even though, the idea of one legal order must
be seen in its right perspective. The worlds various cultures do not
perceive law and order in the same manner. One obvious reason
for this lies in the multitude of languages. The nuances of differing
legal terms existing in one language may be unknown to another.
Language, however, is not the only relevant factor. Every region,
ethnicity and religion has its own legal traditions which embody
ethical values and a distinct understanding of the structure and func-
tion of society.
Legal concepts are, as a consequence, understood and applied
differently even in those areas of the world which share a common
language.
The unity of international law in the sense of homogeneity is
therefore a construct 138.
82. It is the international system which sustains the idea of one
international order. But unity is not the same as universality.
According to legal theory, universal rules require universal consent
but, pragmatically, only systemic rules, i.e. rules regulating the func-
tioning of the system, including its law-making, need necessarily
have universal validity in the sense that they bind each and all mem-
bers, as otherwise the system could not function. Their acceptance
is, so to speak, the condition of membership. They form the legal
foundations of the international system and consist, apart from pro-
cedural rules, mostly of what since the Vienna Convention on the
Law of Treaties is called jus cogens139.
The remaining body of law is more complex. There exist, of
course, other than systemic rules which have a comprehensive per-
sonal scope, customary rules more frequently than treaties. But
because of the methods of law-making many rules apply only to a
137. Cf. e.g. the inter-power theory of G. Arangio-Ruiz, LEtat dans le

sens du droit des gens et la notion du droit international, 26 ZR (1975-1976),
3-63 and 265-406, who denies the existence of an international legal order and
recognizes only rules of convivenza or coesistenza but no ordinamento
(passim, especially at 13, 297, 357-358).
138. Notwithstanding the arguments of I. Brownlie, Problems concerning
the Unity of International Law, in P. Lamberti Zanardi et al. (eds), supra foot-
note 5, at 153-162.
139. See Chap. VI, paras. 235-237.
limited number of States or other international legal persons and

create thus sub-systems 140.
83. This gomtrie variable is the consequence of either the lim-
ited personal scope of rules (sectorial rules) and/or their speciality, if
they establish legal obligations which go beyond those under general
international law (sectional rules) 141.
This happens, for example, when the instrument of law-making is
a multilateral convention which, although intended to establish uni-
versal rules, attracts only a limited number of States, or which is
intended only for a limited number of States (regional rules). Often
such multilateral treaties do not simply create norms of conduct but
establish a special rgime or an organized sub-system, occasionally
in the form of a universal or regional international organization.
Some of these sub-systems have institutionalized the making of
additional rules in their respective issue-areas, the control of their
application, and remedies against their violation to such a degree
that they have become comparatively autonomous sectional (and
nearly always also sectorial) legal systems.
84. While legal theory deals frequently with these phenomena 142,
it is less preoccupied with the question whether similar distinctions
should be made in respect of customary law 143. The existence of
regional 144 and local 145 custom has been affirmed by the ICJ. How-
ever, several other judgments, in which the Court tested a particular
norm of customary law for application to the parties to the dispute,
140. See W. E. Butler, Regional and Sectional Diversities in International

Law, in Bin Cheng (ed.), International Law : Teaching and Practice, London,
1982, 45-52.
141. Sir Gerald Fitzmaurice, The Future of Public International Law and of
the International Legal System in the Circumstances of Today, in Institut de
droit international, Livre du Centenaire 1873-1973, Basel, 1973, 196-329, con-
siders these phenomena under the aspect of lex specialis (198-201) and
addresses thus only the sectional not the sectorial aspect.
142. For an overview see W. Lang, Regimes and Organizations in the
Labyrinth of International Institutions, in K. Ginther et al. (eds.), supra foot-
note 44, at 275-289.
143. See H. Lauterpacht, The Development of International Law by the Inter-
national Court, London, 1958, 370 : If universality is to be made the condition
of the application of customary rules, it may become doubtful whether many
rules would qualify for that purpose.
144. Asylum case, ICJ Reports 1950, 266-289, 276-277 ; Rights of Natio-
nals of the United States of America in Morocco, ICJ Reports 1952, 176-213,
200.
145. Right of Passage over Indian Territory (Merits), ICJ Reports 1960, 6-46,
40.
64 K. Zemanek
came to a negative conclusion 146, which suggests that at least in

some subject matters general customary law may only be sectorial
in an indefinite form 147. The relevance of a sectional differentiation
is presumably slight ; only the example of the Latin American cus-
tom of diplomatic asylum comes to mind. As yet, though, no com-
prehensive theoretical concept permitting to investigate the different
categories by means of firm parameters has been developed.
85. The gomtrie variable is made possible by various pro-
cesses.
Regional and local custom have been mentioned before. In respect
of alleged general custom a personal exception to its application is
established by a consistent, deviating conduct 148 which creates a
persistent objector. This exception has been recognized by the ICJ
in the Fisheries case 149 and in subsequent judgments.
86. Even multilateral conventions which are intended for univer-
sal application are, in most cases, only accepted by a limited number
of States. This is, inter alia, due to the selection of States invited to
the conference which is to adopt the treaty instrument ; non-atten-
dance by States invited to the conference ; the formulation of the
final clauses which determine the States that may adhere to it ;
and, finally, the frequent non-ratification or non-accession by States
entitled to it. But even parties may have different rights and/or
obligations under a convention if the latter permits opting-in or
opting-out in respect of part of its provisions. And the most
frequently used device to limit treaty obligations are reservations 150.
87. Lastly, we have to consider the case in which a rgime or
sub-system is intentionally open only to certain States, as is usual in
146. For an overview see C.-J. Duisberg, Das Vlkergewohnheitsrecht nach

der Rechtsprechung internationaler Gerichte, Bonn, 1963, 97-101.
147. Cf. A. A. dAmato, The Concept of Special Custom in International
Law, 63 AJIL (1969), 211-223.
148. Sir Gerald Fitzmaurice, The General Principles of International Law,
Considered from the Standpoint of the Rule of Law, 92 Recueil des cours
(1957-II), 1-222, 100, requires
that the dissenting State . . . had openly and consistently made known its
dissent at the time when the rule was in process of formation, or when it
came into operation
and that further that position had been consistently maintained since. How-
ever, as will be shown later (in Chapter VII), it may be doubted that the time of
formation can be identified with any precision.
149. ICJ Reports 1951, 116-144, 131.
150. See Chap. VIII, paras. 332-368.
regional arrangements 151. A regional organization may be founded

for the pursuit of interests common only to the partners, like defence
(NATO) or trade (EU, NAFTA, LAFTA, etc.). But the cause of limi-
tation may also be the degree of integration which the prospective
members wish to attain and which is higher than what is (as yet) glo-
bally acceptable or even desirable, for instance in law-making or
implementation control (Council of Europe/EuCHR, EU). Some-
times regional or otherwise limited multilateral conventions are
adopted with a view to transforming into law values which the
potential parties share but on which a universal consensus does not
(yet) exist so that they can only be achieved in a limited community ;
human rights 152 or even as mundane a subject as State immunity 153
are salient examples.
In conclusion we may therefore submit that although the interna-
tional system and its legal order are universal that does not imply
that all rules which form that order apply evenly or at all to all its
members.
151. See W. Lang, Der internationale Regionalismus, Vienna, 1982 ; and S.

Gonzles Glvez, The Future of Regionalism in an Asymmetrical International
Society, in R. St. J. Macdonald and D. M. Johnston (eds.), supra footnote 10,
at 661-683.
152. See C. Tomuschat, Universal and Regional Protection of Human
Rights : Complementary of Conflicting Issues, in R. Wolfrum (ed.), Streng-
thening the World Order : Universalism v. Regionalism, Berlin, 1990, 173-197.
153. See the European Convention on State Immunity, of 16 May 1972,
reprinted in 11 ILM (1972), 470-489.
66
CHAPTER III
STATES
I. The State between Supra-Nationality and Disintegration
88. The sovereign State is still the basic constituent of the inter-
national system. The machinery of government which it provides is
indispensable for the implementation of international law and has
not greatly changed since the nineteenth century. However, under the
influence of the ever-growing interdependence (globalization) the
manner in which it is able to pursue its purposes and to discharge its
functions has undergone dramatic changes. The area of autonomous
decision-making is more and more reduced and the State often can-
not deal effectively with the external influences on its security, eco-
nomy, society and culture.
89. Endeavouring to regain control over the predominantly eco-
nomic external influences, States responded by pooling resources
and uniting markets and created mechanisms for their management
in the form of free trade areas or custom unions, both of which exist
now in many parts of the world. But these arrangements have an
inherent tendency to expand beyond the economic core for optimi-
zing their efficiency, requiring the transfer of additional powers to
them 154. This can best be observed by the evolution of the EC and
its transformation into the EU.
90. Another, equally compelling reason for pooling resources
exists in the field of national security, since only the United States
has now the power to mount large-scale military operations single-
handed. The present discussion in NATO and WEU about the
creation of instruments for peace-making and peace-keeping to be
eventually put at the disposal of the United States, but whose
existence would also serve as an element of preventive diplomacy in
the area of greater Europe, testifies to this need.
91. Both reasons, economic need and security considerations 155,
154. See K. Omae, The End of the Nation State : The Rise of Regional Econ-
omies, New York, 1995.
155. See the Tashkent Treaty on Collective Security of 15 May 1992 ; text
reprinted in SIPRI Yearbook 1993 : World Armaments and Disarmament,
Oxford, 1993, 671-677.
also seem to be at the root of the Commonwealth of Independent

States (CIS), which was founded on 21 December 1991 at Alma Ata
to accommodate most members of the dissolved Soviet Union 156.
The legal forms of entities which serve these needs are varied.
They range from loose unions to more integrated forms with con-
federate or even federal features. However, what they share is the
takeover of functions which were formerly regarded as essential
State functions, though the extent and degree to which this is done
varies with the types.
92. In a second but parallel development, the authority of the
State is questioned by segments of its population. This may take the
mild form of requests for the devolution of powers to smaller terri-
torial entities within the State, like provinces or municipalities, or of
demands for greater freedom for co-operation with neighbouring
regions in other States, a co-operation which is already frequent in
Western Europe. In harsher forms ethnic groups may demand exten-
sive minority rights or even threaten secession 157. The break-up of
multi-ethnic States like the Soviet Union and Yugoslavia are warn-
ing signs that should be heeded by the remaining multi-ethnic
States like Russia, with its more than 50 identifiable linguistic and/or
ethnic communities 158.
In some cases where the disruptive forces could not be chan-
nelled, as in Angola or Somalia, and, lately, Albania, they led to
the total breakdown of the governmental machinery and to a State
that existed only in name (failed State).
Even States which are not directly threatened by disintegrating
forces have to pay attention to organized elements outside the tradi-
tional democratic process.
As grass-root movements grow into pressure groups, whether they
espouse some local environmental project or the cause of human
rights at home or abroad, they may drive governments into action or
prevent the latter, as the case may be.
93. It is difficult to predict how these forces will transform the
156. Except Georgia and the Baltic Republics.

157. See T. M. Franck, Postmodern Tribalism and the Right to Secession,
in C. Brlmann et al. (eds.), Peoples and Minorities in International Law, Dor-
drecht, 1993, 3-27 ; and the comments thereon by R. Higgins, ibid., 29-35 ; cf.
also G. Gottlieb, Nation against State : A New Approach to Ethnic Conflicts and
the Decline of Sovereignty, New York, 1993.
158. See A. Kappeler (ed.)., Regionalismus und Nationalismus in Russland,
Baden-Baden, 1996.
68 K. Zemanek
State as we still know it 159 ; one can only be sure that they will. By
losing some powers to a higher level and others to a lower, its
hitherto unique capacity to secure the fulfilment of international
obligations will be reduced and correspondingly shift to other enti-
ties. This new assignment of different functions to different levels of
authority may, in the future, require the re-thinking of the construc-
tion of international law 160.
II. Jurisdiction of States
A. Eroding territoriality
94. One area in which the tension is already clearly felt is territo-
rial jurisdiction. Historically, the uniqueness of sovereignty, which
distinguishes the State from other forms of human association, mani-
fested itself in the exclusive jurisdiction within its territory and in a
concurrent jurisdiction over persons owing it allegiance because of
nationality, wherever they might be 161. This dichotomic approach
carried with it from the beginning the seeds of a potential conflict
between personal and territorial jurisdiction. But for a long time the
problem was, at least quantitatively, marginal.
95. Growing interdependence has changed that situation funda-
mentally. We are now faced with the query how to reconcile national
government with business that transcends nations through the rise in
the role of foreign direct investment ; the sales of subsidiaries abroad
now amount to one-fifth of the output of the world economy, and
comfortably exceed direct exports. The resulting problems affect
most social activities : competition, equal environmental and labour
standards, money laundering, and many more.
159. Cf. W. Rudolf, Wandel des Staatsbegriffs im Vlkerrecht ?, Institut fr

Internationales Recht an der Universitt Kiel, Walter-Schcking-Kolleg, Bonn,
1986 ; and H. Grtner, State, Nation, and Security in Central Europe : Demo-
cratic States without Nations, Austrian Institute for International Affairs, AP 7,
Laxenburg, June, 1995.
160. See C. Schreuer, The Waning of the Sovereign State : Towards a New
Paradigm for International Law ?, 4 EJIL (1993), 447-471.
161. See R. Y. Jennings, The Limits of State Jurisdiction, 32 Nordisk
Tidskrift for International Ret (1962), 209-253 ; F. A. Mann, The Doctrine of
Jurisdiction in International Law, 111 Recueil des cours (1964-I), 9-162 ; id.,
The Doctrine of International Jurisdiction Revisited after 20 Years,
186 Recueil des cours (1984-III), 19-115 ; M. Akehurst, Jurisdiction in Interna-
tional Law, 46 BYIL (1972/1973), 145-257.
96. They seem to call for appropriate international regulation,

because only combining their efforts may give States a chance to
control possible excesses or harmful effects of private initiatives.
Sovereignty without influence on social processes is meaningless.
Steps are continuously being taken in that direction through
various global schemes, like WTO, ILO, UNEP and others, or by the
EU in a regional framework. But new rules do not emerge as quickly,
and the mechanisms are not as effective, as need would demand.
97. This has tempted economically and politically powerful
actors, the United States first in line, though later closely followed by
the EU 162, to protect their interests by imposing their own value stan-
dards on non-national persons or activities outside the confines of
their territory through claims of jurisdiction over them, which other
States judge to be excessive. Some of the resulting quarrels, like the
spectacular conflict over the USSR-Western Europe pipeline in
1982 163 are still remembered. And some recent initiatives of the
United States, for instance laws to protect sea turtles and dolphins by
imposing new standards on prawn and tuna fishing and making com-
pliance with them a condition for importing foodstuffs produced
from them ; or the Helms-Burton Act, which subjects foreign inves-
tors in nationalized Cuban property formerly owned by United States
nationals to legal action by the former owners 164, demonstrate the
explosive potential of that tendency. The latest addition is the
162. Especially in anti-trust matters ; cf. the leading cases of the European
Court : Bguelin Import Co. and Others v. S.A.G.L. Import Export and Others,
Case No. 22/71, 25 November 1971, ECR 949 ; Imperial Chemical Industries
Ltd. v. Commission of the European Communities, Case No. 48/69, 14 July
1972, ECR 619 ; J. R. Geigy AG v. Commission of the European Communities,
Case No. 52/69, 14 July 1972, ECR 787 ; A. Alhstrm Osakeyhti and Others v.
Commission of the European Communities, Joint Cases No. 89/85, 104/85,
114/85, 116/85, 117/85, 125/85, 126/85, 127/85, 128/85, 129/85, 27 September
1988, ECR 5193 ; and recently Boukalfa v. Federal Republic of Germany, Case
No. 214/94, 30 April 1996, ECR I-2253.
163. The incident is concisely summarized in a Reporters Note (8), Restate-
ment of the Law Third, The Foreign Relations Law of the United States, 1987,
414, p. 281. Cf. also the discussion in Proceedings ASIL, 1983, 241-271, and
370-377 ; the Comments on U.S. Regulations concerning Trade with the
U.S.S.R., by the EEC, 21 ILM (1982), 891-904 ; and The Hague Tribunal in
Compagnie europenne des ptroles S.A. v. Sensor Nederland B.V., 22 ILM
(1983), 66-74.
164. Cuban Liberty and Democratic Solidarity Act of 1996 ; text reprinted in
35 ILM (1996), 357-378. This shows the fickleness of American policy : when,
after the creation of the State of Israel, an Arab boycott penalized foreign firms
for doing business with the new State, the United States strongly opposed this
policy.
70 K. Zemanek
DAmato Act permitting sanctions against foreign enterprises which

invest more than 40 million US dollars during a year in Irans or
Libyas energy industry.
B. Reconciling conflicting jurisdictions
98. Conflicts of laws are settled daily through the application of

private international law which, despite its name, is domestic law.
For conflicting claims to jurisdiction, which have to be settled in
accordance with public international law, a comprehensive concept
is lacking, and procedures which pretend to settle actual conflicts
are, in reality, lop-sided. There is not even agreement on the funda-
mental issue whether States are free to exercise jurisdiction as long
as this is not expressly prohibited by a rule of international law or
whether they may only exercise jurisdiction abroad on the basis of
enabling rules of international law 165.
99. That controversy appears to arise from a misunderstanding.
Public international law is essentially a prohibiting law and leaves
States free where it does not prohibit ; but the freedom of one State
has its limit in the equal freedom of other States, a principle that ori-
ginates in their sovereign equality. Applied to the problem under
consideration this means that legislative enactments as such, even if
they purport to apply to persons or activities abroad, do not really
raise an international problem, as long as they are not forcibly
applied abroad. The enforcement of such laws and regulations
abroad finds a limit in the territorial jurisdiction of other States
unless an exceptional enabling rule of international law permits what
would otherwise amount to a (forbidden) intervention.
100. It is, however, difficult to devise rules which make this pro-
position operational because the point where a claim of jurisdiction
abroad interferes with the sovereignty of another State is elusive and
a resulting conflict must, in the absence of machinery for internatio-
nal settlement, be resolved by national authorities and is thus prone
to turn into a contest of strength.
165. The unequivocal answer given by the PCIJ in the Lotus case (1927,
Series A, No. 10, 19) has become outdated by a change of opinio juris since the
duty of States to co-operate with one another was enshrined in Article 56 of the
UN Charter. In the matter decided by the PCIJ this is evidenced by Article 1 of
the Brussels Convention Relating to Penal Jurisdiction in Matters of Collision of
1952 (439 UNTS 233-241) and by Article 97 of UNCLOS III.
101. This precarious state is apparent from the 1987 Restatement

of the Foreign Relations Law of the United States by the American
Law Institute 166, the most comprehensive endeavour so far to formu-
late rules for determining the propriety of jurisdiction abroad. It dis-
tinguishes between the jurisdiction to prescribe, i.e. the authority of
a State to make its laws applicable to persons or activities ; the juris-
diction to adjudicate, i.e. the authority of a State to subject particular
persons or things to its judicial process ; and the jurisdiction to
enforce, i.e. the authority of a State to use the resources of govern-
ment to induce or compel compliance with its law 167. The founda-
tion of future jurisdictional conflicts with other States is laid by the
claim that a States jurisdiction to prescribe and to adjudicate
extends to conduct outside its territory that has or is intended to
have substantial effect within its territory 168 (effects doctrine) ; and
by the further claim that jurisdiction to enforce exists whenever there
is jurisdiction to prescribe 169 and may be exercised by courts, if the
State has jurisdiction to adjudicate 170. The exercise of jurisdiction to
prescribe is, however, subject to the limitation of reasonableness171
and a conflict of prescriptions is to be settled by evaluating the inter-
ests of the States involved 172.
102. The concept underlying the Restatement has major flaws.
Firstly, it intends to cover all types of jurisdiction, criminal, civil
and administrative, with the same rules. That is not possible because
the exercise of international criminal jurisdiction and, hence, the
applicability of domestic substantive criminal law is determined by
principles of public international law which are not applicable to
civil jurisdiction, where the conflict of laws is settled on the basis of
(domestic) private international law. Thus, while jurisdiction to pre-
scribe in criminal matters may, under certain circumstances recog-
nized by public international law, indeed confer jurisdiction to enforce
with respect to activities abroad, jurisdiction to prescribe in civil and
commercial matters does not imply the same. The Restatement
166. Source see supra footnote 163. Cf. K. M. Meessen, Conflicts of Juris-
diction under the New Restatement, 50 Law and Contemporary Problems
(1987), 47-69.
167. Restatement, supra footnote 163, 401.
168. Ibid., 402 (1) (c) and 421 (2) (j) respectively.
169. Ibid., 431 (1).
170. Ibid., 431 (3) (c).
171. Ibid., 403 (1).
172. Ibid., 403 (3) ; see also comment (e) (p. 247) and Reporters Notes 6
and 7 (pp. 251-252) ; and 442, comment (c) (p. 351).
72 K. Zemanek
would therefore need to be refined to permit distinction between

these situations.
103. Secondly, the Restatement, in spite of protestations to the
contrary, relies on unilateralism. Yet it is not credible that a domestic
court will be able to judge impartially between the interests of its
own country and those of another, hard as it may try 173. This is
clearly reflected by the jurisprudence of the United States Supreme
Court 174. The Restatement admits as much when, in a comment 175, it
states that the obligation to balance the interests of the States
involved is addressed primarily, though not exclusively, to the poli-
tical departments of government.
104. Thirdly, the Restatement transgresses the boundaries of
international law in the matter of enforcement. It is an uncontested
rule of public international law that, as the Restatement observes,
officials of one state may not exercise their functions in the terri-
tory of another state without the latters consent 176. But the Restate-
ment also claims that indirect enforcement measures which are
used to induce compliance with laws or regulations of the enforcing
State or to sanction violations of them abroad, are legitimate 177,
apparently because they are not physically performed on the territory
of another State. This proposition is the result of two logical errors.
105. First, by implicitly identifying enforcement with physical
acts, the Restatement unduly restricts the term : laws are mainly
obeyed because the threat of a sanction in case of their violation is
perceived, and not because the sanction is actually and physically
173. See D. W. Bowett, Jurisdiction : Changing Patterns of Authority over

Activities and Resources, in R. St. J. Macdonald and D. M. Johnston (eds.),
supra footnote 10, at 555-580, 570 ; and A. Reinisch, Widening the US
Embargo against Cuba Extraterritorially : A Few Public International Law Com-
ments on the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of
1996 , 7 EJIL (1996), 545-562, 558-559.
174. Cf. The Bremen v. Zapata Offshore Co., 407 US 1, 9 (1973) ; Scherk v.
Alberto-Culver Co, 417 US 506 (1974) ; Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth Inc., 473 US 614, 638 (1985) ; and, in particular, the dissent-
ing opinions in Arospatiale v. United States District Court, 482 US 107, 554-
568 (1987) ; and in Hartford Fire Insurance Co. v. California, 112 S. Ct. 2891,
2920-2922 (1993). See also K. W. Dam, Extraterritoriality in an Age of Global-
ization : The Hartford Fire Case, Supreme Court Review, 1993, 289-328.
175. Restatement, supra footnote 163, 403, comment (e) (p. 247).
176. Ibid., 432, comment (b) (p. 329).
177. Ibid., 431, comment (c) (p. 322). Measures cited are : denial of the
right to engage in export or import transactions (blacklisting) ; removal from a
list of persons eligible to bid on government contracts ; suspension, revocation,
or denial of a permit to engage in particular business activity ; prohibition of the
transfer of assets.
applied. The threat of an indirect enforcement measure affects the

mind of the addressee in the same way as the threat of physical
enforcement.
106. And that is the second error : while in other respects the
Restatement uses the effects doctrine to justify claims to jurisdiction
to prescribe and ultimately jurisdiction to enforce abroad 178, it does
not apply that doctrine to the licence to enforce : indirect enforce-
ment measures, though imposed in the territory of the enforcing
State, produce their effect in the territory of another State. Although
not physically present, in effect officials of the enforcing State exer-
cise their functions in the territory of another State without the
latters consent and violate the aforementioned uncontested rule
of international law.
107. Is there a solution to the tangle of conflicting claims 179 ?
Unilateralism does not lead to one. It eventually puts affected per-
sons under conflicting legal commands and thus between the devil
and the deep sea, especially if the State on whose territory they are
located blocks compliance with extraterritorial legislation intended to
affect them by opposing provisions of its own law (blocking statute
or antisuit injunction) 180. On the other hand, one may not realistically
expect that major actors will, in the near future, accept international
procedures for settling all sorts of conflicting jurisdictional claims 181.
108. Currently, only a pragmatic approach can defuse the situa-
tion. Since the problem is caused by transnational activities, the
approach must combine elements of public and private international
law 182 which tends to show that wider acceptance of the concept of
transnational law 183 would render the situation less complicated.
States must come to realize that the projection of their own values
and economic policy beyond the borders, through the application of
178. See supra footnote 169, and accompanying text.

179. For discussions of that question see H. G. Maier, Extraterritorial Juris-
diction at a Crossroad : An Interaction between Public and Private International
Law, 76 AJIL (1982), 280-320 ; A. V. Lowe, The Problems of Extraterritorial
Jurisdiction : Economic Sovereignty and the Search for a Solution, 34 ICLQ
(1985), 724-746.
180. See A. V. Lowe, Blocking Extraterritorial Jurisdiction : The British Pro-
tection of Trading Interests Act 1980, 75 AJIL (1981), 257-282 ; C. J. Olm-
stead, Extraterritorial Application of Laws and Responses Thereto, Oxford,
1984.
181. The WTO procedures cover only certain cases.
182. Cf. the Report of F. Rigaux to the Institut de droit international, Annu-
aire, 67-I (1997).
74 K. Zemanek
national laws to activities abroad, is but one choice in the pursuit of

national interests. Strengthening an open international economic
order and thereby enhancing the participation of private persons and
enterprises in the world market should be another and equally impor-
tant one, at least for States which take market economy seriously.
109. As to the public international law elements of the combined
approach, it is submitted that the right of several States to regulate
the same matter creates a legal relationship between them. They
should take account of it and choose such regulations which interfere
the least with the interests of other States. It is essential to regard the
conflict not only from the point of view of States which ruthlessly
pursue their own policies, but also from the point of view of the
affected person or enterprise. If a person or enterprise should find
itself nevertheless the addressee of conflicting legal commands from
different legal orders, priority should be given to the command
which is based on territoriality 184. If the person or enterprise were to
obey the extraterritorial command and the territorial State were then
to enforce its conflicting claim, the person or enterprise would be
more exposed, because the territorial State has direct access to their
property and assets and may interfere with their production and dis-
tribution. It is in the interest of safeguarding the economic existence
of the person or enterprise concerned that the extraterritorial claim
should defer to the territorial claim.
110. In order to narrow the possible conflict areas, efforts should
be made to identify those areas where the interests of States
converge, as in the suppression of crimes against humanity, of orga-
nized crime, of money laundering, insider trading, trade in narcotics
and arms, and so on. In these areas rules of public international law
which establish the right to exercise criminal jurisdiction beyond the
bounds of territoriality should be agreed upon, as has been done in
respect of piracy, slavery or terrorism where jurisdiction is exercised
in the interest of the international community as a whole.
C. Exceptions to territorial jurisdiction

111. International law establishes three exceptions to territorial
jurisdiction : the immunity of foreign sovereigns (States), of interna-
184. See W. Meng, Zulssigkeit und Grenzen wirtschaftsverwaltungsrecht-

licher Hoheitsakte mit Auslandswirkung, 44 ZaRV (1984), 675-783, English
Summary 781-782.
tional organizations and their personnel, and of official foreign

representatives (diplomats and consuls). Diplomatic and consular
immunity excludes, totally or in part, jurisdiction to adjudicate and
to enforce ; the same is true for the immunity of the personnel of
international organizations, at least as far as their functions are
concerned. State immunity and immunity of international organiza-
tions excludes all jurisdiction. Diplomatic and consular immunities
are now a settled body of law and do not normally raise questions of
principle 185 ; they have been codified in a number of United Nations
conventions 186.
112. State immunity, on the other hand, is still a controversial
matter 187. Immunity as such is not in question 188. But the maxim
par in parem non habet imperium, which originates in sovereign
equality, is now generally understood to apply only to acts which
express sovereign power and does not cover the whole range of pos-
sible government action. And it is the method by which immune
transactions are to be identified which is in dispute 189.
113. When domestic courts began limiting State immunity in
practice, they distinguished acta jure imperii from acta jure gestio-
nis according to the distinction of public and private law in the lex
fori190. Since that distinction is not clear in any State, sometimes
even alien 191, and, furthermore, varies between States, the method
led to nearly as many different results as there were States. Interna-
tional law was thus not uniformly implemented.
185. The Tehran Hostage case notwithstanding.

186. The Vienna Convention on Diplomatic Relations, 1961 ; the Vienna
Convention on Consular Relations, 1963 ; the United Nations Convention on
Special Missions, 1969 ; the Vienna Convention on the Representation of States
in their Relations with International Organizations of a Universal Character,
1975. Cf. also various Headquarters Agreements.
187. For an overview see N. C. H. Dunbar, Controversial Aspects of Sov-
ereign Immunity in the Case Law of Some States, 132 Recueil des cours (1971-
I), 197-326 ; S. Sucharitkul, Immunities of Foreign States before National
Authorities, 149 Recueil des cours (1976-I), 87-215 ; I. Sinclair, The Law of
Sovereign Immunity. Recent Developments, 167 Recueil des cours (1980-II),
113-281 ; R. Higgins, Certain Unresolved Aspects of the Law of State Immu-
nity, 29 NILR (1982), 265-275 ; C. Schreuer, State Immunity : Some Recent
Developments, Cambridge, 1988.
188. Dogmatically this is not a question of immunity but one of lack of juris-
diction ; the traditional term is nevertheless used in this text.
189. See J. Crawford, International Law and Foreign Sovereigns : Distin-
guishing Immune Transactions, 54 BYIL (1983), 75-118, 88-91.
190. Schreuer, supra footnote 187, at 6-7.
191. Ibid., 7.
76 K. Zemanek
114. Hence, other methods were proposed as a remedy. One

called for the distinction being made according to the nature of the
transaction, another proposed the purpose of the transaction as a deci-
sive criterion 192. In current practice the purpose test has been accep-
ted, where it has, only in respect of immunity from execution 193.
The nature test, on the other hand, is widely used for distinguishing
sovereign acts 194. The advocates of that test seem to overlook, how-
ever, that a transaction has no nature outside the context of a
given value system and the legal regulations into which the values
are transformed. Whether a certain transaction or a certain activity
may be undertaken by anyone or only by the Government (State) is
not predetermined but is the result of a legislative decision which
implements a certain value system. Thus the nature test is, in reality,
but a new edition of the jure imperii/jure gestionis distinction on a
slightly higher level.
115. The difficulty of defining a common parameter has its origin
in different ideas about the purposes of a State and of the latters
functions 195. If, in the philosophy of one State, providing basic food
for its people is considered an essential function of the State, then
that State will maintain that all related activity is an exercise of its
sovereign power and therefore protected by immunity.
116. In an attempt to circumvent that conceptual conflict interna-
tional instruments on the subject have taken a different course. They
start from a general rule of immunity and modify it subsequently by
a list of non-immune activities. An apparently intractable problem is
thereby replaced by a series of smaller and easier ones, or that is at
least what the authors appear to believe 196. This technique is used in
the European Convention on State Immunity 197 of 1972 and in the
Draft Articles on Jurisdictional Immunities of States and Their
Property, adopted by the ILC in 1991 198.
117. The same technique was used in some national codifications
by common law countries, for instance the Foreign Sovereign Immu-
192. See Schreuer, supra footnote 187, at 15-22 ; and Higgins, supra footnote
187, at 267-268.
193. Cf. the leading case of the German Constitutional Court in Philippine
Embassy Bank Account, 65 ILR (1984), 146-193, 189.
194. See Schreuer, supra footnote 187, at 16.
195. See Crawford, supra footnote 189, at 76.
196. Ibid., 91.
197. ETS No. 74 ; reprinted in 11 ILM (1972), 470-490.
198. GAOR, 46th Session (1991), A/46/10, Report of the ILC on its 43rd Ses-
sion, para. 28 (pp. 11-151).
nities Act of the United States 199, or the State Immunity Act of the
United Kingdom 200. These statutes show a tendency to go beyond
the former distinction between jure imperii/jure gestionis acts. The
United States Act does so in the matter of torts and there, in particu-
lar, expropriations, where it excludes acts from immunity even if
they were committed in the exercise of government functions or
authority 201.
118. This tends to show that the new approach does not really
avoid the above-mentioned controversy. The problem arises because
most of the practice in the matter comes from Western industrialized
countries and reflects their socio-economic order. That accounts for
the acceptance of the European Convention which operates between
States with a similar value system. Globally the fundamental
conceptual controversy persists and manifests itself in the resistance
to particular exemptions from immunity in the ILCs Draft Articles.
After that text had been examined by a Working Group of the Sixth
Committee during three sessions, the General Assembly deferred
further consideration in 1994 to its fifty-second session (1997) 202.
119. The problem does not exist in respect of the immunity of
international organizations because the source of that immunity is
different 203.
Immunity is established by the constituent instrument of the orga-
nization with a view of protecting all activities which are undertaken
in accordance with that instrument from interference by States 204. Its
reason is functional necessity ; it covers the entire statutory activity,
irrespective of the nature of the activity in the context of domestic
legal orders.
199. Reprinted in 15 ILM (1976), 1388-1393.

200. Reprinted in 21 ILM (1982), 798-802.
201. See Schreuer, supra footnote 187, at 50, 56.
202. GA resolution 49/61, 9 December 1994.
203. For an overview see Nguyen Quoc Dinh, Les privilges et immunits
des organismes internationaux daprs les jurisprudences nationales depuis
1945, 3 AFDI (1957), 262-304 ; and P. H. F. Bekker, The Legal Position of
Intergovernmental Organizations. A Functional Necessity Analysis of Their
Legal Status and Immunities, Dordrecht, 1994.
204. See C. W. Jenks, International Immunities, London, 1961, 38-41 ; J.
Duffar, Contribution ltude des privilges et immunits des organisations
internationales, Paris, 1982, 18 ; C. Dominic, La nature et ltendue de
limmunit de juridiction des organisations internationales, in H. Bckstiegel et
al. (eds.), Law of Nations, Law of International Organizations, World Economic
Law, Liber Amicorum Honouring I. Seidl-Hohenveldern, Cologne, 1988, 77-93,
85.
78 K. Zemanek
III. New States
120. The disintegration of the Soviet Union and of the Socialist

Federal Republic of Yugoslavia (SFRY) has reopened certain issues
which one supposed to have been settled by State practice during the
decolonization process of the 1950s and 1960s 205. Three of them :
identity, recognition and succession are examined below.
A. Identity
121. Since both the Soviet Union and the SFRY were federations,
their disintegration raises the query whether it is to be regarded as a
dismemberment (dismembratio), giving birth to several new sov-
ereign States on the territory of the former federation ; or whether
one former component State continues the legal existence of the fed-
eration and is, thus, identical with it, while some new States have
seceded from it. In practice, the world community has reacted quite
differently in the two cases : the Russian Federation was recog-
nized as being identical with the former Soviet Union, whereas the
Federal Republic of Yugoslavia (Serbia and Montenegro) was, at
least for the time being, denied general recognition as a State which
continues the existence of the former SFRY.
122. Scholars are not agreed on the legal criteria which determine
the identity of a State, especially in the case of a disintegrating fed-
eration 206. The major difference of opinion originates in the approach
to the question : some consider the problem solely under the aspect
of the States legal personality as a subject of international law,
while others focus on the State as a socio-political community of its
people. Krystina Marek 207, writing in the best tradition of the Kel-
senian school of law, exemplifies the first approach ; Giorgio Can-
sacchi 208 and Wolfgang Fiedler 209 the second. Leaving aside the doc-
trinal controversy, it would seem safe to state, as a purely legal
proposition, that if a considerable territorial change coincided with a
205. Cf. K. Zemanek, State Succession after Decolonization, 116 Recueil

des cours (1965-III), 187-300.
206. See R. Y. Jennings and A. Watts (eds.), Oppenheims International Law,
9th ed., Harlow, 1992, Vol. I, 207.
207. K. Marek, Identity and Continuity of States in Public International Law,
Geneva, 1954.
208. G. Cansacchi, Identit et continuit des sujets internationaux, 130
Recueil des cours (1970-II), 1-94.
209. W. Fiedler, State Succession, 10 EPIL (1987), 446-456, 447.
fundamental change in the constitutional system of government,

identity was excluded. Against this James Crawford argues that a
State is not necessarily extinguished by substantial changes in terri-
tory, population or government, or even, in some cases, by a combi-
nation of all three 210.
123. His view points to the more practical aspect of the problem.
In the last resort, the identity of a State is not determined by dogma-
tically constructed criteria but established by the recognition of other
States, which take a variety of factors 211 and, above all, their inter-
ests into account when making the decision. This explains the dif-
ferent treatment of the dissolution of the Soviet Union and of the
former Yugoslavia in State practice.
124. In the case of the Soviet Union overriding interests of other
States required the recognition of the identity of the Russian Federa-
tion with the former USSR. Not only had the United States an emi-
nent interest in keeping Russia bound to bilateral arms reduction
agreements concluded with the Soviet Union, but the OSCE coun-
tries had a similar interest in respect of troop reduction agreements.
Moreover, the composition of the Security Council would otherwise
have been in jeopardy. Article 23 (1) of the United Nations Charter
names the USSR as a permanent member of the Security Council.
Since membership in an international organization is a personal right
to which, in principle, no succession is possible 212, treating the
Russian Federation as a new successor State would have made
an amendment to the Charter necessary to replace the name of the
Soviet Union in Article 23 (1). However, according to Article 108 of
the Charter, an amendment requires ratification by two-thirds of the
members of the United Nations, including all the permanent mem-
bers of the Security Council. Thus, treating the Soviet Union as
extinct would have prevented this and any future Charter amendment
since an extinct State cannot ratify one. The only way of keeping
the Security Council functioning and the amendment procedure
workable was therefore the recognition of the Russian Federations
identity with the Soviet Union 213.
210. J. Crawford, The Creation of States in International Law, Oxford, 1979,

417 (emphasis added).
211. Cf. R. Mullerson, The Continuity and Succession of States, by Refer-
ence to the Former USSR and Yugoslavia, 42 ICLQ (1993), 473-493, 476.
212. See Zemanek, supra footnote 205, at 253.
213. Cf. however the critical remarks by Y. Blum, Kaleidoscope, Russia
Takes over the Soviet Unions Seat at the United Nations, 3 EJIL (1992), 354-361.
80 K. Zemanek
125. In the case of the Federation of Yugoslavia (Serbia and

Montenegro) the interests were markedly different, mainly because
of former Yugoslavias international debt. To recognize the Federa-
tion (FRY), economically crippled by the United Nations embargo,
as identical with the SFRY and, thus, as sole debtor, might have
freed the more prosperous States of Slovenia and Croatia from their
share of the general debt 214, a result that was clearly undesirable.
Hence, the IMF Executive Board decided in December 1992 that the
SFRY had ceased to exist and that the former component States were
all successors to the assets and liabilities of the former SFRY. In
February 1993 the other international financial institutions followed
suit 215.
126. A parallel and not less important interest was, of course, to
keep an incentive for exercising pressure on the FRY to assist in the
settlement of the Bosnian problem and to come to terms with the
other successor States. These combined interests explain Security
Council resolution 777 of 19 September 1992 and the subsequent
General Assembly resolution 47/1 of 22 September 1992, which
state that the Federal Republic of Yugoslavia (Serbia and Monte-
negro) cannot continue automatically the membership of the former
SFRY in the United Nations but should apply for membership 216.
127. If one compares the two cases, one may be surprised by the
result : on purely legal grounds it would seem that the claim of the
FRY to identity with the SFRY is stronger 217 than that of the Rus-
sian Federations identity with the Soviet Union, because the Federal
Republic of Yugoslavia has at least tried to remain as far as possible
within the constitutional framework of the SFRY for drawing up its
new constitution of 1992. Yet, because of the interests involved, the
political decisions went in the opposite direction. This tends to show
that in the matter of identity of States, but, as will be seen, also in
matters of recognition or succession, international law provides a
214. It is doubtful whether Article 40 of the Vienna Convention on Succes-

sion of States in Respect of Property, Archives and Debts of 1983 (text reprinted
in 22 ILM (1983), 306-327), which is not in force, reflects a customary rule.
215. Cf. P. R. Williams, State Succession and the International Financial
Institutions : Political Criteria v. Protection of Outstanding Financial Obliga-
tions, 43 ICLQ (1994), 776-808.
216. Critical Y. Blum, UN Membership of the New Yugoslavia. Continuity
or Break ?, 86 AJIL (1992), 830-833.
217. Contrary opinion M. Bothe and C. Schmidt, Sur quelques questions de
succession poses par la dissolution de lURSS et celle de la Yougoslavie, 96
RGDIP (1992), 811-842, 826.
procedure for, but is not the dominant factor in, a primarily political
process.
128. The FRY maintains, nevertheless, its claim of being identi-
cal with the SFRY. In support of this claim sympathetic commen-
tators refer to agreements 218 and a joint statement 219 between the
FRY and other successor States for the normalization of their rela-
tions. The FRY-Croatian Agreement 220, to quote one example, pro-
ceeds from the historical fact that Serbia and Montenegro existed as
independent States before the creation of Yugoslavia and that
Yugoslavia has continued the international legal personality of these
States, wherefore the Republic of Croatia notes the existence of
the State continuity of the Federal Republic of Yugoslavia 221. Prima
facie this seems to support the claim of the FRY, although a slight
doubt persists whether the State continuity referred to is really that
of the SFRY or rather that of Serbia and Montenegro. That doubt is
intensified by the second paragraph of the same Article which states :
Proceeding from the historical fact of the existence of
various forms of state organization of Croatia in the past, the
Federal Republic of Yugoslavia notes the existence of the
continuity of Croatian statehood.
Here, the term continuity refers evidently to historical times before
the creation of Yugoslavia 222.
Be that as it may, agreements between successor States are not
necessarily decisive 223, especially when a hidden interest is involved
as in the case of the debt and the State property abroad of the former
SFRY.
218. Agreement of 8 April 1996 with the Republic of Macedonia ; UN doc.

S/1996/291, reprinted in 35 ILM 1246 (1996). Agreement of 23 August 1996
with the Republic of Croatia ; UN doc. A/51/318 and S/1996/706, reprinted in
35 ILM 1219 (1996).
219. Joint Statement of the Serbian President and the President of the Bos-
nian Presidency, Paris, 3 October 1996, UN doc. S/1996/830.
220. Cf. S. Hille, Mutual Recognition of Croatia and Serbia, 6 EJIL (1995),
598-611.
221. FRY-Croatian Agreement, Article 5, supra footnote 205.
222. The doubt is confirmed by a letter, dated 30 September 1996, from the
Resident Representatives of Bosnia and Herzegovina, Croatia, the Former Yugo-
slav Republic of Macedonia, and Slovenia to the Director General of the IAEA,
in which they state : It has been the consistent position of our Governments that
the Socialist Federal Republic of Yugoslavia has ceased to exist and that no
State represents its continuation. The letter is reproduced in IAEA, Information
Circular INFCIRC/529, Attachment 2 (20 November 1996).
82 K. Zemanek
B. Recognition
129. The dissolution of the SFRY gave also rise to certain

developments in the law of recognition, although their significance
is not yet clear and, moreover, rarely discussed. Traditionally, the
recognition of a new State is legitimate if the latter possesses all ele-
ments of statehood 224. Other States judge for themselves whether an
entity claiming to be a State possesses these elements.
130. In connection with secessions it is sometimes argued that,
unless the predecessor State has first recognized the seceding entity
as a State, not all elements of statehood are yet present, which makes
recognition by other States premature and amounts to inter-
vention 225. Similar arguments are used in connection with cases of
dismemberment as long as not all territorial entities of the dissolving
State concur. Predecessor States or, in case of dismemberment, the
other successor States may naturally wish to control the recognition
process but their claim is legally not tenable. It contradicts the right
of self-determination 226 and is inconsistent with the role of other
States as organs of international law.
131. The opinionated dispute over the nature of recognition, of
whether it has a constitutive or declaratory effect 227, is practically
obsolete since it became apparent that it was caused by a confusion
of two separate aspects of recognition. The existence of a State is, in
the first instance, a social phenomenon and thus, from a legal point
of view, a fact. Recognition of that fact is necessarily declaratory :
foreign States cannot create the social phenomenon by the unilateral
legal act of recognition, as the constitutive theory would imply. On
the other hand, the mere fact of recognition does not confer subjec-
tive international rights on the recognized State other than those
deriving from the objective rules connected with the existence of a
State under jus cogens or general international law, such as the right
224. See H. Blix, Contemporary Aspects of Recognition 130 Recueil des

cours (1970-II), 593-708 ; J. Crawford, The Criteria for Statehood in Inter-
national Law, 48 BYIL (1976-1977), 93-182 ; I. Brownlie, Recognition in
Theory and Practice, in R. St. J. Macdonald and D. M. Johnston (eds.), supra
footnote 10, at 627-641 ; D. Feldman, International Personality, 191 Recueil
des cours (1985-II), 351-406, 385-405.
225. Cf. H.-H. Teuscher, Die vorzeitige Anerkennung im Vlkerrecht, Frank-
furt am Main, 1959.
226. See Q. Wright, The Strengthening of International Law, 88 Recueil
des cours (1959-III), 1-293, 171-195 (Self-Determination and Recognition).
227. See literature cited supra footnote 224.
not to be made the object of aggression. Further subjective interna-

tional rights and/or obligations between recognizing and recognized
State must be created by them, as, for instance, Article 2 of the
Vienna Convention on Diplomatic Relations provides for the estab-
lishment of diplomatic relations. For these bilateral legal relation-
ships recognition has a constitutive effect.
132. The Council of the European Community, acting in the
context of the European Political Co-operation (EPC), introduced
a new element into this traditional pattern by adopting, on 16 De-
cember 1991, a Declaration on the Guidelines on the Recogni-
tion of New States in Eastern Europe and in the Soviet Union 228. In
this common position a number of additional conditions for the recog-
nition by the member States of the EC were announced, including
respect for the rule of law, democracy, and human rights, and
guarantees for the rights of ethnic and national groups and minori-
ties. The Badinter Commission 229 verified subsequently in a num-
ber of opinions 230 whether the conditions were fulfilled before the
members of the EC proceeded with recognition 231.
133. It is obvious that these requirements were geared to the
conditions existing in the former Yugoslavia and to the events taking
place there. They may, therefore, have only a case-related signifi-
cance. On the other hand, additional requirements for granting recog-
nition are not a complete novelty since considerations based on
such additional requirements may have been implicitly present in
what, after all, is a political act 232. What is novel in the initiative of
the EC is their explicit statement and their being officially made a
legal condition for recognition 233. It is too early to assess whether
228. Reprinted in 31 ILM (1992), 1486-1487. Cf. also J. Charpentier, Les

dclarations des Douze sur la reconnaissance des nouvaux Etats, 96 RGDIP
(1992), 343-355.
229. The Badinter Commission, called after its chairman, was first consti-
tuted by the European Community in 1991 (see introductory note by M. Ragazzi
in 31 ILM (1992), 1488-1489), and reconstituted in 1993 by the International
Conference on the Former Yugoslavia (terms of reference reprinted in 32 ILM
(1993), 1573-1574), inter alia to advise on legal questions.
230. Opinion No. 4 on Bosnia-Herzegovina ; No. 5 on Croatia ; No. 6 on
Macedonia ; No. 7 on Slovenia. They are reprinted in 31 ILM (1992), 1501-
1521.
231. In the case of Bosnia-Herzegovina against the findings of Opinion
No. 4.
232. See R. Rich, Recognition of States : The Collapse of Yugoslavia and the
Soviet Union, 4 EJIL (1992), 36-63, 63.
233. On the unprecedented character of this procedure see ibid., 42-44.
84 K. Zemanek
this will lead to a change in the general law of recognition beyond

the cases in question. If so, it would add to the existing requirement
of an effective governmental machinery as an element of statehood
the new one of the formers democratic legitimacy 234. That would be
quite a noteworthy departure from tradition.
134. A further point which merits attention is the growing role of
international organizations or bodies in the recognition process. The
development began already with decisions to admit new members to
the United Nations, since that implies statehood. It became more
obvious with the decisions of United Nations organs in the aftermath
of the dissolution of the Soviet Union and of the SFRY, culminating
finally in the aforementioned initiative of the EC. While it is evident
that decisions or recommendations of international organs do not
supersede the right of individual States to decide on recognition,
they play a part in shaping world opinion, which is difficult to ignore
if a State wishes to avoid isolation.
C. Succession
135. The dissolution of the Soviet Union, the SFRY and of the
Czech and Slovak Federal Republic provide an opportunity for test-
ing the extent to which the 1978 Vienna Convention on Succession
of States in Respect of Treaties 235 and the 1983 Vienna Convention
on Succession of States in Respect of Property, Archives and
Debts 236 have been observed and applied in practice and whether
they may, thus, be considered as reflecting, or having generated,
international custom.
136. One can generally observe that the so-called clean slate
rule, which proclaimed that a new State entered the international
system without any international rights and/or obligations of its pre-
decessor devolving on it, and which was fashionable in certain
234. For a similar instance cf. O. Corten, La rsolution 940 du Conseil de

scurit autorisant une intervention militaire en Hati : lmergence dun principe
de lgitimit dmocratique en droit international ?, 6 EJIL (1995), 116-133.
235. Reprinted in 17 ILM (1978), 1488-1514 ; cf. P. K. Menon, Vienna Con-
vention of 1978 on Succession of States in Respect of Treaties, 59 RDI (1981),
1-60.
236. See supra footnote 214. Cf. R. Streinz, Succession of States in Assets
and Liabilities : A New Rgime ? The 1983 Vienna Convention on Succession of
States in Respect of State Property, Archives and Debts, 26 GYIL (1983), 198-
237.
circles during the decolonization period, has apparently lost its

attraction. New States seem to realize that this theory conflicts with
the factual interdependence of States in the real world and thus with
their own interests.
137. Curiously, it was Austria which, for domestic policy reasons
connected with its State Treaty for the Re-Establishment of an Inde-
pendent and Democratic Austria of 1955, maintained that Russia
was not identical with the former Soviet Union but a successor State
to which the clean slate rule applied, apparently hoping to elimi-
nate it thereby from the parties to the State Treaty. The denial of
identity, which was only shared for a time by the Ukraine, conflicted
with the general trend in the international community. And the insis-
tence on the clean slate rule caused considerable problems with
other successor States in relation to which it would have had to be
applied for reasons of consistency. It is also the only known instance
in which the clean slate rule was not invoked by an affected State
but by a treaty partner. Austria remained alone with that view and
returned in the end pragmatically to the mainstream custom 237.
138. In the matter of succession to treaties, the Vienna Con-
vention of 1978 served by and large as a useful model for State
practice.
This was especially the case in respect of the rgime for the par-
ticipation of new States in multilateral treaties of their predecessors
by a notification of succession, a rgime that was established by
Articles 17, 22 and 23 of the 1978 Vienna Convention. Such a decla-
ration constitutes the State a party to the multilateral treaty with
retroactive effect from the day of its independence, regardless of the
date on which the declaration is made. The general applicability of
this procedure was disputed by the FRY before the ICJ in the case
concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Request for Indication of Pro-
visional Measures), on the ground that it was evolved for, and is
applicable only, in cases of decolonization, and is, therefore not open
to Bosnia-Herzegovina 238. The Court did not decide the issue at
this stage, but recognized the general applicability implicitly by
accepting jurisdiction for provisional measures 239. An examination
237. See G. Hafner and E. Kornfeind, The Recent Austrian Practice of State
Succession : Does the Clean Slate Rule Still Exist ?, 1 ARIEL (1996), 1-49.
238. ICJ Reports 1993, 1-25, paras. 23-24.
239. Ibid., para. 25.
86 K. Zemanek
of the entries in the depository register kept by the Secretary-General

of the United Nations confirms the widespread and unopposed use of
the device by new States which did not reach independence through
decolonization ; but it also shows that notifying States are not always
aware of the retroactive effect of a notification of succession.
139. Succession to bilateral treaties was mostly achieved through
protocols of application 240, drawn up between a successor State and
the respective other contracting party, which did not indicate
whether they were declaratory or constitutive in nature, but were
often necessary because institutions referred to in the treaties had dis-
appeared in the successor State. That practice confirms, however,
that the continued application is effected by a novation, requiring the
consent of the other contracting party, rather than by simple succes-
sion ; succession entitles only to negotiating the novation.
140. The practice concerning succession to property and debts
shows, on the contrary, that the 1983 Vienna Convention contains
many rules generated by progressive development which have not
(yet) become custom. Only a few fundamental principles seem to
command general acceptance. This may be due to the fact that the
actual distribution of assets and debts is strongly influenced by
considerations of equity and in most cases negotiated, on the one
side among successor States 241 and on the other with the creditors,
who are more concerned with salvaging as much as possible than
with insisting on the application of abstract rules which may leave
them empty-handed. This idea was succinctly expressed by the
Badinter Commission in Opinion No. 12 242 which states inter
alia :
The fundamental rule is that States must achieve an equi-
table result by negotiation and agreement. The principle is
applicable to the distribution of the State property, archives and
debts of the Socialist Federal Republic of Yugoslavia.
240. See G. Hafner, Austria and Slovenia : The Succession in Bilateral Trea-
ties and the State Treaty of 1955, 12 Development and International Coopera-
tion (1996), 65-83, 78-80.
241. Cf. A. Reinisch and G. Hafner, Staatensukzession und Schulden-
bernahme beim Zerfall der Sowjetunion, Vienna, 1995.
242. Reprinted in 32 ILM (1993), 1589-1591, 1590. Cf. also S. Oeter, State
Succession and the Struggle for Equity : Some Observations on the Laws of
State Succession with Respect to State Property and Debts in Cases of Separa-
tion and Dissolution of States, 38 GYIL (1995), 73-102.
In two recent decisions 243 the Austrian Supreme Court, after

having found that the SFRY had been dismembered and its territory
divided among five successor States, decided that in respect of
public property abroad the successor States form a joint-ownership
community (communio incidens) and have to divide that property
equitably among themselves by agreement.
243. Republic of Croatia et al. v. G. Bank der Sparkassen, and Republic of

Croatia et al. v. C. Bankverein reprinted in 36 ILM (1992), 1520-1530 ; see K.
Bhler, Casenote : Two Recent Austrian Supreme Court Decisions on State
Succession from an International Law Perspective, 2 ARIEL (1997), 213.
88
CHAPTER IV
INTERNATIONAL ORGANIZATIONS
I. Functions and Powers
A. International legal personality

141. Intergovernmental organizations may and actually do
possess an international legal personality distinct from that of their
members 244. They may act under international law and domestic
laws and are alone responsible or liable for their acts and omis-
sions 245. This has recently been confirmed in the celebrated Tin
Council case 246 and, after careful study, by the Institut de droit inter-
national in 1995 247. While personality as such is therefore not in
doubt, the source of that personality is, at least among scholars.
142. According to the most widely held view the source of perso-
nality is the constituent instrument of the respective organization.
The legal personality of an intergovernmental organization is thus an
ad hoc creation by the founding States. The constituent instrument
establishes not only the personality but determines also, by confer-
ring certain functions and powers on the organization, the limits of
its capacity to act under international law. The Advisory Opinion of
the ICJ on Reparation for Injuries Suffered in the Service of the
United Nations 248 is generally cited as authority for that doctrine.
If, however, the constituent treaty is the source of an organiza-
244. For the development since 1945 cf. C. F. Amerasinghe, Principles of the
Institutional Law of International Organizations, Cambridge, 1996, 77-85.
245. See W. Meng, Internationale Organisationen im vlkerrechtlichen
Deliktsrecht, 45 ZaRV (1985), 325-357, 325-343.
246. Text of the Judgment of the House of Lords, 26 October 1989, reprinted
in 29 ILM (1990), 670-715.
247. See 66/II Annuaire de lInstitut de droit international, 1995, 444-453.
Cf. also I. Seidl-Hohenveldern, Responsibility of Member States of an Interna-
tional Organization for Acts of that Organization, in P. Lamberti Zanardi et al.
(eds.), supra footnote 5, Vol. III, 415-428 ; id., Der Rckgriff auf die Mitglied-
staaten in Internationalen Organisationen, in R. Bernhardt et al. (eds.),
Vlkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschen-
rechte, Festschrift fr H. Mosler, Berlin, 1983, 881-890 ; M. Hartwig, Die Haf-
tung der Mitgliedstaaten fr Internationale Organisationen, Berlin, 1993, Eng-
lish summary, 335-343 ; C. F. Amerasinghe, Liability to Third Parties of
Member States of International Organizations : Practice, Principle and Judicial
Precedent, 85 AJIL (1991), 259-80 ; and id., supra footnote 244, at 249-289.
248. ICJ Reports 1949, 174-188, 179.
tions international personality, the effect of that personality on non-

member States of the organization is in doubt, because a treaty may
not establish obligations for third States without their consent. The
assertion of the ICJ in the Reparation Opinion, based on the number
of member States 249, is not a legal argument and does, moreover, not
apply to regional or sub-regional organizations with a limited mem-
bership 250.
143. For ages one writer, Finn Seyersted, has disputed this doc-
trine 251. To put it in simplified terms, he argues that intergovernmen-
tal organizations have, once they exist and because they exist, ipso
facto objective international personality conferring inherent interna-
tional legal capacity 252. Seyersteds submission implies that custo-
mary international law is the source of the legal personality of inter-
governmental organizations, but he offers no positive proof of such
a norm ; his submission relies solely on the fact that, in practice, no
intergovernmental organization has met with the objection that it
lacked the necessary international capacity for its conduct or was
transgressing express prohibitions in its statute.
144. Practice does indeed tend rather towards Seyersteds sub-
missions than towards the more restrictive doctrine 253. This is, at
least, the conclusion that one may draw from the Preamble,
Article 2, paragraph 1 (j), and Article 6 254 of the Vienna Convention
249. ICJ Reports 1949, 185 :

. . . fifty States, respresenting the vast majority of the members of the
international community, had the power, in conformity with international
law, to bring into being an entity possessing objective international person-
ality, and not merely personality recognized by them alone . . ..
Cf. C. F. Amerasinghe, International Legal Personality Revisited, 47 AJPIL
(1995), 123-145, 140-145.
250. For a pragmatic solution of the problem cf. Article XXII of the Conven-
tion on the International Liability for Damages Caused by Space Objects of
1972 (text reprinted in 66 AJIL (1972), 702-709).
251. See F. Seyersted, Objective International Personality of Intergovern-
mental Organizations. Do their Capacities Really Depend upon the Conventions
Establishing Them ?, Copenhagen, 1963 ; and id., International Personality of
Intergovernmental Organizations, 4 IJIL (1964), 1-74 and 233-268.
252. Seyersted, IJIL, supra footnote 251, at 40-41, 53, 240.
253. Cf. Amerasinghe, supra footnote 244, at 85-91.
254. Text reprinted in 25 ILM (1986), 543-592. The cited provisions read :
Preamble : Noting that international organizations possess the capacity to
conclude treaties which is necessary for the exercise of their functions and the
fulfilment of their purposes.
Article 6 : The capacity of an international organization to conclude treaties
is governed by the rules of that organization.
Article 2, para. 1 (j) : rules of the organization means, in particular, the
90 K. Zemanek
on the Law of Treaties between States and International Organiza-

tions or between International Organizations (VCLTIO) of 1986
when they are considered together 255.
B. The nature of powers
1. The interpretative framework of constituent instruments

145. While the provisions of the VCLTIO relate stricto sensu
only to the legal capacity of international organizations under inter-
national law, they underline the interdependence of the doctrinal
explanations of the legal personality of international organizations
and the methods of interpreting their constitutions. Arguments
defending the relative merit of one or the other interpretative concept
are more or less a mirror image of the conflicting opinions concern-
ing the source of the international legal personality of intergovern-
mental organizations.
146. Despite the dispute there is, however, also common ground.
All methods share the tendency to extend an organizations powers
through interpretation, adopting the organizations scope rather than
the letter of the provisions of its constituent instrument as limiting
framework 256. The importance of the scope of an organizations acti-
vity for the purpose of interpreting its constitution has recently been
confirmed by the Advisory Opinions of the ICJ on the Legality of
the Use by a State of Nuclear Weapons in Armed Conflict 257 and on
the Legality of the Threat or Use of Nuclear Weapons 258.
147. For those who consider the powers of an international orga-
nization as delegated by their member States, such powers derive
explicitly or implicitly from the constituent treaty which is the
constituent instruments, decisions and resolutions adopted in accordance with

them, and established practice of the organization.
255. See K. Zemanek, The UN Conference on the Law of Treaties between
States and International Organizations : The Unrecorded History of its General
Agreement , in K.-H. Bckstiegel et al. (eds.), supra footnote 204, at 665-679,
670-671 ; cf. also G. do Nascimento e Silva, The 1986 Vienna Convention on
the Treaty-Making Power of International Organizations, 29 GYIL (1986), 68-
85, 74-75.
256. See K. Skubiszewski, Remarks on the Interpretation of the United
Nations Charter, in R. Bernhardt et al. (eds.), supra footnote 247, at 891-902,
893-894.
257. At the request of WHO. ICJ Reports 1996, 74-81, paras. 18-26.
258. At the request of the General Assembly of the United Nations. ICJ
Reports 1996, 222-223, paras. 11-12.
instrument of delegation. Differences of opinion exist, though, on

how the implicitly delegated powers should be determined, especially
on what level such determination should take place. While the earlier
Advisory Opinion of the ICJ on Reparation for Injuries 259 had
recourse to implied powers, a doctrine familiar in United States
constitutional law, the later Advisory Opinion on Certain Expenses
of the United Nations 260 chose the more abstract level of functions
for reference to justify its doctrine of functional necessity.
148. Seyersted, on the other hand, maintains that an international
organization has inherent powers which it may exercise unless that
exercise is expressly prohibited by its constitution 261. The problem
with this submission is that the constituent treaties of existing inter-
governmental organizations do not, or do only exceptionally, contain
such prohibitions since they are commonly drafted in enabling, not
in prohibiting terms. Thus Seyersteds theory seems to lead to an
unlimited capacity of intergovernmental organizations.
149. Pragmatically, however, the two approaches are not as far
apart as one would suppose. On the one hand, the extension of
powers through functional interpretation, leading to established
practice 262, may be quite substantial. On the other hand, one may
realistically expect that the members and organs of an international
organization will consider the functions specified in its constitution
as defining its scope to the exclusion of other functions. Thus the
scope will, albeit indirectly, serve as prohibition in the sense of
Seyersted. The result of the two approaches will, in practical terms,
be nearly the same.
2. Ultra vires acts
150. This conclusion raises, however, the question whether it

excludes the possibility that an organization may act ultra vires : if
259. See supra footnote 248 ; and cf. M. Rama-Montaldo, International

Legal Personality and Implied Powers of International Organizations, 44 BYIL
(1970), 111-155.
260. ICJ Reports 1962, 151-180, 167-168.
261. Seyersted, IJIL, supra footnote 251, at 23.
262. Cf. the definition of rules of the organization in the VCLTIO, supra
footnote 254. See also T. Sato, An Emerging Doctrine of the Interpretative
Framework of Constituent Instruments as the Constitutions of International
Organizations, 21 Hitotsubashi Journal of Law and Politics (1993), 1-63, 57-
58 ; and C. F. Amerasinghe, Interpretation of Texts in Open International
Organizations, 45 BYIL (1994), 175-209.
92 K. Zemanek
all acts of an organization could, either through an extensive

construction of functional necessity or by invoking undefined
inherent powers, be legitimized, how could an organization then act
ultra vires ? In examining the problem one must distinguish between
two aspects : an organ may exceed its competence under the consti-
tution of the organization if the required power is assigned to a dif-
ferent organ ; or it may exceed its competence by going beyond the
vires of the organization. Only the latter case will be studied here.
151. When, after the Second World War, most universal interna-
tional organizations were founded, the problem was apparently given
little thought. With few exceptions, notably the World Bank 263 and
the IMF 264, statutes of international organizations do not even pro-
vide for a review by the plenary organ of decisions concerning the
interpretation or application of statutory provisions by specialized
organs. Judicial control of such acts, which most States would today
consider indispensable with regard to the constitutionality of acts of
government, is totally absent 265.
152. In the United Nations it is theoretically possible that the
General Assembly, in accordance with Article 96 (1) of the Charter,
requests an Advisory Opinion of the ICJ on the legality of a decision
of the Security Council, and vice versa, but that is not a politically
viable proposition. How precarious the legal relationship between
the Court and the Security Council is became apparent in the for-
mers decision on provisional measures in the case brought by Libya
against the United Kingdom and the United States for alleged viola-
tion of its rights under the 1971 Montreal Convention for the Sup-
pression of Unlawful Acts against the Safety of Civil Aviation 266.
The idea of judicial review of the legality of acts of international
263. Articles of Agreement of the IBRD, Articles IX (a) and (b).

264. Articles of Agreement of the IMF, Articles XXIX (a) and (b).
265. With the possible exception of the competence under Articles 187 and
189 of UNCLOS III of the Sea-Bed Dispute Chamber of the International Tribu-
nal for the Law of the Sea, although that competence is extremely limited.
266. Questions of Interpretation and Application of the 1971 Montreal Con-
vention arising from the Aerial Incident at Lockerbie (Libya v. United King-
dom ; Libya v. United States), Provisional Measures ; ICJ Reports 1992, 3-16.
The constitutional problem is examined by E. Klein, Paralleles Ttigwerden
von Sicherheitsrat und Internationalem Gerichtshof bei friedensbedrohenden
Streitigkeiten. Zur Frage der Zustndigkeit und Organtreue, in R. Bernhardt et
al. (eds.), supra footnote 247, at 467-491 ; T. M. Franck, The Powers of Appre-
ciation : Who is the Ultimate Guardian of UN Legality ?, 86 AJIL (1992), 519-
523 ; and W. M. Reisman, The Constitutional Crisis in the United Nations, 87
AJIL (1993), 83-100.
organs, and in particular of Security Council decisions, by the ICJ 267

has to be approached with caution if one wishes to avoid unrealistic
propositions. Judge Bedjaouis passionate plea for such a review 268
is rather a plea for a change of attitude on the part of the most
important, if not all, States, although he argues convincingly that
[i]t is found increasingly inadmissible that international politi-
cal organs should take liberties with the Charter or adopt a
relaxed attitude towards international law when it is they,
surely, even more than States, that have been given the duty
of fortifying international laws credibility and reliability 269.
But those who find it increasingly inadmissible are apparently not
those who could effect a change.
The differences between the major powers during the Cold War
excluded an easy use of international organizations for political
ends. Hence the question of possible ultra vires acts of organizations
attracted, until recently, only academic interest 270. After the new
constellation of 1989 and the dynamism that went with it, the situa-
tion changed and possible ultra vires acts became a topic of practical
concern.
153. The discussion was set off by some constitutionally question-
able decisions of the Security Council. It seems that, since the
Council started working properly after 1989, its permanent mem-
bers, once they come to an understanding among themselves, feel
not really constrained in their decision-making by provisions of the
Charter or by rules of international law if it suits their combined
interests ; and they are apparently able to persuade other Council
267. The idea is thoroughly examined by J. E. Alvarez, Judging the Security

Council, 90 AJIL (1996), 1-39. T. M. Franck, The United Nations as Guaran-
tor of International Peace and Security : Past, Present and Future, in C. Tomu-
schat (ed.), The United Nations at Age Fifty. A Legal Perspective, The Hague,
1995, 25-38, argues that
judicial review for gross abuse of discretion would enhance significantly
the authority of the Council by assuring members of the United Nations
especially those not on the Council that its actions remain accountable to
the Charter and the membership (at 37) ;
cf. also R. St. J. Macdonald, Changing Relations between the ICJ and the
Security Council of the UN, 31 Can. YIL (1993), 3-32.
268. M. Bedjaoui, The New World Order and the Security Council. Testing
the Legality of its Acts, Dordrecht, 1994.
269. Ibid., 130.
270. Cf. the summary of proposals of learned societies, ibid., 55-60 ; and the
relevant documents, 383-498.
94 K. Zemanek
members to fall into line 271. That performance is reminiscent of the

European Concert of the nineteenth century.
154. Some examples may illustrate the point 272.
In its resolution 687 (1991) concerning Iraq, the Council, inter
alia, guaranteed the inviolability of the boundary between Iraq and
Kuwait and established a Compensation Commission, a judicial
body for assessing financial claims against Iraq 273. It is difficult to
imagine a provision in the Charter which could be invoked as author-
izing these decisions. A guarantee is a preventive act not covered by
Article 39 of the Charter which requires an actual, not a potential
danger ; and the Compensation Commission can hardly qualify as a
subsidiary organ of the Security Council since the Council is not
empowered to judge financial claims ; installing the Commission for
that purpose is a legislative act for which the Council lacks the
required authority.
155. Does the Charter empower the Security Council to
request that a State surrender its own nationals, a demand which has
no basis in international law, and to impose economic sanctions if
the State refuses to comply with the request but offers to try the sus-
pects itself ? This is what resolutions 731 (1992) and 748 (1992),
which the Security Council adopted against Libya after the destruc-
tion of a Pan Am airliner over Lockerbie, amount to 274.
156. In imposing in resolution 713 (1991) an embargo on the
delivery of weapons and military equipment to Yugoslavia, the
Council was, in fact, applying that embargo indiscriminately to all
successor States of the former Yugoslavia. It thereby impaired the
inherent right of Bosnia-Herzegovina under Article 51 of the Charter
271. See H. Freudenschuss, The Changing Role of the UN Security Council :

Trends and Perspectives, in W. Khne (ed.), Blauhelme in einer turbulenten
Welt, Baden-Baden, 1993, 151-176, 151-153 and 168-169 ; and D. Schindler,
Die Vereinten Nationen nach fnfzig Jahren. Aspekte ihrer Entwicklung, 114
Zeitschrift fr Schweizerisches Recht (NF), 1995, 237-256, 251-253.
272. The following and further examples are discussed by F. L. Kirgis, Jr.,
The Security Councils First Fifty Years, 89 AJIL (1995), 506-539, 520-527.
273. Points A.4 and E.18 and 19. Cf. further Bedjaoui, supra footnote 268, at
40-43 ; R. J. Zedalis, Gulf War Compensation Standard : Concerns under the
Charter, 26 RBDI (1993), 333-350 ; and J. R. Crook, The UN Compensation
Commission A New Structure to Enforce State Responsibility, 87 AJIL
(1993), 144-157.
274. Cf. the Declaration of the United States of America, France and the
United Kingdom on Terrorism, UN doc A/46/831 and S/23309 (20 December
1991) ; further Bedjaoui, supra footnote 268, at 43-47 ; and F. Beveridge, The
Lockerbie Affaire, 41 ICLQ (1992), 907-920.
to defend itself effectively against attacks. It seems unlikely that

such an effect was intended by the drafters of the Charter when they
qualified the right to self-defence by the words until the Security
Council has taken measures necessary to maintain international
peace and security. Even given the wide power of appreciation of
the Security Council to determine the measures necessary in a case,
such measures must still satisfy an objective requirement : they must
be capable of protecting the victim of an overt or covert aggression,
not deprive it of the means for its effective defence.
157. In establishing International Criminal Tribunals for the for-
mer Yugoslavia and for Rwanda, the Security Council exercised again
legislative powers which are not evident from the Charter. The pro-
blems involved in these cases will be separately discussed later 275.
158. How is one to evaluate these instances ? Are they legally
null and void ? So far, no general theory of nullity of rules of inter-
national law and, more particularly, of legal acts of international
organs has been developed 276. According to the general theory of
law, the absence of a procedural remedy against an alleged ultra
vires act, i.e. a procedure in which the act could be declared void
(relative nullity), makes the act ipso facto null and void (absolute
nullity). Applied to the cases under consideration this would mean
that the Security Council, if it obviously exceeds its competence by
assuming powers which the United Nations does not possess, acts
ultra vires ; since no institutional redress against such acts exists,
they would have to be considered null and void ab initio.
159. At this point, however, one has to take the structure of the
international system into account. Its actors are not only subjects of
international law and of the special law of the Charter, they are also

276. P. Guggenheim, La validit et la nullit des actes juridiques internation-
aux, 74 Recueil des cours (1949-I), 195-268 ; R. Y. Jennings, Nullity and
Effectiveness in International Law, in R. Y. Jennings et al. (eds.), Cambridge
Essays in International Law, Essays in Honour of Lord McNair, London, 1965,
64-87 ; P. Cahier, Les caractristiques de la nullit en droit international et tout
particulirement dans la Convention de Vienne de 1969 sur le droit des traits,
76 RGDIP, (1972), 645-691 ; and J. Verhoeven, Les nullits du droit des gens,
in P. Weil (ed.), Droit international 1, Paris, 1981, 1-108, are thoughtful and
stimulating papers but do not or do only summarily refer to international organi-
zations.
E. Osieke, The Legal Validity of Ultra Vires Decisions of International
Organizations, 77 AJIL (1983), 329-356, gives a comprehensive overview but
falls short of a general theory ; the same may be said of Amerasinghe, supra
footnote 244, at 179-187.
96 K. Zemanek
their makers 277. This means in the present context that each member
State of the United Nations is its own judge of the legality or ille-
gality of the act in question. Ebere Osieke 278 is mistaken when he
states that
to arrogate to the member states a general right to reject a prop-
erly adopted position on the basis of a unilateral determination
that it is ultra vires would be tantamount to making the mem-
bers judges in their own cases . . ..
There is nothing to arrogate. In Article 25 of the Charter member
States have only agreed to accept and carry out the decisions of the
Security Council which are in accordance with the present Charter 279.
In the present state of the international system States have, therefore,
the capacity to assess compliance with this provision because the orga-
nization is their creation and, unless they have expressly accepted
limitations, they remain its masters. That makes it, on the other hand,
possible that the members of an international organization, by posi-
tive action or simply by their silence, acquiesce in the extension of
the organs competence and, eventually, of the organizations powers 280.
If the use of this enlarged competence and/or powers of the organiza-
tion becomes established practice, the constituent treaty of the organi-
zation is, in fact, formlessly amended 281. This is the reason for the
277. This is, perhaps, best expressed by Article XXVII of the Charter of the
Organization of African Unity, which states : Any question which may arise
concerning the interpretation of this Charter shall be decided by a vote of two
thirds of the Assembly of Heads of State and Government of the Organization.
(Emphasis added.)
278. Osieke, supra footnote 276, at 255.
279. See J. Delbrck, Commentary on Article 25, in B. Simma et al. (eds.),
The Charter of the United Nations. A Commentary, Oxford, 1995, 407-418,
MN 16-18. Cf. also the language of the Advisory Opinion of the ICJ on Legal
Consequences for States of the Continued Presence of South Africa in Namibia,
ICJ Reports 1971, 16-58, 54 (para. 116) : Thus when the Security Council adopts
a decision under Article 25 in accordance with the Charter it is for member States
to comply with that decision. (Emphasis added.)
280. See G. Schwarzenberger, The Inductive Approach to International Law,
London, 1965, 113 :
By acquiescence and, ultimately, estoppel on the part of members en-
titled to protest against the usurpation of functions of decision-making, the
General Assembly, or any other intended organ, may, however, successfully
arrogate to itself functions and powers beyond those allocated to it in its
constitution.
281. Y. Z. Blum, Eroding the United Nations Charter, Dordrecht, 1993, 239-
256 strongly opposes this tendency ; I agree with him in principle but still have
to accept facts.
appearance of the term established practice in the definition of the

rules of the organization given in Article 2 of the Vienna Convention
of 1986. The way in which the Security Council handles the abstention
of permanent members contrary to the wording of Article 27 (3) of the
Charter, and the whole institution of peace-keeping are good
examples of such practices.
160. In sum one must conclude that in a given legal system even
absolute nullity must in some way be established. In the internatio-
nal system States, in specie the member States of the organization
concerned, are the only ones entitled to invoke the nullity by raising
an appropriate objection 282. If they abstain from doing that, the act is
validated in the sense that a new practice is instituted which may, if
consistently followed, become an established practice in the sense
of the VCLTIO.
3. Power or authority ?
161. When one refers to the powers of international organiza-

tions one uses the word in a specific legal sense, not in the sense of
its general use. International organizations do not have real power
since they lack the resources which are the origin of power. Their
power is (legal) authority and limited authority at that, as indicated
by Article 2 (7) of the Charter which safeguards the domestic juris-
diction of member States 283.
162. As a general rule, international organizations may bind their
members only in institutional and budgetary matters 284. Authority to
adopt decisions which the members of the organization are required
to apply in relations among themselves or in their relations with non-
members, like that of the Security Council when acting under Chap-
ter VII of the Charter 285 or that of the Council of the EC pillar of the
EU 286, is an exception. Usually, organizations address only recom-
mendations to member States which the latter are free to follow,
though such recommendations may have a strong pervasive or even
282. T. Schilling, Die neue Weltordnung und die Souvernitt der Mit-
glieder der Vereinten Nationen, 33 AVR (1995), 67-106, proposes, following
other authors, the General Assembly as appropriate organ for a decentralized
review of the legality of Security Council decisions (at 101-103).
283. See supra, paras. 67 and 70.
284. See infra, Chap. IX, paras. 414 et seq.
285. See Article 25 of the Charter.
98 K. Zemanek
legitimizing effect : system partners may be estopped to claim the

illegality of the conduct of other system partners who implement a
recommendation 287. This creates a delicate problem when the
recommended conduct would violate international customary or
treaty rights of other States, for instance through economic sanc-
tions. This problem will be examined in the context of inter-source
relations 288.
163. For achieving their purposes, international organizations
depend therefore largely on the co-operation of their members. Even
if a member were to fail in its duty under the organizations consti-
tution to carry out a binding decision, the only available sanctions
and some constituent treaties do not even provide for these are
the suspension from its rights of membership or its exclusion from
the organization. As the substantial arrears of some members in the
payment of contributions to the United Nations budget show, the
threat of possible sanctions is not very effective and organizations
are also known as reluctant to apply them. Sanctions of this nature
are only effective against States which are anxious to avoid isolation
and dread public blame. Moreover, exclusion would liberate the
wrongdoer from further performing the duty which it had illegally
not performed. Even the Security Council lacks proper means
eventually to enforce its decisions under Chapter VII, except by
another decision 289.
164. Although this may appear as a weakness of international
organizations, States are apparently not prepared to concede more
power to them. This attitude is obvious even in the more tightly
integrated EC pillar of the European Union : until the Maastricht
Treaty judgments of the European Court against States could not be
enforced ; the only available procedure was a new action before the
Court for the refusal to comply with the first judgment, which led
to a never-ending loop 290. Now, since the Maastricht Treaty, fines
287. See C. Schreuer, Recommendations and the Traditional Sources of

International Law, 20 GYIL (1977), 103-118, 118 ; and J. A. Frowein, The
Internal and External Effects of Resolutions by International Organizations, 49
ZaRV (1989), 778-790, 785-786.
288. See infra, para. 470. Cf. also J. A. Frowein, Commentary on Article
39, in B. Simma et al. (eds.), supra footnote 279, at 605-616, MN 33 ; and id.,
Commentary on Article 41, ibid., 623-628, MN 19.
289. This problem is dealt with in Chapter XIV.
290. See A. Dashwood and R. White, Enforcement Actions under Articles
169 and 170 EEC, 14 ELR (1989), 388-414, 401. Belgium, Germany and Italy
had become habitual offenders.
may be levied on non-compliance with a judgment 291. Thus, even

in the EU only indirect enforcement is possible.
165. It would, however, be wrong to judge the usefulness of inter-
national organizations according to their capacity of enforcement.
Their main purpose lies elsewhere 292. They are instruments for gen-
erating consciousness of problems caused by new developments and
raised by States or identified by experts in their secretariats ; for
building up consensus among member States on the necessary res-
ponses ; and, as a last step, for eventually transforming that consen-
sus into draft rules for acceptance by the member States, occasion-
ally in the form of soft law as a first stage. They are, in other
words, instruments for adapting the rules of the international system
to the requirements of growing interdependence. The slack record of
compliance with such rules, even when they have been ratified in
treaty form, has inspired a substitute for the weak enforcement capa-
city : the creation of controlling mechanisms, at least in the form of
reporting systems, sometimes completed with a compliance pro-
cedure 293. ILO adopted such a system in its constitution more than
75 years ago 294. More recently the technique has been modified and
the supervisory function in respect of a convention adopted by an
291. See T. C. Hartley, Constitutional and Institutional Aspects of the Maas-

tricht Agreement, 42 ICLQ (1993), 213-237, 227. The first countries to be
fined were Germany and Italy.
292. Cf. C. Schreuer, The Significance of International Organizations in
Current International Law, 38 Law and States (1988), 63-103.
293. See J. Charpentier, Le contrle par les organisations internationales de lex-
cution des obligations des Etats, 182 Recueil des cours (1983-IV), 151-242 ;
and the volume edited by W. E. Butler, Control over Compliance with Interna-
tional Law, Dordrecht, 1991 ; further A. Cassese, Il controlo internazionale, Milan,
1971 ; L. B. Sohn, The Use of Consultations for Monitoring Compliance with
Agreements Concluded under the Auspices of International Organizations, in
N. Blokker and S. Muller (eds.), Towards More Effective Supervision by
International Organizations, Essays in Honour of H. G. Schermers, Vol. I, Dor-
drecht, 1994, 65-82 ; N. Blokker and S. Muller, Towards More Effective Super-
vision by International Organizations. Some Concluding Observations, ibid.,
275-311 ; P. M. Dupuy, International Control and State Responsibility, in K.
Ginther et al. (eds.), supra footnote 44, at 305-318 ; and R. Wolfrum, Obligations
under Public International Law to Implement International Rules : Mechanisms to
Monitor Such Implementations, in B. B. von Maydell and A. Nuberger (eds.),
Social Protection by Way of International Law, Berlin, 1996, 87-104.
294. Constitution of ILO, Articles 22-34. Cf. E. A. Landy, The Effectiveness
of International Supervision. Thirty Years of I.L.O. Experience, London, 1966 ;
N. Valticos, Lvolution du systme de contrle de lOrganisation internation-
ale du Travail, in P. Lamberti Zanardi et al. (eds.), supra footnote 5, Vol. II, at
505-521 ; id., Once More about the ILO System of Supervision : In What
Respect Is It Still a Model ?, in N. Blokker and S. Muller (eds.), supra foot-
note 293, at 99-113.
100 K. Zemanek
organization or under its auspices entrusted to a body set up by

the convention itself 295.
II. Sovereign Equality and Membership
A. Equal rights and the veto
166. The principle of sovereign equality 296, on which the United

Nations 297 and all other international organizations are based,
requires that all members should have the same rights and duties in
the decision-making process of the organization.
167. How, then, is one to reconcile the principle with the perma-
nent membership and the attaching special voting rights of certain
States in the Security Council ? Apologists justify both with the
greater responsibility and wider obligations of these States for main-
taining international peace and security, referring to Article 106 of
the Charter as proof. But the record of these States does not support
the argument. It suffices to mention the questionable military adven-
tures of China against India in the Himalayas ; of France and the
United Kingdom in Egypt ; of the former Soviet Union (now Russia)
in Hungary, Czechoslovakia or Afghanistan ; and of the United
States in Grenada or Panama ; or to evoke the quite substantial
arrears of Russia and the United States in their contributions to the
United Nations budget, in order to discover that the States in ques-
tion take their famed responsibility lightly. It would be more honest
and convincing to admit that the special position of permanent mem-
bers is simply a recognition of the factual inequality of States and
the predominance of some of them 298, instead of vainly defending its
conformity with the principle of sovereign equality.
295. Use has been made of this device in arms control and disarmament, by
the United Nations in conventions for the protection of human rights or for the
protection of the environment and also by regional organizations. Cf. W. Karl,
Besonderheiten der internationalen Kontrollverfahren zum Schutz der Men-
schenrechte, 33 Berichte der Dt. Gesellschaft fr Vlkerrecht (1993), 83-128 ;
T. Meron, Norm Making and Supervision in International Human Rights :
Reflections on Institutional Order, 76 AJIL (1982), 754-778, 764-771 ; E. Suy,
The Development of Supervisory Mechanisms within the CSCE Framework,
in N. Blokker and S. Muller (eds.), supra footnote 293, at 83-92 ; A. Cassese,
The European Committee for the Prevention of Torture and Inhuman Degrad-
ing Treatment or Punishment Comes of Age, in ibid., 115-125.
296. See Chap. II, paras. 39-40.
297. Article 2 (1) of the Charter.
298. See General Smutss suggestion for the composition of the Council of
the League of Nations : Il est absolument certain quaucune grande puissance
168. Even if this were admitted one may doubt whether the petri-
faction of the power situation of 1945 is politically justified today.
The permanent members invoke their status of avowed nuclear
powers as distinguishing them from all others. Yet they are surely
not the only nuclear powers existing, even though others are reluc-
tant to admit it. Moreover, after the Advisory Opinion of the ICJ on
the Legality of the Threat or Use of Nuclear Weapons 299 one won-
ders whether the possession of nuclear weapons can be a suitable
criterion for a permanent seat on the Security Council. Since, how-
ever, any change in Article 23 (1) of the Charter requires an amend-
ment to the latter which according to Article 108 needs ratification
by the permanent members, it does not seem likely that any among
them would consent to its demotion. The only way to achieve a more
realistic representation of the present world powers on the Council
would thus be an increase in the number of permanent seats, an issue
which has been pending for years 300.
B. Equal voting rights or weighted voting ?
169. If an international organization is based on the principle of

sovereign equality it follows that every member State should have
the same vote. Yet it is absolutely wrong to refer to the plenary
organ of such an organization as a democratic institution. If one
defines democracy as government by the people or their elected
representatives, then the representation of States in international
organizations and the corresponding voting rights would need to be
proportionate to the respective populations and their delegations
would have to be chosen by the people instead of sometimes demo-
cratically questionable governments to merit the reference. That
China and Andorra, or the United States and Vanuatu have the same
vote in the General Assembly of the United Nations, or in any other
international organization, is an expression of their sovereign equa-
lity, but certainly not democratic.
ne courra volontiers un tel risque en entrant dans une Socit ou tous les
membres ont un droit de vote gal, cited by R. Padirac, Lgalit des Etats
et lorganisation internationale, Paris, 1953, 157.
299. See supra footnote 258.
300. See L. Sucharipa-Behrmann, The Enlargement of the UN Security
Council. The Question of Equitable Representation of and Increase in the Mem-
bership of the Security Council, 47 AJPIL (1994), 1-16.
102 K. Zemanek
170. An alternative to that system would be weighted votes 301,

although they would only take care of the quantitative problem and
not of the democratic legitimacy of the representatives. Actual
instances of weighted voting are exceedingly rare in international
organizations. Among the organizations belonging to the United
Nations system only the Bretton Woods institutions make use of it 302,
though the origin of their voting, weighted by shares or quotas, lies
not in democratic fervour but, rather, in what a popular saying states
as who pays commands. Only in the EC pillar of the Euro-
pean Union, where sometimes a double majority of members and
weighted votes is required for decisions of the Council, does the weight-
ing 303 correspond to the size of the population, albeit only approxi-
mately, since smaller members are deliberately favoured. It was
because of the preference of small States that big member States, with
further enlargement in view, lobbied in the intergovernmental con-
ference of the EU for a more proportionate weighting ; they feared
that the simple extrapolation of the present scale would allow a
minority of the Unions population to outvote the majority.
171. For the United Nations and related organizations the idea of
weighted voting came too late for realization. The idea surfaced after
the admission of micro-States, but then micro-States and small
States, which had only to lose by such a reform, numbered together
already more than one-third of the membership and could, therefore,
successfully block the ratification of an amendment to the United
Nations Charter. Hence, the idea was not seriously pursued.
172. Another reason why the idea did not gain ground was the
lack of agreement among its proponents on the criterion for weight-
ing. Neither population nor a GNP per capita ratio alone leads to an
appropriate result : the first would create a structural majority of
marginal contributors to the budget of the organization and could
thereby induce financial irresponsibility ; the second would increase
the dominance of powerful States since a strong GNP is a condition
of power. A two-tier method, using both criteria, attributing votes in
each category and then adding them, could perhaps have led to a
301. See J. Gold, Weighted Voting Power, 68 AJIL (1974), 689-708.

302. Articles of Agreement of the IBRD, Arts. II, Sec. 3, and V, Sec. 3 ;
Articles of Agreement of the IMF, Arts. III, Sec. 1, and XII, Sec. 5 ; cf. J. Gold,
Origins of Weighted Voting Power in IMF, Finance and Development, Washing-
ton, 1981.
303. Article 148 of the EC Treaty.
fairly realistic result 304. Yet, even if such a reform had taken place in
the past or would take place in the future, one could not call an
assembly composed in that manner democratic, at least not in the
generally accepted sense of the word.
C. Majority decisions or consensus
173. When, with the creation of international organizations at

the end of the Second World War, the decision-making procedure
changed from unanimity to majority rule, that change was con-
sidered revolutionary. Mainly two factors : a new sense of purpose
and the American democratic tradition were responsible for it.
174. According to J. J. Rousseau, the leading early theoretician of
democratic government who provides an ideological justification of
majority rule 305, majority decisions are a necessary and, as it were,
the only available tool to determine the volont gnrale of a com-
munity. Since the community is to be governed by the volont gn-
rale and not by the volont de tous, majority rule is legitimate. But
for Rousseau the volont gnrale is not just the sum of interests of
a chance majority. He proclaims axiomatically that the volont gn-
rale as determined by the majority tend toujours lutilit
publique. Quand on propose une loi dans lassemble du peuple,
he writes, ce quon leur demande nest pas prcisment sils
approuvent la proposition ou sils la rejettent, mais si elle est
conforme ou non la volont gnrale, qui est la leur. 306 Thus, the
volont gnrale is pre-existent and only determined, not formed,
by the majority. After several centuries of democratic experience
that seems a rather naive idea.
175. Whatever one thinks of the mystic and elusive volont gn-
rale of Rousseau and of its existence in modern national societies,
304. Cf. F. O. Wilcox, Representation and Voting in the United Nations

General Assembly, in R. A. Falk and S. H. Mendlovitz (eds.), The Strategy of
World Order, 3, New York, 1966, 272-292 ; and C. S. Manno, Selective
Weighted Voting in the U.N. General Assembly, 20 International Organization
(1966), 437-462.
305. J.-J. Rousseau, Du contrat social ou principes du droit politique, Book
II, Chap. II, and Book IV, Chap. II ; dition de la bibliothque nationale, Paris,
1880, 44, 145.
306. Ibid., 144. This stands in sharp contrast to Adam Smiths explanation of
the workings of economic liberalism, since he believed that selfish, individual
actions work together, through market forces, to the benefit of society as a
whole.
104 K. Zemanek
it has certainly one relevant aspect : no political system can operate

by majority rule without a broad consensus among its members on
the purpose or purposes to be achieved by it, and on the values that
have to be at once respected and translated into rules of the commu-
nity by the decisions of the majority. If there exists no common
purpose, if there exists no broad range of shared values, the actual
minority will consider the rule of the majority tyrannical. And if the
minority fears that the majority will not respect its vital interests, it
will attempt to remove the tyranny by force, used individually or
collectively.
176. In domestic democratic societies the explosive nature of this
problem is mitigated by the existence of political parties and perio-
dic elections, which give any minority the chance of becoming the
next majority. This possibility influences the conduct of both sides :
the minority, on the one hand, will accept the acts of the majority
because it may hope to change the acts with which it disagrees when
turning into the majority at the next elections. The majority, on the
other hand, even if it will not admit it publicly, will be aware that at
the next elections it may become a minority and will receive as
much consideration for its vital interests from the majority as it is
prepared to show for those of the present minority. Excesses in
democratic societies are therefore rare and in States under the rule of
law moreover subject to redress by institutions which have been set
up as watch-dog of the shared values embodied in the constitution of
the community in question.
177. In the international community the universal consensus on a
common purpose is weak and the range of shared values small 307.
Additionally absent is the possibility of a potential change from
minority to majority, since its majority is not occasionally formed
but structural. Nor does it offer institutional guarantees against
abuses by the majority. It is, therefore, submitted in conclusion that
the social conditions of the present international system do not meet
the requirements for a general application of majority rule. This
observation applies, in particular, to areas in which discordant inter-
ests have to be regulated by new law.
178. Contrary to majority rule, consensus was not copied from a
long discussed and tested theoretical concept when it was introduced
as a decision-making technique in international bodies ; it evolved
307. See Chap. I, paras. 16-22.

gradually 308. In the international sphere, Wilfred Jenks seems to

have been the first writer to note its appearance 309, and that was
some years after it had actually been initiated.
179. As used in international relations today 310, the term has
several meanings. Combined with words like procedure or tech-
nique, it designates a specific decision-making process. But used
alone, the word designates also the output of that process 311. That
latter use of the term has led to a discussion of whether a resolution
adopted by consensus has a different legal force than a resolution
adopted by (majority) vote. This discussion is unrewarding, because
the initial question is wrong. The legal force of a resolution of an
international organ derives from the constituent instrument of that
organ and is independent of the mode in which the resolution is
adopted, unless the process of adoption violates provisions of the
constituent instrument 312. It is a totally different question and one
unrelated to its legal force, whether a consensus has a greater
chance of being applied by States in practice. Thus, the legal force
of a declaration adopted by the General Assembly of the United
Nations in the form of a resolution will be the same whether it is
adopted by consensus or by a vote, because the legal force of a reso-
lution of the General Assembly is determined by the Charter. If, as
experience shows, declarations adopted by consensus are more per-
suasive and stand a better chance of being respected in practice
because States, having been involved in their negotiation, identify
with them, then that result is a consequence of consensus as a deci-
sion-making process and not of the different legal force of the
resulting consensus.
308. For its development in practice see K. Zemanek, Majority Rule and
Consensus Technique in Law-Making Diplomacy, in R. St. J. Mcdonald and
D. M. Johnston (eds.), supra footnote 10, at 857-887, 862-866.
309. C. W. Jenks, Unanimity, the Veto, Weighted Voting, Special and
Simple Majorities and Consensus as Modes of Decision in International Organi-
zations, in R. Y. Jennings (ed.), Cambridge Essays in International Law, Essays
in Honour of Lord McNair, Cambridge, 1965, 55-62.
310. See M. Amadeo, Consensus and International Relations, in B. K.
Slassi (ed.), Consensus and Peace, Unesco, Paris, 1980, 123-134.
311. G. de Lacharrire, Consensus et Nations Unies, 14 AFDI (1968), 9-14,
seems to have first drawn attention to this distinction (9, 13).
312. This has already been pointed out by others : see H. Cassan, Le consen-
sus dans la pratique des Nations Unies, 20 AFDI (1974), 456-485, 456-457 ;
A. Cassese, Consensus and Some of Its Pitfalls, 58 RIDI (1975), 754-761,
754-755 ; and F. I. J. Monnier, Observations sur quelques tendances rcentes en
matire de formation de volont sur le plan multilatral, 31 ASDI (1975), 31-
51, 41-42.
106 K. Zemanek
180. A review of the existing literature 313 tends to confirm that it

is indeed impossible to define consensus in a logically acceptable
form ; the object is too amorphous. The material permits only a des-
criptive definition, assembling the essential elements. The starting
point for that definition is an axiomatic 314 assumption of the aim of
the process : in order to assure the general application of a specific
decision, it should be adopted by the largest possible number of
States. Instead of seeking the decision through a vote, which might
produce an uncooperative minority, efforts are made to bring it on
through a process of consultations and mediation involving all inter-
ested parties, making it thus possible for all to identify with the
result as a whole even if dissent is registered on details. This possi-
bility of making reservations is a necessary feature of consensus pro-
cedure and the existence of reservations does not invalidate the
consensus achieved.
Both, consensus procedure and resulting consensus, are but two
sides of the same coin.
181. Deciding by consensus is, of course, not a perfect process.
Many objections have been raised against it. They generally rely on
the argument that consensus tends towards the lowest common
denominator and consider it unsuitable for establishing clearly
defined rights and obligations, accusing it of disguising continuing
rifts between the parties, thus laying the groundwork for future dis-
putes 315. They further argue that consensus decisions are frequently
nebulous and equivocal, and often include only provisions which are
nothing more than general declarations.
Without wishing to deny the just core of this criticism, it begs
nevertheless the question of whether acts adopted by vote do not suf-
fer from the same imperfection. Ambiguity in international docu-
ments or instruments has many reasons. It is often deliberate, desired
even by those who ostensibly support the act but do not wish to
define their obligations too clearly. Furthermore, even majorities
must sometimes be put together through a compromise and it may be
that it was the deplored ambiguity which enabled a marginal group
to vote affirmatively. The famous certainty of the law is a mythical
313. Cf. the papers cited in supra footnote 312 and K. Zemanek, supra foot-
note 308, at 873-875.
314. Axiomatic, because the connection between participation and increased
application cannot be proven.
315. See Monnier, supra footnote 312.
ideal which, in any case, could not be achieved by texts but only
through good faith.
III. Tools of (Powerful) States or Instruments

of the Community ?
A. The influence of States through representative organs

182. The categories which are used in political theory for explain-
ing the distribution of powers in a State, particularly the distinction
between legislative and executive powers and their separation
through assigning them to different organs which are independent of
each other, do not fit international organizations, not even by ana-
logy. International organizations follow a different model.
183. All organizations have a plenary conference or assembly in
which all member States are represented. This organ has usually a
general competence within the scope of the organization, although it
does not necessarily have the same means of action as other, more
specialized, organs of the same organization. As a rule, the plenary
organ decides the general policy of the organization.
184. In quite a few, mostly universal, organizations another, more
specialized, organ with restricted membership is set up. It meets
more frequently than the plenary organ and has proper powers, pri-
marily to conduct or supervise operations and propose the agenda of
the plenary assembly. In some organizations it also deputizes
between sessions for the plenary organ, its decision then being sub-
ject to confirmation by the latter at its next session.
By a variety of devices the procedures for selecting the members
of these restricted organs regularly ensure that States which are
essential for the effective functioning of the organization 316 are in
fact permanently represented on them. However, only the Charter
goes so far as to name them. With the exception of the United
Nations, no special voting rights are attached to these de facto per-
manent memberships. Looked upon realistically, it is obvious that
the permanent members of the Security Council appear also com-
monly among the de facto permanent members in other organiza-
tions, because the criteria for selecting members of the restricted
316. Cf. the Advisory Opinion of the ICJ on the Constitution of the Maritime
Safety Committee of the Inter-Governmental Maritime Consultative Organiza-
tion, ICJ Reports 1960, 150-172, 160-162.
108 K. Zemanek
organs, differing as they may from organization to organization 317,

are always those which characterize a great power.
185. This brief sketch should make it clear that international
organizations, although they have a separate international persona-
lity and acts of their organs are, under international law, attributed to
that personality and not to that of the member States which have
caused them by their votes, are nevertheless instruments of their
members. These members, by participating in various organs, deter-
mine the policies and supervise their implementation ; it is their duty
to put the organization in funds for its operations and to provide it,
if need arises, with the means of enforcement. It must, therefore, be
clearly stated that the political responsibility for the performance of
international organizations rests with their member States.
186. Since international organizations are tools of their member
States it is obvious that powerful States exercise a greater influence
on the decision-making process than others and restricted organs
provide them with a convenient forum for exercising that influence,
as the Security Council shows.
Does this support the submission that international organizations
are rather a tool of big power oligarchy than an instrument of com-
munity oriented policy ?
187. This query needs a multidimensional answer. It is evident
that after the demise of the Soviet Union the influence of the remain-
ing super-power, the United States, is often deciding, particularly in
the Security Council. If the United States comes to an understanding
with the other permanent members of the Council it will, as expe-
rience shows, get a decision which corresponds to its interests but
not necessarily to those of the international community as a whole.
Yet there is a balancing factor : the Council may be in the lead but,
in the long run, it has to rally a substantial part of the membership
and has, thus, to reckon with the mood prevailing in the Assembly 318
317. Cf. e.g. Constitution of ILO, Art. 7 (2) : Of the twenty-eight persons
representing governments, ten shall be appointed by the Members of chief indus-
trial importance . . . ; Convention on International Civil Aviation, Art. 50 (b) :
In electing the members of the Council, the Assembly shall give adequate rep-
resentation to (1) the States of chief importance in air transport . . . ; Conven-
tion of IMCO, Art. 18 : In electing the Members of the Council, the Assembly
shall observe the following criteria : (a) Six shall be States with the largest inter-
ests in providing international shipping services ; (b) Six shall be other States
with the largest interests in international seaborne trade ; . . ..
318. Reisman, supra footnote 266, at 98-99, argues for a structured relation-
ship between the Assembly and the Council.
which, by the working of the law of numbers, is the only forum able
to generate something like a community orientation. It is, therefore,
crucial that the Assembly comes to a consensus on the political line
to be followed in a given case. If it does, the Council will find it
hard to ignore that consensus and even harder to oppose it. But if the
Assembly does not find common ground, because the membership is
too deeply divided, the Council will get its way. In sum, internatio-
nal organizations are in more than one sense the tools of their mem-
bers : if the membership does not come up with a common political
goal, the oligarchy of powerful States, or even a single super-power,
will use the organization for its own ends 319.
B. Secretariats : administrators or agenda setters ?
188. Secretariats of traditional international organizations are

primarily administrative institutions with supportive functions for
representative organs. They further carry out mandates which are
given them by representative organs which retain supervision. Very
often these mandates are strict and do not leave much room for
Secretariat initiatives. Subsequent decisions of representative organs
can only be influenced through the manner in which requested
reports are formulated. Although the possible influence on the
choice of options is not negligible it should, rather, be called persua-
sion than influence.
The situation is slightly different when the mandate concerns an
operational activity and is then necessarily broader. Pertinent
examples are peace-keeping operations by the United Nations 320
or the safeguards system of the IAEA, especially for the control
under the Non-Proliferation Treaty 321. The generality of such man-
dates gives the Secretariat a stronger influence on their implemen-
tation.
189. The agenda-setting power of Secretariats varies with the
organization. Constitutions of organizations with a primarily politi-
cal purpose are restrictive in this respect, as may be seen from
Article 99 of the Charter ; though that does not exclude that such
319. See M. Koskenniemi, The Police in the Temple. Order, Justice and the
UN : A Dialectical View, 6 EJIL (1995), 325-348.
320. See Chap. XIV, paras. 642 et seq.
321. See P. C. Szasz, The Law and Practice of the International Atomic
Energy Agency, Vienna, 1970, 531-657.
110 K. Zemanek
powers are enlarged through practice 322. As this depends, however,

to a large extent on the personality of the respective chief adminis-
trative officer, on the support he finds in members delegations and
on his standing with the most important members, it defies descrip-
tion in general terms.
In some specialized agencies the constituent instrument entrusts a
wider role to the chief administrative officer in setting the agenda,
mostly by initiating subjects for consideration and by preparing
appropriate drafts 323. In addition, the expansion of this role in prac-
tice is more frequent and more extensive than in organizations with
a primarily political purpose.
190. All things considered, one may stress that in the interplay of
powers within a traditional international organization the input of the
Secretariat is largely indirect and to a considerable extent made
beside explicit constitutional provisions.
191. This picture changes significantly when one turns to the so-
called supranational organizations, of which there is currently but
one example in the EC pillar of the European Union, a clone of the
former European Coal and Steel Community (ECSC), the European
Economic Community and the European Atomic Energy Commu-
nity. One of the characteristics of supranationality is a different dis-
tribution of powers between representative organs and organs that
are not under the direct influence of States. The Commission, on the
one hand, is entrusted with initiating decisions to be taken by the
Council 324 and has extensive executive powers in their implementa-
tion. The European Court of Justice, on the other hand, is the ulti-
mate guardian of the constituent treaties 325, even against decisions
by the member States in the Council.
322. Cf. S. D. Bailey, The Secretariat of the United Nations, New York,
1962 ; C. H. Alexandrovicz, The Secretary-General of the United Nations, in
R. Falk and S. H. Mendlovitz (eds.), supra footnote 304, at 304-325 ; and T. M.
Franck, The Secretary-Generals Role in Conflict Resolution : Past, Present and
Pure Conjecture, 6 EJIL (1995), 360-387.
323. Cf. e.g. Constitution of ILO, Art. 10 (1) ; Constitution of FAO, Art. VII,
paras. 3, 4 and 6 ; and Constitution of Unesco, Art. VI, para. 3a.
324. Cf. E. Noel, The Commissions Power of Initiative, 10 Common Mar-
ket Law Review (1973), 123-136 ; P. Gilsdorf, Die Rolle der Kommission bei
der gemeinschaftsrechtlichen Rechtsetzung, 2 Forschungsberichte der Konrad
Adenauer Stiftung, Melle, 1984 ; and J.-V. Louis and M. Waelbroeck, La Com-
mission au cur du systme institutionnel des Communauts europennes, Brus-
sels, 1989. According to Article 189a EC Treaty unanimity is required in the
Council for amending the proposal of the Commission.
325. Cf J. P. Colin, Le gouvernement des juges dans les Communauts euro-
pennes, Paris, 1966 ; R. Lecourt, LEurope des juges, Brussels, 1976 ; and
It is, however, interesting to note that the treaties establishing

communities posterior to the ECSC tend more towards international
than supranational construction of their institutions. This is apparent
in the diminished role of the Commission compared with that of the
High Authority of the ECSC and in the requirement of unanimity for
many decisions of the Council in matters of the second and third
pillar of the European Union.
H. P. Ipsen, Die Verfassungsrolle des Gerichtshofes fr die Interpretation, in

J. Schwarze (ed.), Der Europische Gerichtshof als Verfassungsgericht und
Rechtsschutzinstanz, Baden-Baden, 1983, 29-62.
112
CHAPTER V
THE CHANGING FOCUS OF INTERNATIONAL LAW
I. Sovereign Self-Reliance versus Solidarity
192. Until the eve of the Second World War international law was
regarded, in accordance with the philosophical thought prevailing in
Europe, as a tool for protecting the individual liberty of States. Its
rules had the purpose of ensuring that all members of the interna-
tional system could enjoy that liberty equally. The system functioned
with that philosophy as long as it was supported by more or less gen-
erally shared values and considerably coinciding interests among its
members. New actors which did not fit this pattern, the Soviet Union
and Nazi Germany, finally caused its breakdown.
193. Since the end of the Second World War new currents of
political philosophy have been influencing the system, though in a
contradictory way : the overwhelming American influence cham-
pions democratic ideals while the so-called socialist camp pro-
moted, as long as it existed, a stronger social accentuation. New
States, which quadrupled the membership of the system during the
decolonization period, had thus a choice of ideology. Since, in addi-
tion, their interests differed considerably from those of older mem-
bers, the international system was split in three (or four) worlds.
Of the conflicts between these worlds only that between North and
South survived, though it is now styled the North-South Dialogue.
194. Yet the vast increase in membership was only one of the
shocks which the international system had to absorb. At the end of
the twentieth century it seems that during the last two decades the
social fabric underpinning the system was and is still transformed by
the third industrial revolution in which communication technolo-
gies dictate the pace and change the style of interaction. What has
become known as globalization manifests itself inter alia in the
importance of global players on the international markets, in the
growing attraction of supranational instruments in the co-operation
of States, in the quickening of information dissemination through
modern communication technologies and in the enormous increase
in international political, economic and cultural interchange.
195. The international system was and still is badly equipped

either to control these forces or to adapt to the changes caused by
them. Concepts to guide the decision-makers are bewilderingly con-
tradictory. Since 1990 seven major World Conferences on the press-
ing subjects of our time 326 have proclaimed programmes which
raised expectations in the general public that they would be imple-
mented. But they have largely failed to broaden the thinking of deci-
sion-makers who mostly are wedded to a narrow view of the
national interest.
196. As a consequence, the international system is in a transi-
tional stage which is characterized by the interplay of three factors :
the rapid growth of the interdependence of its members produces
new concepts, threats and challenges which urgently require rules
for their governance ; the awareness of the significance of these
developments for each State and for the need to address them in
common is growing much more slowly ; this scenario is completed
by a sustained reluctance of governments to engage in political
action for establishing binding rules for their governance.
To be fair, it has to be added that even if political action is finally
taken, the process of decentralized law-making is slow and rarely
produces universally accepted rules to transform or replace former
ones. Old and new law may co-exist for a long time which creates
special problems of application if the underlying concepts are
incompatible. Some of the areas where such conflicts exist will be
examined below.
II. From State to Individual
A. Human rights
197. Perhaps the earliest new concept introduced into the interna-
tional system after the Second World War was the idea that human
rights should be universally observed and internationally protected.
The idea was only vaguely mentioned in the United Nations Charter,
where Article 55 states that the United Nations shall promote . . .
universal respect for, and observance of, human rights and funda-
mental freedoms for all without distinction as to race, sex, language,
326. E.g. on women, children, human rights or the environment.

114 K. Zemanek
or religion. Article 56 adds a pledge of the member States to take

joint and separate action in co-operation with the Organization for the
achievement of the purposes set forth in Article 55. But besides
giving ECOSOC a recommendatory power in the matter, the Charter
did not outline a special procedure for the implementation of the
programme. It caused, nevertheless, a revolution.
Only a few years before, nearly all textbooks of international law
still proclaimed as dogma that the relations between a State and its
nationals lay outside the province of international law and that the
supervision of the treatment of aliens in accordance with that law
was the exclusive right of the State of their nationality. That concept
had remained unchanged since Emer de Vattel invented it in the
eighteenth century.
198. Because of the preponderance of Western thought in the
international system and in the United Nations during the first
decades after the war, gradually recognized human rights were those
of what later became known as the first generation, meaning civil
and political rights protecting the liberty of individuals against the
power of the State. On a global level this development culminated in
the adoption of the United Nations Covenant on Civil and Political
Rights in 1966 327.
199. A different input came from the so-called socialist States
but was also favoured by social-democratic governments in Western
nations. This was the idea of an international guarantee of economic,
social, and cultural rights of individuals, such as the right to work or
the right to education 328. The rights of this so-called second gener-
ation differ in two respects from the rights of the first generation :
they do not protect individuals from the abuse of power by the State
but require, on the contrary, positive, affirmative action by the State
for their implementation. But they cannot be enforced against the
State in the same manner as the first generation rights through
courts of law. In spite of their designation as rights they are,
rather, a definition of certain State purposes and serve, thus, as
guidelines for future State action. They were promulgated in the
327. All the human rights treaties cited in this chapter are reprinted in
F. Ermacora et al. (eds.), International Human Rights, Vienna, 1993.
328. See V. Kartashkin, Economic, Social and Cultural Rights, in K. Vasak
(ed.), The International Dimensions of Human Rights, Unesco, Paris, 1982, 111-
133.
United Nations Covenant on Economic, Social and Cultural Rights

of 1966.
200. A third generation of human rights was proposed by Kba
Mbaye and Karel Vasak and supported by many third-world coun-
tries ; it should consist of solidarity rights in the form of peoples
rights or communal rights 329. Of these only the right of self-determi-
nation found recognition on the universal level 330. In common
Article 1 of the two United Nations Covenants it is formulated as
an international right without precise determination of its potential
claimants.
201. In the African Charter on Human and Peoples Rights
(Charter of Banjul) 331, Articles 19 to 24 establish peoples rights
such as equality, existence, disposal of wealth and natural resources,
which evidence their origin in special social and tribal conditions in
Africa. These rights may be claimed against the State, though it is
difficult to imagine that they could be enforced in the same manner
as the first generation rights. It was mainly because of the fear that
the introduction of too many unenforceable rights into the corpus of
human rights could weaken the protection of first generation rights
that Western States opposed the recognition of third generation
rights on the universal level.
202. As the classification in three generations of human rights,
which are based on three different philosophies 332, suggests, differ-
ent States place different emphasis on the observance and implemen-
tation of specific rights. That may sometimes be merely due to polit-
ical subterfuge but in other cases deviations may be the result of
different cultural or religious traditions, which are presumably the
reason for the sharia reservations by some Islamic States to cer-
tain human rights conventions 333. It is not unreasonable to suppose
that these States genuinely believe that they are observing human
329. See J. Donnelly, Third Generation Rights, in C. Brlmann et al. (eds.),

supra footnote 157, at 119-150.
330. Cf. T. van Boven, Human Rights and Rights of People, 6 EJIL (1995),
461-476, 470-472.
331. Cf. E. G. Bello, The African Charter on Human Rights and Peoples
Rights. A Legal Analysis, 194 Recueil des cours (1985-V), 21-239 ; and R.
Gittleman, The African Charter on Human and Peoples Rights : A Legal
Analysis, 22 Virg. JIL (1982), 667-714.
332. T. van Boven, Distinguishing Criteria of Human Rights, in K. Vasak
(ed.), supra footnote 328, at 43-59, suggests, however, that they are compatible,
even concordant.
333. See Chapter VIII, paras. 337-338.
116 K. Zemanek
rights but human rights as they understand them 334. On the other
hand, one must admit that the idea of inalienable rights of the indi-
vidual which protect it against the State is the fruit of an ideological
consensus rooted in occidental humanism and may appear alien to
the understanding of the role of the individual in society which other
civilizations have developed 335.
203. In view of these different conceptions the central task in the
protection of human rights is to ensure, as far as possible, their uni-
form application once they have been accepted in an international
convention 336. If that task has not been satisfactorily achieved until
now, this is certainly not due to a dearth of organs concerned with it
on the universal or regional level 337. Within the framework of the
United Nations the Human Rights Commission, a subsidiary organ
of ECOSOC, and the United Nations High Commissioner for Human
Rights, established by the United Nations General Assembly in 1993
upon recommendation by the World Conference on Human Rights in
Vienna are the main organs 338. In addition, some human rights con-
ventions have established their own supervisory organs. And that
structure is supplemented by an impressive number of regional insti-
tutions. Nevertheless, violations of obligations under the various
conventions are still numerous because supervisory institutions, with
the exception of a few regional bodies, have only fact-finding and/or
recommendatory powers 339. Whether decentralized enforcement of
these erga omnes obligations would be an appropriate way for
achieving a better performance will be examined later 340.
334. C. M. Cerna, Universality of Human Rights and Cultural Diversity.

Implementation of Human Rights in Different Socio-Cultural Contexts, 16
HRQ (1994), 741-752.
335. Cf. S. P. Huntington, The West. Unique, Not Universal, 75 Foreign
Affairs (1996), No. 6, 28-46, 33-35.
336. See Y. Dinstein, The Implementation of International Human Rights,
in U. Beyerlin et al. (eds.), Recht zwischen Umbruch und Bewahrung, Fest-
schrift fr R. Bernhardt, Berlin, 1995, 331-353.
337. It is not possible to give an exhaustive description in the present context.
In his General Course L. Henkin, International Law : Politics, Values and Func-
tions, 216 Recueil des cours (1989-IV), 19-400, provides a concise overview in
a chapter entitled To Respect and Ensure : Inducing Compliance with Human
Rights Law (249-273).
338. See A. Clapham, Creating the High Commissioner for Human Rights :
The Outside Story, 5 EJIL (1994), 556-568.
339. See Chap. IV, para. 165 ; and Chap. VIII, para. 374.
340. See Chap. XII, paras. 558-561 ; and cf. O. Corten, Droit dingrence ou
obligation de raction ? Les possibilits daction visant assurer le respect des
droits de la personne face au principe de non-intervention, Brussels, 1992.
B. The protection of minorities

204. As an institution of international law, the international pro-
tection of minorities owes its existence to a political failure. During
the First World War President Wilson had declared in one of his
Fourteen Points 341 that at the end of the war borders should not be
changed without the consent of the population concerned. Because
of existing secret arrangements among the Allied and Associated
Powers the proposition was largely ignored in the peace accords as
far as these powers were directly concerned, but it led to a number
of agreed protective measures for ethnic or linguistic minorities in
Central and Eastern Europe 342.
205. These minorities were sections of a people which formed a
State of its own, but were attributed to another State in which the
majority of the population was ethnically or linguistically differ-
ent 343. This type of minority remains the classic object of protection.
However, in recent years another kind of minority has come into
focus. It is formed by an ethnically, linguistically or religiously dis-
tinct people of which no co-national State exists and which is
embedded in a different nation 344.
206. For both types, though especially for the second, the situa-
tion changed with the recognition of the principle of self-determi-
nation of peoples in Articles 1, paragraph 2, and 55 of the United
Nations Charter. Now one could ask whether a minority should be
regarded as a people within the meaning of the principle and be
entitled to claim independence.
In spite of the long history of application during the decoloniza-
tion process, the United Nations has never achieved a generally
acceptable definition of people ; it simply applied the principle on
a case to case basis, having primarily peoples under colonial rule in
mind 345. The term is thus open to different interpretations by politi-
341. See A. Rustemeyer, Wilsons Fourteen Points, 7 EPIL (1984), 539-

542, 540.
342. See the list in UN doc. E/CN.4/Sub.2/214, also published as Protection
of Minorities, United Nations, New York, 1967, 7-8. Cf. also T. Modeen, The
International Protection of National Minorities in Europe, Abo, 1969, 49-52.
343. See F. Ermacora, The Protection of Minorities before the United
Nations, 182 Recueil des cours (1983-IV), 257-366, 257.
344. The case of indigenous and tribal peoples is not pursued in the present
context.
345. See L. Wildhaber, Le droit lautodtermination et les droits des
minorits linguistiques en droit international, in L. Wildhaber, Wechselspiel
zwischen Innen und Aussen, Basel, 1996, 73-89, 78-79.
118 K. Zemanek
cal philosophies and may even have a different meaning in different

civilizations 346.
207. But it does seem that in the Friendly Relations Declara-
tion 347 the General Assembly took particular care to exclude minor-
ities from the application of the principle as long as the members of
the minority enjoyed the same political rights as the majority popu-
lation. No mention is made of cultural or linguistic rights or of sup-
portive measures. The Declaration simply states :
Nothing in the foregoing paragraphs shall be construed as
authorizing or encouraging any action which would dismember
or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States conducting them-
selves in compliance with the principle of equal rights and self-
determination as described above and thus possessed of a gov-
ernment representing the whole people belonging to the
territory without distinction as to race, creed or colour. 348
This formulation was apparently intended to assure multi-ethnic
States, some of which played a crucial role in the drafting of the Dec-
laration, that self-determination could not be used as an instrument
for their disruption. History has disproved that expectation : if funda-
mental guarantees for the preservation of their identity are not
granted, then the chances are that ethnic groups under alien rule will
seek separation, if necessary even by force.
208. In the case of a small minority secession may lead to a State
which is economically not viable and is thus not a felicitous option.
If, however, secession is to be avoided, some form of self-govern-
ment and supplementary measures of support are required. A recent
study of three classical European minority cases 349 indicates that if
realistic hopes for home rule exist, the majority of the affected eth-
nicity would prefer it to separation. The scattered situation of ethni-
cities, particularly in Central and Eastern Europe, often resulting in a
346. Cf. e.g. R. N. Kiwanuka, The Meaning of People in the African Char-
ter on Human and Peoples Rights, 82 AJIL (1988), 80-101.
347. GA resolution 2625 (XXV) of 24 October 1970.
348. In GA resolution 50/6 (1995), the Declaration on the Occasion of the
Fiftieth Anniversary of the United Nations, the scope of the savings clause was
considerably narrowed by replacing the words without distinction as to race,
creed or colour by without distinction of any kind.
349. M. Keating, Nations against the State : The New Politics of Nationalism
in Quebec, Catalonia and Scotland, London, 1996.
minority enclave within another minority, is an additional argument

for preferring minority protection over independence. It is often
impossible to establish a pure nation State without (forcefully)
expelling members of another ethnic group from the territory, as was
so tragically demonstrated in Croatia and Bosnia. Yet, if an adequate
minority status is to defuse the situation it must come in time.
209. This raises the question of the contents of a minority protec-
tion rgime. In the last 50 years the concept of a formal minority
status has been considerably developed in theory and in the practice
of some States. From the mere protection of the minoritys identity,
such as the use of its language before local authorities, it has
advanced towards positive action, for instance support for the minor-
itys cultural institutions, because the forces inherent in the evolution
of rural societies into industrial and post-industrial ones would other-
wise erode the minority. The status of the German-speaking minor-
ity in South Tyrol/Alto Adige is an example of this change 350.
210. Less progress has been made in the development of a gen-
eral legal rgime for the international protection of minorities 351.
On the universal level the United Nations General Assembly
adopted in 1992 a Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities 352 which,
like Article 27 of the Covenant on Civil and Political Rights, assigns
rights only to persons belonging to minorities, although Article 1
exhorts States to protect the existence and the national or ethnic,
cultural, religious and linguistic identity of minorities within their
respective territories.
211. In the European region 353 the Concluding Document of the
350. See C. Schreuer, Autonomy in South Tyrol, in Y. Dinstein (ed.),

Models of Autonomy, New Brunswick, 1981, 53-64 ; and W. Hummer and
K. Zeller, Der Abschluss der Durchfhrung des Sdtirol-Pakets Chrono-
logie und aktuelle Probleme, 5 sterreichisches Jahrbuch fr internationale
Politik, 1988, 57-101.
351. Cf. P. Thornberry, International Law and the Rights of Minorities,
Oxford, 1991 ; N. Lerner, The Evolution of Minority Rights in International
Law, in C. Brlmann et al. (eds.), supra footnote 157, at 77-101, and the com-
ments thereon by M. Nowak, ibid., 103-118 ; A. M. de Zayas, The International
Judicial Protection of Peoples and Minorities, ibid., 253-287 ; and J. Niewerth,
Der kollektive und der positive Schutz von Minderheiten und ihre Durchsetzung
im Vlkerrecht, Berlin, 1996.
352. UN doc. A/Res/47/135, Annex.
353. Cf. generally K. J. Partsch, Minderheitenschutz Wohin steuert
Europa ?, in U. Beyerlin et al. (eds.), supra footnote 336, at 537-554 ; and M.
Gjidara, Cadres juridiques et rgles applicables aux problmes europens de
minorits, 37 AFDI (1991), 349-386.
120 K. Zemanek
Vienna Meeting of the CSCE 354, of 15 January 1989, urged for the
first time the collective protection of national minorities. This trend
was reaffirmed in the Charter of Paris for a New Europe of 21 No-
vember 1990 355, which states that the ethnic, cultural and religious
identity of national minorities will be protected. In 1992 the CSCE
established the office of a High Commissioner for Minorities 356 as
an early warning system with the task to monitor the treatment of
minorities in member States. The Council of Europe adopted in 1992
the European Charter for Regional or Minority Language 357 which
prescribes affirmative action for promoting the use of regional or
minority languages in education and culture, before judicial and
administrative authorities, etc., and, in 1995, added a Framework
Convention for the Protection of National Minorities 358.
It should, perhaps, be taken as a sign of the attitude of States
towards a general rgime of minority protection that none of the
aforementioned documents or instruments not even the European
Framework Convention ! defines clearly what a minority is 359.
III. New Challenges and Threats
A. Internal armed conflicts
212. In traditional international law peace meant the absence of

war. The legal state of war was defined as an interruption of all
peaceful relations between two or more States ; the international law
of peace ceased to be applicable between the belligerents and was
354. Principle 19 ; reprinted in 28 ILM (1989), 531-548, 535. Cf. H. Tretter,

Human Rights in the Concluding Document of the Vienna Follow-Up Meeting
of the CSCE of January 15, 1989, 10 HRLJ (1989), 257-296.
355. Reprinted in 30 ILM (1991), 190-208, 195, 199.
356. Decision reprinted in 31 ILM (1992), 1395.
357. European Treaty Series, No. 148.
358. Reprinted in 34 ILM (1995), 351-359.
359. A tentative definition was proposed in 1977 by F. Capotorti, Special
Rapporteur of the Sub-Commission on the Prevention of Discrimination and
the Protection of Minorities of the Commission on Human Rights. It read :
A group numerically inferior to the rest of the population of a State, in
a non-dominant position, whose members being nationals of the State
possess ethnic, religious or linguistic characteristics different from those of
the rest of the population and show, if only implicitly, a sense of solidarity,
directed towards preserving their culture, traditions, religion or language.
(UN doc. E/CN.4/Sub.2/384.)
It did not lead to an adopted definition.
replaced by the jus in bello 360. This concept made the existence of
war entirely dependent on the declared intention of the belligerents
and independent from military hostilities. And, indeed, during the
Manchurian conflict in the 1930s both China and Japan denied the
existence of a state of war between them despite extensive military
confrontations, while, on the other hand, many Central and South
American countries were in a state of war with Germany during the
Second World War without engaging in military hostilities.
213. Political practice in and since the Second World War has
rendered this dichotomy more or less obsolete, partially because of
the involvement of belligerents that were not States, but primarily
because in many cases States did not admit to the existence of a state
of war for political reasons 361.
Since the purpose of humanitarian law is the protection of victims
of hostilities whatever their nature, the authors of the Geneva Con-
ventions of 1949 drew the conclusion from this widening gap
between the legal state of war and armed hostilities and made the
Conventions applicable to international armed conflicts regardless
of their formal name 362.
It is not clear whether and how this development of humanitarian
law has reflected on the traditional customary law of war and neu-
trality. There is no agreement among scholars and no uniform prac-
tice to support for instance the proposition that a third State is
obliged to apply the law of neutrality to States which deny the exis-
tence of a state of war between them while engaging in armed hos-
tilities ; the States concerned could as well regard such application as
an intervention.
214. Until 1945 civil wars with international implications were
rare, one exception being the Spanish Civil War 363. But that excep-
tion heralded already the ideological confrontations that were to
come and the wars by proxy which they produced. Proxy wars
were so called because parties to a civil war, if they identified ideo-
360. Cf. L. Delbez, La notion de guerre, Paris, 1953.

361. See C. Greenwood, The Concept of War in Modern International Law,
36 ICLQ (1987), 287-305.
362. See D. Schindler, The Different Types of Armed Conflicts According
to the Geneva Conventions and Protocols, 163 Recueil des cours (1979-II),
125-159.
363. Cf. A. Cassese, The Spanish Civil War and the Development of Custo-
mary Law Concerning Internal Armed Conflicts, in A. Cassese (ed.), Current
Problems of International Law, Milan, 1975, 287-318.
122 K. Zemanek
logically with the political philosophy of a major power, could count

on the overt or clandestine support of this power for the conduct of
the civil war, which became thus an international armed conflict in
disguise, often initiated or encouraged by the respective major
power.
With the end of the Cold War some of these conflict areas have
been pacified, though in a few cases secondary powers have stepped
in, as for instance Pakistan has in Afghanistan.
215. However that may be, phenomena like civil strife, internal
armed confrontations and civil wars have certainly multiplied in the
last decade. That was not foreseen by the post-war generation which
designed the security system of the United Nations as a system deal-
ing with armed conflicts between States. The principle of non-inter-
vention in internal affairs of States which is expressed in Article 2,
paragraph 7, of the Charter prevents the Organization and, in par-
ticular, the Security Council from interfering with civil wars
unless they qualify as a threat to international peace and security.
While originally such a determination was believed to depend on a
danger for neighbouring States, the more recent practice of the
Security Council shows a tendency to regard an internal armed con-
flict as such a threat to international peace 364. But the uneven suc-
cess of some ventures which were the result of that policy 365 may
dampen the Security Councils willingness to engage in it in the
future.
216. Whether humanitarian law to be applied in non-international
armed conflicts can be adequately developed to prevent the worst
atrocities which seem to have become a standard feature of recent
civil wars is not yet sure. Article 3 common to all four Geneva Con-
ventions of 1949 adopts a very limited minimum standard for appli-
cation in non-international armed conflicts. Protocol II of the Addi-
tional Protocols of 1977 considerably enlarges it, but the number of
ratifications or accessions is not encouraging. One can only hope
that the International Tribunals for the Former Yugoslavia and for
Rwanda, particularly the latter, will develop customary law in this
matter along the lines indicated in their respective Statutes 366 if
they manage to be successful.

365. See Chap. XIV, paras. 646-660.
366. See Chap. XI, paras. 495 et seq., 507 et seq.
B. The proliferation of nuclear, chemical and biological weapons
217. Certain industrial States have, for commercial reasons that

were often entwined with reasons of employment policy, supplied
other States in the last decades with nuclear installations for the pro-
duction of electric power. Some of these installations lent themselves
to misuse and the recipients were not always carefully chosen 367.
Occasionally they used these installations for the secret development
of nuclear weapons, as the findings of the United Nations in Iraq
revealed. Inspections by the IAEA in accordance with Safeguards
Agreements 368 concluded in application of the Non-Proliferation
Treaty 369 had no deterrent effect 370 because the inspectors were
sometimes misled or defied with impunity, as North Korea has
demonstrated 371.
Whether the verification procedure under the new Comprehensive
Test-Ban Treaty of 1996 372 will improve the situation has yet to be
seen.
218. States also used similar strategies to acquire a capacity for
producing chemical and/or biological weapons. Means of production
were ordered for seemingly innocent purposes, like the production of
fertilizers, and the Governments of exporting countries, if they had
to grant export licences, turned a blind eye for the same reasons as
mentioned above, even when they had suspicions. However, the
1972 Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons
367. Cf. T. H. Winkler, Le march mondial du nuclaire et la prolifration

dans les annes 80, 47 Politique trangre (1982), 633-653 ; and U. Wasser-
mann, The Proliferation of Nuclear Reactors, 20 JWTL (1986), 99-109.
368. The Safeguards Agreement between the Democratic Peoples Republic
of Korea and the IAEA of 30 January 1992 is reprinted in 33 ILM (1994), 315-
352.
369. Art. IV, para. 2, of the Treaty on the Non-Proliferation of Nuclear Weap-
ons of 1968 ; text reprinted in 7 ILM (1968), 809-817. The treaty was again
extended in 1995 ; cf. the Final Document of the Review and Extension Confer-
ence, reprinted in 34 ILM (1995), 604-607.
370. Cf. L. Parker, International Safeguards against the Diversion of Nuclear
Material to Non-Peaceful Uses, 27 ICLQ (1978), 711-737 ; C.-G. Hasselmann,
Do We Need New IAEA Safeguards ?, 27 GYIL (1984), 259-302 ; and
M. Politis, Safeguards against Nuclear Proliferation : The Need for Greater
Effectiveness, 6 Italian YIL (1985), 85-95.
371. See the Agreed Framework between the U.S.A. and the Democratic
Peoples Republic of Korea of 20 October 1994, reprinted in 34 ILM (1995),
604-607.
372. Text reprinted in 35 ILM (1996), 1439-1478.
124 K. Zemanek
and on their Destruction 373 does not provide for an international

verification procedure, and whether the procedure established by the
1993 Convention on the Prohibition of the Development, Produc-
tion, Stockpiling and Use of Chemical Weapons and on their
Destruction 374 will actually be a turning point in arms control 375
has yet to be proven by practice.
219. The risks inherent in the proliferation of weapons of mass
destruction are not confined to potentially irresponsible Govern-
ments. The first signs of an illegal trade in weapon-grade nuclear
material are already appearing and evoke the danger that one day
terrorists or criminal organizations may gain access to weapons of
mass destruction unless control is vastly improved.
C. Terrorism and transnational criminal activities
220. Transnational criminal activities are a relatively new threat
to international security. They may not endanger external security
but they undermine the ability of Governments to conduct their
proper policy and are, thus, a potential source of instability.
The first to appear were terrorist organizations 376 which very
early expanded into an international network that provided support
in training and weapons procurement. The international community
of States reacted with some special conventions, for instance for the
protection of diplomats 377 or aircraft 378, which provide for the pun-
373. Text reprinted in UN Department of Political Affairs, Status of Multi-
lateral Arms Regulation and Disarmament Agreements, 4th ed., New York,
1993, Vol. I, 191-197. Cf. also N. A. Sims, The Diplomacy of Biological Disarma-
ment : Vicissitudes of a Treaty in Force 1975-85, Bassington, 1988.
374. In force since 29 April 1997. Text reprinted in source supra footnote
373, Vol. II, at 113-126. Cf. also M. D. Budensiak, A New Chemical Weapons
Convention : Can It Assure the End of Chemical Weapons Proliferation ?,
25 Stanford JIL (1989), 647-679 ; E. M. Spiess, Chemical Weapons : A Continu-
ing Challenge, Bassington, 1989 ; and Hague Academy of International Law (D.
Bardonnet, ed.), The Convention on the Prohibition and Elimination of Chemi-
cal Weapons : A Breakthrough in Multilateral Disarmament (Workshop, 14-
26 November 1994), Dordrecht, 1995.
375. P. L. Reizenstein, Chemical and Biological Weapons Recent Legal
Developments May Prove to Be a Turning Point in Arms Control, 12 Brooklyn
JIL (1986), 95-125.
376. See generally G. Guillaume, Terrorisme et droit international,
215 Recueil des cours (1989-III), 295-407 ; and G. Gilbert, The Law and
Transnational Terrorism, 26 NYIL (1995), 3-32.
377. Convention on the Prevention and Punishment of Crimes against Inter-
nationally Protected Persons, Including Diplomatic Agents of 1973 ; General
Assembly resolution 3166 (XVIII), reprinted in 13 ILM (1974), 41-49.
378. Convention on Offences and Certain Other Acts Committed on Board
Aircraft, Tokyo, 1963, 704 UNTS 219-241 ; Convention for the Suppression of
ishment of perpetrators by applying the principle of dedere aut judi-

care. But it is up to individual States to combat terrorist organiza-
tions and to care for prevention. Only one of the States suspected of
supporting terrorist organizations, Libya, has become the object of
collective action in the form of Security Council measures 379. In the
last years, however, terrorist activities have become less frequent.
221. Their place in the front row was taken by organized crime
which was already engaged for some time in the international drug
traffic but was joined, after the disintegration of the socialist camp
of States, by national mafias in Eastern and Central Europe. They
threaten international security by their impact on international
money markets, by infiltrating legitimate business and by undermin-
ing the social fabric of States in which they operate. They destabilize
the system as well as some of its legitimate actors. With the excep-
tion of the European Union 380 no organized effort of States to com-
bat these transnational criminal forces has as yet been initiated.
D. Mass-migration
222. A totally different non-governmental threat to international
security comes from mass-migration. There are two causes of it.
One is the gap between the economic and social prospects in some
developing countries and those in developed countries. This gap
induces people in the former to attempt immigration to the latter, in
the often unfounded hope of a better future there. If this often illegal
immigration reaches a certain level, it leads to social unrest in the
developed States concerned and to a growing resentment of aliens in
general by their people 381. At present, with rising unemployment in
industrial States, the tendency to seal off the country from immigra-
tion altogether enjoys huge popularity among their populations 382.
Unlawful Seizure of Aircraft, The Hague, 1970, 860 UNTS 105-111 ; Conven-
tion for the Suppression of Unlawful Acts against the Safety of Civil Aviation,
Montreal, 1971, reprinted in 10 ILM (1971), 1151-1156 ; Protocol for the Sup-
pression of Unlawful Acts of Violence at Airports Serving Civil Aviation, Mon-
treal, 1988, reprinted in 27 ILM (1988), 628-630.
379. See Chap. IV, para. 155.
380. Through Europol (Article K.1, number 9 of the Treaty of Maastricht)
and in the framework of the Schengen Agreements.
381. See R. Wolfrum, The Emergence of New Minorities as a Result of
Migration, in C. Brlmann et al. (eds.), supra footnote 157, at 153-166, 156.
382. Cf. R. Wolfrum, International Law on Migration Reconsidered under
the Challenge of New Population Movements, 38 GYIL (1995), 191-207 ; and
M. Hasenau, Changing Features of Economic Migration and International
Law, ibid., 208-223.
126 K. Zemanek
223. A second cause of mass-migration are the many areas of

civil unrest which have produced over 45 millions of refugees in the
world, refugees that are either the victims of fear or of a deliberate
policy of ethnic cleansing. Since the international community is
either unable or unwilling to address and eliminate the causes, it
reacts in most cases only with humanitarian assistance and confines
the refugees to camps if they cross into other States. If secure condi-
tions for a timely return cannot be brought about and that is,
unfortunately, very often the case the future of these refugees
poses a nearly unsolvable problem : if they are integrated in large
numbers into their present host country, they may give rise to the
same social conflicts as economically motivated immigrants ; if,
on the other hand, they are kept in camps without any prospect of
resettlement, the camps may turn into breeding grounds for
terrorism which may appear as a last resort to catch the attention
of an indifferent world community. That scenario was vividly
demonstrated some time ago in Lebanon.
E. Free trade versus protection of the environment
224. With the demise of the Soviet Union as a superpower, the

only weighty supporter of Third World hopes for a New Interna-
tional Economic Order disappeared. The Charter of Economic
Rights and Duties of States 383 failed to remodel world trade rela-
tions. Faced with the necessity to reschedule enormous external
debts, developing countries had to revise their economic policies in
accordance with conditions imposed by the IMF/World Bank organi-
zations. That change led them later into joining the GATT/WTO
system which embodies the free market philosophy of Western
industrial States. In the end, even the former socialist countries or
their successors followed suit.
Soon multinational investors and developing countries discovered
the advantages of low wages and low social and environmental stan-
dards in a competitive world economy 384. Global industrial players
383. GA resolution 3281 (XXIX) of 12 December 1974. Cf. E. Pastrana

Buelvas, Die Bedeutung der Charta der konomischen Rechte und Pflichten der
Staaten von 1974 fr die Schaffung einer neuen internationalen Wirtschaftsord-
nung, Frankfurt am Main, 1996.
384. Cf. T. Portwood, Competition Law and the Environment, London, 1994 ;
and International Labour Conference, 85th Session (1997), Report of the Direc-
tor General, The ILO, Standard Setting and Globalization, Geneva, 1997.
unscrupulously exploit these conditions by transferring to such coun-

tries productions which use methods, like child labour or unfiltered
emissions, that are no longer permitted in industrial countries. Such
transfers are known as social dumping and ecological dumping.
Most developing countries, on the other hand, still regard foreign
investment independently of its motives as essential for development
and see, therefore, no reason why they should change these condi-
tions.
225. Because environmental protection measures increase the
production costs or require additional investment into the research
for substitute substances, enterprises concerned are not among their
more ardent supporters. And Governments in industrial countries,
fearing a transfer of production and a consequential rise in unem-
ployment, are reluctant to support better environmental standards.
What progress has been made is mostly due to growing popular
pressure in industrial countries, initiated and organized by some
NGOs. But such pressure in industrial countries has also undesired
consequences : not only may it account for the transfer of produc-
tions to developing countries with lower standards, but it may also
initiate the export to developing countries of goods whose sale is no
longer allowed in industrial countries (certain kinds of pharmaceuti-
cals, fertilizers or pesticides) or of noxious waste which would
require special treatment in industrial countries.
226. International organizations, primarily WTO 385 and OECD,
struggle with the task of harmonizing trade policy and environmen-
tal policy. Yet, the values underlying either and the interests
involved are contradictory, a contradiction that is reflected in Prin-
ciple 12 of the Rio Declaration on Environment and Development of
1992 386 which states that trade policy measures for environmental
purposes should not be disguised restrictions on international trade ;
that unilateral actions to deal with environmental challenges outside
the jurisdiction of the importing country should be avoided ; and that
environmental measures addressing transboundary or global environ-
mental problems should, to the extent possible, be based on an inter-
national consensus. These formulations suggest that free trade is to
be given preference over environmental concerns until an appropri-
385. See J. Schultz, The GATT/WTO Committee on Trade and the Environ-
ment Towards Environmental Reform, 89 AJIL (1995), 423-439.
386. Reprinted in 31 ILM (1992), 874-887, 878.
128 K. Zemanek
ate consensus emerges. The dialogue for achieving a fair balance is

and will not be easy and will, above all, take time 387 which environ-
mental protection can ill afford. But unilateral action, based on a
claim of extraterritorial jurisdiction is not an appropriate substi-
tute 388.
IV. Conflicts between Old and New
227. The aforementioned instances have one feature in common :

applicable international rules already existing or in the stage of
being developed to meet new challenges or threats, originate in a
concept which negates the traditional understanding of international
law as a tool for protecting the individual liberty of States. They are
based on the idea of solidarity as a rational answer to interdepen-
dence. In practice, however, States realize only insufficiently that
these rules have a different quality and conflict with some older
norms or principles.
This is particularly apparent in areas where conventions have
established erga omnes obligations 389 in the form of general stan-
dards to be applied in the domestic legal orders of the contracting
States. If States point out the violation of an erga omnes obligation
by another, many Governments still respond with an angry reference
to the principle of non-intervention.
228. The field in which this argument has been and still is most
persistently used are human rights. While scholars are almost una-
nimously agreed that since the United Nations Charter human
rights may no longer be regarded as being essentially within the
387. See W. Lang, Is the Protection of the Environment a Challenge to the

International Trading System ?, 7 Georgetown International Environmental
Law Review (1995), 463-483 ; E. Brown Weiss, New Directions in International
Environmental Law, in UN, International Law as a Language for International
Relations, Proceedings of the United Nations Congress on Public International
Law (New York, 13-17 March 1995), The Hague, 1996, 271-279, 278 ; and R. St.
J. Macdonald, Solidarity in the Practice and Discourse of Public International
Law, 8 Pace Intl Law Review (1996), 259-302. An interesting concept of using
economic mechanisms for ecological purposes is explored in R. Wolfrum (ed.),
Enforcing Environmental Standards : Economic Mechanisms as Viable Means ?,
Berlin, 1996.
388. See Chap. III, para. 97. Further R. A. Reinstein, Trade and Environ-
ment : The Case for and against Unilateral Actions, in W. Lang (ed.), Sustain-
able Development and International Law, London, 1995, 223-232 ; and C.
Stevens, Trade and Environment : The PPMs Debate, ibid., 239-248.
389. See Chap. VIII, para. 328, and Chap. XII, paras. 558-561.
domestic jurisdiction of States 390, many States do not heed that

opinion in practice. The so-called socialist States opposed it for
a long time and it was only in 1991 that an unequivocal statement
to the contrary came forward in the CSCE/OSCE framework. The
Document on the Moscow Meeting of the Conference on the Human
Dimension of the CSCE 391 states in its general part :
The participating States emphasize that issues relating to
human rights, fundamental freedoms, democracy and the rule
of law are of international concern, as respect for these rights
and freedoms constitutes one of the foundations of the interna-
tional order. They categorically and irrevocably declare that the
commitments undertaken in the field of the human dimension
of the CSCE are matters of direct and legitimate concern to all
participating States and do not belong exclusively to the inter-
nal affairs of the State concerned.
229. No similar consensus exists on the universal level. Quite to
the contrary : the defence of unlawful intervention is frequently used
against complaints of human rights violations and has, moreover,
been extended to comparable areas such as the critique of activities
which endanger the environment. In respect of the observance of
humanitarian law in internal armed conflicts it is almost standard.
230. This antagonism between old and new concepts and between
the resulting international rules will not simply disappear. The mere
repetition of the argument that, once a State has entered into a bind-
ing commitment to shape its domestic order in a certain way, the
implementation of that commitment cannot be its exclusive domain,
will not change the attitude of reluctant States. The conflict must
be squarely addressed in public, by scholars as well as by politi-
cians. Only if it is made evident that it is the result of the necessary
transformation of international law, which gradually focuses directly
on protecting the interests of the people which the State is supposed
to serve instead of the State as an abstract legal construct, can
390. See F. Ermacora, Human Rights and Domestic Jurisdiction, 124

Recueil des cours (1968-II), 375-444 ; U. Beyerlin, Menschenrechte und Inter-
vention. Analyse der west-stlichen Menschenrechtskontroverse von 1977/78,
in B. Simma and E. Blenk-Knocke (eds.), Zwischen Intervention und Zusammen-
arbeit, Berlin, 1979, 157-200 ; and L. Henkin, Human Rights and Domestic
Jurisdiction, in T. Brgenthal (ed.), Human Rights, International Law and the
Helsinki Accord, Montclair, NY, 1979, 21-40.
391. Document reprinted in 30 ILM (1991), 1670-1691, 1672.
130 K. Zemanek
new ways of resolving the conflict in a constructive manner be

devised.
However, since the mid-1990s isolationist and nationalistic ten-
dencies have enjoyed a renaissance. It is difficult to say whether a
ground-swell of public fears forces Governments in this direction or
whether Governments plant the seed to distract from unsolvable
internal problems. Be that as it may, the hopefully short-term
decline of internationalism is a serious obstacle for the extension or
deepening of the international order in areas where it is urgently
needed.
131
PART II
LAW-MAKING
CHAPTER VI
THE LAW-MAKING PROCESSES

OF THE INTERNATIONAL SYSTEM
I. The Sources in Article 38 of the Statute of the ICJ
231. In discussing the law-making processes of the international

system it is a time-honoured custom to begin with Article 38 of the
Statute of the ICJ which enumerates such sources. Until the modifi-
cation of the Statute in connection with the adoption of the Charter
of the United Nations, in the course of which the words whose
function it is to decide in accordance with international law were
inserted into Article 38, some scholars argued that the sources men-
tioned were only a basis for decisions of the Court, but not necessar-
ily sources of international law 392. The modification has put an end
to that debate but the text still raises a number of other questions.
A. The significance of the sequence of sources
232. One of these questions concerns the significance of the

sequence in the enumeration of sources. Does it suggest a hierarchy
of norms, in the sense familiar in domestic legal systems ? The pur-
pose of such a hierarchy is to create a chain of delegations from the
highest (constitutional) norms, which embody fundamental prin-
ciples or programmes, down to their implementation in laws, regula-
tions and administrative orders. Since each lower norm is delegated
by a higher, it is only valid if it remains within the bounds of the
higher norm. Derogation is only possible between norms on the
same level or of a norm on a lower level. To make this system work-
392. E.g. D. Anzilotti, Corso di diritto internazionale, 3rd ed., Rome, 1928,
106-109 ; G. Morelli, Nozioni di diritto internazionale, 7th ed., Padua, 1967, 46.
132 K. Zemanek
able the position of a norm in the hierarchy of norms must be

expressed by an indicator during the norm-forming process.
233. Formalities of that sort are not available in the formation of
international custom. In a multilateral convention, on the other hand,
a special hierarchical position of all or some of its norms could be
indicated. One such instance could be Article 73, paragraph 2, of the
Vienna Convention on Consular Relations of 1963. It reads : Noth-
ing in the present Convention shall preclude States from concluding
international agreements confirming or supplementing or extending
or amplifying the provisions thereof. This formulation suggests
e contrario that a modification is not permitted. But the consequence
of nullity, an inherent element in a hierarchical system of norms, is
missing : a modifying treaty between two or more parties to the
Convention would be unlawful but not void. With the exception of
Article 66 (a) of the VCLT international law simply does not pro-
vide a machinery for establishing nullity with binding effect.
Hence, rules in other sub-systems which deal with the same prob-
lem, like Article 103 of the Charter or Article 311 of the Convention
on the Law of the Sea, do not contest the validity of incompatible
agreements but provide that in case of conflict the rules of the
system shall prevail.
234. It thus becomes clear that international law is not hierarchi-
cally structured 393. The sequence in the enumeration of sources in
Article 38 of the Statute follows a logical principle : it proceeds from
more special to the more general rules or principles, from bilateral
agreements between two States to the general principles of law 394.
235. Another question concerns the position of jus cogens in this
system. The consequence of nullity which Articles 53 and 64 of the
VCLT attach to its violation suggests a higher hierarchical position.
Yet the definition in Article 53 395 does not include a formal indica-
393. Notwithstanding the gallant effort of R. Monaco, Observations sur la
hirarchie des sources du droit international, in R. Bernhardt et al. (eds.), supra
footnote 247, at 599-615, to prove it. M. Akehurst, The Hierarchy of the
Sources of International Law, 47 BYIL (1974-1975), 273-285, comes to the
same conclusion as this course, in spite of the title of his paper.
394. Akehurst, ibid., offers yet another explanation :
[T]reaties are easier to prove than custom and custom is easier to prove
than general principles of law ; that is one reason why they are likely to be
applied in that order, and perhaps why Article 38 lists them in that order.
(At 274.)
395. The relevant part reads :
[A] peremptory norm of general international law is a norm accepted
tor for expressing that character. The requirement of recognition by

the international community of States as a whole refers to an effec-
tively existing consensus of opinion which may be ascertained by
research but does not find formal expression. In other words, a norm
cannot formally be marked jus cogens.
236. And that is the trouble with the concept : one cannot defini-
tively identify the norms which have that character. In the Vienna
Conference on the Law of Treaties an amendment to annex a list of
the peremptory international norms to the Convention failed because
views were too divided 396. And although scholars have proposed cri-
teria and procedures for identifying jus cogens 397, these have little
prospect of being generally accepted. The concept of jus cogens,
which is just one way of introducing a hierarchical structure into
international law, is inspired by the necessity of recognizing certain
essential community values and to ensure that the norms which
implement these values bind each and every member of the interna-
tional system 398. This requires, however, that the members first
agree on these values and it is in this respect that the contemporary
international society, due to its pluralistic values, faces the greatest
difficulties 399.
237. Perhaps most vexing is this imperfection in connection with
the application of the concept to customary international law and to
unilateral acts 400. As far as treaties are concerned, Article 66, sub-
paragraph a, of the VCLT establishes the jurisdiction of the ICJ for
and recognized by the international community of States as a whole as a

norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
character.
396. See J. Sztucki, Ius Cogens and the Vienna Convention on the Law of
Treaties, Vienna, 1974, 119-123.
397. See A. Gmez Robledo, Le ius cogens international : sa gense, sa
nature, ses fonctions, 172 Recueil des cours (1981-III), 13-217, 167-187 ; L.
Alexidze, Legal Nature of Ius Cogens in Contemporary International Law,
ibid., 227-268, 259-263.
398. R. St. J. Macdonald, Fundamental Norms in Contemporary Interna-
tional Law, 25 Can. YIL (1987), 115-149, states this in the following terms :
Indeed, the essence of the jus cogens doctrine is the recognition of the
need to establish common values and standards which will have precedence
over state sovereignty and will accordingly restructure international soci-
ety. (134.)
400. See G. Gaja, Ius Cogens beyond the Vienna Convention,
172 Recueil des cours (1981-III), 275-313, 297.
134 K. Zemanek
disputes over the existence of a norm of jus cogens and for pronoun-
cing the consequential nullity of a conflicting treaty. No comparable
authoritative procedure for establishing the nullity of a customary
rule or of a unilateral act which conflict with jus cogens exists, nor
does the decentralized international system suggest a practicable
answer for dealing with the problem of nullity.
B. Is the list of sources exhaustive ?
238. From a current perspective the list in Article 38, paragraph 1,

of the Statute has some apparent gaps. This is either due to omissions
at the time of the Statutes drafting or to the subsequent appearance of
new sources. The most notable lacunae are the following.
239. Regional and local custom, which the ICJ has invoked in
judgments, the former in the Asylum case 401, the latter in the Goa
case 402. These cases indicate that the Court does not consider the
words general practice in Article 38, paragraph 1 (b), to be syno-
nymous with universal practice. It seems nevertheless strange to
subsume bilateral (local) practice under general practice. Constru-
ing it as informal (tacit) agreement or as factual conduct and
acquiescence would be a more rational explanation.
240. Unilateral legal acts 403, in respect of which it is sometimes
argued that they are possibly a source of international rights and/or
obligations but not a source of international law. However, the use-
fulness of this dogmatic distinction is doubtful.
It correctly describes unilateral legal acts performed in the treaty-
making process, with the exception of reservations which modify the
text of a treaty provision. It does not apply to unilateral acts which
relate to the formation of custom. And it is incorrect with respect to
autonomous legal acts which are not executed by a single perfor-
mance but have a lasting effect, requiring a continuing conduct. As
the ICJ observed in the Nuclear Tests cases 404, the duty of France
not to conduct nuclear tests in the atmosphere is such a case. It is
difficult to see a difference, as far as its quality as a legal source is
401. Colombia/Peru, ICJ Reports 1950, 265-289, 276-277.

402. Case concerning Rights of Passage over Indian Territory (Portugal v.
India), Merits, ICJ Reports 1960, 6-46, 39, 42-43.
403. See Chap. IX, paras. 375-396.
404. Australia v. France, ICJ Reports 1974, 253-274 ; New Zealand v.
France, ibid., 457-478.
concerned, between this way of creating a legal duty and the creation
by treaty, although the quality as source of the latter has been ques-
tioned for the same reason 405.
Since the dogmatic characterization does not fit all unilateral acts,
it does not warrant their total exclusion from the sources of interna-
tional law.
241. It is often argued that authoritative legal acts of international
organs 406, though not expressly mentioned, are included by impli-
cation in Article 38, paragraph 1 (a), because their binding force
derives from the constituent treaty of the respective organization.
Although this argument can dogmatically be defended, it has never-
theless a flaw. According to Article 5 of the VCLT the provisions of
a constituent treaty are subject to any relevant rules of the organiza-
tion which suggests that the constituent treaty is not the exclusive
source of authoritative decisions which may, for instance, be based
on established practice which is part of the rules of the organiza-
tion. It is, of course, possible to track also the rules of the organi-
zation back to the constituent treaty, but then the construction gets
so convoluted that clarity would be served better by recognizing that
authoritative legal acts of international organs may be a separate
source of international law.
242. The orthodox interpretation of Article 38, paragraph 1 (c),
accepts only the concurrent recognition of a principle by domestic
legal orders as valid recognition by civilized nations 407. This inter-
pretation neglects genuine principles of international law. Such prin-
ciples may originate in conventions, like the principles of the Char-
ter which have been reiterated and elaborated in the Friendly
Relations Declaration and which the ICJ found in the Nicaragua
case to have become part of international custom. It also excludes
rules of international custom on which the opinio juris, or better : the
consensus of opinion among States, has not yet developed beyond
the stage of principle.
405. See R. Jennings and A. Watts, Oppenheims International Law, 9th ed.,
Harlow, 1992, Vol. I, 31. Critical M. H. Mendelson, Are Treaties Merely a
Source of Obligation ?, in W. E. Butler (ed.), Perestroika and International
Law, Dordrecht, 1990, 81-88.
406. See Chap. IX.
407. This goes back to the understanding of the Committee established by the
Council of the League of Nations to draft the Statute of the PCIJ ; cf. M. Bos,
The Recognized Manifestations of International Law, 20 GYIL (1977), 9-76,
33-42.
136 K. Zemanek
It should be noted, however, that it is not the text of Article 38,

paragraph 1 (c), which causes the disregard but its aforementioned
interpretation ; the text does not preclude the recognition of prin-
ciples by other means than by their existence in foro domestico.
243. The absence of a reference to jus cogens in the text of
Article 38, on the other hand, is not an obstacle to its application.
Jus cogens is not generated by a separate law-making process. The
term refers to the specific character of norms or principles which are
generated by one of the sources listed in paragraph 1 of Article 38.
C. Does Article 38, paragraph 1 (d), reflect reality ?
244. Paragraph 1 (d) of Article 38 indicates judicial decisions and

the teachings of the most highly qualified publicists of the various
nations as subsidiary means for the determination of rules of interna-
tional law. The intention is clear : while treaty, custom and general
principles are law-creating processes, judicial decisions and teach-
ings are sources for telling the law. Yet one may doubt whether their
function is, in fact, thus limited.
1. Judicial decisions
245. Anyone who follows the jurisprudence of the ICJ will admit
that the label judge-made law is not without reason applied to
some of its dicta 408. It could, though, be argued that the relevance of
this judge-made law is limited to the case under consideration,
as specified by Article 59 of the Statute, to which Article 38, para-
graph 1 (d), refers in a saving-clause.
But what happens if a State which has no connection with the
case cites the judgment in a dispute and relies on it ? If the case
should come before the same Court one may assume that the Court
will not dissent from its earlier judgment. Yet, if the rule had not
existed before, or at least not in the sense given to it by the Court in
its original judgment, does the State create new custom by relying
on the latter ? That is apparently not its intention since it relies on
the judgment as a statement of existing law. Is one then to assume
that custom may be created unintentionally, based on an erroneous
opinio juris ?
408. Cf. J. Kirchner, Thoughts about a Methodology of Customary Interna-

tional Law, 43 AJPIL (1992), 215-239, passim and 238.
It seems that this line of argument does not lead anywhere. One
should admit that judgments of the ICJ, because of their authorita-
tive standing and persuasive effect, and because of the example they
set, are sometimes creating new law while ostensibly stating the
existing law.
2. Teachings
246. Much of what has been said about judicial decisions applies
also to teachings. History shows that in the seventeenth and eigh-
teenth centuries international law was not so much the creation of
princes (States) but of publicists, from Grotius to Vattel. Their
visionary writings guided nascent practice and not vice versa.
That situation has not really changed 409. The research into prac-
tice and literature required to produce a monograph on a specific
subject of customary law is neither repeated by reviewers nor by
those who intend to apply the rule or rules enunciated in the mono-
graph. If the conclusions of the monograph are supported by the
quoted material and logically and convincingly reasoned, they will
be accepted as expressing the law. Only a new, equally painstakingly
researched monograph could unearth material that could lead to a
modification or reversal of the first thesis. This is probably what is
meant by the words most highly qualified publicists in Article 38,
paragraph 1 (d), of the Statute. A certain trust must be put in authors
whose past work has stood the test of an international academic dis-
course and shown them as reliable scholars. In the last resort this
trust is a substitute for the systematic verification of the results of
research.
That puts the matter in perspective. Monographs are the sources
on which textbooks rely. If an error or oversight crept into the mono-
graph, it will be repeated in textbooks. Textbooks in their turn are
the usual source for those who apply international custom. Practi-
tioners neither have the time nor the means to carry out original
research. They accept the statements of the nearest textbook at hand
as law and, if the statement suits their position, do not enquire
whether the statement really expresses the law as it stands. Thus
publicists, like courts or tribunals, may sometimes make law by
shaping opinio juris and thereby guiding practice.
409. M. Lachs, The Teacher in International Law, The Hague, 1982, devotes
a chapter to The Impact of Teachings (167-199).
138 K. Zemanek
II. Instruments for the Development of International Law
247. The formation of custom is, as will appear later 410, a rather
uncertain and complex process. In the past decades the international
community has, for this reason, primarily looked to multilateral con-
ventions for the development of existing customary law through
codification, or for making new international regulations. The
uneven record of past endeavours and the nature of some projects
ahead suggest, however, a review.
A. Codification
248. When multilateral treaties are used as instruments for the

codification of customary law, the success of the enterprise depends
on the number of ratifications or accessions which they attract. The
record of past codification conventions is in this respect varied 411
and raises a number of new legal problems. For instance : what is the
status of a codification convention which is not yet in force ? Or,
what is the relation between the convention and the customary rules
which it purports to codify ? These problems will be examined
later 412.
249. Quite apart from these problems it is doubtful whether the
treaty form is really the best way 413 to codify some of the subjects
currently under consideration by the ILC or proposed by it for future
study 414. The fate which some of the recently completed drafts, for
instance those on State Immunity, on the International Criminal
Court, or on International Watercourses have suffered in the General
Assembly strongly suggests a search for alternative procedures.
250. The Commission has sometimes considered other forms of
codification. At one stage of the process to codify the law of treaties
the then Special Rapporteur Sir Gerald Fitzmaurice proposed an
expository code, but the idea was abandoned when the Rapporteur
410. See Chap. VII.
411. See K. Zemanek, Does Codification Lead to Wider Acceptance ?, in
UN, International Law as a Language for International Relations, Proceedings
of the United Nations Congress on Public International Law (New York, 13-17
March 1995), The Hague, 1996, 224-229, 225-226 ; and Chap. X, paras. 431-
432.
412. See Chap. X, paras. 423-438.
413. See F. Cede, New Approaches to Law Making in the UN-System,
1 ARIEL (1996), 51-66, 59.
414. See list in United Nations, GAOR, 51st Session (1996), A/51/10 : Report
of the ILC on its 48th Session, Annex II (pp. 328-334).
changed 415. In 1953, the first draft on Offences against the Peace
and Security of Mankind was presented in form of a Code 416, and
so is the present Draft Code of Crimes Against Peace and Security
of Mankind 417. But when the Commission considered what sort of
instrument should embody the code, it simply listed options such as
an international convention, whether adopted by a plenipotentiary
conference or by the General Assembly ; or the incorporation of the
Code in the Statute of an International Criminal Court ; or its adop-
tion as a declaration by the General Assembly 418, without indicating
a clear preference. In respect of reservations to treaties which are
under consideration by the ILC, the Special Rapporteur even
suggested the unusual tool of a resolution by the ILC itself 419.
These haphazard propositions are not really expedient. What is needed
is a systematic study of the viability of alternative devices. Their legal
standing is not well defined 420 and their possible influence on those
who apply the law unfathomed. Without such a study the discussion
of alternatives is bound to remain academic.
251. The last-mentioned subject, i.e. reservations to treaties, pro-
vides a good example for describing the impasse in which the Gen-
eral Assembly finds itself when it needs to decide on a suitable
instrument for codification.
It could choose a multilateral convention for clarifying the rules
dealing with reservations which have been objected to on the ground
that they are incompatible with the object and purpose of the treaty.
But if not all parties to the VCLT would become parties to the new
convention, one would end up with a split system which would
rather increase the presently existing uncertainty and not dispel it.
252. If, on the other hand, the clarifications were to take the form
of a guide to practice in respect of reservations as decided by the
General Assembly 421 on the recommendation of the ILC 422, they
will have a persuasive effect but nothing more. Those not satisfied
with the guide would be free to ignore it. None of the hotly dis-
415. See United Nations, The Work of the International Law Commission,
rev. ed., s.l., s.a., 47.
416. Ibid., 29 ; the General Assembly deferred consideration sine die.
417. Report of the ILC on its 48th Session ; source in footnote 414, para. 50.
418. Ibid., para. 47.
419. Ibid., para. 135, note 286. It has been adopted in 1997.
420. See infra, paras. 255 et seq.
421. GA resolution 50/54, para. 4.
422. UN, GAOR, 50th Session (1995), A/50/10 : Report of the ILC on its 47th
Session, paras. 491-492.
140 K. Zemanek
puted issues raised by inadmissible reservations 423 can be solved in

that way.
Thus, whatever way the General Assembly may choose, each has
its own shortcomings 424.
B. New regulations
253. What has been said earlier about the relatively narrow scope
of globally shared values and interests 425 makes it necessary to
explore the conditions which must exist if an exercise in creating
new international law is to be successful. Two current philosophies
come to different conclusions. One suggests that endeavours to
create new law should be limited to matters which are already
widely regarded as requiring regulation and can thus rely on a wide-
spread opinio necessitatis. A bolder school suggests, on the other
hand, that the insight of a scientific or intellectual lite justifies
social engineering ; new regulations should therefore be proposed
independently of their present chances of success, and exercise an
educational effect which should, in the future, lead to a wider accep-
tance of the regulation. To a certain extent this philosophy was fol-
lowed in the creation of international environmental protection law,
such as the ECE Convention on Long-Range Transboundary Air Pol-
lution or the Vienna Convention for Protection of the Ozone Layer.
254. Here again, the choice of the instrument is crucial. To use
multilateral conventions as vehicle for the advancement of interna-
tional law is a slow process. Decades may pass from the beginning
of preparatory work, then continuing through the stages of adoption
in a conference of plenipotentiaries with its aleatory risks and of
ratification or accession by States, until its entry into force. Even
the latter does not yet assure implementation in domestic law,
which may take further time. The result is a long delay between the
perception of necessity and the regulations effectiveness.
This slow process has led to a number of alternative suggestions
by scholars 426, to which practice is now slowly responding. All
suggested alternatives, whether they are non-binding declarations,
423. For details see Chap. VIII, paras. 347-368.

424. See L. Sucharipa-Behrmann, The Legal Effects of Reservations to
Multilateral Treaties, 1 ARIEL (1996), 67-88, 88.
426. Cf. e.g. P. M. Dupuy, Soft Law and the International Law of the Envi-
ronment, 12 Michigan JIL (1990-1991), 420-435.
codes or international standards, are part of what has become known

as soft law.
C. Soft law
255. The use of the term soft law 427 as opposed to hard law
raises the question as to the criteria which distinguish one from the
other 428. The conservative answer to this query is that the second is
binding and the first is not. But what does this distinction really
mean ? In legal terms binding force signifies that the obligation is
enforceable if not performed. As will be shown later 429, however,
individual enforcement of international obligations is not as readily
available as in domestic law. If one takes the ILC draft on State
Responsibility into account, individual enforcement is subject to
severe limitations, among them steps to settle the dispute by other
means. And, as will also be shown 430, international courts and tribu-
nals, especially the ICJ, take instruments which might be labelled
soft law frequently into account when deciding a case. In conse-
quence it is submitted that, regardless of its dogmatical correctness,
the distinction between binding and non-binding international instru-
ments makes little sense in practice. Moreover, it overlooks that
soft law is embodied in different instruments many of which defy
classification in binding or non-binding categories.
256. One type of engagement is, for a variety of reasons,
designed as extra-legal commitment and intended to remain perma-
nently so 431. One may cite in this category informal agreements of
427. See generally I. Seidl-Hohenveldern, International Economic Soft

Law , 163 Recueil des cours (1979-II), 173-246 ; C. Chinkin, The Challenge
of Soft Law, 38 ICLQ (1989), 850-866 ; E. Riedel, Standards and Sources
Farewell to the Exclusivity of the Sources Triad in International Law, 2 EJIL
(1991), 58-84 ; W. Heusel, Weiches Vlkerrecht Eine vergleichende Unter-
suchung typischer Erscheinungsformen, Baden-Baden, 1991. Cf. also the discus-
sion in a panel of the ASIL, A Hard Look at Soft Law, 82 ASIL Proceedings
(1988), 371-395.
428. See M. Bothe, Legal and Non-Legal Norms : A Meaningful Distinction
in International Relations ?, 11 NYIL (1980), 65-95.
429. See Chap. XV.
430. See Chap. XIII.
431. For the difficult distinction between legal and non-legal engagements cf.
the reports of M. Virally to the 7th Commission of the Institut de droit interna-
tional, in 60 Annuaire de lInstitut de droit international, Vol. I (1983), 166-374.
The conclusions of the rapporteur are reprinted ibid., Vol. II (1984), 287-291.
Cf. also O. Schachter, The Twilight Existence of Non-binding Agreements,
71 AJIL (1977), 296-304 ; and M. Virally, Sur la notion daccord, in E. Diez
et al. (eds.), Festschrift fr R. Bindschedler, Berne, 1980, 159-172.
142 K. Zemanek
the type called gentlemens agreement 432. Also belonging to this

group are the Helsinki Final Act 433 and international standards or
codes of conduct 434, frequently used in the context of international
trade, health or environmental areas.
257. To call them non-binding is, at best, misleading because
the designation pays no heed to the motives for performing an inter-
national engagement. In the international system fear of legal sanc-
tions in case of non-performance alone would be a poor incentive
indeed, given the constraints on enforcement. Experience shows that
reciprocity is the strongest incentive to obey obligations. Even such
undoubtedly hard law obligations as those deriving from the VCLT,
the VCDR and the VCCR or from armament or troop reduction agree-
ments owe much of their favourable record of performance to the under-
lying material reciprocity, which means that most States can actually
envisage themselves in the role of claimant as well as of respondent.
258. Although soft law engagements of the sort considered
here are not obeyed because of a legal command, they are performed
because they embody carefully balanced reciprocal interests. As long
as these interests subsist, the possible political and/or economic con-
sequences of non-performance are often a far stronger deterrent 435
than the consequences of the non-performance of most legal obliga-
tions. This tends to show that reciprocity as an incentive of perfor-
mance is independent of the nature of the commitment. Soft law
can even sustain an international organization, as the Organization
on Security and Co-operation in Europe (OSCE) proves 436. Soft
432. See P. M. Eisemann, Le Gentlemens Agreement comme source du

droit international, 106 JDI (1979), 326-348.
433. See T. Schweisfurth, Zur Frage der Rechtsnatur, Verbindlichkeit und
vlkerrechtlichen Relevanz der KSZE-Schlussakte, 36 ZaRV (1976), 586-617.
434. Cf. e.g. S. Coonrod, The United Nations Code of Conduct for Trans-
national Corporations, 18 Harvard ILJ (1977), 273-307 ; D. J. Plaine, The
OECD Guidelines for Multinational Enterprises, 11 International Lawyer
(1977), 339-346 ; R. Schwartz, Are the OECD and UNCTAD Codes Legally
Binding ?, ibid., 529-536 ; J.-L. Chiles Davidov, The United States and the
Issue of the Binding or Voluntary Nature of International Codes of Conduct
Regarding Restrictive Business Practices, 72 AJIL (1978), 247-271.
435. Cf. L. C. Buchheit, The Use of Nonviolent Coercion : A Study in
Legality under Article 2 (4) of the Charter of the United Nations, in R. Lillich
(ed.), Economic Coercion and the New International Economic Order, Char-
lottesville, 1976, 41-69 ; J. Dapray Muir, The Boycott in International Law,
ibid., 19-38.
436. See I. Seidl-Hohenveldern, Internationale Organisationen aufgrund von
soft law, in U. Beyerlin et al. (eds.), supra footnote 336, at 229-239 ; and
T. Schweisfurth, Die juristische Mutation der KSZE Eine internationale
Organisation in statu nascendi, ibid., 213-228.
law of this sort may not be legally binding but it certainly is in

political terms.
259. However, the term soft law also denotes a totally different
type of instrument. Most of the instruments in this group, such as
declarations, recommendations 437, or codes, cannot be explained by
the dichotomy of binding and non-binding because neither is
their purpose. They are primarily tools for shaping the future devel-
opment of the law, either by building opinio juris for custom or by
shaping a consensus for future multilateral conventions. They define
the principles of that development but are not binding in a legal
sense 438. They define a consensus of opinion, existing at a given
moment, on how the law should progress. Whether the law follows
the prescribed course can only be judged later 439. The future shows
whether States acted in fact in a way that confirms an established
opinio juris 440 or whether a multilateral convention embodying the
declared principles is adopted 441. If that is the case, the soft law
437. Cf. C. Schreuer, Recommendations and the Traditional Sources of

International Law, 20 GYIL (1977), 103-118.
438. See generally P. de Visscher, Observations sur les rsolutions
dclaratives de droit adoptes au sein de lAssemble gnrale de lOrga-
nisation des Nations Unies, in E. Diez et al. (eds.), supra footnote 431, at 173-
185 ; M. von Grnigen, Die Resolutionen der Generalversammlung der Verein-
ten Nationen und ihr Einfluss auf die Fortbildung des Vlkerrechts, ibid.,
187-200 ; K. Skubiszewski, Resolutions of the UN General Assembly and Evi-
dence of Custom, in P. Lamberti Zanardi et al. (eds.), supra footnote 5, at 503-
519 ; C. Seplveda, Methods and Procedures for the Creation of Legal Norms
in the International System : An Inquiry into the Progressive Development of
International Law in the Present Era, 33 GYIL (1990), 432-459 ; and J. Bar-
beris, Les rsolutions des organisations internationales en tant que source du
droit des gens, in U. Beyerlin et al. (eds.), supra footnote 336, at 21-39.
Critical Kirchner, supra footnote 408, at 235-236.
439. See M. Lachs, The Threshold in Law-Making, in R. Bernhardt et al.
(eds.), supra footnote 247, at 493-501, 496-497. The most successful instances
are obviously the Universal Declaration of Human Rights of 1948 which engen-
dered an impressive array of multilateral conventions ; and the Friendly Rela-
tions Declaration of 1970, important parts of which, according to the ICJ in the
Nicaragua case (cf. Chap. II, para. 54), became customary law.
440. E.g. by applying soft law domestically ; see C. Schreuer, Die inner-
staatliche Anwendung von internationalem soft law aus rechtsvergleichender
Sicht, 34 AJPIL (1983), 243-260.
441. An excellent example is the development of the law of Outer Space by
the United Nations, from GA resolution 1962 (XVIII) Declaration of Legal
Principles Governing the Activities of States in the Exploration and Use of
Outer Space (1963) to the Outer Space Treaty of 1966 (GA resolution 2222
(XXI)) ; cf. K. Zemanek, The United Nations and the Law of Outer Space,
19 Yb World Affairs (1965), 199-222 ; and M. Lachs, The Law of Outer Space,
Leiden, 1972, 27-41. The same happened recently in environmental law ; see W.
Lang, Die Verrechtlichung des internationalen Umweltschutzes : Vom soft law
zum hard law , 22 AVR (1984), 283-305.
144 K. Zemanek
instrument will represent one element in the respective process. If it

does not happen, the instrument will only be of historical interest.
This indicates clearly that soft law instruments of this kind do not
have a separate legal standing, nor are they intended to have one.
They are significant as a step in a norm-forming process.
260. Yet such steps need not necessarily generate new rules or
lead to a conspicuous change in existing rules. Soft law instru-
ments may play a further and significant role in construing hard
law, i.e. in the interpretation of treaties and in the understanding of
customary rules 442. Especially in the latter case, since custom is a
continuous process rather than a static set of defined rules, con-
stantly adapting to changed circumstances and changing expecta-
tions. The formulation of a rule in a given moment and for a given
situation 443 is influenced by the general legal environment, including
the general consensus of opinion reflected in soft law instruments.
This supporting role may, however, be obscured by the fact that they
may be and are quoted as instruments. But this is only the conse-
quence of their existence in document form. Any reference to them
is a reference to their substance, and only for convenience replaced
by a reference to the form in which the substance is presented.
III. Should All Development of International Law Aim

at Universal Acceptance ?
261. The answer to the query whether the development of inter-

national law through codification or new law-making should only be
undertaken if universal acceptance is likely, has two aspects : one
philosophical and one pragmatic.
Philosophically a universal and uniform international order is evi-
dently desirable since it would, hopefully, lead to more orderly rela-
tions and greater security. As has been shown 444, however, todays
442. See D. Threr, Soft Law eine neue Form von Vlkerrecht ?,
104/I Zeitschrift fr Schweizerisches Recht (1985), 429-453, 446-449. It seems
to be also the opinion of U. Fastenrath, Relative Normativity in International
Law, 4 EJIL (1993), 305-340, when he states :
Here, the much maligned phenomenon of soft law performs an invalu-
able function. It enables worldwide agreement on the content of hard law, in
that it limits the scope of acceptable subjective auto-determination.
But with this sort of abstract language one may not be sure.
443. See Chap. VII, para. 292.
international system falls short of that ideal and no indicators of a

radical change are in sight. This calls for a pragmatic evaluation of
the possibilities to improve international law at least step by step.
That evaluation will then determine the answer to the query.
A. The choice of an appropriate procedure
262. The intention to codify custom or to create new law by con-

ventions would ideally require a prior precise and realistic appraisal
of the values and interests which the members of the international
system associate with the subject-matter. The appraisal would then
permit their fair balancing in the proposed regulation. The difficulty
of the task and the lack of appropriate institutions to perform it pre-
vent the achievement of that ideal condition.
263. The nearest substitute is the preparatory stage in the multi-
lateral treaty-making process. Although it does not offer a systematic
survey, it creates at least the opportunity for a general input of ideas.
Best suited for this process are plenary organs of international organi-
zations and, in the first instance, the General Assembly of the
United Nations. It is there that a consensus of opinion on the sub-
stance of future regulations can be built. Hence, it is particularly
regrettable to note that only a relatively small number of States reply
to questionnaires of the ILC or address the substance of its work
during the debates of its Report in the Sixth Committee of the Gen-
eral Assembly.
It would be unfair to attribute this abstention to a lack of interest.
More realistically, it will be due to an overburdened small legal staff
in foreign ministries or to poor communications between foreign
ministries and their representatives in New York. The delayed publi-
cation of the ILCs Report may also be a contributing factor. What-
ever the cause, the result is the opposite of what is intended. The
purpose of discussing proposed new conventions in the General
Assembly is to permit an extensive input of positions, particularly of
smaller States, with a view of counterbalancing the influence of
powerful States on the development of the law. Practice, however,
shows that the input comes mainly from well-organized developed
States. This weakness in the preparatory stages of law-making
accounts for some of the difficulties which proposed conventions
occasionally encounter during the stage of adoption or later in the
process of ratification or accession. These difficulties could be
146 K. Zemanek
avoided if a better way of integrating all potential parties in the early

stages of the preparatory work could be found.
264. Taking things as they are, however, a few conclusions may
be drawn from the foregoing analysis for the choice of procedure for
the adoption of international conventions 445.
Unanimity of all potential parties can only be achieved in a small
community of like-minded States with a homogeneous basis of com-
mon values. As the discussions in the EU Governmental Conference
for the review of the Treaty of Maastricht illustrates, it is an
unwieldy procedure even in a relatively small community like the
European Union. On the global level it is impracticable.
265. Majority decisions, on the other hand, should be reserved for
subjects on which values and interests of the future parties converge
to such an extent that the dissatisfaction of a minority with one or
the other point will not deter it from accepting the regulation as a
whole 446.
266. For controversial subjects the consensus technique is indi-
cated, in spite of its many shortcomings. If, because of the diver-
gence of values or interests, a consensus of opinion does not pre-
exist, convergence must be achieved in a process of negotiation
which will, hopefully, result in a fair balance and thus guarantee a
satisfactory number of acceptances and secure implementation. That
the process does not always yield the best result has to be accepted
as an inevitable price.
B. Need regulations necessarily be universal ?
267. Having answered the question of appropriate procedure, we

may return to the query raised at the beginning, whether the devel-
opment of international law should only be undertaken if universal
acceptance of its result is assured on the spot. On a range of subjects
it may not be possible to achieve, at a given moment, the necessary
universal consensus of opinion. It may then be expedient to proceed
none the less, conscious of the limited potential for acceptance. That
course of action should, however, not be taken without careful con-
sideration of the form in which it is to be undertaken. The number
445. For a theoretical discussion of this subject cf. Chap. IV, paras. 173-181.
446. For the devices which accommodate dissenters see Chapter VIII,
paras. 332-368.
and geographic location of the States actually perceiving the need

for regulation, the prospect of that perception growing beyond the
original group, and the nature of the subject should be elements to be
taken into account in that consideration and determine which of the
procedures outlined below is best suited to the effort.
268. The history of some codifications indicates that progress in
smaller regional groups may be beneficial for the advancement of
the same concept on a global scale.
The effectiveness of reciprocal influence is clearly demonstrated
by the history of the international protection of human rights. The
American Declaration of the Rights and Duties of Man predated the
Universal Declaration of Human Rights of 1948 by a few months.
The European Convention for the Protection of Human Rights and
Fundamental Freedoms of 1950 influenced the International Cov-
enant on Civil and Political Rights of 1966 and set an example for the
American Convention on Human Rights of 1969 and the African
Charter of Human and Peoples Rights of 1981 447. They may differ in
specifics, they may differ in the efficiency of the machinery set up
for supervision ; but, taken together, they have over the years firmly
established global awareness that safeguarding the essential core of
human rights is a matter of international concern and no longer the
exclusive domain of the nation State.
269. A similar approach should be considered for some areas of
environmental protection. While a lasting reduction of the pollution
of the atmosphere or other global commons can only be achieved by
universally applicable regulations, regional engagements among
like-minded States, especially if they lead to significant improve-
ments, could nevertheless convince States in other regions that the
global enterprise was feasible and desirable. A considerable amount
of persuasion will be necessary, though, to ensure that anxiety about
comparative costs does not get the upper hand of responsibility for
the future of mankind.
270. Yet even if there is no chance that the example of a smaller
group will encourage others and pave the way for a general regula-
tion, a law-making convention for a limited number of States may
still be useful, provided it answers a pressing need in inter se rela-
447. The texts of these conventions are reprinted in F. Ermacora, M. Nowak,

H. Tretter (eds.), International Human Rights. Documents and Introductory
Notes, Vienna, 1993.
148 K. Zemanek
tions of the participants and does not interfere with global relations.
But the group should be well defined and ideally cover a whole
region or sub-region.
271. While intentionally limited conventions have their use, the
situation is different with conventions which are designed for gen-
eral application but are accepted only by a few States, particularly if
the latter are scattered over the globe. Such conventions create more
legal problems than they solve 448. A low acceptance rate may, of
course, be unexpected and elude rational explanation, especially
when the text of a convention had been adopted by an overwhelming
majority or by consensus, without explicit opposition. If, however, a
lack of interest or a determined opposition of essential parties
becomes already apparent at an early stage of preparation 449, a low
rate of acceptance or the failure of its entry into force should not be
risked deliberately. Stillborn conventions, especially in the codifica-
tion field, may retard the development of the law considerably by
eliminating the subject from further consideration for a long time.
272. For subjects which are not suited for a gomtrie variable,
that is for a long-lasting or permanent juxtaposition of different but
ostensibly general sub-systems addressing the same subject, the pos-
sibility of introducing different speeds of acceptance should be con-
sidered. Contrary to the foregoing scenario, this would require that
the object and purpose of the proposed regulation were accepted by
all potential parties, perhaps in the form of a basic agreement defin-
ing the aim and a programme for its achievement 450. The programme
would be implemented by separate protocols at the rate of emerging
consensus or even permit a minority to go ahead while the rest was
following at its own, slower pace. As with deliberately limited con-
ventions, the choice of suitable subjects is crucial, but the technique
has successfully been used in environmental and humanitarian law.
448. See Chap. X, paras. 423-450.

449. As e.g. with the Vienna Convention on the Representation of States in
their Relations with International Organizations of a Universal Character of
1975 or the Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts of 1983.
450. See Chap. VIII, para. 333.
149
CHAPTER VII
CUSTOM AND GENERAL PRINCIPLES
I. The Complexity of Custom
273. International customary law, or international custom as it is

also called, is a complex phenomenon and in spite of its still central
role in the international system it is one of the theoretically least
explored topics of international law.
Textbooks are mostly content to recite like a mantra the formula
employed in Article 38, paragraph 1 (b), of the Statute of the ICJ
according to which international custom is evidence of a general
practice accepted as law, without questioning the logical correct-
ness of the formulation : is the Court applying custom which is a
norm-forming process, or the result of that process 451 ? Be that as it
may, in its most recent and elaborate judgment concerned with inter-
national custom 452, the Nicaragua case 453, the ICJ has canonized the
two-elements theory embodied in the text of Article 38 by stating :
The Court must satisfy itself that the existence of the rule in the
opinio juris of States is confirmed by practice. 454
274. If one proceeds thus from the assumption that custom is
generated by the interaction of two elements, the subjective element
451. For a more detailed version of this critique see H. Kelsen, Thorie du
droit international coutumier, 1 Revue internationale de la thorie du droit
(1939), 253-274, 262 ; G. Schwarzenberger, International Law, Vol. I, 3rd ed.,
London, 1957, 39 ; and B. Cheng, Custom : The Future of General State Prac-
tice in a Divided World, in R. St. J. Macdonald and D. M. Johnston (eds.),
supra footnote 10, at 513-554, 514.
452. The Court has, as a matter of course, frequently dealt with customary
law issues ; for an overview see K. Skubiszewski, Elements of Custom and the
Hague Court, 31 ZaRV (1971), 810-854 ; and K. Wolfke, Custom in Present
International Law, 2nd ed., Dordrecht, 1993, 119-139.
453. Case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1985,
14-150.
454. Ibid., 98, para. 184. In paragraph 183 the Court referred to a similar pas-
sage in its judgment in the Continental Shelf case (Libyan Arab Jamahirya/
Malta), ICJ Reports 1985, 29-30, para. 27.
Quite a few critics have suggested that the Court failed to act on its own pre-
scription in the Nicaragua case. Defending the Court is P. P. Rijpkema, Custo-
mary International Law in the Nicaragua Case, 20 NYIL (1989), 91-116.
150 K. Zemanek
of opinio juris and the objective element of practice, one is immedi-

ately faced with a logical conundrum : does opinio juris predate
State practice, as the Courts proposition that it must be confirmed
by practice seems to imply ? Yet the opinio of a State would, unless
the State acted in error, acquire the quality juris, meaning the subjec-
tive opinion that a legal duty to act in a specific way existed, only
when and if it was confirmed by practice 455.
The most frequent device to avoid the dilemma is the use of the
term opinio juris sive necessitatis, which leaves the reader guessing
whether there exists a belief in a legal duty or only the conviction
that a certain conduct is necessary for orderly relations. That device
circumvents the dilemma but it does not solve it.
275. It has recently been suggested
that opinio juris can operate prospectively, which would itself
mean that there is no difficulty in speaking of a State having
opinio juris only for itself . . . After all, opinio generalis juris
generalis must, at least in the earlier stages, have been no more
than one or a few States opinio individualis juris. 456
That last observation is correct but the proposition does not
improve the situation ; it is just a refined version of the opinio neces-
sitatis approach. The distinction between the subjective belief in the
existence of a legal rule and the subjective belief in its necessity may
matter dogmatically, but it does not matter in practice. The first State
acting in accordance with one or the other belief does so in the
absence of practice to support it and can thus not rely on existing
custom.
276. The dilemma becomes obvious when a rule of custom is
changing. State acts which depart from existing custom appear prima
facie as violations of the respective customary rules. Yet it depends
on the reaction of other States, primarily that of the States which are
affected by the acts, whether they treat them as violations. If these
States do not assert their rights or, even more significantly, copy the
conduct, they initiate a change of custom. This transition can be
455. Cf. the admirable reconstruction of the state of the law at the time of the
United States Continental Shelf Proclamation in 1945 by J. Crawford and T.
Viles, International Law on a Given Day, in K. Ginther et al. (eds.), supra
footnote 44, at 45-68, 66.
456. O. Elias, The Nature of the Subjective Element in Customary Interna-
tional Law, 44 ICLQ (1995), 501-520, 519.
studied in the law of State immunity, where the jurisprudence of Bel-

gian and Italian courts towards the end of the nineteenth century led
to the distinction between acta jure imperii and acta jure gestionis
and, hence, to a restriction of State immunity 457. A more recent
example is provided by the claims to an Exclusive Economic Zone
before the Law of the Sea Convention entered into force 458, because
the claims deviated from the customary model of dividing the sea
into territorial waters and the high seas. The assessment whether a
certain conduct was simply a violation of existing custom giving rise
to State responsibility or whether it initiated a change of custom can
thus only be made in retrospect.
277. To avoid these difficulties, Maurice Mendelson has recently
suggested that
where there is a constant and uniform practice of sufficient
generality, in a legal context, it seems legitimate for members
of the community, to expect all others to continue to observe
that practice. . . . If a relevant practice is sufficiently wide-
spread, it ought to become law, because otherwise the convoy
will have to move at the pace of the slowest. To require proof
of consent or even opinio juris on the part of each and every
State seems excessive and unnecessary. 459
The proposition merits consideration, especially in view of the diffi-
culty to distinguish the evidence of opinio juris from the evidence of
practice in the form of verbal acts 460.
II. The Formation of Custom
A. A changing process
278. During the nineteenth and the first part of the present cen-
tury, the so-called classical period of international law, custom was
457. Cf. Chap. III, paras. 98 et seq. ; and, for the history, H. Lauterpacht,
The Problem of Jurisdictional Immunities of Foreign States, 28 BYIL (1951),
220-272.
458. Cf. W. C. Extavour, The Exclusive Economic Zone. A Study of the Evo-
lution and Progressive Development of the International Law of the Sea,
Geneva, 1979, 292-295, 325 ; B. Conforti, The Exclusive Economic Zone :
Some Transitional Law Problems, 5 IYIL (1980-1981), 1-16 ; and G. Hafner,
Die seerechtliche Verteilung von Nutzungsrechten, Vienna, 1987, 335-338.
459. M. Mendelson, The Subjective Element in Customary International
Law, 66 BYIL (1995), 177-208, 208.
152 K. Zemanek
generated in an unchannelled, almost anarchic process. Only States

actually affected by the conduct at the time of formation of a partic-
ular custom participated in the process and it is not surprising that it
was therefore dominated by the great powers of the time. It seems
probable that, if an event was not spectacular enough to cause a
flurry of diplomatic correspondence, those States which were not
immediately affected were more or less unaware of what other States
were doing. They came into contact with a supposed rule of custo-
mary law only when an appropriate situation arose.
279. In our times the situation is fundamentally different, and that
for two reasons. One reason is the information and communication
society 461 which makes information on international events univer-
sally accessible. The second reason is the existence of international
organizations which, especially in the form of the United Nations
General Assembly, provide a forum for orderly discourse.
The influence of that discourse on the formation of custom is
manifold. Acts of the organization itself may evidence the existence
of a consensus of opinion on certain legal principles, or a sequence
of acts may be intended to build up a universal legal consciousness
in a sort of educational exercise, which one day crystallizes in cus-
tom or a multilateral convention. Last but not least comes the contri-
bution of States to the discourse through statements addressing legal
issues and through voting or contributing to the formation of consen-
sus. Although scholars are far from unanimous on the legal conse-
quences of the participation of States in this discourse, that does not
obliterate its effect 462.
B. The ingredients of custom
1. Values
280. Legal philosophy offers many explanations for the origin of

values which are eventually transformed into custom. As long as the
value basis of the international community was relatively homo-
geneous 463 neither the different opinions nor the different explana-
tions impeded the actual transformation.

463. See Chap. I, para. 16.
In the current pluralistic society the situation is different. Values

which should eventually be transformed into custom must be rooted
in a consensus of opinion of the international society on the existence
and content of the value. In this context, the word consensus desig-
nates a convergence of opinions which either exists spontaneously
or is the result of the decision-making process of consensus 464.
281. Recently, by adopting the Statutes of the International Crim-
inal Tribunals for the former Yugoslavia and for Rwanda, the Secur-
ity Council apparently initiated such a spontaneous convergence of
opinions among the members of the United Nations, since the latter
did not object to the respective decisions 465. These Statutes extend
individual criminal responsibility for grave violations of humanitar-
ian law which applies in international armed conflicts, to acts com-
mitted in non-international armed conflicts 466. This is not the only
novelty, though ; the rules are also directed to individuals, adding
thus to that narrow branch of custom directly applicable to individ-
uals which was hitherto reserved to the laws of war 467.
282. Consensus as a convergence of opinions is, however, rarely
specific enough to be translated without further effort into precise
substantive rules ; it exists often only on the level of principles. Such
principles do not regulate actual conduct of States but trace the lines
along which custom should develop through practice 468. In spite of
the existing consensus on a principle or principles, appropriate prac-
tice is sometimes slow in emerging, or a multilateral convention
aiming at their implementation delayed, because States are not ready
to commit themselves legally to the consequences which flow from
the principle. This hesitation is, perhaps, best illustrated by environ-
464. See Chap. IV, paras. 178-181.

466. See Chap. XI, paras. 494-499 and paras. 507-510.
467. M. Sassli, La premire dcision de la chambre dappel du Tribunal
pnal international pour lex-Yougoslavie : Tadic (comptence), 100 RGDIP
(1996), 101-135, has the following comment :
Si tous les Etats pousent une thorie aussi nouvelle, scientifique-
ment errone et contraire la pratique antrieure soit-elle , une nouvelle
coutume est ne . . . En effet, les Etats ne sont pas seulement des sujets du
droit international, ils ont galement la facult de linterprter et de le
crer. (117-118.)
468. See K. Zemanek, The United Nations and the Law of Outer Space,
supra footnote 441, at 199-222, 210 ; and, more generally, B. Simma, Die
Erzeugung ungeschriebenen Vlkerrechts : Allgemeine Verunsicherung
Klrende Beitrge Karl Zemaneks, in K. Ginther et al. (eds.), supra footnote
44, at 95-114, 113.
154 K. Zemanek
mental law, or by humanitarian law concerning the ban on certain

conventional weapons.
283. It may also happen that the process never advances beyond
the stage of principle because, in practice, it appears that the consen-
sus of States does not reach deeper than that level. An in-depth ana-
lysis of supposedly customary rules tends to show that this is the
case with quite a number of them, although text-books take them for
granted 469. The rules of State succession 470 seem to be a relevant
instance of agreement in principle without agreement on detail, espe-
cially those concerning the succession to the public debt, where the
creditors are more interested in salvaging as much as possible in real
terms than in the implementation of a rule and are, therefore, agree-
able to ad hoc compromises 471 which fragment State practice.
2. Interests
284. Among the factors which are responsible for the difference
between the commitment to principle and its implementation the
most significant are domestic influences and, occasionally, the
necessity to put pragmatism before principle.
285. Domestic policy considerations have a growing influence on
foreign policy in general and thereby also affect the approach to
international custom.
It is, for instance, an illusion to believe that States, perhaps with a
few exceptions, have a settled opinio juris on the whole range of inter-
national custom or, necessarily, a consistent practice. Their bureau-
cracies may strive for consistency because all administrations have
a conserving tendency, but they will rarely be able to prevail over
their political masters if the latter are firmly wedded to a different
469. See H. Lauterpacht, Codification and Development of International

Law, 49 AJIL (1955), 16-43, at 17 :
. . . once we approach at close quarters any branch of international law, we
are driven, amidst some feeling of incredulity, to the conclusion that
although there is as a rule consensus of opinion on broad principle even
this may be an overestimate in some cases there is no semblence of
agreement in relation to specific rules and problems.
. . . How could it be otherwise in a society . . . in which custom is slow of
growth and controversial in interpretation and application (19).
470. See K. Zemanek, State Succession after Decolonization, 116 Recueil
des cours (1965-III), 187-300.
471. See Chap. III, para. 140.
view 472. Governments change and a political group coming newly to

power may judge some international matters differently from its pre-
decessor. A further factor which may influence the Governments
attitude is the pressure of public opinion or of influential NGOs 473.
286. Austria provides a good example of the public mood push-
ing the Government into action. Having rejected the use of nuclear
energy in a referendum, Austrians are extremely sensitive to the
existence or construction of nuclear installations in neighbouring
countries close to the Austrian border, especially if they are of
Soviet (Russian) make, since these are considered unsafe. Some
years ago, stimulated by the constant probing of ecological NGOs,
public opinion impelled the Austrian Government to intercede with
the foreign Governments concerned, requesting consultations and
information, and sometimes even suggesting the shut-down of exist-
ing installations or the suspension of further construction of new
ones 474. At the time of these requests their foundation in existing
customary law was rather doubtful, and other Governments some-
times reacted indignantly. But persistence paid off. Grass-root anti-
nuclear movements sprang up in the countries concerned and the
scepticism about nuclear energy spread to still other countries.
Today, the Austrian intercession is not only uncontested, but, at least
within the industrial world, it initiated a consensus on some prin-
ciples of transboundary environmental co-operation.
287. Pragmatic constraints are a second contributing factor. Even
if a domestic political consensus on the approach to international
custom exists in a given State, it does not follow that the State will
always act accordingly.
472. The following works on legal advisers provide some insight : R. B.

Bilder, The Office of the Legal Adviser, 56 AJIL (1962), 633-684 ; R. St. J.
Macdonald, The Role of the Legal Adviser of Ministries of Foreign Affairs,
156 Recueil des cours (1977-III), 385-482 ; I. Sinclair, The Practice of Interna-
tional Law : The Foreign and Commonwealth Office, in B. Cheng (ed.), Inter-
national Law : Teaching and Practice, London, 1982, 123-134 ; G. de Lachar-
rire, La politique juridique extrieure, Paris, 1983 ; S. M. Schwebel, Remarks
on the Role of the Legal Adviser of the US State Department, 2 EJIL (1991),
132-135 ; G. Guillaume, Droit international et action diplomatique ; le cas de la
France, ibid., 136-147 ; and A. D. Watts, International Law and International
Relations : UK Practice, ibid., 157-164.
474. This is partly reflected in : Austrian Federal Ministry for Foreign
Affairs, Austrian Foreign Policy Yearbook, 1992, 77-80 ; and ibid., 1994, 36-39 ;
evidence in id., sterreichische aussenpolitische Dokumentation, 1995, No. 1,
Documents 13-15.
156 K. Zemanek
Supplementary considerations intervene already in the preparation

of a decision on the level of civil servants in ministries for foreign
affairs, where the legal adviser must persuade the political depart-
ments that his proposition was in line with general policy. He must,
for instance, convince his political colleagues that an objection to a
reservation, particularly if it stresses the incompatibility of the reser-
vation with the object and purpose of the convention in question,
was neither unusual nor an unfriendly act. Success in this task is,
obviously, not only a matter of sound argument but also a question
of personalities 475.
288. The higher the level on which decisions are taken, the more
they are influenced by extra-legal considerations. One could cite
numerous examples, but among the more recent ones the events sur-
rounding the reactions to the dissolutions of the Soviet Union and of
the Socialist Federal Republic of Yugoslavia are perhaps the most
telling. Aspects which were discussed earlier 476, like the different
appreciation of identity, new conditions for recognition, or the
handling of treaty and debt successions clearly show the influence
of pragmatic political considerations.
3. State practice
289. Scholars have widely divergent views on what constitutes
State practice. Voluntarists defend the narrowest view. Since they
regard customary law as a form of (tacit) agreement, they accept
only acts of organs authorized to express the will of the State extern-
ally as custom-forming practice 477.
290. The spectrum of other opinions is extremely wide, as a few
examples may illustrate. For one author only real acts count as
State practice 478, another accepts in addition claims and other state-
ments as State practice if they are intended to have an immediate
effect on the legal relationships of the States concerned ; . . . acts

476. See Chap. III, paras. 123-126.
477. See e.g. C.-J. Duisberg, Das Vlkergewohnheitsrecht nach der Recht-
sprechung der internationalen Gerichte, Frankfurt am Main, 1963, 111.
478. A. dAmato, The Concept of Custom in International Law, Ithaka, 1971,
88. Cf. also at 51 :
. . . a State may say many things ; it speaks with many voices, some
reflecting divisions within top governmental circles. . . . But a State can act
only one way at one time, and its unique actions, recorded in history, speak
eloquently and decisively.
which are relevant only as assertions in the abstract . . . are not con-
stitutive of practice and thus of custom, but only confirmatory of
it 479. For a third the practice of States is built of their actions and
reactions . . . This does not mean that the picture of State practice is
composed exclusively of actions strictu sensu. Words and inaction
are also evidence of the conduct of States ; but legislation and
decisions of municipal courts are not part of the relations between
Governments and their purpose is not to shape these relations 480. A
fourth opinion, finally, submits that State practice covers any act or
statement by a State from which views can be inferred about interna-
tional law 481.
The following examination of the evidences of custom should
show which of these propositions can stand the test of reality.
III. Establishing Custom
A. The task
291. Unlike rules codified in a multilateral convention, rules of
customary law do not appear in ready-made form. They must be
derived from the available material and their content ascertained and
formulated in an intellectual operation by a scholar, a State organ or
an international tribunal intending to apply them 482. That operation,
if undertaken with the aim of finding the truth and not just argu-
ments for a pre-determined position, involves research into an
incredible amount of documentary material. Nevertheless, the result
479. H. W. A. Thirlway, International Customary Law and Codification,

Leiden, 1972, 58. For a similar view see I. Macgibbon, Means for the Identifi-
cation of International Law. General Assembly Resolutions : Custom, Practice
and Mistaken Identity, in B. Cheng (ed.), supra footnote 472, at 10, 26, 19-20, 22.
480. K. Skubiszewski, supra footnote 452, at 812 and 815 respectively. On
page 824 he defines custom-creating practice as follows : The interplay of
claim and reponse is the fabric of practice that leads to custom.
481. M. Akehurst, Custom as a Source of International Law, 47 BYIL
(1974-1975), 1-53, 10. See in this sense also C. Parry, The Sources and Evi-
dences of International Law, Manchester, 1965, 62-67 ; L. Ferrari Bravo,
Mthodes de recherche de la coutume internationale dans la pratique des Etats,
192 Recueil des cours (1985-III), 233-330, 261 ; and M. Bos, The Identification
of Custom in International Law, 25 GYIL (1982), 9-53, 22-23. The most metic-
ulously reasoned argument in favour of a wide notion of State practice comes
from M. E. Villiger, Customary International Law and Treaties, Dordrecht,
1985, 4-8.
482. See K. Zemanek, Die Bedeutung der Kodifizierung des Vlkerrechts
fr seine Anwendung, in R. Marcic et al. (eds.), Internationale Festschrift fr
A. Verdross, Munich, 1971, 565-596, 570-573.
158 K. Zemanek
of that operation will inevitably be infected by value judgments of

the researcher. It is thus possible that two completely honest
researchers, operating with different sets of values or ideologies,
may arrive at different results 483. This is the unavoidable price to
pay in a pluralistic society 484.
292. Yet method is not the only problem. Since custom is a
dynamic process 485 rather than a body of static norms, it is not pos-
sible to distinguish objectively between the formation and the confir-
mation (application) of customary rules. Robert Jennings put that
into the sentence : In international law the questions of whether a
rule of customary law exists, and how customary law is made, tend
in practice to coalesce. 486 No writer has yet proposed a method for
establishing the exact date on which a rule of customary law came
into force, and even less so for whom. Hence there is little purpose
in trying to classify State acts according to these categories. What is
possible and actually done by an international court or tribunal
applying customary law, is to determine whether on a given date 487
a rule of customary law applied between the parties to the case.
B. Evidences of custom
1. Records of practice
293. Until the middle of our century reference to practice in text-
books or monographs was, with the exception of judgments of the
483. The danger that this could lead a domestic court to deny the existence of
custom in a given matter is pointed out by H. Mosler, Lapplication du droit inter-
national public par les tribunaux nationaux, 91 Recueil des cours (1957-I), 625-
705. In respect of the German Constitutional Court Mosler states at page 700 :
La Cour constitutionnelle aura de grandes difficults faire usage de
cette comptence. Dans la teneur et non seulement dans les motifs de la
dcision, la rgle gnrale sur lexistence de laquelle le tribunal saisi de
laffaire dsire sinformer doit tre formule avec force de loi en une dfi-
nition abstraite. Vu la dfinition discute de la plupart des rgles, on pourra
supposer que la Cour constitutionnelle se dcidera plutt nier lexistence
dune rgle qu donner une rgle existante une dfinition positive.
484. See K. Zemanek, Codification of International Law : Salvation or Dead
End ?, in P. Lamberti Zanardi et al. (eds.), supra footnote 5, Vol. I, at 581-601,
583.
485. See V.-D. Degan, Customary Process in International Law, 1 Finnish
YIL (1990), 1-76, 26-27.
486. R. Y. Jennings, What Is International Law and How Do We Tell It
When We See It ?, 37 ASIL Proceedings (1981), 59-88, 60.
487. As has been done by J. Crawford and T. Viles, supra footnote 455, in
respect of the United States Continental Shelf Proclamation of 1945.
PCIJ, fortuitous and, in any case, sketchy. This was not due to
the negligence of authors but to the unavailability of the relevant
material ; even awards of arbitral tribunals were not regularly
published 488.
294. This has changed completely. Today it is not the scarceness
of material which creates problems, but the immense mass of pub-
lished practice. National repertories of practice are available in book
form 489 and many journals and yearbooks of international law 490
carry a relevant section. Some documentary material is now also
available in the internet 491. But all this material is poorly co-ordi-
nated. In spite of a master system for arranging digests proposed
nearly 30 years ago by the Council of Europe 492, not even European
publications follow it uniformly. To establish a fairly comprehensive
survey of (published) practice in respect of a particular rule of cus-
tom is, therefore, an extremely time-consuming task. Yet if the sur-
vey is not comprehensive, deviating conduct may be overlooked and
a rule pronounced to be general although it was only accepted by a
limited number of States or had, at least, a substantial number of
persistent objectors.
295. Perhaps even more irritating is the fact that no consensus on
what State practice is and what should therefore be published exists
among the editors of repertories of practice. On the one hand, nobody
doubts that, in strict law, the publication of a document in a repertory
does not change the legal character of the act so recorded 493. On
the other hand, it seems worth exploring whether the publication
does not have a supplementary impact on custom, as a sort of put-
488. As they are now in the Reports of International Arbitral Awards edited
by the United Nations Secretariat.
489. Most notably for the practice of France, Italy, the Netherlands, Switzer-
land, the United Kingdom and the United States.
490. E.g. RGDIP, Australian YIL, RBDI, ZaRV, AFDI, BYIL, Italian YIL,
Japanese AIL, Canadian YIL, NYIL, AJPIL (now ARIEL), REDI, ASDI, AJIL,
and the extremely useful ILM.
491. And is rapidly growing. The information is partly provided by the
sources, e.g. international organizations, foreign ministries, the ICJ or the
Iran-United States Claims Tribunal ; and partly provided commercially by
WESTLAW or LEXIS. Cf. also D. F. Vagts, The International Law Communi-
cations Network : Four Decades of Change, in U. Beyerlin et al. (eds.), supra
footnote 336, at 279-288, 285-286.
492. Doc. CM/Del/Concl.(68) 172 ; reprinted in 27 AJPIL (1976), 303-311.
493. See H. Mosler, Repertorien der nationalen Praxis in Vlkerrechtsfragen
Eine Quelle zur Erschliessung des allgemeinen Vlkerrechts ?, in Institut
universitaire des hautes tudes internationales, Recueil dtudes de droit interna-
tional en hommage P. Guggenheim, Geneva, 1968, 460-489, 488.
160 K. Zemanek
ting in evidence. States, which are not directly affected, or scholars

may never know of a constitutive act if it were not recorded in,
say, a reply to a parliamentary question and thus made public. It is
suggested that this creates an additional relevance for custom.
2. Types of practice
296. To appreciate the significance of publication it seems useful
to survey records of practice and screen the documents which have
been selected for them. In Vienna such a survey was carried out a
few years ago, covering ten years (1980-1990) of 12 journals or
yearbooks 494. It is clear that no representative result may be obtained
from such a small sample, but it permits, nevertheless, a better
insight. The following acts were published as State practice.
297. Practice of domestic organs represents a substantial amount
of the published practice. It includes decisions of courts and tribu-
nals which, in the period of the survey, related particularly to the
extraterritorial jurisdiction of States and the emerging Exclusive
Economic Zone. A curious instance of divergent opinions on a cus-
tomary rule concerned the existence of the non-refoulement prin-
ciple which a Swiss Federal Tribunal confirmed 495 but which the
German Oberverwaltungsgericht Mnster denied 496 in contemporary
judgments.
As will be seen later, parliamentary practice likely to contribute to
international custom comes in many forms, depending on the politi-
cal organization of the State and on the procedure of its legislative
body. But surprisingly few laws are collected in repertories.
Recorded instances included inter alia legislation blocking excessive
claims to extraterritorial jurisdiction and legislation concerning the
ownership of the sea-bed.
Decisions of executive or administrative organs having a direct
bearing on customary rules were rarely documented, presumably
because of the difficulty to obtain access.
298. Diplomatic acts or international claims are traditionally, and
in spite of their being often more influenced by political interests
than by legal considerations, looked upon as the principal source of
494. See K. Zemanek, What is State Practice and Who Makes It ?, in
U. Beyerlin et al. (eds.), supra footnote 336, at 289-306. The following sum-
mary is documented there.
495. Judgment of 29 May 1985, 42 ASDI (1986), 84.
496. Judgment of 16 October 1981, 43 ZaRV (1983), 145.
custom. However, few examples of this practice were documented in

the period under review.
Those published were mostly protests, for instance against claims
to extraterritorial jurisdiction or against nuclear weapons tests.
299. Statements before international courts or tribunals should,
or so one would have assumed, be a mine of State practice relating
to customary law 497, especially in view of the judgment of the PCIJ
in the Free Zones case, where the Court held Switzerland bound by
proposals made by its agent while pleading 498. However, repertories
do not compile them, relying presumably on their being published
elsewhere, or simply for lack of space. One recorded instance con-
cerned a Mmoire of the Swiss Government submitted to the Euro-
pean Court of Human Rights, qualifying the provisions on interpre-
tation in the VCLT as customary law 499.
300. Statements using new forms of communication take up a
conspicuous part of the repertories, presumably because they are
relatively easy to obtain. Such statements are either intended for
external or for domestic purposes.
301. Statements for external purposes are frequently made in
multilateral processes, either to address a concrete situation and
express a legal opinion on it, or to state the position of a State on
one or more customary rules in the abstract. The annual discussion
of the work of the ILC in the Sixth Committee of the General
Assembly is an outstanding example of the second type. Positions
towards the law which are expressed in such statements are verbal
State practice and may be quoted against the author State.
302. Sometimes, however, the media are used to make a position
known to the world at large, either to achieve a constitutive effect 500
or to announce a legal stand on current events. This seems to be an
old American habit 501. Its relevance has inter alia been recognized
by the ICJ in the Nuclear Tests cases 502. Like all unilateral acts 503
497. Cf. Akehurst, supra footnote 481, at 2 : Statements made by a State in

pleadings before the International Court of Justice are liable to be cited against
it as authority for customary law in subsequent cases.
498. Series A/B, No. 46, 170.
499. 41 ASDI (1985), 152-153.
500. The Truman Proclamation on the Continental Shelf, supra footnote 487,
is an example.
501. Cf. Ferrari Bravo, supra footnote 481, at 266-269, 271-273.
502. Australia v. France, ICJ Reports 1974, 253-274. For the sake of brevity,
the parallel case of New Zealand v. France, ibid., 457-478 is not cited.
503. See Chap. IX, para. 389-396.
162 K. Zemanek
such statements require careful examination to determine whether an

international effect was intended or whether they served only a
domestic purpose, as the ICJ observed in the Asylum case 504.
Other modern forms of communication are amicus curiae
briefs in foreign courts, which were for instance submitted in the
context of proceedings with an extraterritorial aspect ; and circular
notes addressed to all accredited diplomatic missions by a foreign
ministry.
303. Although statements in domestic processes accounted on
average for roughly 50 per cent of the published material under
review, they must be carefully sifted to eliminate those of overriding
domestic purpose.
Statements in parliament on behalf of the Government or replies
to parliamentary questions, whether made orally or in written form,
were among the most frequent entries, because, even though their
original purpose is domestic, they occasionally inform about State
practice or of positions on customary law. Affected States, if they
maintain a diplomatic mission in the State in question, would be
estopped to deny knowledge because the statements are made
authoritatively and publicly and diplomatic missions have the task to
ascertain by all lawful means conditions and developments in the
receiving State, and [report] thereon to the Government of the send-
ing State 505. Inter-State communication is thus established regard-
less of the original purpose.
304. A related source are explanatory statements concerning bills.
In accordance with the parliamentary practice in the State concerned
such statements may be written or oral, or both. They have to be
read in connection with the respective bill but give in most cases a
clearer picture of the States position towards affected rules of custo-
mary law than the bill itself. One interesting example recorded in the
period covered by the Vienna survey was the Dutch explanatory
memorandum to the bill concerning the delimitation of the frontiers
of the Netherlands territorial waters 506.
305. Departmental notes such as memoranda, opinions or minutes
appear as a regular feature in AJPIL (now ARIEL) and ASDI but only
504. Colombia v. Peru, ICJ Reports 1950, 278. However, both parties were
agreed on this fact in their pleadings and had thus invited the observation ; see
Pleadings, etc., Vol. I, 150.
505. Art. 3, para. 1 (d), of the Vienna Convention on Diplomatic Relations.
506. 15 NYIL (1984), 335. The Act is reprinted in 17 NYIL (1986), 244.
sporadically in other repertories. Yet they are quite revealing because

they show that, more often than not, customary rules are merely
asserted or copied from one or the other (sometimes outdated) text-
book. Rarely are they based on serious research into literature and
even less frequently supported by research into practice, not even
that of the authors State, unless it can be copied from files at
hand 507. Apart from the insight which they provide in the practice of
customary law, they should not be overrated because they are not
always implemented and serve sometimes only as protective refer-
ence for the future 508.
3. Evaluation of practice
306. The short survey permits a number of conclusions concern-

ing the formation or confirmation (application) of customary law.
First, the miscellaneous documents recorded in the repertories
tend to support the observation that in their interaction and commu-
nication on customary law States do no longer adhere exclusively to
dogmatically determined types of acts. They use all forms which
serve their purpose and the compilers of repertories reflect that :
they publish all documents from which views can be inferred
about international law 509 without distinguishing between consti-
tutive acts and evidence of constitutive acts, or between assertions
made in the context of concrete situations and assertions made in
abstracto. Evidently, one may embody the other 510.
307. Furthermore, it appears that the material called State prac-
tice and published as such covers both, manifestations of opinio
juris and State practice in the orthodox sense. The mere nature of
the act does not help to distinguish one from the other or, for that
matter, constitutive from confirmatory practice, nor practice from
evidence of it. This shows that a distinction between acts and writ-
ten evidence of them makes sense only in respect of real acts 511,
but fails when applied to verbal acts which are expressed as well
as recorded in what is called evidence.
507. Cf. M. Mendelson, Practice, Propaganda and Principle in International

Law, Current Legal Problems (1989), 1-19, 14.
508. Cf. Ferrari Bravo, supra footnote 481, at 270-271, 273.
510. In the same sense Akehurst, ibid., 4 and 10, note 3.
164 K. Zemanek
C. Who makes State practice ?
308. The answer to the general question as to who may legally

commit a State in international law depends on the relative merit
which one attaches to two conflicting concerns : one is the necessity
to protect the trust of other States in the authority of an apparently
competent State agent 512 ; the other is the respect for the autonomy
of a State to determine the competence of its organs, which it usually
does in its constitution.
309. It should be evident from the foregoing survey of reported
practice that one cannot apply the rules concerning the international
authority to conclude treaties which are embodied in Article 7 of the
VCLT to custom-forming or custom-confirming processes ; these
rules neither govern nor explain the practice. And there is a valid
reason for it : treaties are concluded in a relatively formalized pro-
cess and the competence of State organs to engage in it is usually
regulated explicitly in the respective constitution or in supplemen-
tary enactments. The law of treaties puts therefore no onerous task
on contracting parties if it requires the exercise of due diligence in
establishing the bona fide authority of the opposite side. In treaty-
making the protection of trust can thus be subordinated to the auton-
omy of States to determine the organs which may enter into commit-
ments.
Nevertheless, and in spite of this formalized process, a great
number of international agreements are concluded by organs which
have no apparent constitutional competence and such agreements are
performed as well as others 513.
310. As regards the formation of custom, constitutions usually do
not entrust specific State organs with the power to engage in it.
Since voluntarists treat custom as a form of (tacit) agreement, they
rely on constitutional provisions for the conclusion of treaties to sup-
port their contention that only acts of organs empowered to express
the will of a State externally 514 are relevant in the custom-forming
process. Yet even in the treaty-making process this restriction is not
followed by practice. It is even less so in the formation of custom,
where domestic organs, particularly courts, may initiate new custom
512. Cf. J. P. Mller, Vertrauensschutz im Vlkerrecht, Berlin, 1971, 77-103.

513. Cf. the comparative studies of H. Blix, Treaty-Making Power, London,
1960 ; and L. Wildhaber, Treaty-Making Power and Constitution, Basel, 1971.
or a change in existing custom, as the change in the law of State

immunity 515 clearly shows.
311. This view is confirmed by the foregoing survey which has
shown that all State organs, of whatever branch of government or
hierarchical position, share in fact in the domestic application or
implementation of customary international law. Consequently, all
their respective acts contribute to the formation, confirmation or
modification of it. That follows logically from the law of State
responsibility : since all State organs, when applying or implement-
ing international custom domestically, may engage the international
responsibility of that State by their acts 516, they may also initiate, or
contribute to, the custom-forming process by a deviating conduct,
provided the affected other States condone it 517.
Neither the voluntarist thesis 518 nor other restrictive theses 519 are
therefore consonant with practice.
IV. Is the Term Custom Appropriate ?
312. So far, our examination has only shown that the time-
honoured explanation of the nature of custom and its creation, the
matter-of-course distinction between opinio juris and practice, and
the requirement that practice be both uniform and permanent, do no
longer fit existing circumstances. If the explanation is to meet these
circumstances, it must be adjusted to two fundamental changes from
previous conditions.
313. One departure from former conditions concerns the time fac-
tor. The idea that custom must be constant and consistent over a long
period to qualify as law reflects a past and poor state of world com-
munication. What formerly was transacted discretely by hand-deliv-
ered diplomatic notes 520 is now largely achieved by quicker means,
and for reasons of domestic or international policy often transmitted
by the media to the world at large. Some serious governmental insti-
tutions have even set up a home-page in the internet. The current
515. Supra para. 276. Cf. also Ferrari Bravo, supra footnote 481, at 260.
516. See Chap. XII, para. 538.
517. Supra para. 276.
518. The difficulty of modern voluntarist writers to cope with practice is
apparent in G. M. Danilenko, The Theory of International Customary Law,
31 GYIL (1988), 9-47, 22-23.
519. Supra para. 289.
520. They have not disappeared but they have no longer the pivotal role
which they once held.
166 K. Zemanek
information society forces Governments to seek the widest possible

support for their position and thus to resort to publicity 521.
This assures easy and quick access to most of the custom-building
material. Often acts of States become known on the day on which
they are performed and the documentary evidence is available on the
next. Hence reactions of system partners can be and are swift. Com-
munications between Governments have become so interwoven that
it is neither necessary nor longer appropriate to insist on a long
period of observation with the aim of allowing practice to accumu-
late and States to get acquainted with it. The relevance of practice
for the creation of law should be measured by frequency and not by
the passing of time.
314. The second significant change to take into account is the
transformed nature of custom. The slow and formalized interaction
of States and the small number of its detectable instances were an
invitation to legal theory to dwell on that mysterious individual
inspiration of a legal duty and its equally mysterious diffusion
among the other system partners called opinio juris, and to cling to
the few known real acts which implied and, at once, confirmed it.
Today States engage only exceptionally in gunboat diplomacy or
in equivalent real acts but attack each other verbally over the
media or in international fora. Thus the verbal act has largely
replaced the real act of former times. Yet that is not all.
315. For a long time opinio juris emerged individually and occa-
sionally, caused by the necessity to act in a given situation. Today it
is formed in the market-place, collectively rather than individually.
For that reason it is less case-oriented and more abstract. Often it
manifests itself only in the form of principles which require applica-
tion to generate more concrete rules or to initiate the interpretation
of existing rules in their light. In this way new concepts are trans-
formed into law.
316. The idea of custom as a stable, long-lasting, nearly immut-
able parameter is, thus, no longer tenable. What we deal with is a
continuing process which constantly modifies its content, in step
with newly emerging concepts that put new light on existing law 522.
In that process precedents from the nineteenth century or the first
half of ours appear often out-dated.
521. Cf. Mendelson, supra footnote 507, at 7-8.

522. Cf. Cheng, supra footnote 451, at 550.
317. That provokes the question whether the changed pheno-

menon should still be called custom. Already in 1973, Sir Gerald
Fitzmaurice remarked :
This expression, though traditional and convenient, is not
an entirely satisfactory way of describing what is essentially
the general practice of States, constituting a sort of common
law, however brought into existence . . . 523
318. And when Sir Robert Jennings broached the problem eight
years later, he stated :
So perhaps the time has come to recognize that what we
still quaintly call custom includes some custom certainly, but
also many other kinds of law, of which neither the method of
making it, nor yet the test of its validity, have anything much to
do with custom. When Professor Cheng felt impelled to invent
the paradox, instant custom for the laws governing space, we
should have taken the hint that perhaps it was instant because it
was not custom. 524
319. Similar doubts have been voiced by other writers 525, but to
no avail ; the standard formula is still used in nearly all textbooks. If
the term proves immutable it would nevertheless be high time to rec-
ognize that what it really denotes is not custom in the ordinary
meaning of the term 526, but the current and regular conduct of
States which corresponds to the current consensus of opinion on
what the law requires 527. Or simpler : general international law.
523. The Future of Public International Law and of the International Legal
System in the Circumstances of Today, in Institut de droit international, Livre
du Centenaire 1873-1973, Basel, 1973, 196-328, 198, note 5.
524. Jennings, supra footnote 486, at 71.
525. See e.g. G. Abi-Saab, La coutume dans tous ses tats ou le dilemme du
dveloppement du droit international gnral dans un monde clat, in P. Lam-
berti Zanardi et al. (eds.), supra footnote 5, Vol. I, at 53-65, 64 ; or J. Kirchner,
526. Which the Oxford English Dictionary renders as a usage which by con-
tinuance has acquired the force of [a] law.
527. See K. Zemanek, supra footnote 494, at 306.
168
CHAPTER VIII
MULTILATERAL CONVENTIONS AS
SUBSTITUTE LEGISLATION
I. Changed Conditions
A. The function of treaties in the international system
320. The function of treaties in the international system differs

fundamentally from that of contracts in domestic legal systems. Con-
tracts are instruments for changing individual legal positions in a
transaction. In the international system treaties may also serve that
purpose but this has become exceedingly rare, except in the form of
peace treaties or similar instruments.
321. Today the main purpose of international treaties is different.
The inexistence of an international legislature and the rather amor-
phous process of custom-building make multilateral treaties the only
available instrument for establishing firm and written general rules,
mostly in universal or regional multilateral conventions. And even
bilateral treaties which establish rules for some form of co-operation
during a definite or indefinite period outnumber by far those limited
to a single transaction.
322. In concluding a bilateral treaty, contracting States accommo-
date their respective interests, and conventional theory uses the same
explanation for multilateral treaties. It thereby ignores important
changes which have taken place in the last decades.
Even if a multilateral treaty establishes exclusively or primarily
reciprocal inter-State rights and obligations, as do the conventions
on diplomatic or treaty relations, the multitude of concrete interests
which have to be accommodated has led to a change in the processes
in which the drafts of these conventions are prepared and the con-
ventions adopted and eventually accepted 528. While these changes
could perhaps be explained by purely utilitarian considerations, they
528. Cf. U. Drobnig, Der Vertrag im Zivilrecht und im Vlkerrecht ein

vergleichender Streifzug, in E. Jayme et al. (eds), Ius inter nationes, Festschrift
fr S. Riesenfeld, Heidelberg, 1983, 31-52, 34.
became more pronounced and essential in the growing number of

multilateral conventions which are not the result of concurring indi-
vidual interests but of community concerns raised by interdepen-
dence 529. These concerns are addressed through international institu-
tions which manage also the initial stages of convention building.
Through their influence the change in the multilateral treaty-making
process is now consolidated and uniform, and has become unrelated
to the subject matter of a proposed convention.
323. The most obvious change has taken place in the preparatory
stage of conventions. Formerly the initiative for convoking an inter-
national conference for the purpose of adopting a multilateral con-
vention rested with States, and the host State also prepared the draft
to be submitted to the conference. The initiative of the Russian Tsar
in respect of the Hague Peace Conferences of 1899 and 1907 will
soon be celebrated.
That manner of proceeding has more or less disappeared and, as
far as major conventions are concerned, is now only used for
improving humanitarian law, since the formal initiative for new
Geneva Law is still the prerogative of the Swiss Government. But
even in this case it is rather the ICRC which launches the idea and
prepares the draft in conferences of experts from national Red Cross
societies, as the history of the 1977 Additional Protocols demon-
strates.
324. Nowadays international organizations are the driving force
behind the development of international law through multilateral
conventions. Foremost in the field is the International Law Commis-
sion (ILC), which the General Assembly of the United Nations has
entrusted with the codification and progressive development of inter-
national law. In other areas drafts for future conventions are pre-
pared by the secretariats of international organizations which some-
times even suggest the idea, depending on the distribution of powers
in the respective organization.
325. While the initiative for and the preparatory stages of con-
ventions have thus shifted from States to international bodies, the
coming into force of conventions depends still on the acceptance by
States through ratification or accession. Only in a few international
organizations, viz. ICAO and WHO, has this procedure been
reversed and proposed conventions, more precisely revisions of

170 K. Zemanek
existing conventions, come into effect if they are not rejected by the
member States.
It needs no lengthy explanation that acceptance through ratifica-
tion or accession is an obstacle to uniform rules for all members of
the international system and that it is one of the causes of the
gomtrie variable discussed earlier 530. One can, therefore, only
metaphorically describe multilateral conventions as international
quasi-legislation 531.
B. The theoretical framework
326. In domestic legal systems the binding force of contracts is,

as a broad rule, achieved in two steps. In a first step the parties agree
on their mutual rights and obligations in the transaction. This recip-
rocal consent establishes the nexus which, in a second step, the
respective legal order vests with binding force by making the rights
eventually enforceable.
327. The binding force of bilateral treaties under international
law can be explained in the same way. If one were, however, to
apply the reasoning to multilateral treaties which create mutual
rights and obligations for the parties, one would need to construe
them as a set of bilateral relations, an interpretation which is difficult
to reconcile with the rights which all parties to a multilateral treaty
have under Article 60, paragraph 2 (a), of the VCLT 532. Moreover,
the explanation does not at all fit those multilateral conventions
which have as their purpose the setting of a common standard, for
instance in human rights and, more recently, also in environmental
protection. They prescribe a conduct which is unrelated to any spe-
cific right of the other contracting parties under the convention 533.
Or, as the ICJ expressed it in Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide :
In such a convention the contracting States do not have any
530. Sectorial rules, supra, Chap. II, Section III.

531. Cf. M. Diez de Velasco, Lgislation et codification dans le droit inter-
national actuel, in P. Lamberti Zanardi et al. (eds.), supra footnote 5, at 247-
259.
532. See D. N. Hutchinson, Solidarity and Breaches of Multilateral Trea-
ties, 59 BYIL (1988), 151-215, 174-196.
533. This difference in the Erfllungsstruktur (structure of performance)
was first examined by B. Simma, Das Reziprozittselement im Zustandekommen
vlkerrechtlicher Vertrge, Berlin, 1972, 153, 161-212.
interests of their own ; they merely have, one and all, a common
interest, namely, the accomplishment of those high purposes
which are the raison dtre of the convention. Consequently, in
a convention of this type one cannot speak of individual advan-
tages or disadvantages to States, or of the maintenance of a per-
fect contractual balance between the rights and duties. 534
328. Thus a standard setting convention creates the right of a
contracting party to request the fulfilment of their commitments by
all the other contracting parties. The party does not have substantive
rights under the convention in relation to other individual parties as
it has under the VCDR or the VCLT. The obligation of a party to
conduct itself in accordance with the prescribed standard exists
towards all other contracting parties 535 and is, therefore, an obliga-
tion erga omnes536. That is as near as international law comes cur-
rently to domestic public law legislation.
329. These changing purposes have consolidated the evolution of
the multilateral treaty-making process, independently of the subject
matter of a proposed convention. Whoever prepares the draft for
consideration by a conference or plenary organ, it is not prepared by
the States which are to accept it. It is then adopted either by an inter-
national conference under the auspices of an international organiza-
tion or by the plenary organ of such an organization in an autono-
mous process 537 in which amendments are possible but not a change
534. Advisory Opinion of 28 May 1951 ; ICJ Reports 1951, 15-30, 23.
535. Whether they are interested in actually enforcing the obligation is another
matter ; see B. Simma, Consent : Strains in the Treaty System, in
R. St. J. Macdonald and D. M. Johnston (eds.), supra footnote 10, at 483-511, 500.
536. See J. A. Frowein, Die Verpflichtungen erga omnes im Vlkerrecht und
ihre Durchsetzung, in R. Bernhardt et al. (eds.), supra footnote 247, at 241-262 ;
G. Barile, Obligationes erga omnes e individui nel diritto internazionale uma-
nitario, 68 RDI (1985), 1-31 ; C. Annacker, The Legal Regime of erga omnes
Obligations in International Law, 46 AJPIL (1994), 131-166 ; and D. Schindler,
Die erga omnes-Wirkung des humanitren Vlkerrechts, in U. Beyerlin et al.
(eds.), supra footnote 336, at 199-211.
537. Cf. M. Limpert, Verfahren und Vlkerrecht Vlkerrechtliche Prob-
leme des Verfahrens von Kodifikationskonferenzen der Vereinten Nationen, Ber-
lin, 1985 ; R. S. Lee, Multilateral Treaty-Making and Negotiation Techniques :
An Appraisal, in Bin Cheng and E. D. Brown (eds.), Contemporary Problems
of International Law, Essays in Honour of G. Schwarzenberger, London, 1988,
157-176 ; and W. Lang, Negotiation as Diplomatic Rule-Making, 1 Interna-
tional Negotiation Review (1996), 67-78. For a special study cf. K. Zemanek,
The UN Conference on the Law of Treaties between States and International
Organizations or between International Organizations : The Unrecorded History
of Its General Agreement , in K.-H. Bckstiegel et al. (eds.), supra footnote
204, at 665-679.
172 K. Zemanek
of direction or a restructuring of the draft ; and it is adopted by (two-

thirds) majority. On the other hand, no claim to the rights and no
obligation to perform the duties formulated in the instrument arises
from the participation in that process ; it is simply a matter of par-
ticipating in the first stage of an objective law-making process.
However, statements made by representative of States during it and
concerning the legal substance of the rules formulated in the instru-
ment are State practice and may be relevant as evidence of opinio
juris 538.
330. The consent to be bound by a multilateral convention is
expressed by a unilateral act 539, such as signature, ratification or
accession, not by a meeting of wills. The intervention of other States
parties to the convention in the process is limited to the examination
of the formal validity and correctness of the act in question, unless
such an act is accompanied by a reservation ; the relation then
becomes more complex, although it is still determined by unilateral
acts 540.
331. These developments, considered together, tend to suggest
that the creation of rights and/or obligations by multilateral conven-
tions is no longer adequately explained by a consensual model. The
adoption of the treaty instrument in a separate community process
gives the convention an objective existence. Its personal scope of
application is determined through its acceptance by States. By the
act of acceptance a State makes the rules embodied in the conven-
tion applicable to itself and these rules specify its rights and/or obli-
gations under the convention vis--vis those States which on their
part have accepted the rules. In sum this is the acceptance of objec-
tively existing rules by a unilateral act and not the creation of rights
and obligations through concurrent wills. The manner in which multi-
lateral international conventions come into being today places the
process somewhere between traditional multilateral treaties and
municipal legislation.
Although this is most clearly apparent in conventions creating
erga omnes obligations, particularly if their primary purpose is their
application within States, the process is by no means limited to this
type of convention.
538. See preceding chapter.

539. See following chapter.
540. Infra, paras. 345-346.
II. Techniques for Selecting International Rights

and/or Obligations
332. As has been mentioned in the wider context of the universal-

ity of international law 541, nearly all multilateral conventions fall
short of even quasi-universal application. This is, among other
reasons, the result of a number of techniques which are intended
to assure the widest possible participation in multilateral conventions
while accommodating, at the same time, States which find them-
selves not in a position, or are simply not prepared, to accept a spe-
cific convention as a whole.
Some of these techniques will be examined below. They tend to
confirm the foregoing submissions since they underline the distinc-
tion between the objective existence of the treaty and its unilateral
acceptance by States.
A. Basic agreements
333. One such technique uses a basic convention, which defines

the purpose and a programme for its achievement, as a mantle
(frame) for (successive) separate protocols which gradually imple-
ment the programme. Parties to the basic convention need not neces-
sarily accept each and all protocols or, at least, not at the time of
their adoption. Recent examples of that technique are the 1979 ECE
Convention on Long-Range Transboundary Air Pollution 542, the
1980 United Nations Convention on Conventional Weapons 543, and
the 1987 Vienna Convention for the Protection of the Ozone
Layer 544.
B. Partial acceptance
334. Opting in is a technique which makes the acceptance of an

obligation established in a convention dependent on a separate non-
mandatory declaration (unilateral act) by a party to the convention.
541. Chap. II, Section III.

542. Text reprinted in 18 ILM (1979), 1442-1450. Four Protocols have been
adopted.
543. Text reprinted in 24 GYIL (1981), 500-511. Three Protocols have been
adopted ; a fourth, on Anti-Personnel Mines was adopted in April 1996.
544. Text reprinted in 26 ILM (1987), 1529-1540. One Protocol (twice
revised) has been adopted.
174 K. Zemanek
Perhaps the best-known provision of this kind is Article 36, para-

graph 2, of the Statute of the ICJ. The same technique is used in the
European Convention for the Protection of Human Rights 545, where
Article 25, paragraph 1, provides for a declaration to recognize the
competence of the European Commission of Human Rights to
receive petitions from individuals, and Article 46 for a declaration to
recognize as compulsory ipso facto and without special agreement
the jurisdiction of the European Court of Human Rights.
335. Sometimes the technique is used for optional protocols,
meaning protocols attached to a substantive convention and contain-
ing provisions which are supported by some, though not by all States
which participate in the conference, and which have to be accepted
separately. Through this technique a cluster of potential reservations
to the respective provisions is avoided. Thus, to the Vienna Conven-
tion on Diplomatic Relations an Optional Protocol concerning
Acquisition of Nationality and an Optional Protocol concerning the
Compulsory Settlement of Disputes are attached 546.
Perhaps the most extensive use of this technique was made in the
European Social Charter of 1961 547 in which Article 20, para-
graph 1, provides that each contracting party must bind itself (a) by
at least five out of seven specified Articles of Part II of the Charter ;
and, in addition, (b) by a freely selected number of Articles or
numbered paragraphs of Part II of the Charter which may not be less
than 10 Articles or 45 numbered paragraphs 548.
336. Opting out clauses are less frequent. The technique is used
by WHO 549 and ICAO 550 and allows member States to avoid the
application of amended standards adopted by the organization. In
the first instance members may contract out individually, in the
second a majoritys dissent invalidates the standard.
One of the rare examples of the use of this technique in a multi-
lateral treaty is the European Convention on the Peaceful Settlement
of Disputes 551. Its Article 34 allows ratifying States to indicate that
they will not be bound either by Chapter III relating to arbitration or
545. Text reprinted in 45 AJIL (1951), Official Documents, 24-39.

546. Text reprinted in 55 AJIL (1961), 1064-1082.
547. 529 UNTS (1965), 89-139. Cf. L. Samuel, Fundamental Social Rights.
Case-Law of the European Social Charter, Strasbourg, 1997.
548. In Part II there are altogether 19 Articles and 68 numbered paragraphs.
549. Arts. 21 and 22 ; cf. also infra para. 398.
550. Arts. 37, 54 (l) and 90 (a) ; cf. also infra para. 397.
551. 320 UNTS (1959), 243-267.
by Chapters II and III relating to conciliation and arbitration. The

provision resembles a clause permitting reservations to certain
Articles of the convention.
C. Reservations
337. The most common device to exclude provisions or parts of

provisions of a multilateral treaty, or to alter the obligations arising
from them, are reservations 552. In spite of their frequent use one
aspect, the status of reservations deemed incompatible with the
object and purpose of a convention, remains unresolved although its
potential for controversy is long known 553. It has lately received
renewed attention when certain States, while ratifying or acceding to
human rights conventions, particularly the Convention on the Elimi-
nation of All Forms of Discrimination against Women (CEDAW) 554
and the Convention on the Rights of the Child (CROC) 555, reserved
the right to apply the conventions only to the extent that they were
compatible with sharia, the Islamic religious laws or, in another
version, were compatible with unspecified provisions of their muni-
cipal (constitutional) legal order, or both 556. An example of this latter
type is the Iranian reservation to the CEDAW which reads :
552. See J. K. Gamble, Jr., Reservations to Multilateral Treaties : A Macro-

scopic View of State Practice, 74 AJIL (1980), 372-394.
The literature concerning the legal rgime of reservations is numerous.
Among authors dealing in general with the rgime of reservations in the VCLT
are : J. M. Ruda, Reservations to Treaties, 146 Recueil des cours (1975-III),
95-218 ; D. W. Bowett, Reservations to Non-Restricted Multilateral Treaties,
48 BYIL (1976-1977), 67-92 ; R. Khner, Vorbehalte zu multilateralen
vlkerrechtlichen Vertrgen, Berlin, 1986 ; F. Horn, Reservations and Interpre-
tative Declarations to Multilateral Treaties, Amsterdam, 1988.
553. See Bowett, op. cit., 83-84 ; and K. Zemanek, Some Unresolved Ques-
tions concerning Reservations in the VCLT, in J. Makarczyk (ed.), supra foot-
note 95, at 323-336, 331-333.
554. Text reprinted in 19 ILM (1980), 33-45. The problems created by reser-
vations to this Convention are examined by B. Clark, The Vienna Convention
Reservations Regime and the Convention on Discrimination against Women,
85 AJIL (1991), 281-321 ; and by L. Lijnzaad, Reservations to UN-Human
Rights Treaties. Ratify and Ruin ?, Dordrecht, 1995, 298-370.
556. CEDAW : Sharia reservations : Bangladesh, Egypt, Iran, Iraq, Jordan,
Libya, Maldives, Morocco. Objections : Austria (Maldives), Denmark and
France (Libya), Finland (Libya, Maldives), Netherlands (Morocco, Maldives),
Norway (Libya, Maldives), Portugal (Maldives), Sweden (Bangladesh, Egypt,
Iran, Jordan, Maldives).
CEDAW : General municipal law reservations : India, Maldives, Thailand,
Tunisia. Objections : Germany (Thailand), Sweden (India, Thailand, Tunisia).
CROC : Sharia reservations : Afghanistan, Egypt, Iran, Iraq, Jordan,
176 K. Zemanek
[T]he Government of the Islamic Republic of Iran reserves

the right not to apply any provisions or articles of the Conven-
tion that are incompatible with Islamic laws and the internal
legislation in effect.
338. Objections by other parties to these types of reservations
show no consistent pattern ; they seem, rather, to be happening at
random. No State seems to have objected to all identical reservations
to the same convention, nor have States objected consistently to
reservations of the same type made to different conventions. Neither
are the objections consistent in their reference to the incompati-
bility with object and purpose and to the consequences thereof. An
example of a total rejection is the Austrian objection to the
Maldives sharia reservation to the CEDAW :
The reservation made by the Maldives is incompatible with
the object and purpose of the Convention and is therefore in-
admissible under article 19 (c) of the Vienna Convention on
the Law of Treaties and shall not be permitted, in accordance
with article 28 (2) of the Convention on the Elimination of All
Forms of Discrimination Against Women. Austria therefore
states that this reservation cannot alter or modify in any respect
the obligations arising from the Convention for any State Party
thereto.
The status of these reservations and of the objections thereto and,
consequently, the status of the reserving States with relation to the
conventions or to the objecting parties, is unclear 557. No definite
answer can be found in the VCLT.
An examination of the reason for the silence may thus help to
clarify the issue.
Kuwait, Maldives, Mauritania, Pakistan, Qatar, Syria. Objections : Austria

(Iran), Finland (Iran, Pakistan, Qatar, Syria), Germany (Iran, Syria), Italy
(Syria), Netherlands (Iran), Norway (Iran, Syria), Portugal (Iran, Kuwait, Paki-
stan), Slovakia (Qatar), Sweden (Iran, Jordan, Pakistan, Syria).
CROC : General municipal law reservations : Bangladesh, Djibouti, Indo-
nesia, Iran, Malaysia, Thailand, Tunisia, Turkey. Objections : Austria (Iran), Fin-
land (Indonesia), Germany (Tunisia), Norway (Djibouti, Indonesia), Portugal
(Bangladesh, Djibouti, Indonesia, Turkey), Slovakia (Indonesia), Sweden (Indo-
nesia).
557. See the list of resulting problems established by A. Pellet, Special
Rapporteur of the ILC on The Law and Practice Relating to Reservations to
Treaties in his First Report, A/CN.4/470 (30 May 1995), paras. 105-109 ; and
cf. Lijnzaad, supra footnote 554, at 41, 52, 55-56.
1. The history of the reservation provisions in the VCLT 558
339. During the time of the League of Nations the rules concerning
reservations to multilateral treaties were simple. Since the instruments
of multilateral treaties were adopted unanimously, subsequent reserva-
tions required the assent of all parties to the treaty to become effective ;
if one party objected to the reservation the latter had to be withdrawn
or the author had to forsake its intention to become a party.
The Secretary-General of the United Nations, who inherited the
depository function in respect of multilateral treaties concluded
under the auspices of the League of Nations, continued the practice
and extended it to multilateral conventions concluded under the aus-
pices of the United Nations.
340. In this continued practice no attention was paid, so it seems,
to the link which exists between the multilateral treaty-making pro-
cess and the rgime of reservations. Since the end of the Second
World War the adoption of multilateral treaty instruments by two-
thirds majority had replaced the former unanimity procedure. While
formerly one could convincingly argue that any deviation from an
instrument which had been adopted by all participants, including the
State now proposing the reservation, required the assent of all other
participants, that argument loses its validity in respect of instruments
adopted by majority. If the widest possible application of such
instruments becomes an issue then a device must be found to make
it possible for States which were left in the minority to become par-
ties. That device must permit them to exclude from their acceptance
one or more of those provisions of the instrument which they had
been unable to support.
341. The Secretary-Generals practice led to an incident with the
Soviet Union. The latter had, while ratifying the Genocide Conven-
tion 559, reserved Article IX which establishes the jurisdiction of the
ICJ over all disputes relating to the interpretation, application or ful-
filment of the Convention upon request of any of the parties to the
dispute. Several parties to the Genocide Convention objected to the
Soviet reservation which caused the Secretary-General to inform the
Soviet Union that it would have to withdraw the reservation or could
not become a party.
558. The history is also examined by Pellet, supra footnote 557, passim.
559. Text reprinted in 45 AJIL (1951), Official Documents, 7-10.
178 K. Zemanek
342. This view was rejected by the Soviet Union. With a view to
settling the disagreement, the General Assembly requested an Advi-
sory Opinion of the ICJ on the issue. In its Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment
of the Crime of Genocide 560 the Court, referring to the Pan-American
treaty practice, rejected the previous rgime of reservations. It con-
strued rights and obligations arising from a multilateral treaty as a
set of bilateral relations and found that each party had to judge for
itself whether to accept or reject a reservation. In the opinion of the
Court an objection to a reservation would exclude the application of
the multilateral treaty between the States concerned. The Court
stated, however, categorically that reservations which were incom-
patible with the object and purpose of a convention were inadmis-
sible 561. But, since any objection to a reservation, on whatever
ground, excluded the application of the convention between the
States concerned, the question whether the objecting State consid-
ered the reservation inadmissible or merely inconvenient needed no
consideration.
343. The Advisory Opinion of the ICJ influenced the rules con-
cerning reservations far beyond the case in which it had been ren-
dered. Within a short time the rgime which the ICJ had outlined
became general practice, mostly through the influence of the Secre-
tary-Generals depository practice.
When the ILC prepared the draft for the (Vienna) Convention on
the Law of Treaties it was, therefore, normal that it drew its rules
from that practice, maintaining the test of conformity with object
and purpose. Unfortunately, the draft text did not stand.
344. Soviet legal theory, wedded to the doctrine of absolute State
sovereignty, considered the right to make reservations a unilateral
right of each State ; whether other States objected to them was irrele-
vant since objections had no other effect than to exclude the provi-
sion which had been reserved from the application between the two
States 562. During the Vienna Conference on the Law of Treaties the
560. Source supra footnote 534.

561. Ibid., 24, 29.
562. Cf. the written communication of the Soviet Union in the Genocide Con-
vention proceedings before the ICJ : ICJ Pleadings, Oral Arguments, Docu-
ments, Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, 1951, 21 ; and the critique of Horn, supra footnote 552, at
171-173. On the different constructions of reservations see D. Kappeler, Les
rserves dans les traits internationaux, Basel, 1958, 54-73.
Soviet Union submitted an amendment in this sense to the draft text,

but that amendment was defeated in the Committee of the Whole
during the first part of the Vienna Conference.
345. For reasons which are not relevant here, the same amend-
ment, resubmitted to Plenary, was adopted in the last days of the
second part of the Conference by a two-thirds majority 563. According
to the new text, an objection to a reservation does not preclude the
entry into force of the convention in question between the two States
concerned 564 ; it does, however, exclude the application of the provi-
sion or provisions to which the reservation relates in the relation
between the two States 565.
346. In its last, hectic phase the Conference had neither the
machinery nor the time to redraft the remaining provisions on reser-
vations for the purpose of aligning them with the newly adopted
amendment. In the previous text it had not been necessary to deal
separately with the status of reservations which were objected to on
the ground of their incompatibility with object and purpose of a con-
vention because an objection prevented the application of the con-
vention in question between the States concerned in any case. The
new rule, however, would require a judicial or collective procedure
to resolve the issue of compatibility, a procedure which the VCLT
does not provide 566. And the fact that the Convention leaves the
term object and purpose of a treaty undefined although it uses it in
a number of provisions 567, adds further to the predicament.
2. When is a reservation incompatible with object and purpose ?
347. An examination must necessarily begin with an enquiry into

what is meant by object and purpose of a treaty, because that is
563. For a detailed description see Zemanek, supra footnote 553, at 328-330.
564. Unless a contrary intention is definitely expressed by the objecting
State : Art. 20, para. 4 (b), VCLT.
565. Art. 21, para. 3, VCLT.
566. See Horn, supra footnote 552, at 114-117. To avoid the pitfall the
United Nations Convention on the Law of the Sea (UNCLOS) provides in
Article 309 : No reservations or exceptions may be made to this Convention
unless expressly permitted by other articles of this Convention. For the consid-
erations which led to the adoption of this provision see L. L. Hazou, Determin-
ing the Extent of Admissibility of Reservations : Some Considerations with
Regard to the Third United Nations Conference on the Law of the Sea, 9 Jour-
nal of International Law and Policy (1980), 69-83.
567. E.g. in Articles 18, 19, 31 (1), 41 (1) (b) (ii) and 60 (3) (b). Cf. P. Reu-
ter, Introduction au droit des traits, Paris, 1985, 74.
180 K. Zemanek
the yardstick by which the compatibility of a reservation is to be

measured.
It seems that object and purpose were introduced as parameters
by the Advisory Opinion of the ICJ on Reservations to the Genocide
Convention, but the Court left few clues as to how they could be
determined. The Court indicated that [t]he objects of such a con-
vention must also be considered. The Convention was manifestly
adopted for a purely humanitarian and civilizing purpose 568, and
further added that [t]he object and purpose of the Genocide Con-
vention imply that it was the intention of the General Assembly and
of the States which adopted it that as many States as possible should
participate 569. Both statements appear to refer to the motives and
intentions of the States which take part in a conference or, in the par-
ticular case, were members of the General Assembly of the United
Nations. These motives and intentions may be obvious or disclosed
in the instrument, for instance in its preamble 570 ; but, equally likely,
they may not be clearly expressed, since preambles frequently con-
tain a multitude of political statements rather than statements with res-
pect to the conventions core goals. One is then faced with a difficult
enquiry, prone to subjective distortion in accordance with ones
preferences, since object and purpose are not necessarily the same
for every State party and each of them may perceive the core of a
treaty differently. That is how the joint dissenting opinion appended to
the Genocide Convention Opinion apparently saw it when it stated :
What is the object and purpose of the Genocide Conven-
tion ? To repress genocide ? Of course ; but is it more than that ?
Does it comprise any or all of the enforcement articles of the
Convention ? That is the heart of the matter. 571
And it is, indeed, a crucial question whether, given the record of
slack implementation of multilateral conventions by a considerable
number of States, provisions of control or enforcement must be con-
sidered part of the object and purpose of a convention 572.
568. See supra footnote 534, at 23 (emphasis added).

569. Ibid., 24 (emphasis added).
570. This was indicated by the ICJ in the case concerning Rights of Nationals
of the United States of America in Morocco, ICJ Reports 1952, 176-214, 197.
571. Joint dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read,
Hsu Mo, ibid., 44.
572. Cf. the General Comment on issues relating to reservations made upon
ratification or accession to the Covenant or the Optional Protocols thereto, or in
348. Up to now the method of determining object and purpose of

a convention has not attracted the attention of many writers. Where it
has, it has been treated as a problem of interpretation and mostly with
scepticism 573. Only few attempts have been made to distinguish the
relevant criteria more precisely ; one by Teboul in respect of codifica-
tion conventions 574, another by Lijnzaad in respect of human rights
conventions 575. Neither explanation is fully convincing, and both are
not helpful for the practical operation of the compatibility test.
349. Existing law leaves it to the parties to make their own eval-
uation. It seems not possible to suggest a precise, objective and gen-
erally valid method for determining object and purpose of a conven-
tion other than interpretation. Yet that path, too, is not entirely safe :
the rules of interpretation in the VCLT are focused on the text of an
instrument 576, but more often than not the circumstances surround-
ing the adoption of a convention, whether they are expressed in its
text or have to be discovered elsewhere, will be decisive 577 and thus
a subjective element creeps again into the process.
350. Though it may be difficult, or even impossible, to establish
a generally valid dividing line between admissible and inadmissible
reservations, that does not prevent the consideration of extreme
cases where inadmissibility is beyond doubt. The available material
suggests two groups of such reservations.
relation to declarations under article 41 of the Covenant, adopted by the Human

Rights Committee on 2 November 1994 ; General Comment No. 24 (52), UN
doc. CCPR/V/21/Rev.1/Add.6, para. 7 :
The object and purpose of the Covenant is to create legally binding stan-
dards for human rights by defining certain civil and political rights and
placing them in a framework of obligations which are legally binding for
those States which ratify ; and to provide an efficacious supervisory
machinery for the obligations undertaken. (Emphasis added.)
573. Cf. C. Tomuschat, Admissibility and Legal Effects of Reservations to
Multilateral Treaties, 27 ZaRV (1967), 463-482, 477-478 ; R. Szafarz, Reser-
vations to Multilateral Treaties, 3 Polish YIL (1970), 293, 301 ; Ruda, supra
footnote 552, at 190 ; Bowett, supra footnote 552, at 75-76 ; Khner, supra foot-
note 552, at 136.
574. G. Teboul, Remarques sur les rserves aux conventions de codifica-
tion, 86 RGDIP (1982), 679-717, 698.
575. Lijnzaad, supra footnote 554, at 83-86. Cf. also T. Giegerich, Vorbe-
halte zu Menschenrechtsabkommen : Zulssigkeit, Gltigkeit und Prfungs-
kompetenz von Vertragsgremien, 55 ZaRV (1995), 713-782.
576. Notwithstanding that Article 31 (1) requires interpretation in the light
of the object and purpose.
577. See P. Reuter, Traits et transactions. Rflexions sur lidentification de
certains engagements conventionnels, in P. Lamberti Zanardi et al. (eds.),
supra footnote 5, Vol. I, at 399-415, 410, 414.
182 K. Zemanek
351. The first consists of reservations which adopt the domestic

law of the reserving State as parameter for the implementation of a
multilateral convention. One may have doubts whether a substantial
number of reservations to specific rules of the same convention, pur-
porting to make domestic law the measure of application, would be
compatible with the object and purpose of the convention and
moreover with Article 27 of the VCLT. No such doubt exists in
respect of a reservation which puts domestic law in general above
international duties, without specifying the affected provisions of the
convention : it is undoubtedly inadmissible.
352. One may safely assume that the object and purpose of any
multilateral convention include the creation of international rights
and/or obligations for the parties. That aspect of object and purpose
would be defeated if a party were permitted to determine unilater-
ally, and whenever it wished, the scope of the international obliga-
tions which it had assumed under the convention. It is the unpredict-
able scope of such a general reservation which makes it
incompatible with the object and purpose of a convention 578.
353. What has been said about a general reservation of domestic
law applies in an even stronger manner to reservations which make
the implementation of a convention subject to an undefined value
system. That is the case with the sharia reservations because,
although there is only one Islamic religious law, its interpretation
depends on the religious school which applies it and the schools dis-
agree with each other. The object and purpose of a convention is cer-
tainly defeated if the latters application is depending on its compat-
ibility with a value system of which only the reserving State knows
the effect. That would deprive the other parties to the convention of
claiming performance to which they are entitled, and exclude State
responsibility in case of non-performance.
3. What is the effect of a reservation which is incompatible with

object and purpose of a Convention ?
354. In view of these circumstances the following hypothetical
scenario is not unlikely : if a reservation is objected to on the ground
that it frustrates object and purpose of the convention in question, the
578. I. Cameron and F. Horn, Reservations to the European Convention on

Human Rights : The Belilos Case, 33 GYIL (1990), 69-129, 99-100, 105-108,
discuss this aspect in the framework of the ECHR where it has a special role.
State which had made the reservation would refer to the letter of
Article 20 (3) of the VCLT and maintain that, whatever the reason
for the objection, the provision or provisions affected by the reserva-
tion did not apply between the two States but the rest of the conven-
tion did. The objecting State would rely on Article 19 (c) of the
VCLT and claim that, since the reservation was incompatible with
the object and purpose of the convention, it was null and void and
the reserving State bound by the entire convention, including the
provision or provisions to which the reservation referred 579.
355. Two options seem to exist for a legal solution of the dis-
pute 580. It could be argued that an inadmissible reservation nullified
the act of ratification or accession and the State having made that
reservation had therefore not become a party to the convention. Con-
versely, it could be argued that an inadmissible reservation was null
and void and the State having made that reservation was therefore
bound by the entire convention. The VCLT does not indicate which
of the two solutions is correct nor does it establish a procedure
through which the dispute could be solved ; it leaves it to the parties
to make their own decision. Guidelines for that decision must be
sought in legal theory and in practice.
356. The compatibility of reservations and the legal conse-
quences of invalid reservations have been tested in judicial or collec-
tive procedures under the European Convention on Human Rights
and under the International Covenant on Civil and Political Rights.
In both cases the test was undertaken by Convention organs,
although their power for it is not undisputed 581.
579. J. A. Frowein, Nullity in International Law, 7 EPIL (1984), 361-364,

at 364, justly observes : As long as no general procedure to settle questions of
validity of international acts exists, the danger that unilateral claims of nullity
will exist and conflict with opposite claims cannot be avoided.
580. See Cameron and Horn, supra footnote 578, at 115-116.
581. Arguments in favour of the competence of the organs of the ECHR are
summarized by Cameron and Horn, ibid., 87-92. By Recommendation 1223
(1993) the Parliamentary Assembly of the Council of Europe recommended that
conventions to be concluded in the future should vest bodies set up by them
with the authority to issue opinions on such reservations as the Contracting
States may wish to make (B, iii). The Ministers Deputies replied that conven-
tional committees cannot be endowed with supervisory powers as proposed by
the Parliamentary Assembly since they are not competent to exercise quasi-
judicial functions being usually composed of public officials who are subject
to instructions by their respective governments (Decision 94/46). Acceptance
of such functions seems thus limited to convention organs composed of indepen-
dent persons.
184 K. Zemanek
357. In the framework of the ECHR precedents were established

in two Swiss cases. In a first step, the European Commission of
Human Rights affirmed its competence to review the validity of a
reservation in the Temeltasch case, but did not reach a negative con-
clusion concerning the reservation in question 582.
358. In the Belilos case, however, both the Commission and,
later, the European Court of Human Rights 583 held that the Swiss
declaration (reservation) was invalid without, however, invalidating
Switzerlands instrument of ratification, as it was beyond doubt that
Switzerland is, and regards itself as, bound by the Convention irre-
spective of the validity of the declaration 584.
This affirmation is not fully in accord with the Swiss
Governments pleadings 585, but it enabled the Court to avoid
explaining the consequences of its determination that the Swiss dec-
laration (reservation) was invalid 586. Moreover, since Article 64 of
the ECHR expressly prohibits reservations of a general character,
the Court did not have to pronounce expressly upon the compatibil-
ity of such a reservation with object and purpose of the Conven-
tion 587. Because of these special features the ruling of the Court can-
not simply be applied to reservations in general, although it is
certainly indicative of a trend existing, at least, in respect of human
rights conventions. One commentator has nevertheless drawn the
conclusion that the ruling could, in any case, apply only to invalid
non-essential reservations, by which he means reservations which
582. Temeltasch v. Switzerland, App. No. 9116/80. Report of 5 May 1982,

Decisions and Reports, 120, paras. 65, 85-91. Cf. P.-H. Imbert, Reservations to
the ECHR before the Strasbourg Commission : The Temeltasch Case, 33 ICLQ
(1984), 558-595. 584-593.
583. Belilos v. Switzerland, 29 April 1988, Series A, No. 132. The relevant
part of the Report of the Commission of 7 May 1986 is quoted in the Judgment.
584. Ibid., para. 60. For comments on the case see R. St. J. Macdonald, Res-
ervations under the European Convention on Human Rights, 21 RBDI (1988),
429-450 ; H. J. Bourguignon, The Belilos Case : New Light on Reservations to
Multilateral Treaties, 29 Va. JIL (1989), 347-386 ; Cameron and Horn, supra
footnote 578 ; S. Marks, Reservations Unhinged : The Belilos Case before the
European Court of Human Rights, 39 ICLQ (1990), 300-327.
585. Belilos Case, Note of the Public Hearings held on 26 October 1987,
Cour/Misc (87) 237, 43-47 ; cf. also Cameron and Horn, supra footnote 578, at
116.
586. See Bourguignon, supra footnote 584, at 380 ; Marks, supra footnote
584, at 314 ; Cameron and Horn, supra footnote 578, at 106.
587. Macdonald, supra footnote 584, at 438, 444-445, states that the Court
applied the compatibility test indirectly ; cf. Cameron and Horn, supra footnote
578, at 106.
were not a conditio sine qua non of the acceptance of the convention
in question 588.
359. The trend set by the jurisprudence of the European Conven-
tion organs was followed by the Human Rights Committee under the
CCPR in the General Comment No. 24 (52) 589. The authority of
the Committee to pronounce on reservations is even more controver-
sial 590 than that of the European Convention organs, but the effect is
less drastic because its views, and a fortiori a comment, are not
legally binding 591 although they carry considerable political weight.
The Comment refers specifically to reservations which are incom-
patible with object and purpose 592 and then concludes categorically :
The normal consequence of an unacceptable reservation is
not that the Covenant will not be in effect at all for a reserving
party. Rather, such a reservation will generally be severable, in
the sense that the Covenant will be operative for the reserving
party without benefit of the reservation. 593
Perhaps the most interesting feature of the Comment is the inclu-
sion of declarations under Article 41 of the CCPR. These (non-man-
datory) declarations establish the competence of the Human Rights
Committee to receive and consider communications by a State party
claiming that another State party is not fulfilling its obligations under
the Covenant. They are unilateral declarations and while qualifica-
tions or restrictions attached to such declarations cannot properly be
called reservations, the underlying legal problem is the same.
360. And the problem was indeed first recognized in connection
with the American declaration under Article 36 of the Statute of the
ICJ 594. This declaration contained the condition, known as Con-
588. Bourguignon, supra footnote 584, at 382. The author borrows the dis-
tinction from Lauterpacht ; see infra, para. 361, where Lauterpachts opinion is
quoted.
589. Source footnote 572.
590. Arguments in favour of such a competence are summarized by Cameron
and Horn, supra footnote 578, at 96.
591. See K. Herndl, Zur Frage des rechtlichen Status der Entscheidungen
eines Staatengemeinschaftsorgans : die views des Menschenrechtsausschusses,
in K. Ginther et al. (eds.), supra footnote 44, at 203-221, 206.
592. Source footnote 572, paras. 7 and 8.
593. Ibid., para. 18.
594. See H. Briggs, Reservations to the Acceptance of Compulsory Jurisdic-
tion of the ICJ, 93 Recueil des cours (1958-I), 223-363, 328-363 ; and S. A.
Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory
Jurisdiction of the International Court of Justice, Dordrecht, 1995.
186 K. Zemanek
nally Amendment, which provided that the declaration did not

apply to disputes with regard to matters which are essentially
within the domestic jurisdiction of the United States of America as
determined by the United States of America 595. Since Article 2,
paragraph 7, of the United Nations Charter prohibits organs of the
United Nations to intervene in matters which are essentially within
the domestic jurisdiction of any State 596 and the Court is an organ
of the United Nations, the crucial part of the condition were the
words as determined by the United States of America, because
they conflict with Article 36, paragraph 6, of the Statute which
reserves the decision of jurisdictional disputes to the Court.
361. Although the United States declaration, while in force, pro-
vided the jurisdictional basis in a number of cases, the Court did not
pronounce on the consequences of a possible invalidity of the Con-
nally Amendment. That is a corollary of the procedure of the Court,
which is limited to judging the submissions of the parties, as was
clearly expressed in the case concerning Certain Norwegian
Loans 597. Judge Sir Hersch Lauterpacht appended a separate opinion
to the judgment in which he analysed the problem in depth and came
to the conclusion that the reservation was invalid but inseparable
and invalidated therefore the acceptance as a whole 598. In the Inter-
handel case (Preliminary Objections) 599, where the problem
recurred, he wrote a dissenting opinion in which he referred to his
595. Text in ICJ Yearbook 1981-1982, 92. The Declaration was terminated by
a letter of 7 October 1985, see 24 ILM (1985), 1742.
596. Cf. supra, Chap. II, paras. 67, 70.
597. ICJ Reports 1957, 9-28. In this case Norway, invoking reciprocity, relied
on a restriction in the French Declaration which was phrased similar to the Con-
nally Amendment. The Court held :
The Court does not consider that it should examine whether the French
reservation is consistent with the undertaking of a legal obligation and is
compatible with Article 36, paragraph 6, of the Statute. . . . The validity of
the reservation has not been questioned by the Parties. It is clear that France
fully maintains its Declaration, including the reservation, and that Norway
relies upon the reservation.
In consequence the Court has before it a provision which both Parties to
the dispute regard as constituting an expression of their common will relat-
ing to the competence of the Court. The Court does not therefore consider
that it is called upon to enter into an examination of the reservation in the
light of considerations which are not presented by the issues in the proceed-
ings. The Court, without prejudging the question, gives effect to the reser-
vation as it stands and as the Parties recognize it. (26-27.)
598. Ibid., 34-66, 59.
599. ICJ Reports 1959, 6-32.
separate opinion in the Norwegian Loans case and stated his conclu-
sion in a nutshell :
If that reservation is an essential condition of the acceptance
in the sense that without it the declaring State would have been
wholly unwilling to undertake the principal obligation, then it is
not open to the Court to disregard that reservation and at the same
time to hold the accepting State bound by the Declaration. 600
362. The European Convention organs had to deal with a similar
problem in the Loizidou case. Turkey, when making declarations
under Article 25 and 46 of the ECHR, recognizing the competence of
the European Commission and the European Court respectively, re-
stricted them to acts or omissions performed within the boundaries
of the territory to which the Constitution of the Republic of Turkey is
applicable 601. In 1989 the Commission received three applications
resulting from events in the Turkish occupied part of Cyprus 602.
The Turkish Government opposed the applications, arguing their
inadmissibility in view of the territorial restriction of its declaration.
It alternatively argued that, should the restriction be found inadmis-
sible, its declaration must be considered as invalid because the restric-
tion had been an essential part of it 603. The Commission dismissed
the Turkish arguments as incompatible with the object and purpose
of the ECHR : while it declared the restriction invalid it nevertheless
upheld the validity of the declaration, citing the Belilos case and
quoting the maxim ut res magis valeat quam pereat 604.
363. One of the cases dealt with by the Commission, the Loizi-
dou case, was later referred to the European Court of Human Rights
by the Government of Cyprus. The Court rejected preliminary objec-
tions by Turkey and considered that the impugned restrictions can
be separated from the remainder of the text leaving intact the accep-
600. ICJ Reports 1959, 95-122, 116, 117. Cf. Bourguignon, supra footnote
584, at 381-382.
601. In the Declaration under Article 46 the respective part reads performed
within the boundaries of the national territory of the Republic of Turkey. At the
same time the corresponding text of the Declaration under Article 25 was
brought in line.
602. App. No. 15299/89 by Metropolitan Chrysostomos ; App. No. 15300/89
by Archimandrite Georgios Papachrysostomou ; App. No. 15318/89 by Titina
Loizidou.
603. Decision of the European Commission of Human Rights, of 4 March
1991, para. 43.
604. Ibid., paras. 46-49.
188 K. Zemanek
tance of the optional clause 605. By way of reasons the Court

observed, inter alia,
that the respondent Government must have been aware, in
view of the consistent practice of Contracting Parties under
Articles 25 and 46 to accept unconditionally the competence of
the Commission and Court, that the impugned restrictive
clauses were of questionable validity under the Convention and
might be deemed impermissible by the Convention organs 606.
4. Conclusions
364. In the first instance it is suggested that the practice of the

European Convention organs should be treated as special cases,
applicable only to sub-systems in which supervisory organs have the
same or comparable powers of appreciation. This conclusion is sup-
ported by the Judgment in the Loizidou case in which the Court,
rejecting arguments of similarity with the practice concerning dec-
larations under Article 36 of the Statute of the ICJ, stated :
In the first place, the context within which the Interna-
tional Court of Justice operates is quite distinct from that of the
Convention institutions. The International Court is called in
inter alia to examine any legal dispute between States that
might occur in any part of the globe with reference to prin-
ciples of international law. The subject-matter of a dispute
may relate to any area of international law. In the second place,
unlike the Convention institutions, the role of the International
Court is not exclusively limited to direct supervisory functions
in respect of a law-making treaty such as the Convention. 607
These considerations are also valid for the organs of other con-
ventions which are either expressly empowered to pronounce authori-
tatively on reservations or have asserted that authority in fact.
365. For conventions without such organs the test suggested by
Sir Hersch Lauterpacht and the conclusions which he draws 608 seem
most consonant with the decentralized state of the international
605. Loizidou v. Turkey, 23 March 1995 ; Ser. A No. 310, para. 97.
606. Ibid., para. 95.
607. Ibid., para. 84.
608. Supra para. 361 in footnote 600. Cf. a similar suggestion by Bowett,
supra footnote 552, at 77.
system 609. Yet they do not solve the problem completely. If only
those inadmissible reservations which are an essential condition of
the acceptance entail the nullity of the act of acceptance, a new sub-
jective element that cannot be verified objectively is introduced : in
the last resort only the reserving State will know whether its reserva-
tion was essential. When a State objects to a reservation on the
ground that it frustrates object and purpose of the convention in
question and the reservation is nonetheless maintained, it would
serve orderly relations better if the objecting State used the option
offered by Article 20, paragraph 4 (b), of the VCLT and excluded
the entry into force of the convention in relation to the reserving
State. Not to exclude the entry into force in such an event makes
sense only if there is a realistic prospect of judicial settlement of a
potential dispute over the non-application of the reserved provision
of the convention 610. Even then, however, it is doubtful whether a
court or tribunal will uphold the validity of the acceptance by the
reserving State in spite of the nullity of the reservation.
366. This suggested procedure could work if the convention
establishes reciprocal rights and obligations because these are sub-
jective rights and obligations, arising between two particular States,
and can therefore be bilateralized. It deserves careful consideration
whether the suggested procedure is also suited for conventions
which establish erga omnes obligations, especially human rights
conventions 611. One could argue in this instance that a State making
a general reservation which defeats object and purpose entirely is,
for whatever purpose, subscribing to nothing but the title of the con-
vention and is therefore acting in bad faith 612. It would seem appro-
priate to hold it to the face value of its act of acceptance and insist
on the invalidity of the reservation, unless additional information and/
or subsequent practice showed that the reserving States restricted
compliance with the convention did not affect the latters object and
purpose, in which case the objection would be withdrawn 613.
609. See Bourguignon, supra footnote 584, at 382.

610. Lijnzaad, supra footnote 554, at 411, mentions only the possibility of a
justiciable dispute over the admissibility of the reservation and overlooks the
indirect way of challenging non-performance.
611. See Lijnzaad, ibid., 399-402, 419-420.
612. Lijnzaad, ibid., 57-58.
613. This suggestion was made in the Austrian objection to the Iranian reser-
vation to CROC ; see Austrian Ministry for Foreign Affairs, sterreichische
aussenpolitische Dokumentation, 1995, No. 5, 50.
190 K. Zemanek
367. A further open question is the effect which an objection

claiming the incompatibility of a reservation has on those other
States parties to the convention which have explicitly or tacitly
accepted the same reservation and have thereby, at least apparently,
treated it as admissible. One is tempted to argue that, theoretically,
an act which is null and void cannot be validated by acceptance 614.
Yet in view of the distinction between the objective existence of the
treaty instrument and the autonomy of States under existing law to
formulate their acceptance and to evaluate the acceptance by others 615,
validity must, at least provisionally, be presumed. The issue could
only be settled by judicial proceedings, if available. Even then, how-
ever, the effect of such proceedings on third parties would be uncer-
tain. And that is true even in respect of decisions of the European
Court of Human Rights declaring the nullity of a reservation which
had previously been accepted by the other parties to the ECHR.
368. In sum it must be admitted that by applying the rules
embodied in the VCLT one does not arrive at a determination of the
legal consequences of a reservation, objectively or allegedly incom-
patible with the object and purpose of a convention, which is gener-
ally valid for all parties to the convention 616. This result suggests
that drafters of future conventions should be encouraged to avoid it
by courageously facing the difficult task of addressing the question
of reservations in the convention rather than referring it to future
parties 617.
III. Can Uniform Application Be Improved ?

A. Control through domestic procedures
369. Most multilateral treaties require some form of incorpora-
tion into domestic law for their implementation 618. That is achieved,
614. See Bowett, supra footnote 552, at 80.
615. See supra para. 331. Ruda, supra footnote 552, states at page 141 :
[T]here is nothing to prevent a state accepting a reservation, even if such reser-
vation is intrinsically contrary to the object and purpose of the treaty, if it sees
fit to do so. In the same sense G. Gaja, Unruly Treaty Reservations, in
P. Lamberti Zanardi et al. (eds.), supra footnote 5, Vol. I, at 307-330, 318.
616. See Sucharipa-Behrmann, supra footnote 424, at 87.
617. This is also recommended by A. Pellet, the Special Rapporteur of the
ILC, in a draft resolution proposed for adoption by the ILC and attached to his
Second Report, A/CN.4/477 and Add.1 (13 June 1996). The Commission did not
find time at its 48th Session (1996) to deal with the Report.
618. Cf. A. Cassese, Modern Constitutions and International Law,
192 Recueil des cours (1985-III), 341-473, 394-412.
in principle, by either of two methods. One makes the multilateral

treaty directly applicable in municipal law by promulgation (adop-
tion) ; the other requires an independent legislative act for implemen-
tation (transformation). In the second case the problem of uniform
application arises already at the legislative level since the drafting of
the necessary legislative act requires the interpretation of the multi-
lateral treaty concerned 619. Although, in theory, Parliaments as State
organs are bound to interpret international treaties in accordance
with the rules embodied in the VCLT, national traditions or mis-
understandings may taint the result and lead to a legislative act that
does not fully implement the international obligation.
370. Independently of the method of incorporation, domestic
courts will play a major role in the application of most multilateral
treaties. In a State which is founded on the rule of law this has a dis-
tinct advantage, because independent courts usually guarantee the
implementation of the international obligation 620 even if other State
organs fail to act accordingly or even obstruct compliance. However,
that will be implementation as the courts understand it 621 and not
necessarily uniform application as would result from the use of the
rules of interpretation of the VCLT 622.
371. The foregoing tends to show that, quite independently of the
peculiarities of national incorporation procedures, uniform interpre-
tation is an issue 623. Regrettably, the rules of interpretation embod-
619. Cf. M.-F. Furet, Linterprtation des traits par le lgislateur,

81 RGDIP (1977), 5-14 ; and C. Schreuer, Wechselwirkungen zwischen
Vlkerrecht und Verfassung bei der Auslegung vlkerrechtlicher Vertrge,
23 Berichte der Deutschen Gesellschaft fr Vlkerrecht (1985), 61-91, 67-70.
620. See J. A. Frowein, The Implementation and Promotion of International
Law through National Courts, UN, International Laws as a Language for
International Relations, Proceedings of the United Nations Congress on Public
International Law (New York, 13-17 March 1995), The Hague, 1996, 85-93.
621. Cf. the disappointing examples discussed by J. Wood, International
Labour Organization Conventions Labour Code or Treaties ? 40 ICLQ
(1991), 649-657, 655-656 ; and by D. Smith, Beyond Indeterminacy and Self-
Contradiction in Law : Transnational Abductions and Treaty Interpretation in US
v. Alvarez-Machain, 6 EJIL (1995), 1-31.
622. Cf. C. Schreuer, The Interpretation of Treaties by Domestic Courts,
45 BYIL (1971), 255-301 ; and B. Conforti and A. Labella, Invalidity and Ter-
mination of Treaties : The Role of National Courts, 1 EJIL (1990), 44-66. Cf.
also T. M. Franck and G. H. Fox (eds.), International Law Decisions in National
Courts, Irvington-on-Hudson, NY, 1996 ; and R. B. Lillich and G. M. Wilner
(eds.), Customary International Law in U.S. Courts, Irvington-on-Hudson, NY,
1996.
623. See D. Kappeler, Le problme de linterprtation uniforme des traits,
27 SJIR (1971), 49-62 ; and R. J. C. Munday, The Uniform Interpretation of
International Conventions, 27 ICLQ (1978), 450-459.
192 K. Zemanek
ied in the VCLT 624, even if they were used in domestic procedures,
are sufficiently large to lead to different results if the interpretative
process is not confined to a few specialists but entrusted to a large
number of State organs. One must admit that it is asking a lot of a
district magistrate to interpret a multilateral treaty which is authentic
in six languages 625, but possibly not in his own, in accordance with
the rules of the VCLT.
The situation would only improve if multilateral treaties were to
include a mandatory international judicial procedure for their uni-
form interpretation.
B. Is international control required ?

372. The application of multilateral conventions which establish
reciprocal rights and obligations is controlled by any other State
party for which a subjective right under the convention arises. Non-
performance entails State responsibility with the respective conse-
quences 626.
373. Control of the application of multilateral conventions which
establish erga omnes obligations is more precarious. According to
the concept which the ILC has developed in the context of State
responsibility, all parties to such a convention are injured States in
case of its violation through non-application 627. Yet because of that
unfocused entitlement, it may depend on chance whether State
responsibility is actually claimed. That will not create a strong
awareness in States that the application of this type of convention
will actually be monitored.
374. If the effective application of multilateral conventions which
establish erga omnes obligations by all States parties is to be
assured, it seems indispensable to establish convention organs and
entrust them with the necessary supervision. That idea was and is
further considered in other contexts 628.
624. Cf. M. K. Yasseen, Linterprtation des traits daprs la Convention de
Vienne sur le droit des traits, 151 Recueil des cours (1976-III), 1-114 ;
H. F. Kck, Vertragsinterpretation und Vertragsrechtskonvention, Berlin, 1976 ;
and M. Bos, Theory and Practice of Treaty Interpretation, 27 NILR (1980),
3-38 and 135-170.
625. Cf. S. Rosenne, The Meaning of Authentic Text in Modern Treaty
Law, in R. Bernhardt et al. (eds.), supra footnote 247, at 759-784 ; and
Schreuer, supra footnote 619, at 70-73.
626. See Chap. XII, paras. 562 et seq.
627. Ibid., paras. 558-559.
628. See Chap. IV, para. 165, Chap. XI, para. 475, and Chap. XIV, para. 616.
193
CHAPTER IX
LAW-MAKING PROCESSES NOT MENTIONED

IN ARTICLE 38
I. Unilateral Acts
A. Different categories of unilateral acts
1. Autonomous and adjunctive unilateral legal acts

375. Unilateral acts are the most frequent tool of State inter-
action 629. They weave, so to speak, the daily web of international rela-
tions. Since they are shaped more by the requirements of the business
which they transact than by procedural prescriptions, they appear in
diverse forms 630. Unilateral acts must therefore be carefully evalu-
ated to determine whether they are intended to have legal effects
under international law or whether they are only statements of policy.
Only unilateral legal acts are further considered. In order to discuss
their legal significance they have to be arranged in some sort of
system, but it would be misleading to assume that this system has any
other value than that of presentation. States are completely free in
inventing new forms of communication. It is the subsequent task of
legal scholars to evaluate and classify them.
376. Thus, a distinction can be made according to the purposes
for which the act serves. Adjunctive unilateral legal acts are ele-
ments of the treaty-making or custom-forming process and have to
be evaluated in the context of these processes. Autonomous uni-
lateral legal acts are communications under, not about, rules of the
629. In the Report on its 48th Session (UN, GAOR, 51st Session (1996),
A/51/10) the ILC adopted the Report of a Working Group on its long-term pro-
gramme of work (Ann. II). Among other subjects it identified unilateral acts of
States as a proper subject for immediate consideration. The outline for the
study of the subject (Addendum 3), especially the observations in the notes,
offer a concise survey of the outstanding problems.
630. See generally C. A. Kiss, Les actes unilatraux dans la pratique fran-
aise de droit international, 65 RGDIP (1961), 317-331 ; E. Suy, Les actes juri-
diques unilatraux en droit international public, Paris, 1962 ; G. Venturini, La
porte et les effets juridiques des attitudes et des actes unilatraux des Etats,
112 Recueil des cours (1964-II), 367-461 ; and A. P. Rubin, The International
Legal Effects of Unilateral Declarations, 71 AJIL (1977), 1-30.
194 K. Zemanek
existing international order and intend to confirm or to change the

legal position of the author State in application of the respective
rule of international law.
2. Unilateral acts in the treaty-making process

377. In the modern process of multilateral treaty-making uni-
lateral acts have a central role which is reflected in the VCLT. In
Article 7 of the VCLT the authority of certain State organs to per-
form them is presumed, but a manifest violation of internal law
regarding the organs competence may be invoked, according to
Article 46, as a defect in consent, if the violated rule is of fundamen-
tal importance 631.
378. Some basic unilateral acts, like signature, ratification, acces-
sion, suspension, denunciation, or termination are defined in the
VCLT and their legal consequences established by the Convention.
Other unilateral acts are mentioned in the VCLT without their legal
consequences being fully regulated therein. Thus, recent practice has
shown that the legal status of a reservation against which an objec-
tion is raised on the ground that it is incompatible with the object
and purpose of the treaty to which it relates cannot be established
conclusively by applying the rules of the VCLT 632.
379. Still other unilateral acts relating to the treaty-making pro-
cess are not mentioned in the VCLT at all. Current examples are
notifications by new States of succession to multilateral conventions
or of continued application of bilateral treaties. States which are not
parties to the Vienna Convention on Succession of States in Respect
of Treaties of 1978 have, nevertheless, accepted such notifications
without protest. From their silent acceptance one may conclude
either that they consider the respective rules of the Convention to be
an expression of existing custom or that they have transformed them
into custom by their acquiescence.
3. Unilateral acts in the custom-forming process

380. Notwithstanding the generation of custom by a multilateral
convention or by a multitude of parallel bilateral treaties 633, uni-
631. Cf. J. Hostert, Droit international et droit interne dans la Convention de

Vienne sur le droit des traits du 23 mai 1969, 15 AFDI (1969), 92-121.
633. See Chap. X, paras. 444-450.
lateral acts are, besides domestic acts, the major tool for creating or
confirming custom. It is the defining characteristic of these acts that
they are not intended to create individual rights and/or obligations
for the author State but either contribute to the creation of a general
rule or apply it. The quality and effect of these acts, as well as the
authority to perform them, have been examined in the context of
customary law 634.
381. Dogmatically, it would be possible to distinguish between
unilateral acts which influence the formation of custom and have,
consequently, a constitutive effect, and unilateral acts which apply
custom and thereby confirm it and have thus a declaratory character.
But the examination of these acts in the context of customary law
has shown that the dogmatic distinction is purely academic. Custo-
mary law is not a static set of rules but a continuing process in which
the application constantly leads to small modifications and some-
times even to a complete change. In this process it is useless to try
to distinguish between the adoption of a rule as a datable event and
its subsequent validity, a distinction which is normal in enacted law ;
a date when the formation of custom ends and its validity begins
cannot be established 635.
4. Autonomous unilateral legal acts
382. Autonomous unilateral legal acts are intended to create rights

and/or obligations under international law for the author State. Not
all unilateral acts aim at such a legal effect and it is, therefore, essen-
tial to ascertain whether a will to be legally bound is apparent. This
and the authority of the organ which performs the act are the two
elements which characterize a unilateral legal act and distinguish it
from a statement of political intent.
383. Some autonomous unilateral legal acts, like recognition,
protest 636, declarations of war or neutrality, and possibly renuncia-
tion are standardized, or typified unilateral transaction, as Fiedler 637
calls them. They have not become standardized by way of legal pre-
scription but have developed into a standard form through a histori-
634. See Chap. VII.

635. Cf. J. Crawford and T. Viles, supra footnote 455, passim.
636. Cf. I. Breutz, Der Protest im Vlkerrecht, Berlin, 1997.
637. W. Fiedler, Unilateral Acts in International Law, 7 EPIL (1984), 517-
522, 518, 520.
196 K. Zemanek
cal process of copying. Others, like declarations accepting the juris-

diction of an international court or tribunal, are regulated, at least in
part, by the sub-system to which they belong. Again others, like
promises or claims, are formulated by their authors in accordance
with the requirements of the purpose. However, as the ICJ stated in
the Nuclear Tests cases,
the question of form is not decisive. Whether a statement is
made orally or in writing makes no essential difference, for
such statements made in particular circumstances may create
commitments in international law, which does not require that
they should be couched in written form. 638
384. Unilateral acts which establish obligations only for the
author State do not require formal acceptance to become legally
effective. However, if unilateral acts affect other States they must be
made known to and received by them, to give them an opportunity to
react.
385. A class by itself are unilateral acts which purport to be
declaratory of a situation but may, implicitly, affect the rights of
other States. They need then acceptance or, at least, acknowledgment
to achieve legal force. The following example shows the difficulty of
an exact determination : on 6 November 1990 the Austrian Govern-
ment declared in a note addressed to the four signatories of its State
Treaty of 1955 (France, United Kingdom, United States, USSR),
that six Articles of that treaty had become obsolete. The declaration
seemed to state an already accomplished fact. In support the Aus-
trian Government argued that the Articles related to the previously
existent situation in Germany which had been changed by the treaty
of 12 September 1990 between Germany and the same four powers.
This new treaty demonstrated, in the view of the Austrian Govern-
ment, a change of opinion by the powers concerning their rights ;
moreover, the Articles had never been applied 639. While the answer
of the United States Government that the United States concurs
with the Austrian Government view 640 supports the declaratory
638. Source in footnote 502, at 267 (para. 45).

639. See Austrian Federal Ministry for Foreign Affairs, sterreichische Aus-
senpolitische Dokumentation, December 1990, 28-29 (Document 4). See also
G. Hafner, Lobsolescence de certaines dispositions du Trait dEtat autri-
chien de 1955, 37 AFDI (1991), 239-257.
640. sterreichische Aussenpolitische Dokumentation, ibid., 30-31 (Docu-
ment 5b).
nature of the Austrian statement, the reply by the USSR that the
Soviet Government has no objection 641 or by the French Govern-
ment that it donne son consentement la communication autri-
chienne 642 seem to point rather to a constitutive unilateral act
requiring acceptance.
386. Two or more unilateral legal acts which, taken together, con-
stitute an agreement between the States concerned, like the fre-
quently used exchange of notes, are an exception to this pattern
insofar as they require acceptance by their very nature. Dogmati-
cally, these are unilateral acts following the figure of offer and
acceptance. Their standing as unilateral acts becomes relevant if the
act of acceptance should be invalid because of a defect in the will to
be bound. If only two partners exist the agreement is then invali-
dated. If, however, the first unilateral act, the offer, is addressed to
more than one State, like Austrias promise of permanent neutrality
in 1955, which was transmitted to all States with whom Austria
maintained diplomatic relations together with the request to recog-
nize the status 643, one defective acceptance does not invalidate the
others, whereas a defect in Austrias declaration would invalidate all
acceptances.
B. Tests for the legally binding character of unilateral acts
387. In the context of customary law it has been argued that the
rules of the VCLT concerning the authority to enter into agreements
cannot be applied to the custom-forming process 644. This is also true
here and for the same reasons that were explained there.
This has been confirmed by international judgments. In the East
Greenland case 645, also known as the Ihlen Declaration case, the
PCIJ held that Norwegian Foreign Minister Ihlen, in informing the
Danish Minister that the Norwegian Government would not make
any difficulties in the matter the matter being the legal status of
East Greenland was binding Norway legally 646. The statement
641. sterreichische Aussenpolitische Dokumentation, supra footnote 639,
30 (Document 5a) ; translation by the author.
642. Ibid., 31-32 (Document 5c).
643. See A. Verdross, The Permanent Neutrality of the Republic of Austria,
3rd ed., Vienna, 1967, 8.
644. See Chap. VII, paras. 308-311.
645. PCIJ, case concerning the Legal Status of East Greenland, 1933, Series
A/B, No. 53.
646. Ibid., 71.
198 K. Zemanek
amounted in fact to a renunciation of the Norwegian claim to sov-

ereignty over the area, for which the Norwegian Constitution
required deliberations by the Council of Ministers 647.
388. It is interesting to compare this judgment with the relevant
rules of the VCLT 648. In accordance with Article 3, paragraph 1 (d),
of the Vienna Convention on Diplomatic Relations 649 the Danish
Minister would have been deemed to be aware of the constitutional
limitation placed on the Norwegian Foreign Minister in the matter.
Basic constitutional texts are no secrets. Under comparable circum-
stances the ICJ observed in its judgment in the Fisheries case 650 that
Great Britain could not have been ignorant of the Norwegian
Decrees of 1869 and 1889 relating to the delimitation of territorial
waters because of her own interest in the question. Since the con-
stitutional limitation of the Foreign Ministers competence would
thus be considered manifest and the rule in question (renunciation
of a territorial claim) of fundamental importance, one would have to
assume that the Danish Minister and his Government were in a posi-
tion to assess the value of the Norwegian Foreign Ministers declar-
ation properly. The Court, however, apparently concluded that it was
not objectively evident that the Foreign Minister had made his
statement without having received prior authorization from the
Council of Ministers. The obvious problem lies in a possible gap
between the (presumed) international, or eventually also constitu-
tional, competence to represent the State in expressing its will with
binding effect, and the constitutional authorization which the agent
may need to exercise it on behalf of the State in a specific situa-
tion 651.
389. The current information and communication society further
complicates the situation. While inter-State communications relied
formerly on diplomatic notes or, in case of oral communication,
on supplementary aide mmoires, new forms of promulgation are
now used, including telephone, fax and e-mail, or even the public
media. Acts in the latter category may be ostensibly addressed to the
647. Thus the Norwegian deposition before the Court : PCIJ, Series C,
No. 62, 560-568.
648. Cf. Hostert, supra footnote 631, at 100-109.
649. See text in footnote 505.
650. Fisheries case (United Kingdom v. Norway), ICJ Reports 1951, 116-143,
139.
651. See H. Mosler, The International Society as Legal Community,
140 Recueil des cours (1974-IV), 1-320, 54.
public at large, yet they may concurrently convey a message to other

States.
390. A foreign State assessing the value of such an act must first
determine whether it implies a will to be bound 652, an assessment
that may be difficult in cases where the statement is not primarily
intended for the international arena. It must further determine the
extent of the commitment. In both cases it is not the subjective inten-
tion of the author which counts but the impression which the act
makes on the recipient, an impression that only an international
court or tribunal could judge objectively.
391. Lastly, this evaluation may require a judgment on whether
the organ performing the act is competent and authorized to express
such a will. As in the case of customary law, constitutions do either
not establish competence to perform unilateral legal acts or establish
it in a vague language which is difficult to interpret 653. Heads of
Government, a variety of ministers and other organs perform such
acts in fact 654. If judged exclusively by constitutional standards,
many of them might lack explicit competence and their acts thus
binding effect.
392. The possible requirement of prior domestic authorization is
even more obscure. If authority had to be ascertained in each case,
international relations, and diplomatic relations in particular, would
break down or become a quagmire of incidents if agents resented the
doubt of their authority. Hence, it is submitted that only a material
approach can lead to results that are consistent with practice.
393. This becomes evident when the judgments of the ICJ in the
Nuclear Tests cases 655 are taken into account. In the Australian judg-
ment the Court based its conclusion that the objective of the appli-
cant had in effect been accomplished 656 on six statements and com-
munications by French organs 657. Probably none of these, taken
separately, would by orthodox standards have been considered as
652. See M. Lachs, The Threshold in Law-Making, in R. Bernhardt et al.

(eds.), supra footnote 247, at 493-501, 499.
653. The Austrian Constitution refers to that competence in Article 65 by
stating : The Federal President represents the Republic in external relations,
which could be construed as an exclusive competence. In fact, 99 per cent of all
unilateral acts in day by day international relations are performed by other
organs.
654. Cf. Ferrari Bravo, supra footnote 481, at 259, 261.
655. See source in footnote 502.
656. Ibid., 270 (para. 52).
657. They are listed ibid., 265-267 (paras. 34-40).
200 K. Zemanek
intended to create an international obligation, either because of its

uncertain wording or of the doubtful authority of the source 658.
394. But the Court found that taken together they constituted a
whole 659 whereby France had made public its intention to cease the
conduct of atmospheric nuclear tests 660 and thus
conveyed to the world at large, including the applicants, its
intention effectively to terminate these tests. It was bound to
assume that other States might take note of these statements
and rely on their being effective. The validity of these state-
ments and their legal consequences must be considered within
the general framework of the security of international inter-
course . . . and the Court holds that they constitute an under-
taking possessing legal effect. 661
395. The approach of the Court in this case does not come as a
surprise. Philippe Cahier, when examining decisions of international
courts and tribunals in which the conduct of States was held to have
created an international obligation, found that the decisions dis-
regarded the actual agents authority to express the will of the State
or even to act for it in the matter, as long as the conduct appeared
to other States as attitude of the State in question 662. These findings
concur with the observation of Hans Blix, who examined interna-
tional agreements concluded by organs which had no clear constitu-
tional authority for it, and concluded : Under international law,
treaty obligations may be assumed on behalf of a State by authorities
possessing apparent ability to secure the fulfilment of such obliga-
tions. 663
396. Although the ICJ held in its judgments that a State was
bound by unilateral declarations, it referred only vaguely to the legal
source of this binding effect. Legal theory offers various answers.
658. See for the same view Ferrari Bravo, supra footnote 481, at 268.
659. Nuclear Tests case, supra footnote 502, at 269 (para. 49).
660. Ibid., 267 (para. 41).
661. Ibid., 269 (para. 51).
662. P. Cahier, Le comportement des Etats comme source de droits et
dobligations, in Institut universitaire des hautes tudes internationales, supra
footnote 493, at 237-265, 262 :
En effet, dune part, les actes qui composent ce comportement manent
dorganes non habilits par le droit international engager lEtat ; dautre
part, ce comportement aboutit souvent pour lEtat un engagement non
prvu et non voulu.
663. Blix, supra footnote 513, at 218 (emphasis added).
Some explain it solely by the animus sibi vincolandi, others by the

estoppel principle 664. The mainstream thinking considers, however,
that the binding force derives from the principle of good faith 665
which, under the circumstances, protects the trust of others in the
maintenance of a legally relevant situation. One author 666 has exam-
ined this aspect in particular and concluded that, to become rele-
vant for protection, a situation must result from a relationship
resembling reciprocity, in the sense that a State invoking the protec-
tion of trust must have a stake in the relation. This conclusion is
nearly identical with the one reached when using the estoppel
approach.
II. Authoritative Legal Acts of International Organizations
A. Rudiments of organized law-making for the non-institutional

conduct of (member) States
1. Explicit norm-setting procedures

397. Provisions empowering an international organ to adopt bind-
ing rules of international law for the conduct of member States in
their mutual relations are extremely rare. Among the specialized
agencies ICAO and WHO provide the only examples, and both con-
cern technical regulations.
The ICAO Council, a restricted organ, may adopt or amend inter-
664. See Rubin, supra footnote 630, at 24. On the meaning of the principle
and its application to the protection of trust cf. the case concerning the Delimi-
tation of the Maritime Boundary in the Gulf of Maine Area (Canada/United
States of America), ICJ Reports 1984, 247-345, 305-307 (paras. 130-138) ; and
A. Martin, Lestoppel en droit international public, Paris, 1979.
665. In the Australian Nuclear Tests case, supra footnote 502, the Court
stated in paragraph 46 (at 268) :
One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith. . . .
Just as the very rule of pacta sunt servanda in the law of treaties is based
on good faith, so also is the binding character of an international obligation
assumed by unilateral declaration. Thus interested States may take cog-
nizance of unilateral declarations and place confidence in them, and are
entitled to require that the obligation thus created be respected.
See also Fiedler, supra footnote 637, at 520-521 ; and the perceptive reason-
ing of Mller, supra footnote 512, at 77-103, especially 87. Different E. Zoller,
La bonne foi en droit international public, Paris, 1977, 335-337.
666. J. M. Mssner, Vertrauen in der internationalen Politik, Vlkerrecht-
liche Aspekte, in B. Simma and E. Blenk-Knocke (eds.), Zwischen Intervention
und Zusammenarbeit, Berlin, 1979, 245-275, 268-274.
202 K. Zemanek
national standards and recommended practices for, among other sub-

jects, communications systems and air navigation aids or air traffic
control, by a vote of two-thirds of the Council members. These
regulations become effective for all members of ICAO after three
months unless a majority of them register their disapproval 667 ; a
highly unlikely event.
398. The Health Assembly of WHO may adopt regulations con-
cerning inter alia quarantine requirements, nomenclatures of dis-
eases, or standards with respect to pharmaceutical products. They
become effective for all members except for those notifying their
rejection 668.
Both instances are therefore cases of contracting-out 669.
399. Only in the EC pillar of the European Union do the Council
and the Commission have powers to adopt regulations which are not
only binding on the member States but directly applicable in their
territories. Directives adopted by the same organs bind the member
States with respect to the result which they must achieve through
their own legislative action 670 ; directives become, however, directly
applicable if a member States fails to implement them in the speci-
fied time. These regulations and directives supersede the correspond-
ing jurisdiction to prescribe of member States, though they do not
abrogate their competence to legislate on the subjects. The most
widely accepted doctrinal explanation of this duality is this : mem-
bers, acting together in the constituent instrument, have created a
competence for the community to make laws in the designated areas
and have bound themselves not to use their corresponding legislative
powers. This doctrinal explanation is confirmed by the European
Courts jurisprudence on the relation between community law and dom-
estic laws which accords precedence to the application of community
law without affecting the validity of conflicting domestic laws 671.
667. Convention on Civil Aviation, Arts. 37, 54 (l) and 90 (a). Cf. further
I. Detter, Law Making by International Organizations, Stockholm, 1965, 248-253 ;
R. I. R. Abeyratne, Law Making and Decision Making Powers of the ICAO
Council A Critical Analysis, 4 German J. of Air and Space Law (1992),
385-394, 388-391 ; and J. Ducrest, Legislative and Quasi-Legislative Functions
of ICAO : Towards Improved Efficiency, 20 Annals of Air and Space Law
(1995), 343-365, 354-365.
668. Constitution of WHO, Arts. 21 and 22. Cf. Detter, supra footnote 667, at
234-245.
669. See Chap. VIII, para. 336.
670. EC Treaty, Art. 189.
671. The leading case is Costa v. E.N.E.L., Case No. 6/64, ECR, 1964, 1251-
1277.
400. The EC has, furthermore, a power-creating competence if

such power is necessary to attain one of the Communitys objec-
tives 672. By way of comparison one may observe that this is a nor-
mative incorporation of the doctrine of functional necessity that was
discussed in the context of interpretative concepts for constituent
instruments of international organizations 673.
401. The rarity of explicit norm-setting powers confirms the pre-
vailing individualistic structure of the international system, where
members jealously guard their sovereign prerogative of being bound
only by those written rules to which they have consented. To make
the fulfilment of their purpose of advancing the law nevertheless
possible, constitutions of many international organizations have
invented a new process which combines norm-setting with the tradi-
tional treaty-making process : the organization takes over the first
stages of the treaty-making process by preparing and adopting the
text of conventions and then submits them to its members for accep-
tance 674. The ILO Constitution supplements that with a reporting
procedure which obliges members to communicate within a year
information on the actions which they have undertaken with a view
to ratifying the respective International Labour Convention, or state
the reason why they have not done so or why the have not completed
the process 675. At least one other organization, WHO, has included a
similar procedure into its constitution 676. Other organizations,
including the United Nations, selected it in practice for specific con-
ventions which they have adopted.
2. The powers of the Security Council under Chapter VII

402. The word measures used in Articles 39, 41 and 42 of the
Charter does not suggest that the Security Council may generate
rules of general international law by decision. The ordinary meaning
of the word in the context of the Articles indicates a specific action
intended to achieve an effect and, thus, a temporary, case-related
672. EC Treaty, Art. 235.

673. See Chap. IV, para. 147.
674. E.g. Constitution of FAO, Art. XIV ; Constitution of Unesco, Art. IV (4) ;
Constitution of IMO, Arts. 3 (b) and 16 (i) ; Statute of the Council of Europe,
Art. 15 (a).
675. Constitution of ILO, Art. 19 (5) ; and Article 7 of the Standing Orders of
the International Labour Conference. Cf. further Detter, supra footnote 667, at
158-161.
676. Constitution of WHO, Arts. 19 and 20.
204 K. Zemanek
reaction to one of the situations referred to in Article 39 ; it does not

include the abstract prescription of future rules of general conduct
for an undefined time. This interpretation is corroborated by the
examples of measures cited in Article 41 and 42 677. And in its Advi-
sory Opinion on Certain Expenses 678 the ICJ specifically pointed out
that measures under Article 42 were enforcement measures against a
State 679.
403. Until the 1980s the few decisions of the Security Council
under Chapter VII were indeed of this nature, consisting mostly of
economic embargos against Southern Rhodesia and South Africa. In
the context of its measures against Iraq, however, the Security Coun-
cil began to show a certain tendency towards general law-making 680
and that tendency increased with its measures against the former
Yugoslavia and against Rwanda, culminating in the establishment of
international criminal tribunals.
3. The Tribunal for the Former Yugoslavia : a case study
404. As far as unexpected law-making by the Security Council is

concerned, the establishment of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of Inter-
national Humanitarian Law Committed in the Territory of the For-
mer Yugoslavia since 1991 is an informative case to study.
405. The failure to stop the commission of atrocities during the
conflicts in the Former Yugoslavia by other means generated the
idea of an international tribunal to judge the individuals responsible
for them 681. During February 1993 relevant projects were brought to
the attention of the Security Council by France, Italy and the Rap-
porteurs under the CSCE Moscow Human Dimension Mechanism to
Bosnia-Herzegovina and Croatia 682. Acting on these proposals the
677. Cf. L. Cavar, Les sanctions dans le cadre de lONU, 80 Recueil des
cours (1952-I), 191-288, 255-277.
678. ICJ Reports 1962, 151-180, 164-165.
679. Cf. also J. A. Frowein, Commentary on Article 42, in B. Simma et al.
(eds.), supra footnote 279, at 632.
680. Cf. Chap. IV, paras. 154-157.
681. See T. Meron, War Crimes in Yugoslavia and the Development of
International Law, 88 AJIL (1994), 78-87, 79 ; and J. C. OBrien, The Interna-
tional Tribunal for Violations of International Humanitarian Law in the Former
Yugoslavia, 87 AJIL (1993), 639-659, 639-642.
682. See for a detailed history and sources A. Pellet, Le Tribunal criminel
international pour lex-Yougoslavie, 98 RGDIP (1994), 7-60, 16-25.
Security Council decided in resolution 808 (1993) to establish such

a tribunal and requested the Secretary-General to submit a draft
statute, which the Secretary-General did in a Report of 3 May
1993, together with a commentary 683. The Report and the text of the
Statute were then adopted by resolution 827 (1993).
406. While it is evident that the urgency of the situation excluded
the use of a multilateral convention for the establishment of the tri-
bunal and militated in favour of a more expedient procedure, it
appears that the question of whether the Security Council had the
required authority did not seriously preoccupy the members of the
Council prior to the decision 684. On appeal by a defendant, the
Appeals Chamber of the Tribunal judged the issue in 1995 685 and its
reasoning merits serious consideration even if the decision is, as one
of the judges properly felt 686, based on an erroneous understanding
of competence-competence of the Tribunal and for this reason
ultra vires in this respect.
In the official documents and in their subsequent discussion in
legal writings two principal arguments were invoked as confirming
the Security Councils authority to establish the Tribunal.
407. The Secretary-General has argued in the commentary on the
683. UN doc. S/25704 ; reprinted in 32 ILM (1993), 1159-1201.

684. At least OBrien (who was or is Attorney-Adviser in the Office of the
Legal Adviser, US Department of State), gives that impression when he states in
a terse sentence : Ambassador Hans Corell . . . said that the Security Council
has the authority to act under either Chapter VII or Chapter VIII of the UN
Charter ; supra footnote 681, at 643.
Only two Council members questioned the authority of the Council when the
Bosnia Tribunal was established : Brazil and China (S/PV.3175 (25.02.93) and
S/PV.3217 (25.05.93)), but both voted for resolutions 808 (1993) and 827
(1993). Venezuela was mildly doubtful (S/PV.3217). Brazil and China reiterated
their reservations on the occasion of the establishment of the Rwanda Tribunal
(S/PV.3453 (08.11.94)), but only China abstained in the vote on resolution 955
(1994) ; Rwanda, a non-permanent member of the Council at the time, voted
against the resolution on other grounds.
The political motive behind the chosen procedure is clearly stated by Pellet,
supra footnote 682, at 28 : un tel procd garantit un contrle troit du Conseil
et donc de ses membres permanents sur la cration de juridictions crimi-
nelles internationales futures.
685. Source in footnote 86.
686. Judge Li in a separate opinion, ibid., 1 :
As Article 1 of the Statute of this Tribunal only grants this Tribunal the
power to prosecute persons . . ., and as the Charter of the United Nations
also has never given this Tribunal the power of reviewing the legality of the
resolutions of the Security Council, it is crystal clear that this Tribunal has
no such power. So this review is ultra vires and unlawful.
Cf. also OBrien, supra footnote 681, at 643.
206 K. Zemanek
draft statute inter alia that the Security Council was establishing
a subsidiary organ within the terms of Article 29 of the Charter 687
and several writers have repeated that argument 688. It is, however,
unfounded.
Article 29 of the Charter authorizes the Security Council to estab-
lish subsidiary organs as it deems necessary for the performance of
its functions. Rendering an Advisory Opinion on a comparable
situation, the ICJ stated in Effect of Awards of Compensation Made
by the United Nations Administrative Tribunal :
This view assumes that, in adopting the Statute of the
Administrative Tribunal, the General Assembly was establish-
ing an organ which it deemed necessary for the performance of
its own functions. But the Court cannot accept this basic
assumption. The Charter does not confer judicial functions on
the General Assembly . . . By establishing the Administrative
Tribunal, the General Assembly was not delegating the perfor-
mance of its own functions ; it was exercising a power which it
had under the Charter to regulate staff relations. 689
408. That passage needs no comment ; it speaks for itself. If one
applies its reasoning to the present case one must, therefore, exam-
ine the substantive powers of the Security Council to see whether
they explicitly or implicitly allow for the establishment of the Tribu-
nal. This is also the manner of enquiry which the aforementioned
Decision of the Appeals Chamber has chosen 690.
409. Since resolution 827 (1993) invokes Chapter VII of the
Charter, the obvious point of reference for the second argument is
Article 41 which deals with measures not involving the use of
force. Two aspects have to be considered.
410. Do the words may call upon the Members of the United
Nations to apply such measures in Article 41 confer upon the
Security Council the power to create new legal obligations for mem-
687. See supra footnote 683, para. 28

688. See E. David, Le Tribunal international pnal pour lex-Yougoslavie,
25 RBDI (1992), 565-598, 567 ; Pellet, supra footnote 682, at 28-29 ; and,
though sceptical, K. Oellers-Frahm, Die Einsetzung des Internationalen Tribu-
nals ber Kriegsverbrechen im ehemaligen Jugoslawien durch den Sicherheits-
rat, in U. Beyerlin et al. (eds.), supra footnote 336, at 733-751, 742-743.
689. ICJ Reports 1954, 47-63, 61. Surprisingly Pellet, supra footnote 682, at
28-29, and note 82, cites this advisory opinion in support of the subsidiary organ
thesis.
690. See supra footnote 86, at 11-19
ber States 691 regarding their conduct outside the Organizations insti-
tutions and, thus, to create rules of international law ? Several provi-
sions of the Tribunals Statute qualify in this respect 692, for instance
Article 27 which gives the Tribunal a right of supervision over States
which have accepted prisoners, convicted by the Tribunal, for
imprisonment 693 ; or Article 29, paragraph 3, subparagraph (e),
which obliges States to surrender or transfer an accused to the Tribu-
nal. Construed strictly, the word measures, interpreted in the light
of examples of such measures mentioned in Article 41, appears to
refer to concrete measures which would exclude the capacity to
create new rules of international law.
411. That leads to the second aspect : is the power of the Security
Council in deciding such measures unlimited ? In Certain Expenses
of the United Nations the ICJ stated :
The primary place ascribed to international peace and
security is natural, since the fulfilment of the other purposes
will be dependent upon the attainment of that basic condition.
These purposes are broad indeed, but neither they nor the
powers conferred to effectuate them are unlimited . . . when the
Organization takes action which warrants the assertion that it
was appropriate for the fulfilment of one of the stated purposes
of the United Nations, the presumption is that such action is not
ultra vires the Organization. 694
412. It would thus seem that the appropriateness of a measure
should be the crucial test. And in that respect some doubts may
come to mind : the threat to international peace and security, which
the Council invoked, was caused by the military conflicts in Former
Yugoslavia rather than by the crimes committed in them, which
implies that appropriate measures should have been aimed at the
first, not at the second. Nor is it evident from the Charter that meas-
ures to maintain or restore international peace and security may be
directed against individuals rather than States. And, finally, one may
691. See David, supra footnote 688, at 568-569.

692. If, as D. Shraga and R. Zacklin, The International Tribunal for the For-
mer Yugoslavia, 5 EJIL (1994), 360-380, 363, suggest, care was taken that the
Security Council would not be seen as creating new international law, the
endeavour has failed.
693. For the consequences which may arise for a detaining State under the
law of State responsibility see David, supra footnote 688, at 595-596.
694. Advisory Opinion of 20 July 1962, ICJ Reports 1962, 151-181, 168.
208 K. Zemanek
wonder whether the Security Councils powers extend to the deroga-

tion from customary international law 695 which protects the immu-
nity of Heads of State, etc. 696 But the Appeals Chamber argued that
the Security Council enjoys wide discretionary powers in this
regard ; and it could not have been otherwise, as such a choice
involves political evaluation of highly complex and dynamic situa-
tions 697. And indeed, the purpose of maintaining international
peace and security is so broadly formulated that nearly all kinds of
measures may be considered thereunder. Prima facie it seems sur-
prising that the members of the United Nations, when conferring
upon the Security Council certain functions in Article 24 of the
Charter, should have provided it with unlimited power, since that
would impair their sovereignty. However, since as we have dis-
cussed earlier in a more general way 698 no legal machinery exists
within the United Nations to review the correct exercise of discre-
tionary powers by the Security Council, only member States of the
United Nations would be entitled to assert that a certain act was
ultra vires. No member State has done that officially after the adop-
tion of resolution 827 (1993) 699. Having regard to the maxim qui
tacet consentire videtur, the members of the United Nations have
thus condoned this particular law-making by the Security Council,
whatever deficiencies it may originally have had 700. The precedent is
not without danger, though, because it may, in spite of the ICJs
quoted Opinion, strengthen the Security Council, or more precisely
its permanent members, in their apparent belief that the Councils
powers are in fact unlimited 701, once a consensus exists among
them.
695. For a discussion of this problem in general see A. Reinisch, Das Jugo-
slawien-Tribunal der Vereinten Nationen und die Verfahrensgarantien des II.
UN-Menschenrechtspaktes, 47 AJPIL (1995), 173-213, 187-193.
696. Paragraph 54 of the Commentary (note 293/3) justifies this tersely : The
Secretary-General believes . . .. Shraga and Zacklin, supra footnote 692, at 370
state equally laconically : In attributing individual criminal responsibility to the
head of State . . . the Statute follows almost literally the Nuremberg Charter.
Neither of the two is proof that the derogation is lawful.
697. See supra footnote 86, at 19
699. On the doubts which some States voiced before the adoption cf. Pellet,
supra footnote 682, at 30-31 ; see also supra footnote 684.
700. So also D. Threr, Vom Nrnberger Tribunal zum Jugoslawien-Tribu-
nal und weiter zu einem Weltstrafgerichtshof ?, 3 RSDIE (1993), 491-516, 511.
701. See Oellers-Frahm, supra footnote 688, at 746. The general tendency is
convincingly demonstrated by H. Freudenschuss, Article 39 of the UN Charter
Revisited : Threats to the Peace and the Recent Practice of the UN Security
413. The adoption of the Statute of the International Tribunal for

Rwanda in resolution 955 (1994) 702, although it refers to a request
by the Government of Rwanda, confirms the previously described
tendency, because that request has no effect on the powers of the
Security Council towards other member States and does not legiti-
mize the obligations newly created for them by the Statute 703. An
even more significant innovation in the law-making role of the
Security Council is the step it has taken to influence the develop-
ment of customary international law by criminalizing the violations
of Article 3 common to the Geneva Conventions of 1949 and of the
Additional Protocol II in the Statute 704.
B. Law-making for institutional purposes
1. The rules of the organization
414. According to Article 2, paragraph 1 (j), of the VCLTIO 705,

rules of the organization include constituent instruments, decisions
and resolutions in accordance with them and established practice of
the organization. This signifies that rules for institutional purposes
may not only be enacted in procedures for which the respective con-
stituent instruments make express provision, but may also be gener-
ated by established practice. It needs no explanation that the genera-
tion of rules through practice is closely linked to the manner in
which the constituent instrument of an international organization is
interpreted 706. Some examples of relevant established practice
have already been pointed out 707.
415. Established practice is very similar to, though not identi-
cal with, international custom. It shares with custom the requirement
of being established, meaning that it may not be generated by a
single act but must be repeated and followed over some time. Estab-
Council, 46 AJPIL (1993), 1-39 ; and id., The Changing Role of the UN
Security Council : Trends and Perspectives, in W. Khne (ed.), Blauhelme in
einer turbulenten Welt, Baden-Baden, 1993, 151-176.
702. With the Statute as Annex ; see op. para. 1 of the resolution. Reprinted
in 33 ILM (1994), 1600-1613.
703. Articles 26 and 29 correspond to Articles 27 and 29 of the Statute of the
Bosnia Tribunal ; see text in footnote 691.
704. See Chap. VII, paras. 281-285, and Chap. XI, paras. 510-511.
705. Source supra footnote 254.
210 K. Zemanek
lished practice differs, however, from custom in the manner of its

eventual change.
Because of the decentralized organization of the international
system, custom is generated through the interaction of system part-
ners. Affected States decide whether an act of a State which departs
from existing custom is indeed treated as a violation of international
law, causing State responsibility, or as initiating new custom : if they
object (protest), a violation is presumed ; if they remain silent or
even emulate the conduct, new custom emerges 708.
416. In an international organization, the generation of practice is
an instance of procedure. If an organ departs from established prac-
tice, it does so with instant effect, and the only requirement for this
deviating act to become new established practice is that it is consis-
tently repeated. If, for instance, the Security Council, in applying
Article 27, paragraph 3, of the Charter, were suddenly to count the
abstention of a permanent member as negative vote and would con-
tinue to do that consistently, the current established practice would
be superseded by one more consistent with the wording of the provi-
sion.
Independently of the manner in which rules of the organization
are produced, they are international norms, though of two different
kinds : some are addressed to States, others to individuals.
2. Rules addressed to States
417. Rules of the organization addressed to States may be rules

of procedure of representative organs, rules establishing a subsidiary
organ of one of the principal organs, or financial regulations of the
organization.
Rules of procedure of representative organs 709 regulate only
ostensibly the conduct of individuals. Representative organs are
composed of States. The persons actually present do not act in their
individual capacity but as representatives of States and, thus, as
State organs. Rules of procedure regulate the right of States mem-
bers of the organ to participate in its decision-making process. They
708. Cf. Chap. VII, para. 276.

709. Cf. Detter, supra footnote 667, at 44-55 ; P. C. Jessup, Parliamentary
Diplomacy : An Examination of the Legal Quality of the Rules of Procedure of
the Organs of the United Nations, 89 Recueil des cours (1956-I), 185-316, 201-
207 ; and Y. Z. Blum, supra footnote 281, at 12-20.
specify particularly their right to take the floor and to submit propo-
sals or amendments to proposals by establishing formal requirements
and deadlines and the manner of voting 710. The Rules of Court of the
ICJ or of any other court or tribunal established as an organ of an
international organization are of the same nature.
418. Rules establishing subsidiary organs may influence member-
ship rights even stronger. Whereas the competence of principal
organs is stated in the constituent instrument, subsidiary organs exer-
cise, or assist in the exercise of, powers of the parent organ 711. They
have thus delegated powers 712. When the subsidiary organ has a
more restricted membership than the parent body, members of the
latter which are not members of the former are at a disadvantage
because the decision-making in the parent body may, in fact, be pre-
determined by decisions taken in the subsidiary organ, or the parent
body may be reduced to a nominal report-approving role. Develop-
ments have overtaken Ingrid Detters conclusion of 1965 that
autonomous decisions of subsidiary organs do not have any binding
effect outside the sphere which concerns their own conduct of busi-
ness 713. These developments are corroborated by the functions of
some subsidiary organs which the General Assembly of the United
Nations, having itself a vast and ill-defined competence, has created
under the name of operational agencies as quasi-autonomous
entities, like UNIDO 714 or UNEP 715. The same is true for the Com-
mission on Human Rights established by ECOSOC 716.
419. Financial regulations are, as a rule, adopted by the plenary
organ of an organization and implement the members obligation to
finance the organization. They establish inter alia a scale of assess-
ment for the contributions of members, determine the structure of
710. Cf. Detter, supra footnote 667, at 50-52.

711. See the passage quoted from the Advisory Opinion of the ICJ on Effects
of Awards of Compensation Made by the United Nations Administrative Tribu-
nal in the text supra footnote 689.
712. See Detter, supra footnote 667, at 57-60.
713. Ibid., 90.
714. GA res. 2152 (XXI) of 17 November 1966. In 1985 UNIDO was trans-
formed into a specialized agency ; on the process cf. P. C. Szasz, United
Nations Industrial Development Organization, 5 EPIL, 329-336.
715. GA res. 2997 (XXVII) of 15 December 1972 established the United
Nations Environmental Programme (UNEP). Further examples are listed by
G. Jaenicke, Commentary on Article 7, in B. Simma et al. (eds.), supra foot-
note 279, at 199-200 ; and by M. Hilf, Commentary on Article 22, ibid., 390.
716. ECOSOC res. 9 (II) of 21 June 1946 ; 728 F (XXVIII) of 30 June 1959 ;
and 1235 (XLII) of 6 June 1967.
212 K. Zemanek
the budget and the preparation of the budget estimates, and create
procedures for monitoring the implementation of the budget 717. A
significant portion of a members obligations towards the organiza-
tion is, therefore, affected by these regulations.
3. Rules addressed to individuals
420. International organizations generate rules addressed to indi-

viduals for two separate purposes : for the administration of person-
nel and for the administration of their headquarters district.
In accordance with the legal construction of international organi-
zations as international legal persons, the relationship between the
staff and the organization lies outside the province of any domestic
law. This relation is regulated by the proper law of the respective
international organization 718 and it is, generally, the plenary organ
of each international organization which is empowered to adopt
appropriate staff regulations 719. In most organizations these regula-
tions are further implemented by staff rules enacted by the chief
administrative officer of the organization. A veritable hierarchy of
norms is thus created : since the staff rules are delegated by the staff
regulations they must remain within the latters scope for being
valid 720.
421. For assuring legal protection to their personnel, organiza-
tions usually need to set up a (quasi-)judicial organ to hear and
decide complaints of staff members against the chief administrative
officer for violations of staff rules and regulations.
For the United Nations and most specialized agencies either the
United Nations Administrative Tribunal or the International Labour
Organisation Administrative Tribunal, both true judicial bodies,
717. For the practice of the United Nations cf. R. Schmidt and W. Koschor-
reck, Commentary on Article 17, in B. Simma et al. (eds.), supra footnote
279, at 294-317 ; and J. G. Stoessinger, Financing the United Nations System,
New York, 1964.
718. See C. W. Jenks, The Proper Law of International Organizations, Lon-
don, 1962 ; G. Langrod, La fonction publique internationale, Leiden, 1963 ;
F. Seyersted, Jurisdiction over Organs and Officials of States, the Holy See and
Intergovernmental Organizations, 14 ICLQ (1965), 33-82 and 493-527, 496-
497 ; M. B. Akehurst, The Law Governing Employment in International Organ-
izations, Cambridge, 1967 ; A. Plantey, Droit et pratique de la fonction publique
internationale, Paris, 1977 ; and Amerasinghe, supra footnote 244, at 323-367.
719. Cf. Article 101 (1) of the Charter.
720. See K. Zemanek, Das Vertragsrecht der internationalen Organisationen,
Vienna, 1957, 98-100.
serve that purpose, but other organizations have established their

own tribunals 721.
422. Normally, the domestic law of the host State applies in the
headquarters district of an international organization. A few head-
quarters agreements recognize, however, the capacity of the organi-
zation to enact regulations applicable in the headquarters district, if
they are necessary for the performance of the organizations func-
tions 722. In case of conflict such regulations prevail over the appli-
cable domestic law of the host country within the headquarters dis-
trict. The authority to enact them is vested in a representative organ
acting on the initiative of the chief administrative officer. Regula-
tions so far enacted under that heading concern chiefly working con-
ditions in the headquarters district 723.
721. Cf. W. Gttelmann, Commentary on Article 101, in B. Simma et al.

(eds.), supra footnote 279, at 1086-1087 ; and C. F. Amerasinghe, The Law of
the International Civil Service (as Applied by International Administrative Tri-
bunals), 2 vols., 2nd ed., Oxford, 1994.
722. Cf. Art. III, Sec. 8, of the Headquarters Agreement between the United
Nations and the United States of America of 26 June 1947, 11 UNTS 11 ; or
Sec. 8 (a) of the Headquarters Agreement between Austria and the IAEA of
11 December 1957 ; or Article 5 of the Headquarters Agreement between France
and Unesco, of 2 July 1954.
723. See Detter, supra footnote 667, at 128-131 ; Seyersted, supra footnote
718, at 519-522 ; P. C. Szasz, supra footnote 321, at 968-969.
214
CHAPTER X
INTER-SOURCE RELATIONSHIPS
I. Custom and Treaty
A. Codification
1. The motives of codification
423. When the founders of the United Nations introduced the
progressive development of international law and its codification as
a purpose of the organization into its Charter, they acted in accor-
dance with the contemporary expectations of the international com-
munity and of the academic world. Since the nineteenth century
scholars and institutions of learning had produced a number of pri-
vate codifications 724, some of great influence, and international con-
ferences of States had adopted some codification conventions on the
universal 725 or regional 726 level. It was widely believed, so it seems,
that of all feasible ways, codification in treaty form was best suited
for increasing the effectiveness of international law.
424. As in most cases where a broad consensus has established a
dogma, the contributing conceptual factors, often inconsistent, some-
times even contradictory, are forgotten, obliterated by the axiomatic
belief. But if one studies the historic record, a certain amount of
debate comes to light. The ILC has from time to time reviewed its
work 727 and States have expressed their views in the subsequent
724. See the Note on the Private Codification of Public International Law
(A/AC.10/25), prepared by the UN Secretariat, reprinted in 41 AJIL (1947),
Suppl., 138-147.
725. See the Historical Survey of the Development of International Law and
Its Codification (A/AC.10/5), prepared by the UN Secretariat, reprinted ibid.,
29-111.
726. See the Outline of the Codification of International Law in the Inter-
American System with Special Reference to the Methods of Codification
(A/AC.10/8), prepared by the UN Secretariat, reprinted ibid., 116-138.
727. See the Survey of International Law in Relation to the Work of Codifi-
cation of the ILC, UN doc. A/CN.4/1/Rev.1 (1949) ; the Survey of International
Law, Working Paper prepared by the Secretary-General in the light of the Deci-
sions of the Commission to review its Programme of Work, A/CN.4/245 (1971) ;
and Programme, Procedures and Working Method of the Commission and Its
Documentation, UN, GAOR, 51st Session (1996), A/51/10 : Report of the ILC
on its 48th Session, paras. 141-251 and Annex II.
consultations 728 ; sometimes scholars have analysed the codification

process 729. This spectrum of comments produced a variety of argu-
ments in support of codification : some come from dogmatic juris-
prudence while others are pragmatic, invoking political utility or
interests. Among the many arguments supporting codification, two
seem to be most widely shared : (a) the proposition that codification,
through generating authoritative expectations, increases the legal cer-
tainty (Rechtssicherheit) ; and (b) the proposition that codification
is the appropriate method of reviewing the law in a society which
has considerably grown and whose values are no longer uniform.
425. The German term Rechtssicherheit has many aspects and
is actually used in different senses. Two of its aspects shall be exam-
ined in more detail. They are : the authoritative statement of the
substance of a rule of law ; and the definitive identification of those
subjects which are bound by it.
426. The difficulties in establishing a rule of international custom
have already been examined 730. Theoretically, the codification of a
rule of international custom should eliminate the problems : since the
rule is formulated in writing, in present United Nations practice in a
treaty provision, possible ambiguities of the text, which may come to
light in its application, should be resolved through the rational and
well-defined process of interpretation. Nobody will deny that this
process is difficult, but, on balance, codified rules seem to have an
advantage over custom in this respect.
427. Another problem of custom is the difficulty of identifying
with certainty the States which are bound by it. In none of the cases
before the ICJ in which one party disputed the existence of a rule of
custom or, alternatively, denied being bound by it, the Court could
be satisfied of the contrary 731. And neither the situation of a persis-
tent objector nor the situation of a primarily unaffected State, which
728. See Future Work in the Field of Codification and Progressive Develop-
ment of International Law, Note by the Secretary-General with an Annex con-
taining Observations by Governments, UN doc. A/4796 and 8 Add. (1961).
729. See e.g. R. Y. Jennings, The Progressive Development of International
Law and Its Codification, 24 BYIL (1947), 301-329 ; H. Lauterpacht, Codifica-
tion and Development of International Law, 49 AJIL (1955), 16-43 ; S.
Rosenne, Relations between Governments and the ILC, Yearbook of World
Affairs, 1965, 183-198 ; and Zemanek, supra footnote 482, at 565-596.
730. See Chap. VII.
731. With the exception of the Corfu Channel case (Merits), ICJ Reports
1949, 4-37 ; but then the respondent, Albania, did not appear before the Court.
Cf. Zemanek, supra footnote 482, at 577-579.
216 K. Zemanek
is later confronted with a rule of custom having developed without

its participation, have as yet found an unequivocal and universally
accepted solution, although the ICJ has dealt with both situations in
a number of cases. In this respect again, codification should remove
most of the difficulties. The parties to a codification convention are
known, although non-recognition, objections to reservations or the
revision of a codification convention may sometimes make it difficult
to establish the existence of treaty relations between specific States.
428. As another important argument for codification its propriety
as a democratic form of law-making has been invoked. And indeed,
in the more or less anarchic creation of custom during the nineteenth
and the beginning of the twentieth centuries stronger powers may
have exercised undue influence on weaker States to make them accept
a particular practice, advantageous to the stronger powers, as law. An
unorganized, diffuse process is certainly not the best way for balancing
opposing interests. Even today, when declarations on the non-use of
force in international relations and on the respect for the sovereignty
of States abound, reality is a far cry from these lofty principles.
In this respect, too, the codification process should provide a cer-
tain remedy. Even though the adoption of codification conventions
in conferences or in plenary organs of international organizations
does not per se exclude pressure by powerful States, a balance is
provided by the numerical strength of the weak which have to be
courted for building a majority or for forming a consensus, a neces-
sity which fosters compromise.
429. Equally important is the opportunity for reform which the
process provides : since more or less all members of the international
community participate in it or have, at least, the opportunity of doing
it, a broad consensus for adapting traditional rules of international
law to changed social conditions can be sought and new norms,
reflecting these, may thus be legitimized.
430. But for these advantages a certain price has to be paid.
Although as sources of international law custom and convention
have much in common, they differ in one crucial aspect that is of
particular relevance in the present context : custom is rarely finally
settled. A convention is, on the contrary, a static instrument which
brings the norm-creating process formally to an end. Although sub-
sequent practice may lead to some adjustments, the basic integrity of
the text is protected by pacta sunt servanda, good faith, and the rules
of interpretation.
Codifying custom in treaty form should therefore be left waiting

until the underlying social conditions of the rules in question have
become stable and are not likely to be subject to rapid development
or significant change in the near future.
2. Evaluation of the record
431. Has the hope, put in the codification process, that it would
increase the effectiveness of international law, been vindicated ? A
short look into the record will answer that question 732.
Beginning with the Vienna Convention on Diplomatic Relations
of 1961, nine codification conventions have been adopted under the
auspices of the United Nations. Six of them are in force : the Vienna
Convention on Diplomatic Relations (1961), the Vienna Convention
on Consular Relations (1963), the Vienna Convention on the Law of
Treaties (1969), the Convention on Special Missions (1969), the
Vienna Convention on Succession of States in Respect of Treaties
(1978), and the United Nations Convention on the Law of the Sea
(1982). Only two of them, the Convention on Diplomatic Relations
with 178 parties, and the Convention on Consular Relations with
158 may claim a nearly universal acceptance. Middle ranking are the
Convention on the Law of the Sea with 116 and the Convention on
the Law of Treaties with 81 parties ; the Convention on Succession
of States in Respect of Treaties with 15 parties is at the tail-end.
432. Of the conventions not yet in force, the following two
appear as stillborn : the Vienna Convention on Representation of
States in their Relations with International Organizations of 1975
which has, in the 22 years since its adoption, only attracted 30 of the
35 parties which are required for its entry into force ; and the Vienna
Convention on Succession of States in Respect of Property, Archives
and Debts of 1983 which needs 15 parties to enter into force but has
as yet only 4. Some optimism may be due in the case of the Vienna
Convention on the Law of Treaties between States and International
Organizations or between International Organizations which has, in
the eleven years since it was adopted in 1986, attracted 23 of the 35
parties it needs for its entry into force ; reason for hope in this
732. For the following record of ratifications (status as at 23 June 1997)

cf. the internet version of Multilateral Treaties Deposited with the Secretary-
General, United Nations ST/LEG/SER.E, New York, 1997, as available on
URL : http ://www.un.org/Depts/Treaty.
218 K. Zemanek
respect are the eleven years which its parent Convention on the Law
of Treaties needed for its coming into force.
3. Lessons to be learned
433. This record invites a few observations.
Conventions dealing with the conduct rather than the substance of
inter-State relations seem to fare best. This is indicated by the suc-
cess of the Diplomatic, Consular and Treaty Conventions when com-
pared with the others.
434. Drafts dealing with matters in which material reciprocity
exists which means that States can actually envisage themselves
as claimant as well as respondent, as for instance in bilateral diplo-
matic or treaty relations apparently achieve a more balanced
result in the codification process and that, in turn, seems to increase
their acceptability 733. The point may be illustrated by the contrasting
example of the 1975 Convention on Representation of States in their
Relations with International Organizations. The burden of granting
privileges and immunities to representatives of other member States
rests, in fact, with the host States of international organizations
which amounted to only a small minority of participants in the codi-
fication conference. The majority consisted of sending States which
did not consider the possibility of hosting an international organiza-
tion and were thus unrestrained in raising privileges and immunities
of representatives above an acceptable level. The unfortunate result
of such a configuration is made evident by the state of the conven-
tion.
435. The record does not support the assumption that participa-
tion in the codification process promotes acceptance. The number of
States participating in codification conferences and thus involved in
the formulation and adoption of the conventions has remained rela-
tively stable over the entire period under consideration, fluctuating
between 81 and 110, with the exception of UNCLOS III which,
because of the varying attendance at its many sessions, had an over-
all attendance of 164. No connection between attendance and accep-
tance can be established : the 1961 Convention on Diplomatic Rela-
tions has 178 parties and the Convention on Representation of States
733. See K. Zemanek, Codification of International Law : Salvation or Dead

End ?, in P. Lamberti Zanardi et al. (eds.), supra footnote 5, Vol. I, 581-601,
590-593.
in their Relations with International Organizations has only 30, but

both conferences were attended by 81 States.
436. However, another and in view of the assumptions
referred to in the beginning, surprising element may have a signi-
ficant influence on the acceptability of a codification convention.
This element is the proportion of codified custom to progressively
developed rules in a convention. The Conventions on Diplomatic
and Consular Relations or on the Law of Treaties are fairly conser-
vative instruments, but have the largest number of parties. Of the
two State Succession Conventions, on the other hand, probably the
most ambitious exercise in progressive development, only one is in
force and that at the minimum level of 15 parties.
437. Considering these and similar instances leads to the tentative
conclusion that it is less the involvement in the codification process
which increases the acceptability of rules of customary law alleged
of having hitherto been in doubt but, conversely, the amount of
adjusted customary law which has been received in the text of a con-
vention that determines acceptance. This does not imply that pro-
gressive development used for adjusting customary rules to modern
requirements is a deterrent, but the evidence strongly suggests that
law-inventing for ideological or dogmatic reasons in the disguise of
codification is.
438. Subjects for codification should, therefore, be chosen on the
basis of practical needs and suitability. Only if they answer practical
needs will they rally support in national administrations, support that
will later be necessary for steering the convention through the
national adoption process. Information about practical needs should
therefore be gathered systematically from foreign office legal advis-
ers who will also have a perception of what is feasible 734. Academic
interests or political highlights are not the best guidance. Lacunae in
the system of international law may be attractive challenges, but
only the practitioners will know whether they need and can be
closed. In the modern information society international law is part of
the political process and no longer the province of an elitist circle of
experts. It features in the media world and is already afflicted with
the image of high-sounding promises which are not fulfilled when
put to the test. It does not add to its credibility if new additions
to the body of international law are announced but fail to become
734. K. Zemanek, supra footnote 733, 596-599.

220 K. Zemanek
reality. A realistic view of what international law can or cannot do

is by far preferable to Potemkins sham villages.
B. Interaction of custom and treaty
1. The relation of a codification convention to the custom which it

codifies
439. Codification of a specific branch of custom in treaty-form
divides States into two groups : those which adhere to the codifica-
tion convention and those which do not. If the convention embodies
custom, part of which has been progressively developed in the
course of codification and thereby altered, its entry into force raises
the question of its effect on the different custom that continues to
exist. If the codification convention achieves quasi-universal accep-
tance, the problem has no practical relevance, though it may still be
of academic interest. If, on the other hand, the success of the con-
vention is modest, a double standard will result, requiring a dual
system of application.
440. The answer which positive law offers for the situation is
inconclusive. Article 3 of the VCLT which provides for the applica-
tion of its rules to agreements not within its scope 735 to which they
would be subject under international law independently of the Con-
vention, apparently refers only to rules which are identical both in
custom and convention. It does not address the question of devel-
oped customary rules.
441. Nor do legal writings offer a convincing explanation of the
effects. Perhaps the most radical view was expressed by Tammes 736
when he stated :
In the absence of any hierarchical relations, however, the
governing concept is succession so that one rule, or more gen-
erally, one legal situation is substituted for another . . . [Thus]
customary law [may be replaced] by written law as in the cases
of codification.
735. Reference is made to international agreements concluded between

States and other subjects of international law or between such other subjects of
international law and to international agreements not in written form.
736. A. J. P. Tammes, Interaction of the Sources of International Law,
10 Nederlands Tijdschrift voor Internationaal Recht (now NILR) (1963), 225-
238, 229.
Neat as this solution seems, it is not tenable. It would require the

identity of the personal scope of custom and the codification conven-
tion, a goal that has not yet been achieved by any codification con-
vention and is not likely to be achieved in the future.
442. A more realistic assessment has been made by Robert Jen-
nings 737 when he stated :
The codifying treaty does not replace existing customary
law but is necessarily superimposed upon it. It is not a simplifi-
cation of the law but an entirely additional complication.
443. If existing customary law is thus not replaced by its codifi-
cation 738, can it still be regarded as general ? Is one to assume that
the parties to the codification convention have a split opinio juris ?
This seems to be the case. Under the principles of pacta sunt ser-
vanda and good faith they owe a conduct in conformity with the
rules of the codification convention to the other parties. In relation to
non-parties they remain, however, bound by the unaltered custom
and so do the non-parties between themselves. These are less than
ideal conditions which may call the general character of custom into
question, unless one regards the codification convention as lex spe-
cialis in relation to the continuing custom 739. The problem is aggra-
vated and, at the same time, mitigated by the magnetism of the codi-
fication convention which will be studied below. To the extent that
the convention attracts more and more parties or is widely applied
by non-parties, the personal scope of the old custom shrinks until it
may wither away altogether.
2. Do codification conventions generate custom ?

444. The choice of multilateral conventions as instruments of
codification relies apparently on the assumption that a rule of inter-
national custom, once it exists objectively, is uniformly perceived by
all States and raises uniform expectations. If formulated in writing, it
should therefore be generally acceptable. A study of the works of
different schools of international law and of digests of practice of
737. R. Y. Jennings, supra footnote 729, at 306.

738. Cf. E. W. Vierdag, The Law Governing Treaty Relations between Par-
ties to the Vienna Convention on the Law of Treaties and States Not Party to the
Convention, 76 AJIL (1982), 779-801, 786 ; and L. T. Lee, The Law of the Sea
Convention and Third States, 77 AJIL (1983), 541-568, 553-568.
739. Cf. Fitzmaurice, supra footnote 141, at 198-201.
222 K. Zemanek
different nations demonstrates the opposite. Codification of a custo-

mary rule in a convention may thus adopt a version of its meaning or
content that was, in the past, not shared by all States.
445. This problem is magnified when a considerable amount of
development of rules, progressive or otherwise, takes place during
the process of codification. The rules embodied in the convention
will then only partially correspond to the relevant existing customary
rules, while the rest is new law between the parties.
The resulting situation will at first resemble that described in the
previous section. But in the course of time a trend towards unifica-
tion may set in. It is, however, not the practice of the parties in
applying the convention which creates or changes custom 740. A
change in custom is only achieved when States which are not parties
to the convention apply the modified rules of the convention in prac-
tice or accept that they are applied to them.
446. Different explanations have been offered for this scenario.
The most ambitious was suggested by Anthony DAmato 741 who, in
short, vests multilateral law-making conventions with a sort of
quasi-legislative force which transcends the circle of parties. If a
law-making convention deals with a subject-matter that has not pre-
viously been regulated by international law, one could indeed argue
that the convention channels the development of the law in the sense
that it is the only legitimate international regulation of the subject-
matter and precludes the development of different custom. But the
argument cannot be maintained in respect of a convention which pur-
ports to codify customary law while changing some of it in a signifi-
cant manner, because the original customary law continues to exist.
447. State practice offers a more prosaic answer ; if there is a
trend towards uniformity of practice, it does not originate in a grand
design. It is the ready availability of written provisions which makes
them attractive for non-parties in case of a doubt 742. The organs of a
contracting party on the other side tend to apply the written law in
740. See K. Doehring, Gewohnheitsrecht aus Vertrgen, 36 ZaRV (1976),

77-95, 92.
741. Best summarized in Custom and Treaty, in A. DAmato, International
Law : Process and Prospect, Irvington, 1995, 126-140, where he also recapit-
ulates his earlier works on the subject. M. Lachs, Le dveloppement et les
fonctions des traits multilatraux, 92 Recueil des cours (1957-II), 233-341,
319, speaks of a validit latente erga omnes.
742. Cf. C. de Visscher, Coutume et trait en droit international public,
59 RGDIP (1955), 353-369, 362 ; and H. Lauterpacht, supra footnote 729, at 39.
question even in relation to non-parties 743 because they are used to

it. Thus treaty provisions which are not derived from custom may
become custom, a possibility that is confirmed by Article 38 of the
VCLT 744. Examples are numerous and include the Hague Regula-
tions Respecting the Laws and Customs of War on Land, which the
Nuremberg Tribunal held to have become custom 745, the VCDR and
the VCLT 746. However, frequent application by a non-party may also
lead to its formally accepting the respective convention, once it
realizes the extent to which it is already applying it in fact.
448. The same trend may be observed with regard to codification
conventions that have not yet entered into force and may even have
little chance of ever doing so 747. They may, in their undisputed parts,
become either an element of interpretation ; or they may be treated as
a handy restatement of the law, as happened to the two Vienna Con-
ventions on State Succession, which were widely relied on by suc-
cessor States of the Soviet Union and the Socialist Federal Republic
of Yugoslavia for guidance. These examples confirm also the chance
of factual application leading to formal acceptance, since some of the
successor States decided to accept the 1978 Convention on Succession
of States in Respect of Treaties and brought it thereby into force.
3. Bilateral treaties and custom

449. It has sometimes been argued that a substantial number of
bilateral treaties on the same subject, which provide for similar
rights and obligations, may generate custom.
743. Cf. the dissenting opinion of Judge Lachs in the Continental Shelf case :
. . . lack of ratification does not prevent States from applying the provisions of
such conventions ; ICJ Reports 1969, 218-240, 226.
744. Which reads : Nothing in articles 34 to 37 precludes a rule set forth in
treaty form becoming binding upon a third State as a customary rule of interna-
tional law, recognized as such.
745. Judgment. US Government Printing Office, 1947, 83.
746. In 1972 Austria suspended its commercial treaty with Switzerland of
1875 on the ground of partial non-application by Switzerland. An accompanying
memorandum of the legal service of the Austrian Ministry for Foreign Affairs
stated in respect of the procedure to be observed :
The VCLT provides in this case for a certain procedure which has no
base in customary law. Austria has not yet ratified the VCLT, but, since this
must be considered nascent international law, it is recommended that the
procedure be followed in the present case. Text in 27 AJPIL (1976), 344-
348, 347 (transl. by the author).
747. See G. E. do Nascimento e Silva, Treaties as Evidence of Customary
International Law, in P. Lamberti Zanardi et al. (eds.), supra footnote 5, Vol. I,
at 387-397, 397.
224 K. Zemanek
The ILC, when it dealt with the subject of consular relations,

explored that line of thinking, albeit more cautiously. Its Report 748
on the Draft Articles stated :
The codification of the international law on consular inter-
course and immunities involves another special problem arising
from the fact that the subject is regulated partly by customary
international law and partly by a great many international con-
ventions which today constitute the principal source of consu-
lar law 749. A draft which codified only the international custo-
mary law would perforce remain incomplete and have little
practical value. For this reason, the Commission agreed, in
accordance with the Special Rapporteurs proposal, to base its
draft articles not only on customary international law, but also
on the material furnished by international conventions, espe-
cially consular conventions. An international convention admit-
tedly establishes rules binding the contracting parties only, and
based on reciprocity ; but it must be remembered that these
rules become generalized through the conclusion of other simi-
lar conventions containing identical or similar provisions, and
also through the operation of the most-favoured-nation clause.
The Special Rapporteurs analysis of these conventions
revealed the existence of rules widely applied by States, which,
if incorporated in a draft codification, may be expected to
obtain the support of many States.
450. This sums it up nicely. Even a great number of bilateral trea-
ties which regulate the same subject-matter in a similar or identical
manner do not really generate custom. The parties intend to enter
into a bilateral contractual relationship and this intention does not
induce to the formation of custom. The uniformity does, however,
support the assumption that it expresses the contracting parties view
on how the matter should be regulated once a general regulation
would be undertaken. One may, thus, consider such uniform regula-
tions as an indication of an opinio necessitatis or a latent opinio
748. UN, GAOR, 16th Session (1961), A/4843 : Report of the ILC on its 13th
Session, paras. 29-30 (pp. 3-4).
749. Cf. the Collection of Bilateral Consular Treaties prepared by the UN
Secretariat for the Vienna Conference on Consular Relations, A/CONF.25/4
(1962) (note by the author). Nascimento e Silva, supra footnote 747, at 393-394,
examines some of the provisions as to their source.
juris 750 with respect to future general rules, an idea that seems also
to underlie the remarks quoted from the ILCs Report on consular
relations.
II. Two or More Successive Multilateral Treaties

on the Same Subject-Matter
451. If two or more successive multilateral treaties regulate the

same subject-matter, the order in which they should be applied must
be established in accordance with general law 751, unless one of the
treaties, or both, contain a relevant clause 752. Since it will only
rarely happen that their personal scope, which indicates the group of
States being bound by a treaty, is identical, the lex posterior rule, by
which domestic law settles the problem, cannot be applied without
modification.
452. The regulations adopted in Articles 30, 40, 41 and 59 of the
VCLT for dealing with the various resulting situations are, accord-
ingly, rather complex, though they give, by and large, priority to the
later treaty. When the parties to the two treaties are not identical, this
creates two parallel systems of application, one for the parties to the
later treaty and another between them and the parties to the earlier
treaty. Should that lead to conflicting obligations, Article 30, para-
graph 5, of the VCLT refers the affected States to the possibility of
terminating the relevant treaty in consequence of its breach, or to
invoke State responsibility 753.
453. This solution leaves a number of critical aspects of succes-
sive treaties unsettled. One of them, and probably the most critical,
lies in the eventual difficulty to determine which of the two treaties
is the earlier and which is the later, and for which parties. This diffi-
culty is the unfortunate consequence of a lack of indicators or pro-
cedures for identifying, with effect for all parties, the date on which
a multilateral treaty was concluded, since the term conclusion
750. R. Baxter, Treaties and Custom, 129 Recueil des cours (1970-I), 31-
104, 77, seems to stretch the point too far, though, when he considers a web of
bilateral treaties evidence of customary international law.
751. This is thoroughly discussed by M. Zuleeg, Vertragskonkurrenz im
Vlkerrecht. Teil I : Vertrge zwischen souvernen Staaten, 20 GYIL (1977),
246-276.
752. For an overview of such clauses see ibid., 251-255, 259.
753. Zuleeg, ibid., 267-268, rightly points out that a State faced with
demands to perform conflicting obligations has no firm rule to guide it but must
decide on political grounds which of the obligations to fulfil.
226 K. Zemanek
carries very different meanings in the VCLT, depending on the pro-

vision in which it is used 754.
454. Regrettably, the Institut de droit international recently
missed the opportunity to clarify this and other doubtful points when
discussing the Problems arising from a succession of codification
conventions on a particular subject 755. Despite stimulating reports
by Sir Ian Sinclair it contented itself with a trivial statement of the
obvious 756.
455. Another vexing point is the meaning of the term treaty in
the present context. Does it solely refer to the integral, original text
of the treaty or can it also mean the text as modified by a reservation
and in that form in force between two particular States ? The prob-
lem can best be explained by the following example.
456. Austria is a party to the European Convention for the Peace-
ful Settlement of Disputes 757 which obliges its parties to submit their
legal disputes to the ICJ. In Article 28, paragraph 1, it further pro-
vides that parties may not disregard that obligation by invoking
another agreement for the peaceful settlement of disputes, unless that
agreement provided for a procedure entailing binding decisions.
457. However, the conciliation procedure established by the Con-
vention on Conciliation and Arbitration within the CSCE does not
end in a binding decision 758. When ratifying the CSCE Convention,
Austria was determined to ensure that a potential legal dispute with
Italy, which is also a party to the European Convention, would,
nevertheless, be first referred to the Conciliation Commission under
the CSCE Convention before being, eventually, submitted to the ICJ.
For that end, an obstacle in the CSCE Convention itself had to be
eliminated. Article 19, paragraph 1 (b), of that convention orders the
Conciliation Commission to forgo proceedings if the parties to the
dispute had recognized in advance the jurisdiction of a judicial body
which would decide with binding effect, as is the case with the ICJ
under the European Convention. Austria, therefore, made a reserva-
tion to the CSCE Convention whereby it excluded the restriction of
754. See E. W. Vierdag, The Time of the Conclusion of a Multilateral

Treaty : Article 30 of the Vienna Convention on the Law of Treaties and Related
Provisions, 59 BYIL (1988), 75-111, 76.
755. Cf. the successive reports of Sir Ian Sinclair, 66 Annuaire de lInstitut de
droit international, Vol. I (1995), 13-248.
756. See the resolution ibid., Vol. II (1996), 435-443.
758. Art. 25. Text reprinted in 32 ILM (1993), 557-567.
Article 19, paragraph 1 (b), in relation to Italy 759. That reservation

was not contested.
458. If one considers that, for Austria, the CSCE Convention
means the original text minus the reserved provision, it would, as the
later treaty in relation to Italy, supersede Article 28, paragraph 1, of
the European Convention through the operation of Article 30, para-
graphs 3 and 4 (a), of the VCLT, since the European Convention
would only apply to the extent that its provisions are compatible
with those of the later treaty.
459. If, on the other hand, by later treaty the objectively exist-
ing integral text of the CSCE Convention was meant, the Austrian
reservation would not have achieved its objective since the obliga-
tion established by Article 28, paragraph 1, of the European Conven-
tion not to substitute the Conciliation Commission for the ICJ would
remain in force for Austria.
460. The first solution seems to be more consonant with the
objective of Article 30 of the VCLT, which aims at securing for par-
ties which have accepted the same two sets of obligations the applica-
tion of the lex posterior rule. Yet, as long as the true meaning of the
term later treaty is not clarified, that solution is not compelling.
461. The system established by the VCLT for dealing with suc-
cessive multilateral treaties on the same subject-matter has not only
some unsettled points, its application leads sometimes also to results
which defy its purpose. That would be the case if Article 30 of the
VCLT were applied to a situation where a universal convention fol-
lows a regional one on the same subject-matter. This is, for instance,
the case with the European Convention on Human Rights and Fun-
damental Freedoms of 1950 which was followed in 1966 by the
United Nations Covenant on Civil and Political Rights 760. Suppose
that all parties of the former became parties to the latter. According
to Article 30, paragraph 3, of the VCLT they could then apply the
European Convention, even among themselves, only to the extent
that its provisions are compatible with those of the United Nations
Covenant. Leaving aside the question whether points of incompat-
ibility really exist, the preference given to the later convention in this
case seems totally unwarranted : why should a closer-knit commu-
759. Austrian Federal Law Gazette (Bundesgesetzblatt), 1996, No. 127.

760. Because of the long interval between their adoption, the problems raised
by Vierdag, supra footnote 754, are disregarded in the present argument.
228 K. Zemanek
nity be prevented from following, inter se, more stringent rules than
the global community ? Moreover, the prescription of Article 30,
paragraph 3, is inconsistent with the VCLTs own Article 41 : should
States conclude a regional convention after the Covenant, they could
modify any provision of the latter with inter se effect, as long as the
derogation was not incompatible with the effective execution of the
object and purpose of the [earlier] treaty as a whole. One fails to
detect a ground for making the incompatibility of individual treaty
provisions the parameter for a previously existing regional conven-
tion and the effective execution of object and purpose a more loosely
defined point of reference for judging a subsequent regional conven-
tion. A search for a new, more value-oriented rule to cover the suc-
cession of multilateral treaties of different personal scope, especially
when they establish erga omnes obligations, seems indicated.
462. It is, thus, legitimate to question the suitability of a single
uniform rgime for all types of multilateral treaties, as provided by
Article 30 of the VCLT.
If rights and obligations under a multilateral treaty are in reality
bilateral in nature, and if these rights and obligations are separable
so that those which are compatible with the later treaty can be per-
formed between the parties, a modified lex posterior rule does,
indeed, appear as appropriate solution.
463. The picture changes if one or both multilateral treaties estab-
lish erga omnes obligations, especially in the human rights field, or
if the two treaties originate in different concepts and are committed
to different, maybe even conflicting values, as, for instance, the
GATT/WTO rgime on the one hand and multilateral treaties pro-
tecting the environment or securing sustainable development on the
other. One may doubt that conflicts of this nature can be solved by
a, however modified, lex posterior rule. To put these treaties on the
same footing and subject them to a mechanical rule neglects their
different roles in the international system 761. A distinction according
to their purposes and to the values embodied in them should be
introduced to protect essential values which have once been agreed
on against infringement 762. It would be grotesque to permit some
parties to a multilateral human rights convention to lower the stan-
dards established therein by an inter se modifying agreement, pre-
761. See also Vierdag, supra footnote 754, 106-108.

762. This idea is discussed by Macdonald, supra footnote 398, at 143-148.
tending that the execution of the elusive object and purpose of the
first convention as a whole was thereby not jeopardized. This
scenario would raise the same problems that are still unresolved
in respect of inadmissible reservations 763.
464. Since it seems far-fetched to expect that a general consensus
can be achieved on the superiority of certain values and on the jus
cogens character of the legal norms which implement them, the par-
ties of a multilateral treaty alone are presently capable of establish-
ing a hierarchical relationship with other multilateral treaties. This
can either be done by limiting the freedom of the parties to a con-
vention to modify it through inter se agreements, as Article 73 of the
VCCR does 764. Another possibility is the use of the device incorpo-
rated in Article 103 of the Charter and in Article 311 of the 1982
UNCLOS which decree the priority of performing the obligations
resulting from their respective instruments over obligations under
other (multilateral) treaties. Lastly, parties to a later convention
could safeguard the integral performance of an earlier one by mak-
ing the later one subject to the earlier. Any of these methods, and
others that may be invented in the future, could serve the purpose.
What really has to be done, however, is to convince States that the
safeguard of essential values against trespassing by treaty and, thus,
the necessity of limiting the freedom of States to deviate from values
embodied in provisions of a previous treaty, are vital to the interna-
tional systems ability to face the challenges of the twenty-first cen-
tury in a coherent way.
III. Charter Obligations and Other International Obligations
465. Article 103 of the Charter contains a priority model as dis-

cussed above. However, because of the importance of the Charter
and of the principles enshrined in it for the functioning of the inter-
national system, it merits special attention. Construed strictly,
Article 103 concerns obligations of member States under the Charter
and conflicting obligations that arise for them under any other inter-
national agreement and resolves that the obligations under the Char-
ter shall prevail. Obligations under the Charter are not further
defined. They presumably include not only obligations which derive

764. See Chap. VI, para. 233.
230 K. Zemanek
directly from the Charter but also obligations which, by the opera-
tion of Article 25 of the Charter, may arise for member States from
decisions of the Security Council under Chapter VII of the Charter.
466. According to general opinion Article 103 secures only the
priority of performance of obligations under the Charter. This was
succinctly stated by Sir Humphrey Waldock, as Special Rapporteur
of the ILC, in the following terms : . . . the very language of
Article 103 makes it clear that it prescribes the priority of the Charter,
not the invalidity of treaties conflicting with it 765. Article 103 does
not affect the legal validity of the obligation which may not be per-
formed, nor the legal validity of the other agreement in which the
obligation originates ; it only suspends, for the duration of the obli-
gation under the Charter, the performance of some or all obligations
which the other agreement creates 766. One can easily imagine a
commercial treaty which may not be further executed while the
Security Council imposes economic sanctions under Article 41 of
the Charter against the other contracting State. Yet, does this non-
performance entitle the other party to denounce the treaty, in accor-
dance with Article 60 of the VCLT, in consequence of a material
breach ? If the other party is a member of the United Nations one
may argue that, as a system partner, it has accepted the rules of the
Charter and is thus precluded from claiming a breach of the com-
mercial treaty.
467. But could that be argued also in respect of a non-member
State 767 ? Article 2, paragraph 6, of the Charter authorizes and
765. Paragraph 8 of the commentary to the then Article 65 (now Article 30,
VCLT), Third report on the law of treaties, A/CN.4/167, YBILC, 1964, Vol. II,
36. Cf. also Second report on the law of treaties, A/CN.4/156, YBILC, 1963,
Vol. II, 55 : commentary to Article 14, paragraph 10. See further E. Sciso, On
Article 103 of the Charter of the United Nations in the Light of the Vienna Con-
vention on the Law of Treaties, 38 AJPIL (1987), 161-179, 176 ; and E. Suy,
The Constitutional Character of Constituent Treaties of International Organiza-
tions and the Hierarchy of Norms, in U. Beyerlin et al. (eds.), supra footnote
336, at 267-277, 274.
766. It is difficult to contradict the statement of R. Bernhardt, Commentary
on Article 103, in B. Simma et al. (eds.), supra footnote 279, at 1117-1125,
MN 16 : The better view is that such treaties are void and not merely sus-
pended, because that opinion is not based on legal reasoning but simply stated.
767. In his Third report on the law of treaties (supra footnote 765, ibid.),
Sir Humphrey Waldock felt that
[t]he more general opinion, however, seems to be that, while Article 103
precludes the Member State from executing the treaty which is inconsistent
with the Charter, the non-member remains entitled to hold the Member
responsible for a breach of the treaty.
charges the Organization to ensure that non-members act in accor-

dance with the principles of the United Nations as far as may be
necessary for the maintenance of international peace and security.
But that is a task of the Organization and does not create legal
obligations for non-member States 768.
468. An answer can, therefore, not be found in Article 103,
because it refers only to member States and their obligations under
the Charter. If, however, the principles underlying the powers of the
Security Council under Chapter VII of the Charter are regarded as
jus cogens, one could argue that they also bind non-members since
universality is their defining characteristic 769. One might then con-
sider decisions of the Security Council under Chapter VII which
implement these jus cogens principles as derivative, secondary jus
cogens which was binding on its own upon non-member States.
Hence, even a non-member would be prevented from denouncing a
bilateral treaty on the ground of non-performance, if the non-perfor-
mance was due to a Security Council decision under Chapter VII.
469. Yet, Article 103 is not without limits. The concept of jus
cogens implies that a norm of that character must be respected by all
actors in the international system, including organs which States
may create for common action. The Security Council is thus bound
by the norms of jus cogens in the same manner as the States com-
posing it, and its decisions are null and void if they conflict with a
peremptory norm. It is equally inconceivable that a decision by the
Security Council, invoking the duty under Article 25 of the Charter,
should oblige members of the United Nations to violate their obliga-
tions under human rights conventions. The limits which apply to
countermeasures 770 must also restrain the freedom of the Security
Council. But the apparent conflict potential adds a further argument
to the plea for a universally recognized superiority of essential com-
munity values, expressed by a firmly settled hierarchical position 771.
768. Cf. the case concerning the Aerial Incident of 27 July 1955 (Israel v.
Bulgaria), Preliminary Objections, ICJ Reports 1959, 127-146, 138. Contrary
opinion H. Kelsen, The Law of the United Nations, New York, 1951, 106-110.
Macdonald, supra footnote 398, at 126-128, examines the different views.
W. Graf Vitzthum, Commentary on Article 2 (6) in B. Simma et al. (eds.),
supra footnote 279, at 131-139, MN 23-24, rightly points out that non-members
which do not comply may face political consequences, but that is a question of
political power and does not make compliance a legal duty.
769. Bernhardt, supra footnote 766, MN 17, argues along similar lines.
770. See Chap. XV, paras. 698-715.
771. Supra, paras. 461-464, and Chap. VI, paras. 234-237.
232 K. Zemanek
470. Some authors 772 maintain that Article 103 relates not only to
obligations under other international agreements but also to obli-
gations arising from customary international law, at least in a case
where the Charter obligation originates in jus cogens. They have a
point in logic if one takes the purpose of Article 103 into account. In
applying sanctions under Chapter VII the Security Council is acting,
albeit in a special manner, like individual States when applying
countermeasures : it legitimately infringes otherwise protected legal
positions. Thus, if a position is protected by customary international
law it should be as open to Security Council intervention as if the
position were protected by a treaty ; and member States should not
be allowed to refuse carrying out the decision with the argument that
they had a conflicting obligation under customary international law.
But that interpretation rests on shaky ground. Logic is a tool of
interpretation, not a means for creating new obligations. And the
wording of Article 103 is just the way it is.
772. E.g. H. F. Kck, UN-Satzung und allgemeines Vlkerrecht Zum

exemplarischen Charakter von Art. 103 SVN, in K. Ginther et al. (eds.), supra
footnote 44, at 69-93, 90.
233
PART III
LAW-ENFORCEMENT
CHAPTER XI
REMEDIES IN PRIMARY LAW
I. The System of Primary and Secondary Norms
A. The Concept
471. When the ILC started its second attempt to codify the law of
State responsibility, it decided, on the suggestion of Roberto Ago, its
then Special Rapporteur 773, to distinguish between primary and
secondary rules of international law as a device for delimiting its
subject. According to the concept, primary rules impose specific
obligations on States, whereas secondary rules, i.e. the law of
State responsibility, are concerned with determining the legal conse-
quences of a failure to fulfil the obligations established by primary
rules 774. This terminology is now fairly generally followed.
472. The dogmatic distinction may lead to the assumption that
legal remedies exist only in secondary law 775. This is, however,
not the case. As has been previously argued 776 and will be further
argued in other contexts 777, sectional primary rules may contain pro-
visions for dealing with non-compliance, especially dispute settle-
773. See his Second Report on State Responsibility, A/CN.4/233 (1970),

para. 11. The idea was reiterated in his Third Report on State Responsibility,
A/CN.4/246 (1971), para. 15.
774. See UN, GAOR, 28th Session (1973), A/9010 : Report of the ILC on its
25th Session, para. 40. See further J. Combacau and D. Alland, Primary and
Secondary Rules in the Law of State Responsibility : Categorizing Interna-
tional Obligations, 16 NYIL (1985), 81-109.
775. H. L. A. Hart, who first suggested the distinction, used the term secon-
dary rules indeed in a different sense. According to him, primary norms regu-
late the behaviour of subjects of international law, whereas secondary norms
regulate the primary rules : creation, modification, extinction, interpretation and
operation ; see supra footnote 13.
776. In Chap. II, paras. 83-87.
777. See Chaps. XIII and XIV.
234 K. Zemanek
ment procedures, but also genuine remedies against further harm

being caused by non-compliance with substantive rules. However,
the main purpose of such provisions is the preservation of the
systems functioning. Only highly organized forms occasionally
include also sanctions ; more often these are left to the law of State
responsibility. Sectional rules are, therefore, leges speciales with
respect to general international law 778. And in spite of the seemingly
secondary nature of rules providing for redress, they remain part
of the system of primary norms in the sense of the ILC 779. They
may be used simultaneously with measures under secondary law
or, if the system so provides, have to be exhausted before the appli-
cation of general secondary rules is permitted, should the systems
remedies not correct the non-compliance 780.
B. Types of primary norm systems
473. Sectional primary norm systems exist in various forms.

They may be unorganized in the sense of establishing only substan-
tive rights and/or obligations of conduct for their parties without
creating specific procedures for their administration. This type of
sectional rules is not further considered here.
474. A slightly higher degree of institutionalization is achieved
by special rgimes781. The term is not intended as allusion to rgime
theory which became fashionable some time ago, especially among
American scholars of international relations. Pierre de Senarclens
has convincingly demonstrated that the rgime concept, as used by
these scholars, has never been clearly defined and was used to cover
778. Cf. Fitzmaurice, supra footnote 141.

779. Cf. Article 37 of the Draft of the ILC on State Responsibility, UN,
GAOR, 51st Session (1996), A/51/10 : Report of the ILC on its 48th Session,
138 :
The provisions of this Part do not apply where and to the extent that the
legal consequences of an internationally wrongful act of a State have been
determined by other rules of international law relating specifically to that
act.
Cf. also the case concerning the Air Services Agreement of 27 March 1946
between the U.S.A. and France (1978), XVIII RIAA, 417-447, 443, para. 81.
780. See T. Meron, On the Relationship between Settlement of Dispute Pro-
cedures in Human Rights Treaties and Other Procedures and Remedies, in W.
Haller et al. (eds.), Im Dienst an der Gemeinschaft, Festschrift fr D. Schindler,
Basel, 1989, 109-114.
781. See W. Lang, Regimes and Organizations in the Labyrinth of Interna-
tional Institutions, in K. Ginther et al., (eds.), supra footnote 44, at 275-289.
phenomena that are not really comparable agreements on any-

thing from whales to economic or political systems 782. Because of
this vagueness, rgime theory does not provide a better insight into
the legal side of these phenomena. In the present context the term
denotes sectional rules which regulate the conduct of participating
States in a defined area and include at least elementary rules for the
administration of the rgime, in most cases concerning the settle-
ment of disputes, while referring for the rest to the secondary rules
of general international law. Special rgimes thus form more or less
imperfect sub-systems of international law. As an example, environ-
mental law will be examined infra.
475. The most frequent form are open sub-systems which estab-
lish a more substantive remedial rgime and are sometimes endowed
with special organs for supervising the implementation of obliga-
tions by the participants and for deciding disputes. But they are open
for the application of secondary rules of general international law
should the remedies of the primary rules fail. On the upper end of a
scale of institutionalization one could place the European Conven-
tion on Human Rights, and on the lower end perhaps the VCLT,
which provides in Article 60 for the termination or suspension of the
operation of a treaty as a consequence of its breach, establishes
settlement of dispute procedures in Article 66 and reserves the appli-
cation of the law of State responsibility in Article 73 783.
Humanitarian law will be examined infra as an example of a
system of sectional rules which is strengthening its means of redress
by intensifying and expanding individual criminal responsibility for
its violations.
476. A special case are so-called self-contained rgimes 784, a
concept which the ICJ introduced in the case concerning United
States Diplomatic and Consular Staff in Tehran 785. In one passage
the Court considered the rules of diplomatic law, in another the
principles of inviolability of the person of diplomatic agents and the
premises of diplomatic missions as having this nature 786. The
782. P. de Senarclens, Regime Theory and the Study of International Organ-

izations, 138 International Social Science Journal (November 1993), 453-462,
456.
783. Cf. L.-A. Sicilianos, The Relationship between Reprisals and Denuncia-
tion or Suspension of a Treaty, 4 EJIL (1993), 341-359.
784. See B. Simma, Self-contained Regimes, 16 NYIL (1985), 111-136.
785. ICJ Reports 1980, 3-46.
786. Ibid., 40, para. 86.
236 K. Zemanek
Courts conclusions drawn from these assessments describe a closed

sub-system : a breach of an obligation established by these rules does
not entitle to other measures against the protected persons or prem-
ises than those provided by the rgime itself.
477. The concept has major flaws. In the first instance, the Court
failed to indicate criteria by which such a system could be identified.
Secondly, the Court, when referring to the rules of diplomatic law
and thus to a wider body of law than the principles of diplomatic
inviolability, gave no reason why an injured State should be pre-
vented from applying countermeasures against other objects of the
perpetrator State than the latters diplomatic mission and/or person-
nel, which would be the consequence of a self-contained rgime.
478. It is doubtful whether the concept is relevant beyond the
decided case. It seems to be out of place in the system of interna-
tional law, an artificial construct 787. Scholars, in their vast majority,
have been and are still critical and no other self-contained rgime
has yet been discovered 788, nor has the notion reappeared in other
judgments of the ICJ.
479. The highest form of organized sub-systems, especially as far
as remedies against non-compliance with the systems rules are con-
cerned, are international organizations, and particularly supra-
national organizations. The relevant aspects of these sub-systems
have been or will be dealt with elsewhere 789.
II. Selected Examples of Primary Norm Remedies
A. Environmental law
480. Although the term environmental law is commonly used 790,
the sectional rules to which it refers can only with some benevolence

788. Simmas assessment, supra footnote 784, that the EEC treaty (123-129)
and human rights treaties (129-135) belong to this group is not generally shared.
On the EEC see A. Marschik, Subsysteme im Vlkerrecht Ist die Europische
Union ein self-contained regime ? (forthcoming). On human rights treaties cf.
the provisions dealing with erga omnes obligations in the ILCs Draft on State
Responsibility examined in Chapter XII, paras. 558-560.
789. See Chaps. IV and XIV.
790. Cf. A. C. Kiss and D. Shelton, International Environmental Law, New
York, 1991 ; M. A. Fitzmaurice, International Environmental Law as a Special
Field, 25 NYIL (1994), 181-226 ; T. Gering, Dynamic International Regimes.
Institutions for International Environmental Governance, Frankfurt am Main,
1994.
be described as a special rgime, because they consist of a number

of general 791 or regional 792 conventions with a different degree of
regulation, and, at present, of very little nascent, and still rudimen-
tary customary law. It is, however, not the intention to enter in the
present context into a discussion of the substantive features of these
regulations ; only available remedies will be considered.
481. If a multilateral convention establishes binding international
standards, for example for the permissible emission of noxious
fumes, any violation of such a standard by a party permits not only
the use of the remedies of treaty law 793 but gives rise to State
responsibility and hence to the application of the secondary rules of
general international law. Since that situation is not peculiar to envi-
ronmental law, it is not further examined.
482. The situation is fundamentally different if the activity which
causes harm to the environment in another State is not prohibited by
international law. The question then arises whether the customary
system of norms on environmental protection establishes, at present,
a primary obligation of liability, which means the duty to repair
harm that is not contingent upon a violation of an international obli-
gation 794.
483. Since 1978 the ILC has the topic of International Liability
for Injurious Consequences Arising out of Acts not Prohibited by
International Law on the agenda for codification. Owing to a series
of unfortunate circumstances, the Commission has not yet adopted a
draft, even on first reading. The provisional result of its work was
presented in 1996 in the form of a report of a working group 795. The
report deals extensively with prevention and co-operation but is not
enlightening as far as liability is concerned. It only states in Article 5
that liability, entailing the duty to provide compensation or other
relief, exists. But in Article 21 it then proposes that States should
791. E.g. the 1987 Vienna Convention for the Protection of the Ozone Layer
(text reprinted in 26 ILM (1987), 1529-1540) and subsequent implementation
protocols.
792. E.g. the 1979 ECE Convention on Long-Range Transboundary Air Pol-
lution (text reprinted in 18 ILM (1979), 1442-1450) and subsequent implemen-
tation protocols.
794. Cf. G. Handl, State Liability for Accidental Transnational Environmen-
tal Damage by Private Persons, 74 AJIL (1980), 525-565 ; id., Liability as an
Obligation Established by a Primary Rule of International Law, 16 NYIL
(1985), 49-79.
795. See source in footnote 779, at 181 (paras. 96-100) and Annex I.
238 K. Zemanek
negotiate on the nature and extent of compensation or other relief.

The draft does not provide for specific measures to enforce this duty
to negotiate, but it is obvious that in a case of refusal the secondary
norms of State responsibility would come into play.
484. It is not clear from the report whether the ILC regards
the part on liability as a result of progressive development or as a
statement of existing customary law. The views of scholars are
divided. Those who stress the customary character of liability rely
primarily on a number of international cases, usually Trail Smelter 796,
Lac Lanoux 797, Corfu Channel 798, Nuclear Tests cases (Interim
Measures) 799, Cosmos 954 800, and a few others, in support of their
view.
485. A critical examination of these instances shows, however,
that except in the case of Cosmos 954, where a treaty obligation
existed 801, the decisions relied on unlawfulness of the conduct and
not on liability. This is apparent even in the Trail Smelter case in
which the Tribunal introduced the concept of liability when it estab-
lished in Part Four of its first Decision a temporary rgime 802, and in
Part Four of its second Decision a final rgime 803 for the smelter, and
therein made future damage, which might result despite observance
of the rgime, subject to liability. But the legal ground for the Deci-
sion must be separated from the rgime which the Decision estab-
lished. The famous quote from the second Decision that no State
has the right to use or permit the use of its territory in such a man-
ner as to cause injury by fumes in or to the territory of another 804
implies that, if such a right does not exist, the conduct is unlawful
and causes State responsibility.
796. III RIAA, 1911-1937 (1st Decision), 1938-1982 (2nd Decision).

797. Lac Lanoux Arbitration, France v. Spain, 24 ILR (1957), 101-142 ; in
abridged form in 53 AJIL (1959), 156-171.
798. Corfu Channel case, Merits (United Kingdom v. Albania), ICJ Reports
1949, 4-169.
799. Nuclear Tests case (Interim Measures) (Australia v. France), ICJ
Reports 1973, 104-105 (paras. 25-30) ; Nuclear Tests case (Interim Measures)
(New Zealand v. France), ICJ Reports 1973, 140-141 (paras. 26-31).
800. Cosmos 954, Canada v. USSR, 18 ILM (1979), 899-930 ; see also
20 ILM (1981), 689.
801. See the Soviet note of 21 March 1978, ibid., 923. In this case liability
was accepted with reference to the 1972 Space Liability Convention to which
both States were parties.
802. III RIAA, 1934-1937.
803. Ibid., 1966-1980.
804. Ibid., 1965.
486. It is, on the other hand, doubtful whether the decision was
based on international law at all. The Convention for Settlement
of Difficulties Arising from Operation of Smelter at Trail, BC of
3 August 1935 between the United States and Canada directed the
Tribunal in Article IV to apply :
the law and practice followed in dealing with cognate ques-
tions in the United States of America as well as international
law, and shall give consideration to the desire of the high con-
tracting parties to reach a solution just to all parties con-
cerned 805.
487. The Tribunal frequently mentioned in its two decisions that
it had given consideration to the desire of the high contracting par-
ties to reach a solution just to all parties concerned 806 and added,
after the phrase quoted above :
The Decisions of the Supreme Court of the United States
which are the basis for these conclusions are decisions in
equity and a solution inspired by them, together with the
regime hereinafter prescribed, will, in the opinion of the Tribu-
nal, be just to all parties concerned, as long, at least, as the
present conditions in the Columbia River Valley continue to
prevail. 807
It seems, therefore, that the case was decided ex aequo et bono,
rather than on the basis of international law 808.
488. The foregoing analysis supports the thesis that, as yet, no
firmly established general rule of customary law on liability for acts
not prohibited by international law exists 809 quite apart from the
question whether an isolated arbitral award would suffice to create
805. III RIAA, 1908

806. Ibid., 1912, 1938-1939, 1965.
807. Ibid., 1965 (emphasis added).
808. See for the same opinion H. L. Dickstein, International Law and the
Environment : Evolving Concepts, 26 YB World Affairs (1972), 245-266, 252 :
[T]he Tribunal was more concerned with reaching an equitable result than
making an international legal precedent. Cf. also the, albeit for other reasons,
critical views of K. J. Madders, Trail Smelter Arbitration, 2 EPIL (1981),
276-280, 279-280.
809. See K. Zemanek, State Responsibility and Liability, in W. Lang et al.
(eds.), Environmental Protection and International Law, London, 1991, 187-
201, 194. This view is confirmed by the comprehensive comparative study
of R. Harndt, Vlkerrechtliche Haftung fr die schdlichen Folgen nicht ver-
botenen Verhaltens, Berlin, 1993.
240 K. Zemanek
new custom or even to evidence existing custom. This situation was

not altered by the Stockholm Declaration of 1972 810 which pro-
claimed in Principle 21 that the maxim sic utere tuo ut alienum non
laedas obliged States to avoid transboundary ecological harm. The
consensus of opinion expressed in the Declaration implies that activ-
ities in disregard of the maxim should be regarded as violations of
international law. But violations of international law cause State
responsibility, not liability. The Declaration has, in any case, not yet
led to State practice accepting liability.
489. The analysis should, on the other hand, not be interpreted as
supporting the view that liability was not an indispensable element
for a comprehensive system of redress for ecological damage. Quite
to the contrary : it is. But instead of conjuring up an inexistent cus-
tomary basis for it, the energy should be saved for firmly establish-
ing it in appropriate conventions. It must, however, be pointed out
that the purpose of the existing conventions for the protection of the
environment is to establish binding standards. Their eventual viola-
tion would not give rise to liability but would cause State respon-
sibility. Liability obligations in treaty form exist only under the 1972
Convention on the International Liability for Damages Caused by
Space Objects 811 and under the 1958 Geneva Convention on the
High Seas 812.
B. Humanitarian law
1. Individual responsibility in humanitarian law

490. International humanitarian law has developed gradually
since the nineteenth century 813. Although it is frequently referred to
as if it were a comprehensive, uniform body of law 814, the rules
810. Reprinted in 11 ILM (1972), 1416-1421. Reiterated in the Rio Declara-

tion of 1992, Principle 2 ; text reprinted in 31 ILM (1992), 874-880.
811. Text reprinted in 66 AJIL (1972), 702-709 ; Art. II.
812. Text reprinted in 52 AJIL (1958), 842-851 ; Art. 22, para. 3.
813. See I. Detter de Lupis, The Law of War, Cambridge, 1987, 121-137.
814. See e.g. G. Abi-Saab, The Specificities of Humanitarian Law, in C.
Swinarsky (ed.), Studies and Essays on International Humanitarian Law and
Red Cross Principles in Honour of J. Pictet, Geneva, 1984, 265-280 ; Y. San-
doz, Pertinence et permanence du droit international humanitaire, in A. J. M.
Delissen and G. J. Tanja (eds.), Humanitarian Law of Armed Conflict Chal-
lenges Ahead, Essays in Honour of F. Kalshoven, Dordrecht, 1991, 27-38 ; and
R.-J. Wilhelm, Quelques considrations gnrales sur lvolution du droit inter-
national humanitaire, ibid., 39-66.
which compose it are rather heterogeneous : the law of The Hague

stands side by side with the law of Geneva ; although the two Addi-
tional Protocols of 1977 were intended as a bridge between the two
they have not yet attracted a sufficient number of ratifications to
achieve this beyond doubt ; and custom has always existed beside
conventions and has further evolved through some conventions
which have turned into custom.
491. The idea of individual international responsibility for viola-
tions of the laws and customs of war was transformed into practice
after the First World War 815. Its aim was to extend universal crimi-
nal jurisdiction to the prosecution of crimes against the jus in bello,
more specifically the nascent humanitarian law of that time. But the
substantial development of detailed rules in the field of individual
responsibility probably came with the Nuremberg trials 816 and the
Tokyo trials 817 which extended individual responsibility beyond the
traditional war crimes to crimes against peace and crimes
against humanity. The Geneva Conventions of 1949 and Additional
Protocol I of 1977 have strengthened the case of individual respon-
sibility by inserting appropriate provisions to this effect into the text,
although they leave it to the contracting States to enact legislation
necessary to provide effective penal sanctions 818. With the Conven-
tions of 1949 the concept of humanitarian law took shape and the
term came into general use.
492. Yet while the idea of individual responsibility seemed now
firmly settled, no concomitant permanent international machinery
for its implementation was created ; a permanent International Crim-
inal Court is still only a plan 819. All tribunals which have hitherto
judged war crimes were either ad hoc international tribunals or tribu-
nals acting under domestic law.
815. See Detter, supra footnote 813, at 353-354.

816. See H. Donnedieu de Vabres, Le procs de Nuremberg devant les prin-
cipes modernes du droit pnal international, 70 Recueil des cours (1947-I),
481-677 ; and R. K. Woetzel, The Nuremberg Trials in International Law with a
Postlude on the Eichmann Trial, 2nd ed., New York, 1962.
817. See P. S. Dull and M. T. Unemura, The Tokyo Trials, University of
Michigan, 1962 ; B. V. A. Rling, The Tokyo Trial and Beyond, (re-ed. by
A. Cassese), Cambridge, 1993 ; and particularly Y. Onuma, Beyond Victors
Justice, 11 Japan Echo (1984), Special Issue, 63-72.
818. Cf. A. Marschik, The Politics of Prosecution : European National
Approaches to War Crimes, in T. L. H. McCormack and G. J. Simpson (eds.),
The Law of War Crimes, Dordrecht, 1997, 65-101.
242 K. Zemanek
2. The Tribunal for the Former Yugoslavia
493. With the International Tribunal for the Prosecution of Per-

sons Responsible for Serious Violations of International Humanitar-
ian Law Committed in the Territory of the Former Yugoslavia since
1991 (Bosnia Tribunal) a new instance of ad hoc jurisdiction was
created, this time by the Security Council. The legal problems con-
nected with the establishment of that Tribunal have been dealt with
elsewhere 820. In the present context the Tribunal will be examined
under the aspect of strengthening the legal remedies in the partly
organized sub-system of international humanitarian law by intensify-
ing and expanding individual criminal responsibility for violations.
494. It was the loose construction of the sub-system which
caused difficulties in establishing the subject-matter jurisdiction of
the Tribunal. The different sources, some conventional, others cus-
tom, and the consequential variation in parties bound by specific
rules, but particularly the uncertainty of the extent to which custo-
mary law applies to non-international armed conflicts, make interna-
tional humanitarian law in reality a bundle of separate rgimes
brought together under one heading for convenience.
495. According to its Statute 821 the Tribunal shall prosecute
grave breaches of the Geneva Conventions of 1949 (Art. 2), viola-
tions of the laws and customs of war (Art. 3), genocide (Art. 4), and
specific crimes against humanity (Art. 5). Only the last Article indi-
cates explicitly that prosecution shall take place independently of
whether the crime was committed in an international or an internal
conflict.
These Articles raise a number of queries.
496. The situation in the Former Yugoslavia was complex
because international armed conflicts were amalgamated with civil
wars. Such was the finding of the Appeals Chamber of the Tribunal
in The Prosecutor v. Dusko Tadic a/k/a/ Dule 822. The Statute, by
not distinguishing between these aspects, leaves open the question
whether all quoted conventions and customs apply to all parties in-
volved, even to civil war parties, and to persons under their control.

821. Annex to Security Council resolution 827 (1993). Reprinted in 32 ILM
(1993), 1192-1201.
822. Source in footnote 86 ; see also text in that note and further G. H.
Aldrich, Jurisdiction of the International Criminal Tribunal for the Former
Yugoslavia, 90 AJIL (1996), 64-69 ; and M. Sassli, supra footnote 467.
497. The Statute remains as vague on the question as resolution

764 (1992) in which the Security Council reaffirmed that all parties
are bound to comply with the obligations under international humani-
tarian law and in particular the Geneva Conventions of 12 August
1949, reminding them also of the individual responsibility for grave
breaches. But the Security Council failed to indicate why that should
also apply to non-State parties to the conflict which had never
adhered to the conventions in question and might not feel bound by
the eventual consent given by the State against which they were in
rebellion. One may speculate on the reasons for this vagueness ;
among them might perhaps have been the fear that the identification
of the parties to international conflicts would have made it difficult
not to decide the issue of a possible aggression, and the identifica-
tion of an aggressor would have made it impossible to apply an arms
embargo to the victim 823.
498. The Secretary-Generals commentary on the draft statute has
not clarified the issue. It glosses over the difficulty by stating, with-
out offering any proof, that [w]hile there is international customary
law which is not laid down in conventions, some of the major con-
ventional humanitarian law has become part of customary law 824.
The commentary is faulted in two ways : first, by creating the
impression that it was irrelevant whether the parties which were
involved in the different conflicts in the Former Yugoslavia were
parties to humanitarian law conventions 825, arguing that the conven-
tions had anyway become customary law 826. That, to state it mildly,
is a debatable issue and not a clearly defined legal basis for criminal
jurisdiction as required by the rule of law. And secondly, by creating
the impression that the distinction between international and non-
823. See Chap. II, paras. 60-61, and Chap. IV, para. 156.
824. Supra footnote 683, para. 33. In paragraph 35 they have become
beyond doubt part of international customary law ; and paragraph 37 states
that the Geneva Conventions . . . provide the core of the customary law appli-
cable in international armed conflicts. If they are the core what is then the
content of the surrounding custom ?
825. That is examined by David, supra footnote 688, at 572-574.
826. The extent to which Protocol I is general international law has been
examined by M. Sassli, Bedeutung einer Kodifikation fr das allgemeine
Vlkerrecht mit besonderer Betrachtung der Regeln zum Schutze der
Zivilbevlkerung vor den Auswirkungen von Feindseligkeiten, Basel, 1990,
whose conclusions do not support the proposition of the commentary (509-512,
paras. 702-703). Cf. also C. Greenwood, Customary Law Status of the 1977
Geneva Protocols, in A. J. M. Delissen and G. J. Tanja (eds.), supra footnote
814, at 93-114 ; and G. Abi-Saab, The 1977 Additional Protocols and General
International Law : Some Preliminary Reflexions, ibid., 115-126.
244 K. Zemanek
international conflicts was irrelevant because the same customary

law covered both, thereby evading the question of whether individ-
ual responsibility applied in non-international conflicts 827.
499. In addressing these issues the Appeals Chamber of the Tri-
bunal came to more subtle conclusions. It found that, in the present
state of development of the law, Article 2 of the Statute [i.e. the
Article referring to the Geneva Conventions of 1949] only applies
to offences committed within the context of international armed
conflicts 828. In respect of the laws and customs of war (Article 3
of the Statute) it concluded that although some general principles of
customary law have evolved with regard to internal armed conflict
only a number of rules and principles governing international
armed conflicts have gradually been extended to apply to inter-
nal conflicts, and . . . this extension has not taken place in the
form of a full and mechanical transplant of these rules to inter-
nal conflicts ; rather, the general essence of these rules, and not
the detailed regulation they may contain, has become appli-
cable to internal conflicts 829.
Most important, it also decided that
customary international law imposes criminal liability for seri-
ous violations of common Article 3 [i.e. the Article concerning
internal conflicts, common to all four Geneva Conventions of
1949], as supplemented by other general principles and rules
on the protection of victims of internal armed conflict, and for
breaching certain fundamental principles and rules regarding
means and methods of combat in civil strife 830.
827. T. Meron, supra footnote 681, though a strong advocate in favour, states
at 83 : [T]he extension of the concept of war crimes under international law to
abuses perpetrated in non-international armed conflicts is a welcome, though
still very tentative, development. OBrien, supra footnote 681, at 657, justifies
it by the fact that the prohibitions in common Article 3 of the Four Geneva Con-
ventions of 1949 are part of the law of the Former Yugoslavia ; but that does not
establish international jurisdiction. His view is also rejected by Pellet, supra
828. Supra footnote 86, at 48 (para. 84).
829. Ibid., 67 (paras. 125, 126). Cf. the measured and balanced critique of
T. Meron, The Continuing Role of Custom in the Formation of International
Humanitarian Law, 90 AJIL (1996), 238-249, 242-244.
830. Ibid., 70 (para. 134). Cf. C. Meindersma, Violations of Common
Article 3 of the Geneva Conventions as Violations of Laws and Customs of War
under Article 3 of the Statute of the International Criminal Tribunal for the
Former Yugoslavia, 42 NILR (1995), 375-397.
This last conclusion is an element of practice in support of the thesis

that, in principle, individual responsibility extends to non-interna-
tional military conflicts, albeit in a more limited manner as far as
punishable crimes are concerned. It will serve as precedent and the
future will tell whether it has been followed.
500. The Appeals Chamber has, on the other hand, not endorsed
the proposition that all provisions of humanitarian law conventions
have become customary law, though it was apparently guided by the
current trend to move from the inter-State approach to a human
rights approach in humanitarian law 831. Its decision contributes to
the consolidation of the sub-system international humanitarian law
by demonstrating that its parts are sufficiently interrelated to influ-
ence each other, which proves that the sub-system, though it may not
yet be homogeneous, has the potential of achieving homogeneity in
the course of time.
Nevertheless, if the Tribunal had been intended as a signal of
legality in an otherwise violent situation, it would have been appro-
priate to establish it on a secure constitutional basis and to define the
law to be applied sufficiently and in advance.
501. The exercise of the Tribunals jurisdiction requires in some
respect the co-operation of States and has to have regard in others to
their domestic laws. Since a detailed study of the Tribunals jurisdic-
tion is not necessary for the present purpose, only problems which
are inherent in the functioning of an international criminal tribunal
and thus of general interest will be considered.
502. Probably the most troublesome aspect of the Tribunals rela-
tion with States is the surrender or transfer of accused persons to
the Tribunal provided for in Article 29, paragraph 2, point e, of the
Statute. The Secretary-Generals commentary observes :
. . . an order by a Trial Chamber for the surrender or transfer
of persons to the custody of the International Tribunal shall be
considered to be the application of an enforcement measure
under Chapter VII of the Charter of the United Nations 832.
831. This trend is apparent from the work of the United Nations on the mat-
ter. Cf. the successive Reports of the Secretary-General on respect for human
rights in armed conflict, beginning with the First Report in 1969, UN doc.
A/7720 and the resolutions of the General Assembly adopted on the basis of
these reports. W. Klin (ed.), Human Rights in Times of Occupation, Berne,
1994, demonstrates that approach in the case of Kuwait (26-29, 79).
832. Source in footnote 683, para. 126.
246 K. Zemanek
503. This assertion raises two points for consideration : the first
concerns the query whether the Security Council may delegate its
powers under Article 48 of the Charter to the Tribunal. The problem
cannot be dismissed by a simple reference to Article 103 of the
Charter 833, because Article 103 would only apply if the Security
Council had acted within its powers ; and whether that is the case is
precisely the question. In States which adhere to the rule of law the
quoted injunctions, when not directly ordered by the Security Coun-
cil, may be difficult to incorporate into domestic law 834, which is a
requirement for a decision of the judicial authorities to order the sur-
render or transfer.
504. The second doubtful point concerns the notorious reluctance
of States to prosecute their own nationals for crimes against humani-
tarian law, as demonstrated by the victors of the Second World War
and by all parties to subsequent armed conflicts. Although such sur-
render or transfer is not identical with classical extradition, and
that term may have been deliberately avoided, most States outside
the Anglo-American orbit, which follows the concept of strict terri-
toriality of criminal jurisdiction, refuse to extradite their own nation-
als and consider themselves entitled to do so under international cus-
tom 835. One wonders, therefore, whether and to what extent States will
fulfil the duty imposed upon them by the Security Council 836. Prag-
matically, it seems that the even-handed prosecution of war crimes
is only possible if the State under whose authority they have been
committed has unconditionally surrendered or is otherwise subdued.
505. Since humanitarian law conventions and customary interna-
tional law leave it to States to enact the legislation necessary to pro-
833. Thus Pellet, supra footnote 682, at 56-57.

834. See for Austria R. Regner and A. Reinisch, Zur Umsetzung der
sterreichischen Verpflichtungen gegenber dem Jugoslawien-Tribunal der
Vereinten Nationen, 50 JZ (1995), 543-560 ; and for the United Kingdom
H. Fox, The Obligations to Transfer of Criminal Jurisdiction to the UN Tribu-
nal, 46 ICLQ (1997), 434-442.
835. Cf. I. A. Shearer, Extradition in International Law, Manchester, 1971,
94-125 ; and G. Gilbert, Aspects of Extradition Law, Dordrecht, 1991, 95-99. It
is interesting to note that neither has explored Islamic law.
836. Cf. C. Tomuschat, International Criminal Prosecution : The Precedent
of Nuremberg Confirmed, 5 Criminal Law Forum (1994), 237-247, passim ;
and M. Castillo, La comptence du Tribunal pnal pour la Yougoslavie,
98 RGDIP (1994), 61-86, 85-86. Resolution 3074 (XXIII) of the General
Assembly proclaiming Principles of international co-operation in the detection,
arrest, extradition and punishment of persons guilty of war crimes and crimes
against humanity (1973) has apparently not led to a significant change of atti-
tude.
vide effective penal sanctions, the Tribunal must necessarily have

recourse to the domestic law of States, in specie that of the Former
Yugoslavia or its successor States. Article 24 of the Statute provides
therefore that in determining the term of imprisonment, the Trial
Chambers shall have recourse to the general practice regarding
prison sentences in the courts of the Former Yugoslavia.
506. Even if one disregards the fact that the Former Yugoslavia
hardly qualifies as a model for the rule of law, one may wonder how
the reference to the practice of courts can be reconciled with the
principle of criminal justice which requires that the penalty for a
crime must be stated in advance 837. Equally difficult to reconcile
with that principle is the solution to refer for parole and conditional
release to the domestic law of the detaining State, as provided by
Article 28 of the Statute ; a generally applicable standard would be
required to avoid unfair treatment since the way in which States treat
their own prisoners differs greatly around the world. What has been
established as a corrective, namely to leave the evaluation and super-
vision within the discretion of the Tribunal, is not really satisfactory.
3. The Tribunal for Rwanda
507. The Statute of the International Tribunal for Rwanda 838

follows by and large the model of the Statute of the Bosnia Tribu-
nal, though its provisions are, in some respects, at once technically
simpler, since it deals with the less complex situation of a civil war,
and of greater legal significance.
508. The Tribunal was established for the prosecution of
persons responsible for serious violations of international
humanitarian law committed in the territory of Rwanda and
Rwandan citizens responsible for such violations committed in
the territory of neighbouring States, between 1 January 1994
and 31 December 1994 (Art. 1).
The problems of surrender and transfer and of recourse to domestic
law for the determination of penalties are therefore of relatively
lesser importance than in the case of the Bosnia Tribunal.
837. The relevant considerations by David, supra footnote 688, at 593, do not
dispel the doubt.
838. SC resolution S/RES/955 (1994) ; reprinted in 33 ILM (1994), 1602-
1613.
248 K. Zemanek
509. The applicable law is better defined than in the Statute of

the Bosnia Tribunal. Punishable acts constituting genocide (Art. 1)
or crimes against humanity (Art. 3) are specified. And so are the
punishable violations of Article 3 common to the Geneva Conven-
tions of 1949 and of the Additional Protocol II 839. War crimes are
not mentioned which coincides with the more traditional view that
they have no place in internal conflicts 840.
510. However, by ordering in Article 6, paragraph 1, of the Stat-
ute that persons having committed one of the aforementioned viola-
tions shall be individually responsible for the crime, the Secur-
ity Council has initiated a normative development : it has for
the first time criminalized common Article 3 841 and Protocol II. This
raises a number of questions, for example whether the prohibitory
norms in question are directed to individuals ; or whether retro-
active penal measures do not violate principles of criminal justice.
These questions cannot be pursued here since they are outside the
scope of the present subject and have, moreover, been thoroughly
examined 842.
511. But no matter how one evaluates the normative pronounce-
ment of the Security Council, it is of great importance as a prece-
dent. The future will show whether it remains isolated 843 or will be
reiterated and confirmed by national laws and national courts, which
would add State practice to what, at present, is no more than perhaps
emerging opinio juris 844.
Regardless of the outcome, the normative innovation underlines
the influence which the Security Council may exercise on the
shaping of customary international law 845.
839. Rwanda is a party to both the Geneva Conventions and the Additional
Protocols wherefore the customary law character of Common Article 3 and of
Protocol II is not an issue.
840. T. Meron, International Criminalization of Internal Atrocities, 89 AJIL
(1995), 554-577, 574, properly regrets this. The traditional view may change in
the future under the influence of the more subtle conclusions of the Appeals
Chamber of the Bosnia Tribunal ; see text in footnote 829.
841. Thus the Secretary-General in a Report, UN doc. S/1995/94, para. 12.
842. They are discussed in detail in the thoughtful paper by Meron cited in
footnote 840, at 556-568 ; see also Meindersma, supra footnote 830.
843. It seems likely that the Decision of the Appeals Chamber of the Bosnia
Tribunal concerning individual responsibility in non-international conflicts (see
text in footnote 830) was inspired by it.
844. Cf. Meron, supra footnote 840, at 577.
845. See Chap. IV, paras. 150-160 ; Chap. VII, para. 281 ; and Chap. IX,
paras. 404-413.
4. The International Criminal Court
512. As an offshoot of its work on a Code of Crimes against the

Peace and Security of Mankind, the International Law Commission
has for some time been working on the idea of an International
Criminal Court 846 and in 1994 submitted a Draft Statute 847 to the
General Assembly. After discussions in the Sixth Committee an Ad
Hoc Committee was set up to review major substantive and admini-
strative issues arising out of the draft statute 848. The Ad Hoc Com-
mittee met twice before the fiftieth session of the General Assembly
and its report 849 reflects the still diverging views of the members on
substantive matters as well as on the procedural course to be
followed for the adoption of the Statute. In resolution 50/46 of
11 December 1995 the General Assembly established a Preparatory
Committee to draft a widely acceptable convention and to report on
it to the Assembly at its next session 850.
513. The Draft Statute as submitted by the ILC eliminates some
of the points criticized in connection with the Statute of the Bosnia
Tribunal. A firm constitutional basis would be secured because the
ILC envisages that the Statute be attached to a treaty between the
States parties 851. In a further improvement the Draft Statute makes
the exercise of jurisdiction dependent on its prior acceptance with
respect to the crime in question by the State which has the custody
of the suspect and by the State on the territory of which the act or
omission in question occurred ; and in cases where there is a pending
request from another State for extradition with respect to a crime
that is within the jurisdiction of the Court, the consent of the
846. See J. Crawford, The ILC Adopts a Statute for an International Crimi-
nal Court, 89 AJIL (1995), 404-416, 404. Cf. also B. B. Ferencz, An Interna-
tional Criminal Code and Court : Where They Stand and Where Theyre Going,
30 Columbia J. Trans. L. (1992), 375-399 ; C. Tomuschat, Ein internatio-
naler Strafgerichtshof als Element der Weltfriedensordnung, 49 Europa Archiv
(1994), 61-70 ; and L. H. McCormack and G. J. Simpson, A New International
Criminal Law Regime ?, 42 NILR (1995), 177-206.
847. UN, GAOR, 49th Session, Suppl. No. 10 (A/49/10) : Report of the ILC
on its 46th Session, 43-141. Cf. also the Report of the ILCs Working Group on
the Draft Statute, A/CN.4/L.491 (17 June 1994).
848. GA resolution 49/53.
849. UN, GAOR, 50th Session, Suppl. No. 22 (A/50/22) : Report of the Ad
Hoc Committee on the Establishment of an International Criminal Court.
850. By resolution 51/207, of 17 December 1996, the General Assembly
extended the mandate of the Preparatory Committee into 1998, instructing it to
submit a draft for consideration by a diplomatic conference to be held in 1998.
851. Draft Statute, supra footnote 847, Appendix I, para. 1
250 K. Zemanek
requesting State is also required 852. The flexibility of the jurisdic-

tional clauses makes it possible that in respect of crimes under trea-
ties which are specified in an Annex States may select those for
which they accept the Courts jurisdiction. If, however, a State party
to such a treaty does not accept jurisdiction of the Court with respect
to crimes under the treaty, it must either extradite the suspect to a
requesting State or prosecute him 853. Only the crime of genocide is
treated differently : if a complaint is lodged by a contracting party to
the Genocide Convention, the Court has inherent jurisdiction as
between all parties to the Statute 854.
These provisions should alleviate the domestic law problems con-
cerning surrender or transfer under the Statute of the Bosnia Tribu-
nal. As the preamble of the Draft Statute emphasizes, the court is
intended to be complementary to national criminal justice systems in
cases where such trial procedures may not be available or may be
ineffective.
514. The subject-matter jurisdiction of the Court is detailed in
Article 20 of the Draft Statute. In formulating it the ILC has not
retained its earlier idea of tying the Statute to the Draft Code against
the Peace and Security of Mankind 855 which the Commission
adopted on second reading in 1996 856.
The ILC Draft Statute departs in a significant manner from the
Statute of the Bosnia Tribunal 857 by including crimes against
international law established by treaties, which are specified in a list
in an Annex. The list is exhaustive and if additional treaty crimes
were created, the Statute would have to be amended to include
them 858.
515. In contrast, the definition of crimes under traditional interna-
tional humanitarian law is formulated even broader than in the Stat-
ute of the Bosnia Tribunal since it refers in a general way to seri-
852. Draft Statute, supra footnote 847, Arts. 21 and 22.

853. Ibid., Article 54 in connection with Article 20 (e) and the Annex ; the
relevant treaty provisions are reproduced in Appendix II. See also Crawford,
854. Ibid., Art. 25, para. 1 ; see also Part 3 : Jurisdiction of the Court, para. 4 ;
commentary to Article 20, para. 5 ; commentary to Article 21, para. 7 ; and com-
mentary to Article 25, para. 1.
855. See Crawford, supra footnote 846, at 408.
856. UN, GAOR, 51st Session (1996), A/51/10 : Report of the ILC on its 48th
Session, 14-120.
857. See text in footnote 821.
858. Crawford, supra footnote 846, at 412.
ous violations of the laws and customs applicable in armed con-

flicts (Art. 20, subpara. c) ; and whereas in Article 5 of the Statute
of the Bosnia Tribunal the prosecutable crimes against humanity
are specified, the present Statute refers to them only by their generic
term (Article 20, subpara. d). Although the commentary gives some
idea of what is meant 859, the wide measure of discretion which the
Tribunal would have in determining the applicable law and thereby
the punishable delicts does not satisfy the requirement of criminal
justice.
516. This was, apparently, also felt by the Preparatory Commit-
tee 860 since it embarked on a detailed formulation of the various
crimes on which it is still working 861. This endeavour creates, how-
ever, a new problem : if crimes like genocide, crimes against human-
ity, or war crimes are repeatedly defined in different instruments, the
Geneva Conventions, the Draft Code of Crimes against the Peace
and Security of Mankind and the Statute of the International Crimi-
nal Court, unintended discrepancies may creep in and lead to juridi-
cal hairsplitting in the future, thereby obstructing application. More-
over, what is the purpose of a Code of Crimes against the Peace and
Security of Mankind if the same matter is dealt with by the Statute
of the International Criminal Court ?
517. The shortcomings which have been described earlier as
inherent deficiencies of international criminal tribunals 862 are
present as a matter of course, though an effort has been made to
make sentencing independent of domestic law by listing the appli-
cable penalties in Article 47 of the Draft Statute. But there the auton-
omy stops : when determining the type of penalty and the duration of
imprisonment or the amount of a fine the Court must have regard to
the penalties provided for by the law of the States which have a par-
ticular connection to the person or the crime committed. This is not
only an unwieldy procedure ; because of the discretion it allows the
Court, it raises doubts that it is in accordance with the rule of law.
In the matter of enforcement of sentences the Draft Statute
(Arts. 59 and 60) is concordant with the provisions of the Statute of
the Bosnia Tribunal.
859. Paragraphs 8-14 of the commentary to Article 20, supra footnote 847.
860. See supra para. 512.
861. Information on the present state of the deliberations in UN doc. A/AC.
249/1 (1996).
862. See supra para. 501-506.
252 K. Zemanek
5. Outlook
518. In summing up the state of humanitarian law as a sub-

system of international law one finds that a significant step has been
taken in practice towards interlinking the different sources and,
thereby, towards consolidation. Less can be said about the develop-
ment of its specific remedy in the form of individual criminal
responsibility for its violations. One may speculate that the perfor-
mance of the two ad hoc Tribunals will influence the readiness of
States to engage in the more ambitious scheme of a permanent Inter-
national Criminal Court.
253
CHAPTER XII
STATE RESPONSIBILITY
I. The Work of the ILC
519. For more than 40 years, albeit intermittently, the ILC has
been occupied with the preparation of a draft convention on State
responsibility 863. The reports of the various special rapporteurs,
together with the discussions in the Commission and in the Sixth
Committee of the General Assembly, have not only brought to light
an astounding amount of relevant material but have also helped to
clarify many hitherto obscure features of State responsibility. The
Commission finished the draft on first reading in 1996.
520. From now on an examination of State responsibility, if it
wishes to be relevant, must take account of that draft, and it is pro-
posed to follow its arrangement. It must be pointed out from the out-
set, though, that the draft has a major flaw. It has been oriented
towards application through mandatory procedures for the settlement
of dispute which are established in its Part Three. This is a com-
mendable but somewhat unrealistic tendency since there is an evi-
dent gap between the theoretically desirable and the practically
achievable. It seems an illusion to believe that States will have a
sudden change of heart and accept mandatory dispute settlement, for
which they have scant regard at present, with respect to such a poli-
tically sensitive topic as State responsibility. And the present law
of reservations, in conjunction with the Genocide Opinion of
the ICJ 864, does give ample opportunity to a party for excluding
Part Three or one of its Articles when ratifying, or adhering to, an
eventual convention embodying the ILC draft. Care should, there-
fore, be taken during the second reading of the draft to formulate the
text in a manner which provides firm guidance for State conduct and
helps, thus, to avoid unnecessary conflicts, instead of provoking
them through the use of undefined terms which require further deter-
mination through value judgments of a third party.
863. For a short history see C. Annacker, Part Two of the International Law
Commissions Draft Articles on State Responsibility, 37 GYIL (1994), 206-253,
207-209.
864. ICJ Reports 1951, 15-30 ; see further Chap. VIII, paras. 337-368.
254 K. Zemanek
521. The distinction between primary and secondary norms

which underlies the concept of the ILC has been explained else-
where 865. The draft deals with the secondary norms and is systema-
tically divided into three parts : Part One consists of 35 Articles and
concerns the origin of international responsibility ; it was provi-
sionally adopted on first reading in 1980 866. Part Two on the con-
tent, forms and degrees of international responsibility, comprising
Articles 36 to 53, was adopted in 1996 867. Part Three, relating to the
implementation of international responsibility and the settlement of
disputes, but dealing in fact only with procedures for the settlement
of disputes, has seven Articles (54-60) and two annexes, and was
adopted in 1995 868.
522. The allocation of Articles to one or the other part is not
entirely logical since the provisions concerning countermeasures
(reprisals), which many would consider an instrument for the
implementation of international responsibility and expect them
therefore to have their place in Part Three of the draft, are actually
found in Part Two. Nor would one have expected a special rgime of
dispute settlement being added to the many existing but unused ones.
II. The Cause of International Responsibility : The Breach of an

International Obligation
A. The internationally wrongful act
523. The breach of an international obligation or, in the termino-

logy of the ILC, an internationally wrongful act of a State, entails
international responsibility 869. The term State responsibility or
international responsibility has thus a double meaning. It
expresses, on the one hand, that a State which has committed an
internationally wrongful act is legally responsible for it. But it refers,
on the other hand, also to the secondary norms which, as a conse-
quence, become applicable under the law of State responsibility and
865. Chap. XI, paras. 471-472.

866. UN, GAOR, 35th Session (1980), A/35/10 : Report of the ILC on its
32nd Session, para. 34 ; also in UN doc. A/35/388, III.
867. UN, GAOR, 51st Session (1996), A/51/10 : Report of the ILC on its 48th
Session, paras. 65-66 (pp. 125-170).
868. UN, GAOR, 50th Session (1995), A/50/10 : Report of the ILC on its 47th
Session, para. 365, pp. 173-194.
869. Articles 1, 3 and 16 of Part One, supra footnote 866.
establish new rights for the injured State and new obligations for the
author State.
524. Even before the ILC began its codification exercise, interna-
tional courts and tribunals had treated the violation of a subjective
international right as having caused damage to the victim, albeit
immaterial damage 870. In this sense, violation and damage are
synonymous. The ILC was thus following logic when it removed
damage from the constituent elements of an internationally wrongful
act 871. However, that does by no means exclude damage from the
context of responsibility ; it is relevant for determining the appropri-
ate kind of reparation and for eventually assessing the amount of
compensation 872.
525. In Articles 20, 21 and 23 the ILC found it necessary to dis-
tinguish three types of international obligations by their object : the
obligation requiring the adoption of a particular course of conduct,
which is the typical object of norms regulating State interaction, like
most rules of the law of treaties. The two other categories, the obli-
gation requiring the achievement of a specific result and the obliga-
tion to prevent a given event, leave the choice of means for achiev-
ing the result to the State in question. This is most commonly the
case with international obligations that require implementation in
domestic law for their performance.
526. But that distinction seems rather artificial 873 because the pri-
870. Thus the ICJ in the Corfu Channel case (Merits), ICJ Reports 1949,
4-37, 35.
871. One member of the ILC has nevertheless criticized that decision in his
writings : P. Reuter, Le dommage comme condition de la responsabilit interna-
tionale, in R. Ago et al. (eds.), Estudios de derecho internacional, Homenaje al
Prof. Miaja de la Muela, Vol. 2, Madrid, 1979, 837-846. In support of the ILC
B. Graefrath, Responsibility and Damages Caused : Relationship between
Responsibility and Damages, 185 Recueil des cours (1984-II), 19-143.
872. See K. Zemanek, Causes and Forms of International Liability, in Bin
Cheng and E. D. Brown (eds.), supra footnote 537, at 319-332, 323. Cf. gener-
ally B. Bollecker-Stern, Le prjudice dans la thorie de la responsabilit inter-
nationale, Paris, 1973.
873. See the critique of J. Combacau and D. Alland, Primary and Secon-
dary Rules in the Law of State Responsibility : Categorizing International Obli-
gations, supra footnote 774, and of C. Tomuschat, What is a Breach of the
European Convention on Human Rights, in R. A. Lawson and M. de Blois
(eds.), The Dynamics of the Protection of Human Rights in Europe, Liber Ami-
corum for H. G. Schermers, Vol. III, Dordrecht, 1994, 315-335. Cf. also K.
Zemanek, Schuld- und Erfolgshaftung im Entwurf der Vlkerrechtskommission
ber Staatenverantwortlichkeit, in E. Diez et al. (eds.), Festschrift fr R. Bind-
schedler, Berne, 1980, 315-331 ; and J. Salmon, Le fait tatique complexe : une
notion contestable, 28 AFDI (1982), 709-738, 715-721, 724-733.
256 K. Zemanek
mary norms to which it refers often intertwine obligations of conduct

and obligations of result in such a manner that the different compo-
nents can hardly be separated from one another. The first two para-
graphs of Article 22 of the VCDR are a telling example.
B. The breach of erga omnes obligations
527. Traditionally, the relativity of international rights and duties

which characterizes the decentralized system of international law
requires for responsibility to occur that the subjective right of
another State, and not just international law objectively, should have
been violated 874.
528. With the partial institutionalization of the international
system 875, however, obligations which are the concern of a multitude
of States appeared 876. The existence of such erga omnes obligations
was already recognized by the ICJ in the Barcelona Traction case 877.
The trend was then strengthened by the introduction of jus cogens in
the VCLT, because obligations of jus cogens are, by definition, owed
to the international community as a whole. In Part One the ILC draft
does not mention erga omnes obligations specifically, but it does
so implicitly in Part Two when defining the injured State in
Article 40 878.
529. The distinguishing feature of erga omnes obligations is the
fact that they are owed to a community of States and not to one or
more singular States. An erga omnes obligation can be an obligation
towards all parties to a multilateral treaty (for instance human
rights), an obligation vis--vis a community of States bound by a
rule of regional custom, or an obligation towards the international
community as a whole (jus cogens) 879.
874. See J.-M. Dupuy, Le fait gnrateur de la responsabilit internationale

des Etats, 188 Recueil des cours (1984-V), 13-129.
875. Cf. supra, Chap. I, esp. paras. 29-31.
876. Perhaps most clearly expressed in common Article 1 of the Four Geneva
Conventions of 1949 : The High Contracting Parties undertake to respect and to
ensure respect for the present Convention in all circumstances. (Emphasis
added.) See also J. A. Frowein, Reactions by Not Directly Affected States to
Breaches of Public International Law, 248 Recueil des cours (1994-IV), 353-
433.
877. Judgment ; ICJ Reports 1970, 1-51, 32.
879. Annacker, supra footnote 536 ; cf. also id., Die Durchsetzung von erga
omnes Verpflichtungen vor dem Internationalen Gerichtshof, Hamburg, 1994.
530. The importance of an adequate treatment of erga omnes vio-

lations cannot be overstated. It is, for instance, only by recognizing
the right of all contracting States to demand cessation and bring a
claim that the international community of States can enlist the law of
State responsibility to respond to the needs of individuals or groups
who are victims of human rights abuses by the State of which they
are nationals or residents 880 or to remedy the deliberate flouting of
agreed environmental standards concerning the global commons.
C. International crimes of States
531. In Article 19 the ILC introduces international crimes of

States as a special category of international delicts. This is an exer-
cise in progressive development because no custom of this kind
exists. According to the Commission, an international crime would
result
from the breach . . . of an international obligation so essential
for the protection of fundamental interests of the international
community that its breach is recognized as a crime by that
community as a whole.
The definition resembles the definition of jus cogens in Article 53 of
the VCLT and is equally tautological : the manner in which the gen-
eral recognition of a norm the breach of which would qualify as
international crime is to be established is not specified. And there is,
indeed, a connection between the two : if the breach of an obligation
amounts to an international crime, that obligation must, by defini-
tion, be part of jus cogens, though not all violations of jus cogens are
necessarily international crimes.
532. During the Vienna Conference on the Law of Treaties initia-
tives were taken to establish a list of peremptory norms of interna-
tional law. They failed because, as the discussion revealed, views
were too divided 881. The Commission was apparently resolved to
prevent a repetition of that failure in the case of international crimes
and listed in Article 19, paragraph 3, examples of obligations the
880. See B. G. Ramcharan, State Responsibility for Violations of Human

Rights Treaties, in Bin Cheng and E. D. Brown (eds.), supra footnote 537, at
242-261, 255-258 ; and D. Schindler, supra footnote 536.
881. See J. Sztucki, Ius Cogens and the Vienna Convention on the Law of
Treaties, Vienna, 1974, 119-123.
258 K. Zemanek
serious breach of which would result in an international crime. How-

ever, most commentators regard the concept with scepticism 882 and
some doubt, furthermore, that all obligations contained in the list of
examples fulfil the conditions of the definition.
533. When the Commission resumed the consideration of interna-
tional crimes more than a decade later in the context of determining
the special consequences which they should entail, the viability of
the concept was again called in doubt 883. Most objections had their
origin in legal theory 884, as expressed for instance in the query
whether crimes of States are compatible with the maxim societas
delinquere non potest. These doctrinal differences are practically
irreconcilable, all the more so since they are linked to real or ima-
gined political interests. In this impasse pragmatic arguments should
be considered.
534. The term crime is, in domestic law and in general use,
inseparably linked with wilful intent or fault, an element which the
draft has eliminated from the constituent elements of an international
delict or crime 885. As was remarked in the ILC, State responsibility
in international law [is] neither criminal nor civil ; it [is], very
simply, international, different and specific 886. That makes it
advisable not to transfer terms which have a long-established meaning
into a context where they do not fit. International law suffers already
from too many notions which raise popular expectations that cannot
be met ; there is no need to add new ones 887.
882. See K. Marek, Criminalizing State Responsibility, 14 RBDI (1978-

1979), 460-485 ; P.-M. Dupuy, Action publique et crime international de lEtat :
propos de larticle 19 du projet de la CDI sur la responsabilit des Etats,
25 AFDI (1979), 539-554 ; id., Observations sur le crime international de
lEtat, 84 RGDIP (1980), 449-486 ; R. L. Bindschedler, Vlkerrechtliche
Verantwortlichkeit als Verbrechen, in B. Dutoit and E. Grisel (eds.), Mlanges
G. Perrin, Lausanne, 1984, 51-61 ; R. Hoffmann, Zur Unterscheidung Ver-
brechen und Delikt im Bereich der Staatenverantwortlichkeit, 45 ZaRV
(1985), 195-231.
883. Cf. the relevant discussion in the ILC : Report on its 46th Session, UN,
GAOR, 49th Session (1994), A/49/10, paras. 234-260 ; Report on its 47th Ses-
sion, supra footnote 868, paras. 248-269.
884. See the comprehensive discussion, by a number of authors, in the vol-
ume edited by J. H. H. Weiler, A. Cassese and M. Spinedi, International Crimes
of State, Berlin, 1989 ; and R. Rosenstock, Crimes of States An Essay, in
K. Ginther et al. (eds.), supra footnote 44, at 319-334.
886. Report on its 46th Session, supra footnote 883, para. 245.
887. In a footnote to the text of Article 40, para. 3 (source in footnote 867,
para. 65, at 141), the Commission now states :
The term crime is used for consistency with article 19 of Part One of
535. Attributing criminal responsibility to a State and, hence, to

its entire population may be conceptually defensible in respect of
democracies. Indeed, if authorities are freely elected and responsible
to their electorate, they may be presumed to express the will of the
people which elected them. But the same cannot be said of a people
living under a military, ideological or religious dictatorship even
though it may be disguised by ostensible democratic paraphernalia, a
case which is, unfortunately, frequent in todays world. To make that
people unreservedly responsible for the follies of its oppressors
seems most unfair 888.
536. However, the real test of the viability of the concept lies in
the formulation of specific consequences of international crimes
which differ from the consequences of ordinary delicts. This ques-
tion will be examined below 889.
III. The Attribution of Internationally Wrongful Acts
A. Determining the author
537. Each legal order determines for itself how to attribute

legally relevant acts to its subjects, particularly to legal persons.
International law is in this respect special and different, because the
structure of its main type of legal person, the State, does not follow
a model established by it but is shaped by the will of the people
forming the State, or that is, at least, the presumption. It is, in any
case, not standardized.
538. In attributing responsibility to States, international law
needs, therefore, a dual strategy : on the one hand, and primarily, it
refers to the legal order of States and regards the conduct of any
State organ having that status under internal law as an act of that
State. On the other hand, it relies on the principle of effectiveness
and, on that count, disregards exceptions which may exist under
the articles. It was, however, noted that alternative phrases such as an

international wrongful act of a serious nature or an exceptionally serious
wrongful act could be substituted for the term crime, thus, inter alia,
avoiding the penal implication of the term.
888. See F. Rigaux, Le crime de lEtat. Rflexions sur larticle 19 du projet
darticles sur la responsabilit des Etats, in P. Lamberti Zanardi et al. (eds.),
supra footnote 5, at 301-325, 324 : La condamnation de lEtat nautorise pas
inclure dans le verdict le peuple tout entier.
889. Infra, paras. 572-576.
260 K. Zemanek
domestic law : thus, the position of an organ in the organization of a

State is considered irrelevant and responsibility is attributed even in
cases where the organ exceeds its competence under domestic law or
contravenes instructions concerning its activities 890. The principle of
effectiveness is further used to attribute acts of persons or entities
which do not have the character of an organ under internal law to the
State, if the person or entity is either empowered to exercise ele-
ments of governmental authority or is acting in fact on behalf of the
State 891. The last-mentioned situation does not frequently come into
the open because it is usually connected with the activity of secret
services, as illustrated by the case of the Rainbow Warrior 892.
539. Two special cases of attribution merit a closer examination
in the light of recent events.
One concerns the attribution of responsibility for the activity of
insurrectionary movements in Articles 14 and 15 of the draft. The
proposed regulation states that, notwithstanding the possible respon-
sibility for failing to perform one of its own international duties, a
State is not responsible for the conduct of an insurrectionary move-
ment on its territory. Responsibility for that conduct may attach
directly to the insurrectionary movement in any case in which such
attribution may be made under international law, which refers to
the case where the movement has a separate legal personality under
international law, like a liberation movement 893. Quite independently
of the existence of a separate legal personality, however, the respon-
sibility for the conduct of an insurrectionary movement which forms
890. Articles 5, 6 and 10 of Part One, supra footnote 866. For more details
see K. Zemanek, La responsabilit des Etats pour faits internationalement illi-
cites, ainsi que pour faits internationalement licites, in P. Weil (ed.), Respon-
sabilit internationale, Paris, 1987, 1-88. 51-52.
891. Arts. 7 and 8, supra footnote 866.
892. On the facts see C. Rousseau, 90 RGDIP (1986), 216-225 ; for a legal
evaluation see Case Concerning the Differences between New Zealand and
France arising from the Rainbow Warrior Affair, Ruling of 6 July 1986 by the
Secretary-General of the United Nations, 19 RIAA, 197-221 ; J. Charpentier,
Laffaire du Rainbow Warrior : le rglement intertatique, 32 AFDI (1986),
873-885 ; and G. Apollis, Le rglement de laffaire du Rainbow Warrior ,
91 RGDIP (1987), 9-43. Cf. also the earlier case of Adolf Eichmann : on the
facts see C. Rousseau, 64 RGDIP (1960), 772-786 ; the legal issues are dis-
cussed by H. Silong, In Re Eichmann : A Dilemma of Law and Morality,
55 AJIL (1961), 307-358. And the case of Colonel Argoud : the facts are related
in 25 ZaRV (1965), 295-300, and 27 ZaRV (1967), 188-189 ; for the legal
issues see A. Cocatre-Zilgien, Laffaire Argoud Considrations sur les arres-
tations internationalement irrgulires, Paris, 1965.
893. See H. Atlam, National Liberation Movements and International
Responsibility, in M. Spinedi and B. Simma (eds.), supra footnote 14, at 37-56.
a new State on part of the territory of the pre-existent State is attrib-

uted to that new State.
540. So far the proposed regulation seems coherent and logical. It
is less so in case the insurrectionary movement becomes the new
government of the State. Article 15, paragraph 1, provides that in
this case the acts of the insurrectionary movement shall be attributed
to the State. Yet it provides also that this attribution is without preju-
dice to the attribution of the acts of the previous government to the
same State. This accumulation can produce curious results.
541. If one applies the quoted rules to the situation in the Former
Yugoslavia, the Dayton Agreements 894 would result in Bosnia and
Herzegovina being internationally responsible for the acts of organs
of the Republic of Bosnia and Herzegovina 895 as well as for the
conduct of the Croatian and Serbian separatist movements which
the Republic has fought, since they have now become part of the
Bosnia and Herzegovina structure 896 and are, consequently, part of
its new government in the sense of Article 15, paragraph 1. This
does not appear to be a workable solution.
542. The situation in the Former Yugoslavia furnishes also the
second case. In the final negotiations on the Dayton Agreements and
for their signature, the Serbian insurrectionary movement in Bosnia,
calling itself Republika Srpska, was represented by the Federal
Republic of Yugoslavia. Two interpretations of that representation
are possible but lead, when measured by the rules of attribution in
the ILCs draft, to quite different results.
543. Article 9 of that draft attributes the conduct of an organ (the
President of the Federal Republic of Yugoslavia) which has been
placed at the disposal of a State (correctly : an insurrectionary move-
ment, the Republika Srpska) by another State (the Federal Republic
of Yugoslavia) to the former State (the insurrectionary movement

895. Constitution of Bosnia-Herzegovina, Point 1. Continuation.
The Republic of Bosnia and Herzegovina, the official name of which
shall henceforth be Bosnia and Herzegovina, shall continue its legal exis-
tence under international law as a state, with its internal structure modified
as provided herein and with its present internationally recognized borders.
It shall remain a Member State of the United Nations . . .. Ibid., Annex 4,
117-125.
896. Ibid., Point 3. Composition. Bosnia and Herzegovina shall consist of
the two Entities, the Federation of Bosnia and Herzegovina and the Republika
Srpska. Ibid.
262 K. Zemanek
Republika Srpska). Not only is it hardly believable that President

Milosevic would openly admit that he had placed himself at the dis-
posal of the Republika Srpska, but that interpretation would also
increase the quagmire described in paragraph 541 above.
544. However, the representation of the Republika Srpska by the
Federal Republic of Yugoslavia could also be seen as an expression
of the fact that the former is subject to the power, direction or con-
trol of the latter in which case Article 28 of the draft would apply.
It attributes responsibility to the State which exercises control 897.
Although that view may find support in the persuasion which the
Federal Republic of Yugoslavia used to assure acceptance of the
Dayton Agreements by the Republika Srpska, the far-reaching con-
sequence which would make the Federal Republic of Yugoslavia
internationally responsible for the conduct of the Republika Srpska
throughout its insurrection could further complicate an already
impossible situation.
In view of all that it is doubtful whether the regulations proposed
by the ILC for the attribution of international responsibility for insur-
rectionary movements or puppet rgimes will stand the test of practice.
B. Forms of responsibility
545. Under the influence of domestic laws, in which fault is the

prevailing form of responsibility for offences, international law
teachings since Grotius have proposed fault as form of international
responsibility 898. In the course of time international arbitrators and
judges, by applying General Principles of Law, transformed this
proposition into standard practice before the Second World War.
546. The international system lacks, however, a crucial compo-
nent for the use of that form of responsibility. Fault is a subjective
element which requires an enquiry into intent (dolus) or negligence
(culpa) of the State organs involved. For that the international
system has no adequate procedure because, even if a court or tribu-
nal has jurisdiction, there exist no rules of discovery or provisions
for the examination of witnesses. Thus, with time, more and more
authors converted to the idea that States should be responsible for
897. Cf. I. Brownlie, State Responsibility : The Problem of Delegation, in

K. Ginther et al. (eds.), supra footnote 44, at 299-306.
898. See for many R. Ago, Le dlit international, 68 Recueil des cours
(1939-II), 419-554.
their actions independently of fault, and State practice followed that

change of opinion 899.
547. Responsibility for result became the accepted form for
wrongful actions, while customary law retained responsibility based
upon fault for omissions 900. This was possible because procedures
for examining evidence to establish fault are less essential for omis-
sions ; the theoretically subjective element of fault can be determined
objectively by measuring the omission against the international stan-
dard of due diligence 901.
548. In spite of this state of custom, the ILC draft adopted
responsibility for result for actions and omissions alike 902, presum-
ably with the intention of progressive consolidation. The Commis-
sion countered possible objections 903 that a test based upon causality
rather than fault would make any duty of prevention absolute with
the argument that the scope of an obligation was determined by the
primary norm which creates it, and not by the secondary norms of
State responsibility 904. Yet, when primary norms use terms like
reasonable or appropriate to characterize a measure of care, they
do not set a limit to the required diligence. For the interpretation of
such terms in given circumstances a value judgment is necessary
for which the due diligence standard, as part of the law of State
responsibility, serves until now as indicator.
549. Although unresponsive to objections against its espousal of
responsibility for result in all cases, the ILC was not insensitive to
the ensuing problems and tried to solve them in another way.
Every law of responsibility excepts inevitable events by admitting
circumstances precluding either wrongfulness or fault 905. In domestic
899. For an overview see C. Cepelka, Les consquences juridiques du dlit

en droit international contemporain, Prague, 1965.
900. See Zemanek, supra footnote 873, at 322, 324.
901. See Affaire des Biens britanniques au Maroc espagnol, Rapport sur les
responsabilits de lEtat dans les situations vises par les rclamations britan-
niques (1924), 2 RIAA, 639-650, 644. See also the interesting precisions by
R. Pisillo-Mazzeschi, The Due Diligence Rule and the Nature of the Interna-
tional Responsibility of States, 35 GYIL (1992), 9-51 ; id., Due Diligence e
responsabilit internazionale degli Stati, Milan, 1989.
902. Cf. the formulation of obligations supra, paras. 525-526.
903. See Zemanek, supra footnote 873, at 325-331.
904. Cf. the discussion in the ILC in : Yearbook, 1978, Vol. I, 1476th meeting,
para. 19 ; 1477th meeting, paras. 4-5 ; and 1513th meeting, para. 4.
905. See the volume published by the Secretariat of the United Nations,
Force Majeure and Fortuitous Event as Circumstances Precluding Wrong-
fulness : Survey of State Practice, International Judicial Decisions and Doc-
trine, UN doc. ST/LEG/13 (1977).
264 K. Zemanek
laws inescapable events, like acts of God, that create circumstances

in which it is objectively impossible to fulfil an obligation, usually
preclude wrongfulness and, consequently, responsibility altogether.
Circumstances which make it subjectively unavoidable to violate an
obligation, like the state of necessity or distress, preclude only fault,
which means in most domestic laws that criminal responsibility is
excluded but not necessarily civil liability.
550. The fact alone that international law does not differentiate
between criminal and private law would make it difficult to trans-
fer the concept into that area. But the ILC has created a further
obstacle : by adopting responsibility for result as the single form
of responsibility for all unlawful acts, it had theoretically excluded
circumstances precluding fault, since fault was no longer a condition
of responsibility. It seems that, on reflection, this appeared too radical
a consequence for the Commission and a compromise was sought for
closing the gap between the rigid concept and actual State practice,
presumably also with the fact in mind that the draft needed the
acceptance of States to come into force 906. Thus the ILC draft
includes under the heading of circumstances precluding wrongful-
ness 907 exceptions which in domestic law exclude only fault, like
distress or the state of necessity.
551. In spite of the fact that all exceptions recognized in its draft
exclude wrongfulness, the ILC wished nevertheless to retain the
feature peculiar to circumstances precluding fault, that they do not
necessarily exclude civil liability. It provides in Article 35 of the
draft that : [p]reclusion of the wrongfulness of an act of a State . . .
does not prejudge any question that may arise in regard to compensa-
tion for damage caused by that act. The Commission argues 908 that
the provision is necessary to avoid prejudice for an eventual liability
for acts not prohibited by international law but, unfortunately, that
restricted meaning is not apparent from the text. The latter, taken as
it is, could also be understood to apply to responsibility for unlaw-
ful acts, whence it is highly confusing. A wrongful act that causes
material damage entails, as a consequence, the duty to pay compen-

907. See J. Salmon, Les circonstances excluant lillicit, in P. Weil (ed.),
supra footnote 890, at 89-225. Cf. also S. P. Jagota, State Responsibility : Cir-
cumstances Precluding Wrongfulness, 16 NYIL (1985), 249-277.
908. See Report of the ILC on its 32nd Session, supra footnote 866, at 134 ;
commentary on Art. 35, paras. 36 and 42.
sation. If one applies the provision, the preclusion of wrongfulness

would not change the consequence ; the State would still be required
to pay compensation. If that were indeed the intended result, a clear
indication as to the source of the duty to compensate would be
needed, because by identifying all exceptions as circumstances
precluding wrongfulness in its draft, the Commission has deprived
itself of the convenient domestic law analogy to distinguish between
the consequences of wrongfulness and of fault.
552. Nor does the provision in Article 42 909 that in the determi-
nation of reparation account shall be taken of the negligence or the
wilful act or omission solve the problem. Since these terms are
nowhere defined, their determination is discretionary. A correct
exercise of this discretionary power would only be assured by a
mandatory third-party settlement procedure, which is not certain to
materialize, despite the proposed Part Three of the Commissions
draft.
553. The really crucial exception is formulated in Article 31 910.
Unfortunately, the text is muddled. It combines in one provision
force majeure, an objective circumstance, and fortuitous event, a
subjective circumstance 911, without separating the conditions of
either.
554. If one tries to elucidate fortuitous event, it appears as an
unforeseen external event beyond its control which made it materi-
ally impossible for the State . . . to know that its conduct was not in
conformity with that obligation. By this formulation the interna-
tional standard of due diligence is re-introduced, albeit through the
back door. Whether an event was unforeseen not unforeseeable
or whether it was materially impossible for the State to know
may either be judged subjectively, if the parties engage in judicial
proceedings, or else be determined objectively by having recourse to
the normal conduct of States and, thus, to the international standard.

910. It reads :
1. The wrongfulness of an act of a State not in conformity with an inter-
national obligation of that State is precluded if the act was due to an irresis-
tible force or to an unforeseen external event beyond its control which made
it materially impossible for the State to act in conformity with that obliga-
tion or to know that its conduct was not in conformity with that obligation.
Cf. A. Gattini, Zufall und force majeure im System der Staatenverantwortlich-
keit anhand der ILC-Kodifikationsarbeit, Berlin, 1991.
911. Cf. Salmon, supra footnote 907, at 102-115.
266 K. Zemanek
C. Determining the injured State
555. When a primary norm regulates separate or separable bilat-

eral inter-State relations or, in other words : when it is a matter of
traditional subjective international rights or obligations 912, the deter-
mination of the injured State, should the obligation be breached,
does not create particular legal problems. Article 40 of the ILC
draft 913 reflects that and does not invite any observation.
556. An internationally wrongful act concerning the treatment of
aliens is also dealt with traditionally. The Commission maintains the
concept invented by Emer de Vattel according to which it is the State
of nationality which is injured when a physical or juridical person of
its nationality is the object of the internationally wrongful act 914.
Article 22 stipulates accordingly that there is a breach of the obliga-
tion only if the alien concerned has exhausted the effective local
remedies available to him without obtaining the required treatment.
557. Questions like whether this rule applies mutatis mutandis in
a case where the alien has a right of appeal to an international organ
within a sub-system of international law to which the author State is
a party, for instance a human rights convention ; whether this should
be considered a local remedy ; or whether it would be required that
the injured State was also a party to the same sub-system, are not
treated in the draft.
558. The Commission took, however, a step forward by endeav-
ouring to regulate claims arising from the breach of erga omnes
obligations. The draft deals in Article 40, paragraph 2, with two sit-
uations : with obligations created for the protection of human rights
and fundamental freedoms in point (e), subparagraph (iii) ; and with
obligations arising from any other multilateral treaty if it is estab-
lished that the right has been expressly stipulated in that treaty for
the protection of the collective interests of the States parties thereto
in point (f). In both cases all other parties to the respective treaty are
to be regarded as injured States.
559. The legal consequences which the violation of erga omnes
obligations entails do not differ from those which follow the breach

913. Formerly Article 5 of Part Two ; text in UN, GAOR, 40th Session (1985),
A/40/10 : Report of the ILC on its 37th Session, 53-59.
914. See the Mavrommatis Palestine Concession case, PCIJ, Series A, No. 2
(1924), 12 ; cf. also the Chorzw Factory case (1928), PCIJ, Series A, No. 17,
27-28.
of obligations with a bilateral structure. However, regarding all par-

ties to an appropriate multilateral treaty as injured States creates
some problems 915 in the exercise of the secondary rights which arise
from the law of State responsibility. For instance : are all injured
States equally entitled to claim cessation or reparation and resort
eventually to countermeasures ? Article 5bis which was proposed by
the Special Rapporteur, but not adopted by the Commission, seemed
to suggest that when it stated that whenever there is more than one
injured State, each of them is entitled to exercise its legal rights
under the rules set forth in the following articles 916. What is the
effect on the claims of the other States entitled to claim if one
claimant declares himself satisfied by the reparation offered ? If all
other parties are eventually entitled to resort to countermeasures, is
proportionality to be measured individually or collectively ? These
questions are left unanswered by the draft as it stands now. For the
sake of clarity it would be necessary to state which of the conse-
quences of responsibility could be claimed under the circumstances
and whether individual enforcement by way of countermeasures
was legitimate.
560. Terminology is a further source of uncertainty. In the com-
mentary on Article 3 917 the Commission states that [a] rule is the
objective expression of the law ; an obligation is a subjective legal
phenomenon and it is by reference to that phenomenon that the con-
duct of a subject of international law is judged 918. In an earlier pas-
sage of the same commentary it is noted that in international law
the idea of a breach of an obligation can be regarded as the exact
equivalent of the idea of infringement of the subjective rights of
others 919. If this meaning is retained one wonders which subjec-
tive right of a party to an objective rgime, for instance a human
rights convention, is violated if another party fails to perform its
duties under this convention 920.
561. Finally, in case of an international crime, Article 40, para-
graph 3, declares all other States to be injured States. The prob-
915. Some are discussed by Annacker, supra footnote 536, at 152-156.

916. Text in Report of the ILC on its 47th Session, supra footnote 868,
para. 278, at footnote 96.
917. UN, GAOR, 28th Session (1973), A/9010, Report of the ILC on its 25th
Session, 45-59.
918. Ibid., 58, para. 15.
919. Ibid., 52, para. 9.
920. Cf. Zemanek, supra footnote 890, at 77-79.
268 K. Zemanek
lems raised by that proposition are the same as those just described
in respect of erga omnes violations 921.
IV. The Consequences of Responsibility
562. As has been previously mentioned 922, international law is

not as differentiated as domestic law. In most domestic legal systems
punitive aspects of responsibility are regulated by criminal law
whereas the reparative consequences fall in the province of private
law. International law has currently a single system of responsibil-
ity 923 which is characterized by the marginal role of punitive ele-
ments, because these were traditionally considered incompatible
with the sovereignty of States. The ILC has nevertheless accentuated
some of the punitive elements in its draft.
The consequences of an internationally wrongful act set out below
have been established by custom. In an effort of progressive devel-
opment the Commission has tried to improve on them, in some cases
considerably, but not always with a felicitous result.
A. Cessation
563. Cessation, meaning the obligation to end the violation of
the primary norm obligation, has been adopted by the ILC as
Article 41 924. Dogmatically one may wonder whether this is a
primary or a secondary law obligation 925 and, hence, whether it
should find a place in the draft. The Commission, aware of that,
justifies the inclusion with the practical usefulness of the pro-
vision 926 and is very likely right.
B. Reparation
564. Reparation means the duty to wipe out the effects of the
internationally wrongful act. Article 42 927 enumerates the forms
921. See further paras. 572-576.

922. See para. 534.
923. This may change with the introduction of a system of liability ; see
Chap. XI, paras. 482-489.
924. Formerly Article 6 of Part Two ; text in UN, GAOR, 48th Session (1993),
A/48/10 : Report of the ILC on its 45th Session, 132.
925. Cf. C. Tomuschat, Some Reflections on the Consequences of a Breach
of an Obligation under International Law, in W. Haller et al. (eds.), supra foot-
note 780, at 147-164, 150-156.
926. Supra footnote 924, commentary on Article 6, paras. 4 and 5.
927. Text ibid., 142.
which reparation may take ; they are considered separately below.

Two general aspects should, however, be mentioned before.
Paragraph 2 provides that in determining reparation account shall
be taken of the negligence or the wilful act or omission. This re-
introduction of fault, though apparently necessary on practical
grounds, is nevertheless surprising since none of the difficulties
which led the ILC to abandon and replace it by result in Part
One 928 are mentioned, and one would have expected that reasons
would be given why what appeared inappropriate in Part One should
be appropriate in Part Two.
565. Paragraph 4 precludes the author of an internationally
wrongful act from invoking its internal law in justification of the
failure to provide full reparation. That is, in general, certainly cor-
rect ; but one situation should be treated as exception : States which
adhere to the rule of law will find it difficult to implement the duty
when the wrongful act in question is the final decision of a supreme
court, because usually no legal remedy to rescind such decisions will
be available. Neither cessation nor restitution in kind is then pos-
sible 929. The author State can only offer substitutes, like a pardon in
criminal or compensation in civil cases. It is doubtful whether
material impossibility or a burden out of all proportion 930 could
be invoked, but even then they would only bring relief in respect of
material damage. By omitting to accommodate this concern the text
lays the ground for future disputes.
566. Restitution in kind aims at the re-establishment of the situa-
tion that existed before the wrongful act was committed. If the
wrongful act has resulted in material damage and restitution is mater-
ially impossible, compensation takes its place. But subparagraph (c)
of Article 43 931 permits the substitution of compensation for restitu-
tion also if the latter would involve a burden out of all proportion
to the benefit which the injured State would gain from obtaining res-
titution in kind instead of compensation. The idea underlying this
928. Supra paras. 548 and 551-552. See however A. Gattini, La notion de
faute la lumire du projet de convention de la CDI sur la responsabilit inter-
nationale, 3 EJIL (1992), 253-284.
929. See the thorough comparative analysis by H. Urbanek, Das vlker-
rechtsverletzende nationale Urteil, 9 ZR (1958-1959), 213-275 ; and id.,
Die Unrechtsfolgen bei einem vlkerrechtsverletzenden nationalen Urteil ;
seine Behandlung durch internationale Gerichte, 11 ZR (1961), 70-118. Con-
trary opinion Annacker, supra footnote 863, at 224.
930. See infra para. 566 (restitution in kind).
931. Formerly Article 7 of Part Two ; text supra footnote 924, at 151.
270 K. Zemanek
provision is in line with current practice 932 but the formulation is full
of undefined terms which require a value judgment for their imple-
mentation. It is evident that the ILC does not see this as a disadvan-
tage considering the third-party settlement procedures it provides in
Part Three. But should these not materialize, the loose terms will
have to stand on their own.
567. Compensation is due if and to the extent material damage is
not made good by restitution in kind 933. It follows from the refer-
ence to restitution in kind that compensation has the same purpose.
The measure of compensation is therefore identical with the standard
established by the PCIJ in the Chorzow Factory case (Merits)934.
Paragraph 2 of Article 44 adds a helpful clarification by providing
that compensation may include interest and, where appropriate, loss
of profit. It thereby corrects a situation that was created in the past
by the Soviet Unions objection against their inclusion, a position
that is reflected in the formulation of Article XII of the Convention
on the International Liability for Damages Caused by Space Objects
of 1972 935, which leaves the question open. But yet again one must
take exception to the use of undefined terms and the lack of self-
executing provisions 936.
568. Satisfaction is, in existing law, the appropriate form of
reparation for immaterial damage. However, in Article 45 937 the ILC
goes in several respects beyond the existing law.
569. In paragraph 2, subparagraph (b), it provides for nominal
damages and in subparagraph (c) in cases of gross infringement
for damages reflecting the gravity of the infringement or, more
932. See Affaire des proprits religieuses (1920), 1 RIAA, 7-57, 15 ; and
Affaire des forts du Rhodope Central (Fond) (1933), 3 RIAA, 1405-1436, 1432.
Further Zemanek, supra footnote 890, at 69-70.
933. Art. 44, para. 1, formerly Art. 8, para. 1, of Part Two ; text supra foot-
note 924, at 168.
934. PCIJ, Series A, No. 17 (1928), 47-48.
935. Reprinted in 66 AJIL (1972), 702-709. The Article reads :
The compensation . . . shall be determined in accordance with interna-
tional law and the principles of justice and equity, in order to provide such
reparation in respect of the damage as will restore the person, natural or
juridical, State or international organization on whose behalf the claim is
presented to the condition which would have existed if the damage had not
occurred.
936. The Commission acknowledges that in paragraphs 26-39 of the com-
mentary, supra footnote 924, at 185-193, but states at 192, para. 39, that it
would be extremely difficult to arrive in this respect at specific rules command-
ing a large measure of support.
937. Formerly Article 10 of Part Two ; text and commentary ibid., 193-209.
clearly, for punitive damages. Hitherto, international courts and tri-

bunals have generally not awarded monetary compensation for
immaterial damage 938. In justification of this progressive develop-
ment the ILC invokes the Ruling of the Secretary-General of the
United Nations in the Rainbow Warrior case 939 and two obscure Ital-
ian cases of 1891 and 1908 940. However, two reasons invalidate the
argument : first, the Ruling of the Secretary-General does not men-
tion even the idea of punitive damages. To infer their inclusion from
the fact that he awarded, as the Commission puts it, a sum which
exceeds by far the value of the material loss sustained 941 is pure
conjecture. And secondly, it is hardly credible that this single
instance of a, moreover, very special nature should have transformed
customary international law.
570. Another departure from existing custom concerns the proper
form of satisfaction. The ILC demands an apology in, paragraph 2,
subparagraph (a), influenced again by the Rainbow Warrior case and
by antiquated literature 942. Developments in modern practice and
even judgments of the ICJ are ignored : in the Corfu Channel case
(Merits) the Court has stated that its declaration of a violation of
international law was in itself appropriate satisfaction 943. Under
present law the acknowledgment of illegality is considered suffi-
cient 944.
938. No monetary compensation for immaterial damage : Affaire Martini

(1930), 2 RIAA, 975-1008, 1001-1002 ; Corfu Channel case (Merits), supra foot-
note 870, at 25-26 ; implicit in the enumeration in the Advisory Opinion of the
ICJ on Reparation for Injuries Suffered in the Service of the United Nations, ICJ
Reports 1949, 174-188, 181.
Refusal of punitive damages : Torrey case (1903), 9 RIAA, 225-226 ; Lusitania
case (1930), 7 RIAA, 32-44, 38-41 ; Responsabilit de lAllemagne raison des
actes commis postrieurement au 31 juillet 1914 et avant que le Portugal ne
participt la guerre (1930), 2 RIAA, 1035-1077, 1076-1077.
939. See the source in footnote 892. Cf. however A. Tanzi, Is Damage a Dis-
tinct Condition for the Existence of an Internationally Wrongful Act ?, in
M. Spinedi and B. Simma (eds.), supra footnote 14, at 1-33, 26-28.
940. See the commentary on former Article 10, para. 9, note 232 ; supra foot-
note 924, at 201.
941. Ibid., 205, para. 13.
942. The commentary, ibid., 201, para. 9, even mentions saluting the flag
as one form of apology.
943. Supra footnote 870, at 36. The same approach was taken in the Case
Concerning the Difference between New Zealand and France concerning the
Interpretation or Application of Two Agreements Concluded on 9 July 1986
between the Two States and Which Relate to the Problems arising from the
Rainbow Warrior Affair (1990), 20 RIAA, 215-275, 272-273.
944. See C. Dominic, La satisfaction en droit des gens, in B. Dutoit and
E. Grisel (eds.), supra footnote 882, at 91-121, 111.
272 K. Zemanek
571. Finally, the Commission requires in paragraph 2, subpara-

graph (d), that in cases where the internationally wrongful act arose
from the serious misconduct of officials or from criminal conduct of
officials or private parties those responsible be punished, for which
requirement the Rainbow Warrior case is again cited as authority.
But that case is exceptional in this respect, because the agents
responsible for the illegal act were under the criminal jurisdiction of
the injured State. If they were, as they would normally be, under the
jurisdiction of the author State, only the duty to institute appropriate
proceedings against them can be implemented by a State that follows
the rule of law ; it is then up to independent courts to decide whether
anybody should be punished.
C. Consequences of international crimes
572. In his seventh Report, the Special Rapporteur proposed to

deal in five Articles with the special consequences of an interna-
tional crime, including a complicated procedure for establishing
whether it had been committed 945. The Commission did not follow
this ambitious path and adopted more modest texts 946, which suggest
sensibility to the massive criticism of the concept of international
crimes. Yet, as the provisions read now, they provoke the question
why, with so modest a difference to the consequences of ordinary
delicts, it is necessary to maintain the concept at all 947.
573. The proposed Articles do not provide for a special procedure
to establish an international crime. Paragraph 5 of the commentary
to Article 51 948 remarks that
if the wrongdoing State chose to challenge the decisions of
other States that it had committed a crime, then a dispute would
arise. That dispute could then be pursued via the procedure for
settlement of disputes in Part Three.
That approach is sensible, provided that States will accept all provi-
sions of Part Three 949. But what if they do not ?
945. Seventh Report of the Special Rapporteur, A/CN.4/469/Add.1 (1995).

946. Articles 51, 52 and 53 were adopted in 1996 ; see source in footnote 867,
para. 66 (pp. 164-170).
947. Paragraph 1 of the commentary to Article 51 (ibid., at 165) echoes that
doubt.
948. Ibid.
574. The Commission further argues in paragraph 6 of the com-

mentary to Article 51 950 that
the State so accused might seek a speedier resolution of its
dispute than the procedures in Part Three would allow, particu-
larly recourse to those in the Charter of the United Nations.
Whether this way would necessarily be speedier is open to question ;
but it would, in any event, only be open for disputes which are likely
to endanger international peace and security.
575. It seems, however, that the Commission is not totally satis-
fied with this minimal approach. In paragraphs 7-12 of the commen-
tary to Article 51 951 it submits alternative options for the comment
by States, with a view to resuming consideration in their light during
the second reading. Since these options are but variants of manda-
tory third party settlement procedures, they suffer also from the
uncertainty of acceptance.
The specific consequences of an international crime for which
Article 52 provides are waivers of the limitations on demands of
restitution in kind or of satisfaction which, in ordinary cases, protect
the wrongdoing State against excessive burdens.
576. In addition, Article 53 requires all States to undertake, or to
participate in, a variety of measures the most curious of which is the
duty not to recognize as legal or valid the situation created by an
international crime. If one follows the view that an international
crime violates by definition a norm of jus cogens 952, then the duty
not to recognize a situation brought about by its violation is part of
primary law and has no place in the law of State responsibility.
950. Source in footnote 867, para. 66 (at 166).

951. Ibid.
952. See supra, paras. 531-536. For the problems specifically concerning
international crimes cf. B. Simma, International Crimes : Injury and Counter-
measures. Comments on Part 2 of the ILC Work on State Responsibility, in
J. H. H. Weiler et al. (eds.), supra footnote 884, at 283-315.
274
CHAPTER XIII
REDRESS THROUGH SETTLEMENT PROCEDURES
I. The Effectiveness of Prescriptions for the Settlement

of International Disputes
A. The role of settlement procedures in the international system
577. Within a given society force can be used legally or illegally.

If it is used to alter situations against the command of the law it is
illegal. But it is also the ultimate instrument for enforcing the law
against society members who do not abide by it. When the founders
of the United Nations, haunted by the terrible experience of the Second
World War, prohibited the use of force by individual States except in
self-defence in the Charter 953 they not only banned its use for illegal
purposes, but also its use for enforcing the law. While the prohibi-
tion is certainly a step forward towards more peaceful international
relations, it stops half-way if it is not supplemented by mechanisms
which ensure the observance of the law by other means. Although
peaceful means of collective and individual enforcement exist within
the international system 954, they are liable to fail in extreme situa-
tions 955. Yet in its present state the international system cannot
achieve a more ambitious objective. Force itself not its use is
still decentralized, which makes security, i.e. maintaining peace
at all costs, more important than justice. That means, in the last
resort, that under certain circumstances an unjust situation must be
tolerated for the sake of maintaining international peace and security.
578. In a previous chapter 956 it has been argued that this is a
major weakness of the international system. On the global level
observance of the duty to solve international disputes peacefully, a
duty that is established by Articles 2, paragraph 3, and 33 of the

954. They are examined in Chapters XIV and XV.
955. An economic embargo against an aggressor State needs a long time until
it is felt by its economy and, eventually, produces an effect. During that period
the suffering of the people which are the object of the aggression continues. Cf.
M. Miyagawa, Do Economic Sanctions Work ?, Basingstoke, 1992.
956. Chap. II, para. 76.
Charter, is institutionally neither controlled nor enforced unless the

dispute is likely to endanger international peace and security and ful-
fils thus the conditions of Chapter VI of the Charter. Other disputes
are left to the management of the parties and it may sometimes
happen that the parties can neither agree on a solution nor on the
submission of their dispute to an appropriate settlement procedure.
As long as neither party rejects peaceful settlement as such, a dis-
pute may thus drag on indefinitely ; proposals for using a specific
settlement mechanism by one side may be rejected by the other and
counter-proposals rejected by the first. Institutionalized compulsory
procedures, i.e. procedures which make it a duty to use a
certain institution for dispute settlement, exist only within special
rgimes or sub-systems.
B. The plan of the Charter
1. Available United Nations procedures
579. Article 33, paragraph 1, of the Charter, while reiterating the

duty of member States to settle international disputes peacefully,
contains a non-exhaustive selection of appropriate mechanisms, but
leaves the choice to the parties involved in a given dispute 957. For
the resolution of legal disputes the Charter offers, however, the
International Court of Justice as principal organ in Article 92 958.
580. The role of the Security Council is not limited to legal dis-
putes. Article 34 uses a wide notion of dispute when it confers com-
petence on the Council to
investigate any dispute, or any situation which might lead to
international friction or give rise to a dispute, in order to deter-
mine whether the continuance of the situation is likely to
endanger the maintenance of international peace and security.
Articles 35 and 99 of the Charter further provide that any member
957. See infra paras. 585-588.

958. On the respective roles of the Security Council and the ICJ see S. Torres
Bernrdez, Some Considerations on the Respective Roles of the Security Coun-
cil and the International Court of Justice with Respect to the Prevention of
Aggravation of Dispute in the Domain of the Pacific Settlement of International
Disputes or Situations, in N. Al-Nauimi and R. Meese (eds.), International
Legal Issues arising under the United Nations Decade of International Law, The
Hague, 1995, 663-708.
276 K. Zemanek
State and, under certain conditions also a non-member State, as well

as the Secretary-General may bring disputes or situations which
may threaten the maintenance of international peace and security to
the attention of the Security Council.
581. Two points in these formulations should be emphasized.
First, that they focus on the maintenance of international peace and
security and leave disputes or situations of a less perilous nature
aside. Second, that they distinguish between disputes and situa-
tions. That distinction reflects the stage which a conflict has
reached. A dispute exists when one party has formulated a claim
which the other party rejects 959. In a situation no specific claim
has yet been formulated, but the situation has, nevertheless the
potential to endanger international peace and security. Prima facie
this appears to be a reference to the classical distinction between
legal disputes and conflicts of interest, a distinction that will be
explored later 960.
582. If the Security Council determines that a danger to interna-
tional peace and security is likely, it may recommend the use of
appropriate procedures or methods of adjustment to the parties
(Arts. 33, para. 2, and 36, para. 1), but it may not make recommen-
dations on the substance. Only in case of a dispute not in a situa-
tion may the Security Council recommend terms of settlement,
provided that the parties request it or the Council deems the danger
to be in fact likely (Art. 38).
583. In the practice of the Security Council clear references in its
resolutions to the aforementioned powers are absent. Since the
Security Council has abandoned the practice to refer to the Charter
provisions on which it bases its decisions, it is difficult to attribute
resolutions to either Chapter VI or VII 961, but, in fact, relevant reso-
lutions indicated procedures that should be used rather than touching
on substance 962.
584. The Secretary-General, on the other hand, who is not expli-
citly authorized by the Charter in this respect has developed quite an
959. See the South West Africa case (Preliminary Objections), ICJ Reports
1962, 319-347, 328.
960. See infra paras. 600-601.
961. See T. Stein and S. Richter, Commentary on Article 36, in B. Simma
(ed.), supra footnote 279, at 334-346, MN 4.
962. Cf. L. B. Sohn, The Security Councils Role in the Settlement of Inter-
national Disputes, 78 AJIL (1984), 402-405 ; and S. R. Ratner, Image and
Reality in the UNs Peaceful Settlement of Disputes, 6 EJIL (1995), 426-444.
impressive role in dispute settlement 963. His role is described as

good offices which include, in United Nations practice, mediation
and fact-finding and refer to the independent political role of the
Secretary-General in preventing or mediating conflicts among, and
more recently within, States 964. The Secretary-General has acted as
an arbitrator in the Rainbow Warrior case 965 and has mediated inter
alia in the Guyana-Venezuela boundary dispute in 1991 and between
Russia and the Baltic States (Lithuania, Latvia, Estonia) in the dis-
pute arising out of differences regarding the terms for withdrawal of
remaining Russian military contingents and ancillary matters 966. But
most frequently, at least in the last decade, his good offices were
required in the preparation and implementation of peace-keeping
operations and other measures decided by the Security Council 967.
2. Freedom of choice
585. Article 33, paragraph 1, of the Charter does not indicate a
preference for one of the procedures which it mentions. It offers, on
the other hand, with the ICJ the principal organ for resolving legal
disputes. Although the work of the Court has considerably increased
during the last decades, particularly through the use of Chambers,
only a fraction of existing international legal disputes have been
referred to it. Besides the not insignificant costs involved in pro-
cedures before the Court, mainly three reasons seem to be respon-
sible for that.
586. One reason is the different perception of civilizations of
what conflict resolution should achieve. The idea that an impartial
decision ends a dispute is decidedly Western. It is the fruit of the
cultural influences which make up Western civilization, a mixture of
Jewish, Greek, Roman and Christian traditions. During the era of
colonization European legal thinking and the institutions which it
had invented for the administration of the law were introduced into
other continents, but lasted only in Latin America where Europeans
settled, formed the governing stratum of society and could implant
963. Cf. K. Skjelsbaek, The UN Secretary-General and the Mediation of

International Disputes, 28 J. of Peace Research (1991), 99-115 ; and T. M.
Franck, The Secretary-Generals Role in Conflict Resolution : Past, Present and
Pure Conjecture, 6 EJIL (1995), 360-387, who reviews practice since 1945.
964. Franck, supra footnote 963, at 361.
965. See source in footnote 892.
966. Franck, supra footnote 963, at 370.
967. Ibid., 375-381.
278 K. Zemanek
social habits. In Asia and Africa 968, on the other hand, where Euro-
peans worked mostly in administration or the economy, the introduc-
tion of European legal institutions came across strong local cultural
and/or religious traditions which they could temporarily suppress but
not change. With independence the new States emerging from colo-
nization have again found identity in their ancient traditions. What
these various traditions have in common is a different idea of jus-
tice : justice depends on a fair balancing of the interests involved,
because the main purpose of conflict resolution is seen in the recon-
ciliation of the parties. Therefore, States with such cultural traditions
hesitate to accept judicial decisions on the international level, believ-
ing that in this area, too, reconciliation is more important than the
determination of who is right and who is wrong. Under their influ-
ence conferences which adopted multilateral conventions during the
last decades have mostly preferred conciliation to the ICJ or arbitra-
tion as mechanisms for the settlement of disputes in the relevant pro-
visions 969.
587. A further reason for reticence is generally shared. States
may be prepared to submit an actual legal conflict to adjudication,
but are often reluctant to accept in advance a compulsory procedure
which leads to the compulsory decision of a dispute which might
concern a yet unknown object and a presently unknown opponent.
Relatively few States have made a unilateral declaration in accor-
dance with Article 36, paragraph 2, of the ICJ Statute, thereby
accepting as compulsory ipso facto the jurisdiction of the Court in
relation to any State accepting the same obligation 970. And many of
them have added conditions to the declarations which restrict their
scope 971. Nor do general conventions on the peaceful settlement of
disputes enjoy wide acceptance. Even the European Convention for
the Peaceful Settlement of Disputes 972, which is, as far as the juris-
968. With a few exceptions such as Kenya or South Africa.

969. The Great Debate began at the Vienna Conference on Consular Rela-
tions in 1963 and had a peak at the 1968-1969 Vienna Conference on the Law
of Treaties. Cf. for a detailed analysis H. Neuhold, Internationale Konflikte
verbotene und erlaubte Mittel ihrer Austragung, Vienna, 1977, 416-444.
970. According to the ICJ Yearbook 1993-1994, 58 States maintain declara-
tions.
971. Cf. Chap. VIII, paras. 360-368.
972. See source in footnote 551. Cf. also H. Miehsler, The European Con-
vention for the Peaceful Settlement of Disputes, in H. Kipp et al. (eds.), Um
Recht und Freiheit, Festschrift fr F. A. Frhr. v.d. Heydte, Berlin, 1977, 335-
361.
diction of the ICJ is concerned, only a pactum de contrahendo for

submitting a case to it by compromis, has only been ratified by one
third of the Members of the Council of Europe, although one would
have expected otherwise in a relatively uniform cultural environment
in which faith in the rule of law is daily professed.
588. A third reason, finally, seems to originate in an undisclosed
mental reservation. In spite of the impeccable credentials of the
judges of the ICJ and the impartiality demonstrated by the judg-
ments, States sometimes appear uneasy with a judiciary on whose
composition they have no direct influence. Article 32, paragraphs 2
and 3, of the Courts Statute which permit the appointment of ad hoc
judges by one or both parties to a dispute (and is habitually used), is
apparently not sufficient to dispel the doubts. That is, at least, sug-
gested by the frequent resort to ad hoc chambers of the Court which
depend in their composition on the approval of the parties, if not by
the wording of Article 26, paragraph 2, of the Statute then in prac-
tice 973. The tendency of having, at least theoretically, control over
the selection of persons who will be sitting in judgment 974 is also
apparent in the number of important cases still going to arbitration.
Switzerland, for one, has built a veritable network of bilateral arbi-
tration agreements 975.
C. Methods to limit the choice in legal disputes
589. To make the choice more predictable, methods have been

devised for limiting the freedom of the parties to a legal dispute
in choosing a procedure. All methods require States to agree in
advance on a specific procedure or procedures for resolving future
disputes. General agreements for the peaceful settlement of disputes,
like the Hague Conventions on the Pacific Settlement of Disputes of
1899 and 1907 976 or the Geneva General Act for the Pacific Settle-
973. See S. Schwebel, Ad Hoc Chambers of the International Court of Jus-

tice, 81 AJIL (1987), 831-854 ; and S. Oda, Further Thoughts on the Chambers
Procedure of the International Court of Justice, 82 AJIL (1988), 556-562.
974. Personal experience indicates that parties vet potential arbitrators
thoroughly before nominating them. This is particularly true for umpires.
975. See D. Schindler, Die Schweiz und das Vlkerrecht, in A. Riklin et al.
(eds.), Neues Handbuch der schweizerischen Aussenpolitik, Berne, 1993, 99-
119, 105-106 ; and L. Caflisch and B. Godet, Die Schweiz und die friedliche
Streitbeilegung, ibid., 957-972.
976. For the text of the 1907 Convention see International Bureau of the Per-
manent Court of Arbitration, The Permanent Court of Arbitration New Direc-
280 K. Zemanek
ment of International Disputes of 1928 977, as well as regional

arrangements like the Pact of Bogot of 1948 or the European Con-
vention of 1957 have not changed the situation fundamentally 978.
Two other special methods are of greater interest.
590. A multilateral convention on a specific subject-matter may
establish the right for each party to submit a dispute with any other
party on the interpretation or application of the convention unilater-
ally to the ICJ. Useful as this method appears for ensuring the uni-
formity of a rgime, it is, in practice, not overly successful. Already
in the last years before the reference to the ICJ disappeared alto-
gether from great multilateral conventions, including codification
conventions, relevant provisions had been relegated to optional pro-
tocols 979 which were usually not ratified by all parties to the main
treaty.
591. Yet, even if the duty to accept the jurisdiction of the ICJ is
stipulated in the convention itself, States have found a way around it
by excluding it in a reservation. This was done by the Soviet Union
in respect of the settlement clause in the Genocide Convention and
led to the Advisory Opinion by the ICJ 980. Although the Court did
not have to pronounce on the validity of the specific reservation, its
Opinion implied that it did not regard the reservation as incompat-
ible with the object and purpose of the Genocide Convention. One
may, therefore, infer that the Court considered the reservation per-
missible, but one hesitates to concur. Accepting provisions for the
eventual control of the correct fulfilment of obligations established
by the Convention appears to be as essential for the achievement of
the Conventions object and purpose as the acceptance of the obliga-
tions themselves 981. And, as practice shows, the Opinion of the
tions, The Hague, 1991, 27-42. Although both Conventions together have 82
parties, this is to a certain extent due to the fact that the national groups of
arbitrators nominate candidates for election to the ICJ.
977. Revised on 28 April 1949 by GA resolution 268 A (III) to adapt it to the
new circumstances ; source 71 UNTS, 101-127. Cf. F. A. v.d. Heydte, General
Act for the Pacific Settlement of International Disputes, 1 EPIL (1978), 62-65.
978. Although the General Act was invoked as supplying the basis for juris-
diction in the Nuclear Tests cases (source in footnote 502) and the Aegean Sea
Continental Shelf case (ICJ Reports 1978, 18). In the first cases over objections
by the respondent which the Court did not decide since it declared the applica-
tions to be moot. In the second case the Court found that it lacked jurisdiction.
979. Cf. the Optional Protocol to the Vienna Convention on Diplomatic Rela-
tions.
Court sent the wrong signal 982. Some States seem to regard it as a
licence for adhering to all available multilateral conventions, cre-
ating the image of a model member of the international system, while
apparently assuming that implementation was nobodys concern,
since the mechanism to judge an alleged lack of implementation
could be excluded with impunity. This understanding is also
reflected in the reservations to Article 66, subparagraph a, of the
VCLT which establishes the jurisdiction of the ICJ with regard to
disputes concerning violations of jus cogens 983. This unfortunate
situation provides one more argument for developing the concept of
erga omnes obligations and of the consequences of their violation in
the context of State responsibility 984.
592. Another method of limiting the choice is provided by Ar-
ticle 36, paragraph 2, of the Statute of the ICJ : a unilateral declaration
made in advance by each of two States establishes the jurisdiction of
the Court in an international dispute arising between them, if the
jurisdiction is not excluded by a time-limit or by any other condition
in one of the declarations. This arrangement, based on reciprocity, is
also not as successful as one would expect it to be, because, apart
from the relatively small number of States which have made such a
declaration 985, declarations often include conditions which severely
limit their practical value. Only about half of the declarations are
unlimited in time and/or substance. Other States have excluded inter
alia matters of national security or of domestic jurisdiction from
their acceptance. As long as a State invoking such a limitation has to
satisfy the Court that the limitation applies in the case at hand, the
condition is regrettable but legitimate. If, however, the condition is
formulated in such a way as to reserve the decision of whether it
applies in a given case for the declaring State 986, then its compati-
bility with Article 36, paragraph 6, of the Statute, which gives the
982. The Genocide Convention itself is riddled with reservations to Article

IX and objections to these reservations.
983. Originally eleven States had made such a reservation but those of Bul-
garia, Czechoslovakia, Hungary and Mongolia have since been withdrawn. Sev-
eral other States objected to one or more of these reservations, Germany with
express reference to its incompatibility with the object and purpose of the Con-
vention.
984. See Chap. XII, paras. 558-561.
986. See e.g. the erstwhile Declaration of the United States of 14 August
1946, ICJ Yearbook 1981-1982, 92. Liberia, Malawi, Mexico, the Philippines
and the Sudan have similarly limited their declarations.
282 K. Zemanek
Court competence to decide on its own jurisdiction, becomes an

issue. The Court has never decided whether this sort of limitation
invalidates the declaration or is only in itself invalid, although it had
opportunity to do so in some cases 987. This restraint is partly
explained by the manner in which the Court functions, deciding on
applications by the parties before it. Thus, if neither party raises the
issue, the Court is not bound to pronounce on it. But it is not far-
fetched to imagine that the Court is also conscious of the possible
reaction of the State concerned. One may speculate that the example
of those States which, disappointed with the Courts assuming juris-
diction against their objection, have terminated their declarations
under Article 36 988, suggests caution.
D. Mechanisms under sectional and/or sectorial rules
593. It is not feasible to survey all settlement procedures in exist-

ing rgimes or sub-systems in the present context. Institutions which
exist within human rights sub-systems, like the European Court of
Human Rights or the Inter-American Court of Human Rights,
although they function effectively, are left out of consideration
because they are only inter alia concerned with inter-State disputes.
The same applies to the European Court of Justice of the European
Union. A few examples are selected to indicate the trend set by
recent additional mechanisms in sectional or sectorial rules.
594. The most recent addition to sectorial mechanisms for the
peaceful settlement of inter-State disputes are the Conciliation Com-
mission and the Arbitral Tribunal set up by the Convention on Con-
ciliation and Arbitration within the CSCE which was adopted in
1993 989. Preference is evidently given in this Convention to the con-

988. See e.g. the Letter of 7 October 1985 which terminated the American
declaration in the wake of the Nicaragua case 24 ILM (1985), 1742 ; and cf.
B. Cheng, Flight from Justiciable to Auto-interpretative International Law, in
Liber Amicorum E. van Bogaert, Antwerp, 1985, 3-18 ; and S. Oda, Reserva-
tions in the Declaration of Acceptance of the Optional Clause and the Period
of Validity of Acceptance : The Effect of the Schultz Letter, 59 BYIL (1988),
1-30. France also terminated its declaration after the Nuclear Tests cases (ICJ
Yearbook 1973-1974, 49) ; cf. G. de Lacharrire, Commentaire sur la position
juridique de la France lgard de la licit de ses expriences nuclaires, 19
AFDI (1973), 235-251. According to the ICJ Yearbook 1993-1994, altogether
12 States have terminated their declarations since 1951, albeit not all for the
same reason.
ciliation procedure which can be initiated unilaterally but ends with

a non-binding report of the Conciliation Commission. Jurisdiction of
the Arbitral Tribunal requires a compromis between the parties con-
cerned, but Article 26, paragraph 2, provides also for a unilateral
declaration acknowledging compulsory jurisdiction on the basis
of reciprocity, a provision that is fashioned after Article 36, para-
graph 2, of the Statute of the ICJ. The Conciliation Commission and
the Arbitral Tribunal are, in principle, competent to hear any dispute
which is not settled within a reasonable time. Since, however, the
Arbitral Tribunal is charged by Article 30 to decide according to
international law unless the disputing parties request a settlement
ex aequo et bono, it is apparently designed to decide legal disputes.
595. Article 19 takes care to safeguard other existing means of
settlement on which the parties have agreed in advance, as long
as they lead to a binding decision. This saving clause refers, in the
first instance, to compromissary clauses in other treaties and to
coinciding declarations under Article 36, paragraph 2, of the Statute
of the ICJ. But it also applies to the obligation under Article 1 of the
European Convention on the Peaceful Settlement of Disputes 990
which requires submission of legal disputes to the ICJ 991.
596. The newest addition to sectional rules on the settlement of
disputes having recently become operational 992 is the International
Tribunal for the Law of the Sea 993, established by Annex VI of the
United Nations Convention on the Law of the Sea. Its 21 judges are
elected by the contracting States for a period of nine years. Accord-
ing to Article 187 its Sea-Bed Dispute Chamber has exclusive juris-
diction over disputes concerning the sea-bed mining provisions
(Part XI) of the Convention, unless the parties to certain disputes
refer them by agreement to other institutions listed in Article 188. In
respect of disputes concerning other provisions of the Convention,
with the exceptions of those relating to the exercise of sovereign
rights (Art. 297), the acceptance of a settlement procedure is manda-

991. Cf. the Austrian attempt to exclude that obligation, described in Chap-
ter X, paras. 456-459.
992. It became operational on 17 October 1996.
993. For more details see L. Caflisch, Le rglement judiciaire et arbitral des
diffrends dans le nouveau droit international de la mer, in E. Diez et al. (eds.),
Festschrift fr R. Bindschedler, Berne, 1980, 351-371 ; G. Singh, United Nations
Convention on the Law of the Sea : Dispute Settlement Mechanisms, New Delhi,
1985 ; and A. O. Adede, The System for Settlement of Disputes under the United
Nations Convention on the Law of the Sea, Dordrecht, 1987.
284 K. Zemanek
tory. However, Article 287 allows the contracting States to opt, when
signing, ratifying or adhering, either for the ICJ, or the International
Tribunal for the Law of the Sea, or one of the arbitral tribunals
established by Annexes VII and VIII, as mechanisms for deciding
disputes concerning the interpretation or application of the Conven-
tion 994.
It is interesting to note that even within this closely defined sec-
tional sub-system provision had to be made for States to choose arbi-
tration, and with it a body whose composition they can influence,
rather than the ICJ or the Sea Law Tribunal.
597. The examples reviewed tend to confirm the impression that
at present mandatory judicial settlement, especially by a permanent
body, faces difficulties even in special rgimes or sub-systems, since
the general trend moves rather in the direction of conciliation, or
arbitration at best. This view is confirmed by the settlement pro-
cedures proposed in the ILC draft on State responsibility 995 which
provides only for negotiation, mediation, conciliation or arbitration.
II. Should the Nature of a Dispute Determine

the Appropriate Procedure for Its Settlement ?
A. Different kinds of disputes
598. When Gerhard Hafner moderated a round-table discussion

during the United Nations Congress on Public International Law on
The Physiognomy of Disputes and the Appropriate Means to
Resolve Them 996, he reanimated the long-standing debate on
whether all mechanisms for settling international disputes peacefully
fit all kinds of disputes equally 997.
If one takes the review in the previous section of this chapter into
account, it seems that, when adopting provisions for the settlement
994. For a severe critique of this arrangement see S. Oda, The International
Court of Justice Viewed from the Bench (1976-1993), 244 Recueil des cours
(1993-VII), 13-182, 144-148.
996. UN, International Law as a Language for International Relations, Pro-
ceedings of the United Nations Congress on Public International Law (New
York, 13-17 March 1995), The Hague, 1996, 559-565. The title of the workshop
is borrowed from an article by Shabtai Rosenne.
997. Cf. e.g. Max-Planck Institute for Comparative Public Law and Interna-
tional Law, Judicial Settlement of International Disputes, An International Sym-
posium, Berlin, 1974.
of disputes in a new multilateral convention, States rather concen-

trate on the formal aspects of the procedure without being troubled
by doubts as to their suitability for dealing with future disputes.
Thus the relation evoked in the title of the round-table seems to be
of little concern in practice.
599. One exception which comes to mind is the mandatory juris-
diction of the ICJ established by Article 66, subparagraph a, of the
VCLT with regard to disputes concerning violations of jus cogens.
This provision is a necessary consequence of the concept of jus
cogens : if that body of rules binds each and every member of the
international system, its determination and interpretation cannot be
left to conciliation commissions or arbitral tribunals set up between
specific States without risking its fragmentation by divergent find-
ings and thus the rupture of the whole concept. That exceptional pro-
vision is the legacy of a great jurist, the late judge Taslim O.
Elias 998, leader of the Nigerian delegation to the Vienna Conference,
whose enormous prestige assured its adoption 999. But it was a lone
swallow which did not make a summer.
600. The academic debate, however, has been going on for a long
time 1000. It was born by the insight that while all international dis-
putes can be juridically decided, it is not true that all disputes can be
juridically settled 1001. Indeed, a dispute decided on the basis of
international law is a zero-sum game. The answer to a specific sub-
mission can only be aye or no, even if the problem is eventually sub-
divided in points of issue on which the ayes and noes may change.
Traditionally this is considered the ideal manner of resolving inter-
national legal disputes.
601. Conflicts of interests, however, cannot be settled in this
manner. The answers required by the problems involved cannot be
given in the form of aye and no. Disputes of this nature concern situa-
tions which, although undeniably lawful, are nonetheless regarded
as irreconcilable with its vital interests by the claimant State. Its
claim, if it were decided on the basis of existing law, would have to
998. See the Proposals by Ghana, Ivory Coast, Kenya, Kuwait, Lebanon,
Morocco, Nigeria, Sudan, Tunisia and Tanzania in A/CONF.39/L.47/Rev.1.
999. Cf. Official Records, UN Conference on the Law of Treaties, Second
Session, 188-189 : Summary Record, 34th Plenary Meeting, 21 May 1969.
1000. Cf. e.g. Sir John Fischer Williams, Justiciable and Other Disputes, 26
AJIL (1932), 31-36.
1001. J. L. Kunz, International Arbitration in Pan American Developments,
27 Texas L. Rev. (1948), 182-202, 201.
286 K. Zemanek
be rejected. But that would not settle the dispute since the claim
seeks, in fact, an adjustment of the legal situation. The Israeli-Syrian
dispute over the Golan Hights could be decided on the basis of inter-
national law with an obvious result, but that would not let the matter
rest. Disputes of this kind are classical cases for procedures other
than judicial decisions.
602. At the round-table referred to in the beginning of this sec-
tion, the introductory statement argued that the changes which have
occurred in the international system during the last decades made a
fresh look at the problem necessary. The thrust of the argument went
in two directions.
603. First, that the growing number of erga omnes obligations
established by multilateral conventions had not been accompanied
by a corresponding adaptation of settlement procedures, which
remain shaped by the traditional reciprocal rights/obligations struc-
ture 1002. The possibility of judicially enforcing erga omnes obliga-
tions is, therefore, uncertain. A recent study of the ICJs jurispru-
dence in this matter concludes that, although the Court recognizes
the existence of such obligations, its decisions in cases where erga
omnes obligations were invoked did not confirm them 1003.
604. Second, that the growing number of matters which States
refuse to submit to third-party settlement procedures (e.g. national
defence, territorial integrity, title to territory) calls for new methods
to resolve them because, in fact, no precise line between justiciable
and non-justiciable disputes can be drawn 1004.
605. A further aspect adds support to the plea for rethinking the
methods of peaceful settlement. Disputes on the use of resources are
already frequent 1005 but will increase in number in the future. Inter-
national law in this area is dynamically developing but often, at least
during a certain period, in the form of soft law. Sometimes not even
soft law exists, but a decision based on existing law would never-
theless appear manifestly unjust.
606. Such situations require a mixed approach, not just a decision
based on hard law. This was sensed by the ICJ in the North Sea
1002. Introductory Statement, supra footnote 996, at 561-562.

1003. Annacker, Durchsetzung von erga omnes Verpflichtungen, supra foot-
note 879, at 26-27.
1004. Introductory Statement, source supra footnote 996, at 562.
1005. Especially with regard to the continental shelf. But see generally Hague
Academy of International Law (R.-J. Dupuy, ed.), The Settlement of Disputes on
the New Natural Resources (Workshop, 1982), The Hague, 1983.
Continental Shelf case 1006, where it defended the necessity to apply

equitable principles within the confines of the law to achieve a just
decision. This new approach led to a number of further requests to
delimit the continental shelf 1007 and appears, therefore, to coincide
with the wishes of the States involved. It is a turn away form a
strictly declaratory jurisprudence towards a more distributive justice.
The same approach will be required in the future when dealing with
the distribution of water resources 1008, the protection of the environ-
ment 1009 and sustainable development.
B. Suitable mechanisms
1. Should existing procedures be improved ?
607. Although the foregoing review is unavoidably sketchy, it

permits, nevertheless, some conclusions. It should, for instance, be
evident that a purely rational allocation of certain disputes to certain
settlement procedures would stand no chance of being followed
in practice. Not only would it require a complete redrafting of
Article 33 of the Charter but, and that is an even more formidable
obstacle, it conflicts with the current preference for non-binding
conciliation procedures, regardless of the objective to be achieved
by the procedure.
608. As long as the dispute is mainly one of facts that have or
have not taken place, or is caused by the intention of one party to
change a lawful situation because of overriding political or military
interests, a conciliation procedure may indeed lead to the desired
settlement of the dispute. But if the settlement requires the identifi-
cation of the legal rule or rules which govern the conflict and a deter-
mination of their applicability, only a judicial or quasi-judicial
1006. ICJ Reports 1969, 3-54, 48-52, paras. 88-99.

1007. Cf. M. D. Blecher, Equitable Delimitation of Continental Shelf , 73
AJIL (1979), 60-88 ; L. Sohn, The Role of Equity in the Jurisprudence of the
International Court of Justice, in B. Dutoit and E. Grisel (eds.), supra footnote
882, at 303-312 ; L. D. M. Nelson, The Role of Equity in the Delimitation of
Maritime Boundaries, 87 AJIL (1990), 837-858.
1008. See S. C. McCaffrey, The Evolution of the Law of International
Watercourses, 45 AJPIL (1993), 87-111 ; G. Hafner, The Optimum Utilization
Principle and the Non-Navigational Uses of Drainage Basins, ibid., 113-146.
1009. See G. Handl, The Principle of Equitable Use as Applied to Interna-
tionally Shared Resources : Its Role in Resolving Potential International Dis-
putes over Transfrontier Pollution, 14 RBDI (1978), 40-64.
288 K. Zemanek
procedure is adequate. Consideration should, therefore, be given to a

possible improvement of these procedures by meeting the require-
ments of the latest developments in international law, making them
thereby more attractive to potential disputants. Such considerations
concern primarily the ICJ or other permanent tribunals because
States which set up an ad hoc arbitral tribunal do not only determine
its procedure and the arbitrators but also the rules on which the deci-
sion is to be based 1010.
609. One option is to improve the authorization of a court to have
recourse to equity considerations. The doctrine of equity within the
law which the ICJ announced in the North Sea Continental Shelf
case 1011 is still not exactly defined 1012 and needs development. That
does not mean that courts should in the future be authorized to
decide ex aequo et bono when the parties expect a decision based on
international law. But the application of the doctrine has hitherto
been limited to the obvious case of rules which explicitly include a
reference to equity in the legal command, mostly for the distribution
or allocation of natural resources. What seems required is a scrutiny
of a broader spectrum of international rules for implicit references to
equity that would allow the extension of the doctrine to them. It
may, of course, be argued that this would make decisions less pre-
dictable, but one wonders whether predictability is not a chimera
which exists only in the mind of counsel who wishes to reassure his
client, especially in a case that is to be decided on the basis of cus-
tomary international law. The advantage of an extension of the dis-
cretionary power of courts lies elsewhere : it might facilitate the
settlement of a dispute to the satisfaction of both sides, instead
of achieving the customary zero-sum result.
1010. See e.g. the terms of reference of the Tribunal in the Trail Smelter case
in paragraph 486.
1011. ICJ Reports 1969, 3-54. Paragraph 88 formulates it as . . . the decision
finds its objective justification in considerations being not outside but within the
rules . . ..
1012. Cf. e.g. the conclusions drawn by Koskenniemi, supra footnote 3.
The differences of opinion are reflected in scholarly writings ; cf. e.g. C. De
Visscher, De lquit dans le rglement arbitral ou judiciaire des litiges de droit
international public, Paris, 1972 ; G. Schwarzenberger, Equity in International
Law, 20 Y. World Affairs (1972), 346-369 ; M. Akehurst, Equity and General
Principles of Law, 25 ICLQ (1976), 801-825 ; P. Reuter, Quelques rflexions
sur lquit en droit international, 15 RBDI (1980), 165-186 ; R. Bermejo,
Place et rle de lquit dans le droit international nouveau, 36 AJPIL (1985-
1986), 219-253 ; R. Jennings, Equity and Equitable Principles, 42 ASDI
(1986), 27-38 ; and M. Villiger, Die Billigkeit im Vlkerrecht, 25 AVR (1987),
174-201.
610. Another point which needs rethinking and the development

of a coherent theoretical framework is the way in which matters of
high political importance should be dealt with in a basically legal
dispute. The introductory statement to the round-table suggests that,
since States hesitate to submit disputes with such implications to any
type of third-party settlement procedure, instruments should be
sought which avoid a total defeat of one side to the dispute, lead to
a solution benefiting both sides and do not pose a threat to the basic
values or ideologies involved in the case 1013.
This suggestion seems to point prima facie in the direction of con-
ciliation procedures although it coincides to some extent also with
what has just been argued. It could, however, also be understood in
the reverse sense, that legal proceedings may be used for defusing an
emotionally highly charged political crisis, as the Iran-United States
Claims Tribunal in The Hague shows.
611. Quite different from the choice of an appropriate procedure
is the question of how to deal with political questions that become
part of judicial proceedings. The problem appears most clearly in
the so-called automatic reservations, also called self-judging
clauses, which limit the unilateral acceptance of jurisdiction by
exempting matters of national security 1014. Such a reservation can
be seen from two angles. For the State concerned national security
is not a category capable of any kind of judicial assessment as Sir
Robert Jennings has observed 1015. But if the State were the sole
judge in this regard and not limited by any bounds, its compliance
with the rules of international law governing the case would simply
be voluntary. If the opposing views are to be reconciled, a way has
to be found for controlling the claim to the exemption in some
manner. Since the determination whether the matter in dispute affects
national security depends on the subjective perception of the State
invoking the exemption, orderly proceedings require that this State
should satisfy the court that its perception was plausible by reveal-
1013. Source supra footnote 996, at 564.

1014. The United Kingdom declarations under Article 36 of the Statute of the
ICJ of 1957 and 1958 contained such a limitation, but it was subsequently aban-
doned. France maintained one in its declarations of 1959 and 1966, but the lat-
ter was terminated in 1973.
M. A. Reiterer, Article XXI GATT Does the National Security Exception
Permit Anything under the Sun ?, 2 ARIEL (1997), 191, examines not only the
instance mentioned in the title but reviews also all other relevant examples.
1015. R. Jennings, Recent Cases on Automatic Reservations to the
Optional Clause, 7 ICLQ (1958), 349-366, 362.
290 K. Zemanek
ing the reasons which have caused it, instead of simply invoking the
exemption.
612. The workshop deserves further credit for drawing the atten-
tion to the necessity of clarifying the procedure for bringing before
an international court claims alleging the violation of erga omnes
obligations, especially in the context of human rights law and envi-
ronmental law 1016. As the matter stands now, the enforcement
and, consequently, the initiation of adjudication is left to individ-
ual States which are a party to the respective sub-system 1017. That
raises a number of questions, like : what is the effect of a judicial
decision, for example of the ICJ, on the other contracting parties
which have a right to claim ? It is doubtful whether the problem can
be solved by a recourse to the right of intervention which is pro-
vided by Article 63 of the Statute of the ICJ 1018. If one considers the
number of parties to some human rights conventions, the procedure
might become unwieldy. The introductory statement to the work-
shop urges that [t]he question of who should be entitled to represent
the international community should . . . be raised 1019. But there is
no easy answer to that question. Agency is not a well-established
institution of international law and neither is joint action, like in a
communio incidens. The latter would, moreover, require all other
parties to the sub-system to agree that a violation has taken place
and should be pursued in court and what happens if one of the States
disagrees ? The obvious dilemma is this : while some form of collec-
tive enforcement would be preferable 1020, to organize it through
access to international courts, preferably the ICJ, is loaded with dif-
ficulties which, in the present state of the international system,
States can hardly be expected to remove. And if the initiative
remains with individual States, another set of unresolved problems is
encountered 1021. Perhaps the current proceedings before the ICJ
between Bosnia and the Federal Republic of Yugoslavia (Serbia and
Montenegro) in the case concerning Application of the Convention
1016. Source supra footnote 996, at 562. See also Annacker, supra foot-
note 1003.
1018. On the institution see S. Torres Bernrdez, Lintervention dans la
procdure de la Cour internationale de Justice, 256 Recueil des cours (1995),
203-452.
1019. Source in supra footnote 996, at 563.
1020. See Chap. XIV, paras. 622-624.
on the Prevention and Punishment of the Crime of Genocide 1022 will

shed new light on this thorny problem.
2. Are new procedures required ?
613. The current formulation of the duty to settle international

disputes peacefully in Article 33 of the Charter focuses on disputes
with a high political profile which involve, in addition to the purely
legal issues, a high degree of other elements of a political, economic,
social, or humanitarian character which ever so often inhibit their
submission to third party settlement. By the way in which it is
worded it neglects
the need for some quick and easy means of settling by adjudi-
cation the hundreds of routine issues which, important as they
are in themselves, arise almost daily between States, and which
could (if only the willingness and the necessary mechanisms
existed) be so settled without involving any of those collateral
or ulterior considerations that may inhibit such action in major
cases 1023.
Currently, these low level disputes are either settled through nego-
tiations 1024, though often at the expense of more time and energy
than they deserve, or drag on unsettled for a long time until they are
forgotten or Governments lose interest. A readily available simple
procedure would ease the work of legal advisers of foreign minis-
tries and contribute to more orderly relations. But disputes concern-
ing routine issues are not only neglected by the Charter, they
also fail apparently to attract the attention of Governments and of
scholars.
1022. Cf. the decision on Provisional Measures : ICJ Reports 1993, 1-25.
1023. Fitzmaurice, supra footnote 127, at 450. See also id., Notes and Com-
ments : Legal Advisers and Foreign Affairs (Review Article), 59 AJIL (1965),
72-86, 74-75 ; id., The Future of Public International Law and of the Interna-
tional Legal System in the Circumstances of Today, supra footnote 141, at 281
(para. 84 (1)) ; Sir C. Hurst, Wanted ! An International Court of Piepowder,
6 BYIL (1925), 61-67 ; D. A. Wehmeyer, An Attainable International Court
System, World Peace through Law Center, Pamphlet Series, No. 1, Washing-
ton, DC, 1964.
1024. See G. Geamanu, Les ngociations. Moyen principal du rglement
pacifique des diffrends internationaux, in J. Makarczyk (ed.), supra footnote
95, at 375-387 ; and C. M. Fombad, Consultation and Negotiation in the Peace-
ful Settlement of International Disputes, 1 African JICL (1989), 707-724.
292 K. Zemanek
614. Further underdeveloped fields are the settlement of legal

disputes between international organizations and States, or between
individuals and States or international organizations, since the exist-
ing means and rgimes focus on disputes between States. As a rule
they do not confer upon international organizations or NGOs the
right to participate in contentious international proceedings and grant
individuals only limited rights in this respect in the framework of
particular sectorial human rights sub-systems 1025 or in staff regula-
tions of international organizations. For the rest no permanent mech-
anisms or treaty rgimes cover these disputes. If States or organiza-
tions agree at all to submit such disputes to an international
settlement procedure, it is on the basis of an ad hoc arrangement.
This lack of conceptual foresight is regrettable because there is no
doubt that disputes of this kind will multiply in the future. Quite
apart from international organizations, where the need is already evi-
dent, the growing sensitivity of the world population to threats to the
environment will, for example, increase the potential of disputes
between NGOs and/or individuals on the one side and a neighbour-
ing State on the other 1026. If potential conflicts of this kind were left
to their own devices and thus remain probably unresolved, they
might unfavourably effect the cohesion of the international system.
615. It is, therefore, an encouraging sign that at least one institu-
tion, the Permanent Court of Arbitration established by the Hague
Conventions of 1899 and 1907, has taken the initiative of making its
mechanism available for the aforementioned disputes. It established
in 1993 Optional Rules for Arbitrating Disputes between Two Par-
ties of Which Only One Is a State and in 1996 Optional Rules for
Arbitration Involving International Organizations and States 1027.
Availability of a procedure does, of course, not guarantee that dis-
putes of the aforementioned nature will actually be submitted to it.
For that the necessary political will must be generated. But the
mechanism helps at least to focus efforts which may be undertaken
in this direction.
1025. Introductory Statement, supra footnote 996, at 563.

1026. Cf. P. H. Sand, Transnational Environmental Disputes, in Hague
Academy of International Law (D. Bardonnet, ed.), The Peaceful Settlement of
International Disputes in Europe : Future Prospects (Workshop, 1990), Dor-
drecht, 1991, 123-131.
1027. Both texts are published by the International Bureau of the Permanent
Court of Arbitration in The Hague.
293
CHAPTER XIV
COLLECTIVE ENFORCEMENT
I. The Practice of Collective Enforcement
A. Provisions for collective enforcement
1. Indirect enforcement
616. International organizations are the only existing structures to

which the orderly collective enforcement of international obligations
could be entrusted. However, as has been described in some
detail 1028, enforcement is not the best-developed feature of interna-
tional organizations. Where it is provided for, either in the constitu-
tion of an organization or in a convention adopted under its auspices,
it functions in an indirect way : by establishing some sort of interna-
tional control, mostly in the form of a reporting system that is some-
times strengthened by a compliance procedure 1029, organizations try
to enlist the pressure of public opinion for inducing compliance 1030.
Whether this indirect method is successful depends on two condi-
tions : first, that the media are interested and disseminate the infor-
mation, thereby building up external pressure ; and secondly, that the
State concerned has free media which echo the international concern
and build up internal pressure ; the accumulation may then induce
the State to clear its image. That States are apprehensive of the pos-
sible effect of publicity may be gathered from provisions which
make the findings of control mechanisms either confidential 1031 or
1028. See Chap. IV, paras. 163-164, and Chap. IX, para. 401.
1029. Cf. Chap. IV, para. 165.
1030. Although the findings resulting from these procedures are, as a rule,
not legally binding ; see K. Herndl, Zur Frage des rechtlichen Status der Ent-
scheidungen eines Staatengemeinschaftsorgans : die views des Menschenrechts-
ausschusses, in K. Ginther et al. (eds.), supra footnote 44, at 203-221, 209-
212.
1031. Cf. e.g. the Procedure for Dealing with Communications Relating to
Violations of Human Rights and Fundamental Freedoms, ECOSOC res. 1503
(XLVIII) of 27 May 1970 ; para. 7 (c), dealing with investigative ad hoc Com-
mittees of the Human Rights Commission, states : [Their] communications
shall not be publicized in any way.
294 K. Zemanek
allow only their summary publication in a report to a parent body.

Much of the desired effect is thereby lost and this is the more regret-
table as the aforementioned conditions rarely obtain both in cases
where pressure would be most needed.
2. Enforcement by the Security Council
617. International organs are seldom authorized to enforce inter-

national obligations directly. Even in the Charter only the Security
Council is empowered to enforce obligations and that only in con-
nection with the maintenance of international peace and security.
618. However, non-military enforcement measures against a law-
breaking State, particularly economic boycotts, are not an exclusive
tool of the Security Council. If they are in conflict with obligations
under international law, which is rather likely in view of widespread
membership in WTO, they must either be justified as countermeas-
ures under the law of State responsibility 1032, provided that the State,
group of States or international organization which adopt the em-
bargo qualify as injured State under that law ; or they may be justi-
fied by a relevant decision of the Security Council 1033. One possible
consequence of an economic boycott which has not been author-
ized by the Security Council has not yet been sufficiently studied :
it is unclear whether the Security Council could determine that
countermeasures by one or several States resulting in a crippling
boycott, which puts the welfare of the population of the object State
in peril, constituted a threat to the peace, even if the embargo was
not disproportionate to the gravity of the violation of interna-
tional law that was its cause 1034. In spite of its proportionality, an
embargo which has such an effect is presumably not a legitimate
countermeasure. It is true that Article 50 of the ILCs Draft Articles
on State responsibility prohibits in subparagraph (b) only extreme
economic or political coercion designed to endanger the territorial
integrity or political independence of the State which has committed
the internationally wrongful act 1035 which does not include the wel-

1033. On the controversial legitimizing effect of recommendations cf.
Chap. IV, para. 162, and Chap. X, para. 470.
1035. Formerly Article 14. Text and commentary in UN, GAOR, 50th Session
(1995), A/50/10 : Report of the ILC on its 47th Session, 149-173.
fare of the population. But the Commission states in Article 42,

paragraph 3, in respect of reparation that [i]n no case shall [it]
result in depriving the population of a State of its own means of sub-
sistence 1036 and explains in the commentary that this reflects a legal
principle of general application 1037. If that is the case, the principle
applies not only to reparations but also to an embargo applied as a
countermeasure.
619. The use of force in enforcement measures is a monopoly of
the Security Council. Collective decisions in the exercise of the right
of self-defence do not enforce Charter obligations, even though the
measures applied may be similar to measures which the Security
Council may adopt 1038 ; they are, furthermore, provisional until the
Security Council has taken measures necessary to maintain interna-
tional peace and security.
620. The powers of the Security Council either to adopt non-
military measures or to use force depend on the existence of one of
the situations listed in Article 39 of the Charter, which are a threat to
the peace, a breach of the peace, or an act of aggression. Since the
Security Council determines itself whether one of these situations
exists, and has successfully warded off attempts to define them pre-
cisely 1039, it has a wide discretionary power 1040.
621. Thus it regarded the suspected support of international
terrorism, although the suspicion was only based on undisclosed
national intelligence reports, as sufficient for imposing sanctions on
Libya. On another occasion it let it become known that North
Koreas frustrating the IAEAs inspection of its nuclear power plants
under the Non-Proliferation Treaty, raising the suspicion of irregu-
larities, might be considered a threat to the peace and lead to
enforcement measures. This tends to show that, while the existence
1036. Formerly Article 6bis. Text and commentary in UN, GAOR, 48th Ses-
sion (1993), A/48/10 : Report of the ILC on its 45th Session, 142-151.
Paragraph 3 was inserted in 1996 ; see UN, GAOR, 51st Session (1996), A/51/10 :
Report of the ILC on its 48th Session, para. 66 (p. 152).
1037. Commentary, para. 8 (a), ibid. Similar ideas are embodied in Article 43,
subparas. (c) and (d), concerning restitution in kind ; see Chap. XII, para. 566.
1038. Cf. for instance Article 8 of the Inter-American Treaty of Reciprocal
Assistance (Rio Treaty) of 2 September 1947.
1040. See H. Freudenschuss, Article 39 of the Charter Revisited : Threats to
the Peace and the Recent Practice of the Security Council, 46 AJPIL (1993), 1-
39 ; M. Herdegen, Der Sicherheitsrat und die autoritative Konkretisierung des
VII. Kapitels der UN-Charta, in U. Beyerlin et al. (eds.), supra footnote 536, at
103-119 ; and R. Uerpmann, Grenzen zentraler Rechtsdurchsetzung im Rahmen
der Vereinten Nationen, 33 AVR (1995), 107-130.
296 K. Zemanek
of one of the situations mentioned in Article 39 could be determined

according to legal criteria, the actual determination by the Security
Council is a political decision in which legal considerations may, but
do not necessarily, play a role, though it will hardly be the decisive
one. Moreover, as has been noted earlier 1041, the status of eventual
ultra vires acts of the Security Council, caused by exceeding or
misusing its powers, is unresolved.
3. Areas requiring collective enforcement
622. Although it would greatly contribute to more orderly inter-

national relations if individual claims of States for violations of their
rights were generally subjected to a community procedure and event-
ually enforced by community organs instead of by the claimant State
itself, that will remain a utopian proposition as long as the structure
of the international system is not fundamentally changed.
623. In some areas, however, the development of international
law has generated substantive norms for which the present mode of
enforcement is unsuited 1042. Individual enforcement of norms of jus
cogens 1043 which were recognized in the VCLT, or of international
crimes or erga omnes obligations which were identified by the ILC
in its draft on State responsibility 1044, raises more problems than it
solves. If, as the concept behind these constructions suggests, either
the international community as a whole, or all partners of a particu-
lar sub-system, are injured by a violation of norms belonging to one
of these categories, and consequently entitled to request performance
and to take, eventually, countermeasures, collective enforcement
would seem the only proper and adequate way to proceed. Yet, once
again, no trend in this direction is detectable. The solution presently
proposed by the ILC is less than ideal and its potential pitfalls have
been examined above 1045.

1042. See J. A. Frowein, Collective Enforcement of International Obliga-
tions, 47 ZaRV (1987), 67-79 ; id., Legal Consequences for International Law
Enforcement in Case of Security Council Inaction, in J. Delbrck (ed.), The
Future of International Law Enforcement. New Scenarios New Law ?, Berlin,
1993, 111-124 ; and B. Simma, Does the UN Charter Provide an Adequate
Legal Basis for Individual or Collective Responses to Violations of Obligations
erga omnes ?, ibid., 125-146.
1043. See Chap. VI, paras. 235-237.
1045. Ibid. Cf. also Chap. XIII, para. 612.
624. There is a further reason for organizing the enforcement of

these norms collectively. After the atrocities perpetrated during the
last decades in Burundi, Cambodia, Rwanda, Somalia, Uganda, or in
the former Yugoslavia, the desirability of preventive or repressive
humanitarian intervention against genocide or similar gross viola-
tions of fundamental human rights came into focus as a possible
reaction 1046. The same could happen one day, when States should
perceive a massive pollution of the atmosphere or of the seas as
threatening the welfare of their populations, or even their exis-
tence 1047. If the reaction were left to individual initiatives, the emo-
tionally charged current of opinion could be exploited by big powers
for their own political ends instead for those of the international
community. The need to canalize the trend into collective action is,
in this respect, really urgent. The improvised and sometimes clumsy
response of the United Nations in the form of traditional peace-
keeping operations 1048 is an insufficient substitute.
B. Means of enforcement by the Security Council
1. The use of military force : the plan of the Charter
625. The Charter embodies the principles of collective security in

Articles 1 and 2, but specifies them in Chapter VII 1049. The defining
characteristic of the concept of collective security is the protection
of the members of the system against a possible attack on the part of
any other member of the same system 1050. When the United Nations
was founded in 1945, the general public ignored the details of Chap-
ter VII, and especially the discretionary power of the Security Coun-
1046. H. McCoubrey and N. D. White, International Organizations and Civil

Wars, Dartmouth, 1995, 14-15, see a possible justification of humanitarian inter-
vention by force, which objectively violates the jus cogens norm banning the use
of force, in the breach of the other peremptory norm of international law prohib-
iting genocide. But they also argue strongly that humanitarian intervention can-
not be justified within the terms of the UN Charter, except as collective right
authorized by the Security Council (15).
1047. Cf. M. E. OConnell, Enforcing the New International Law of the
Environment, 35 GYIL (1992), 293-332 ; and P. Sands, Enforcing Environ-
mental Security : The Challanges of Compliance with International Obligations,
46 J. International Affairs (1993), 367-390.
1049. See J. Delbrck, Collective Security, 3 EPIL (1982), 104-114, 105.
1050. R. Wolfrum, Commentary on Article 1, in B. Simma et al. (eds.),
supra footnote 279, at 49-56, MN 7.
298 K. Zemanek
cil under Article 39. Since people were only informed about the out-
line of the concept, and that moreover in the form of a catchword,
false expectations that the system would react automatically were
raised from the outset. The public really believed that, should one of
the United Nations members endanger international peace and secur-
ity, all other members would join forces and respond with appropri-
ate countermeasures, up to the eventual use of force under the direc-
tion of the Security Council. Nobody seems to have questioned the
ability and willingness of the United Nations members to live up to
their commitments.
626. While the Cold War paralysed the Security Council for more
than four decades it made people at least aware of the consensus
required among the permanent members for its functioning. At the
same time, however, it prevented the emergence of possible doubts
about the ability and willingness of the members to sustain the
system, because the disagreement among the permanent members
obstructed the implementation of those provisions of the Charter
which would have made the system operational. That refers par-
ticularly to Article 43 which would have put the members to the
test.
627. The rules of the Charter for the operation of the system of
collective security are rather complex. The Military Staff Commit-
tee, consisting of the Chiefs of Staff of the permanent members or
their representatives, should prepare a master plan for the conclusion
of agreements under Article 43, by which the members of the United
Nations would undertake to make armed forces or other assistance or
facilities available to the Security Council. Because of the disagree-
ment among the permanent members, the Military Staff Committee
was unable to present an agreed report in 1947 and ever since 1051.
And in spite of the changes which have taken place in the meantime,
the defect was not remedied. These provisions are a dead letter, a
practice established 1052 by omission. As a result, agreements under
Article 43 were never concluded and to this day no member State is
required to make troops available to the Security Council upon
request 1053.
1051. For further details see J. A. Frowein, Commentary on Article 43, in

B. Simma et al. (eds.), supra footnote 279, at 636-639, MN 16-17 ; and B.-O.
Bryde, Commentary on Article 46 and 47, ibid., 643-651.
1052. Cf. Chap. IX, paras. 414-416.
1053. Frowein, supra footnote 1051, in MN 18.
2. The use of military force : lessons from the Gulf War
628. When around 1989 the Cold War slowly de-escalated and
the then two superpowers began to put greater emphasis on their
converging or already common interests rather than on their differ-
ences, the public, which was blissfully unaware of the past omis-
sions in making the system operational, revived its hope that collec-
tive security would finally work. And that seemed, indeed, to be the
case when Iraq attacked Kuwait on 2 August 1990.
629. The Security Council reacted swiftly. On the same day it
determined that the invasion was a breach of international peace and
security, condemned it, and demanded the immediate and uncondi-
tional withdrawal of Iraqi forces 1054. And when Iraq announced the
annexation of Kuwait on 8 August, the Security Council declared it
null and void 1055.
630. In resolution 661 of 6 August 1990 the Council had in the
meantime ordered an economic embargo under Chapter VII against
Iraq. It had, however, no military means at its direct disposal, neither
for assistance nor for enforcement, and owing to the requirement of
ratification for agreements under Article 43 that deficiency could not
be remedied quickly even if there had been a wish to do it.
631. The United States, which had considerable interests in the
area in general, and not just in its oil resources, filled the gap by
organizing a group of States, later to be known as Member States
co-operating with the Government of Kuwait, to assist Kuwait mili-
tarily. From then on the initiative shifted to that group and, through
it, more specifically to the United States 1056. This became already
apparent in resolution 665, which called upon the group to supervise
the maritime embargo on Iraq and requested all States to render
them assistance 1057.
632. In resolution 678 of 29 November 1990 the Security Coun-
cil finally authorized the group to use all necessary means to
uphold and implement resolution 660 (1990) and all subsequent rele-
vant resolutions and to restore international peace and security
in the area, requesting to be regularly informed of the actions. It
further requested all States to provide appropriate support.
1054. Security Council resolution (SC res.) 660 of 2 August 1990.

1055. SC res. 662 of 9 August 1990.
1056. See Freudenschuss, supra footnote 271.
1057. Paras. 1 and 7, respectively.
300 K. Zemanek
633. Scholars are divided as to the nature of the subsequent

action 1058. Some consider it an act of collective self-defence rather
than a measure of collective security. That opinion not only pro-
vokes the question why an inherent right should require authori-
zation for its exercise, but disregards the practice of the United
Nations to interpret its Charter functionally 1059. As the Council has
the power under Article 48 to determine the States which should
carry out one of its decisions, it must be deemed to have also the
lesser power of authorizing some of them to do so. The only differ-
ence is that in the latter case the Security Council is merely informed
of the ensuing actions, not in command of them. However, due to the
obsolescence of Articles 43 and 47 of the Charter, the Security
Council currently lacks a proper command structure and troops at its
disposal ; it is, therefore, objectively unable to command an opera-
tion. If the Security Council is not to be left helpless in ordering mili-
tary enforcement, its only option is to authorize a State or a group
of States or another organization which are ready to provide the
necessary means to undertake it on its behalf. Since Article 48 of
the Charter, reasonably interpreted, permits the use of this option, it
seems unnecessary to invoke the practice establishing capacity of
the Security Council, as Helmut Freudenschu 1060, citing other
authors, does. Why burden a controversial activity with the possible
doubt of being ultra vires 1061 ?
634. The foregoing case history provokes the fundamental ques-
tion under what conditions States are prepared to provide troops and
material for collective measures which the United Nations under-
takes. It is a truism that only a few States in the world are capable of
1058. Cf. for instance T. M. Franck and F. Patel, UN Police Action in Lieu
of War : The Old Order Changeth , 85 AJIL 1991), 63-74 ; O. Schachter, UN
Law in the Gulf Conflict, 85 AJIL (1991), 452-473 ; E. V. Rostow, Until What ?
Enforcement Action or Collective Self-Defence ?, 85 AJIL (1991), 506-516 ;
B. H. Weston, SCR 678 and Persian Gulf Decision Making : Precarious Legiti-
macy, 85 AJIL (1991), 516-535 ; P. Weckel, Le chapitre VII de la Charte et
son application par le Conseil de scurit, 37 AFDI (1991), 165-202 ; T. M.
Franck, Who Is the Ultimate Guardian of UN Legality ?, 86 AJIL (1992), 519-
523 ; J. A. Frowein, Enforcement in Case of Security Council Inaction, supra
footnote 1042, at 111-124.
1060. H. Freudenschu, Between Unilateralism and Collective Security :
Authorization of the Use of Force by the UN Security Council, 5 EJIL (1994),
492-531, 526-527. The opposite thesis is convincingly argued by K. H. Kaiko-
bad, Self-Defence, Enforcement Action and the Gulf Wars, 33 BYIL (1992),
299-366, 353-363.
providing not only troops with sophisticated armament but also the
logistics necessary for large-scale operations. Without the assistance
of one or a group of them, such operations are not feasible. Yet it is
equally evident that these States will not act outside their national
interest as they perceive it. International solidarity is often evoked in
public speeches but rarely practised when inconvenient. In a letter
which the Secretary-General sent to the President of the Security
Council on 30 November 1992 during the Somalia operations, he put
it in a nutshell :
Member States may hesitate to put their troops under UN
command when many lives and much valuable equipment
could be at stake. 1062
635. But that is not the only obstacle. Since in democratic soci-
eties governing parties want to be re-elected, public opinion plays an
important role in shaping political decisions. Yet it is a fickle phe-
nomenon, especially in the present information era in which televi-
sion crews precede the official actors, as was so lively demonstrated
in Somalia. Thus, when heartbreaking scenes of human suffering are
shown on the screen, they may rouse public opinion to such an
extent that a Government is forced to make a strong stand on the
issue. Yet dead soldiers of the same countrys forces, shown the next
time, may arouse the opposite sentiment, provoking a repetition of
the famous cry of the French on the eve of World War Two : Why
should we die for Danzig ? Effectively manipulated and in every
country the opposition, but even more so ultra right- or ultra left-
wing groups, might exploit the mood the reaction may seriously
embarrass the Government, as the Americans learned during the
Vietnam war. In the United States this dilemma is particularly dis-
turbing, since energetic and sustained action may be expected only if
moral indignation of the people and State interests coincide, as in the
operation Desert Storm ; if one of the elements is missing, as State
interests were in Somalia, the result borders on disaster.
636. One must, therefore, regrettably conclude that the often-
evoked international solidarity is not yet sufficiently developed to
make the functioning of collective security a certainty. The United
Nations still depends on the willingness of individual States or a
group of States for the supply of the necessary means and these are
1062. UN doc. S/24868, para. 24.

302 K. Zemanek
not provided on the basis of an objective judgment that solidarity is

required, but according to national interests, strongly influenced by
domestic considerations 1063.
3. Non-military measures : embargos
637. The non-military enforcement measures which the Security

Council may adopt in accordance with Article 41 of the Charter have
all the character of embargos, meaning the legal stoppage of some
sort of relation. The most frequently adopted measures are embargos
on trade and/or financial transactions. Arms embargos, especially
when they concern material which needs rapid replacement, such as
ammunition, rockets or missiles, may have a swift effect. General
trade embargos, on the other hand, take a long time until, owing to
interdependence, they cause supply problems and are beginning to
have an impact, as all past cases prove 1064. The length of the time
depends mainly on three variables :
The degree of development of the economy against which the
measures are directed and of its integration in, and therefore
dependence on, the international exchange of goods. Although a
State producing and exporting only a single commodity may be
severely taxed in a short time, it would generally be true that the
lesser the degree of development, the longer it will take until an
effect is noticeable.
The degree of self-sufficiency (autarky) in basic commodities
of the affected economy. A trade embargo against a country
which feeds its population mainly through subsistence farming is
ineffective.
The degree to which the embargo is actually observed. It may
be practically impossible to prevent private embargo jumping
totally, because the enormous profits involved will always tempt
a certain type of entrepreneur. It is a different matter if, espe-
cially in case of an arms embargo, Governments turn a blind eye
1063. L. Rosenzweig, United Nations Sanctions : Creating a More Effective

Tool for the Enforcement of International Law, 48 AJPIL (1995), 161-195,
develops an ambitious programme for removing the burden of enforcement
from the shoulders of individual States and for the United Nations to assume
this responsibility in future sanctions efforts (181). The programme sounds
reasonable but the willingness of States to subscribe to it may nevertheless
be doubted.
1064. Cf. Miyagawa, supra footnote 955.
to, or even secretly join in, the enterprise of breaching the

embargo, justifying that with the ill-considered argument of
securing jobs.
638. It is obvious that the Security Council cannot influence the
first two variables : they have to be taken as they are, although they
should be taken into account when considering the advisability of
applying a trade embargo at all. The third variable may, however, be
influenced and the problem of how to police a United Nations
imposed embargo effectively has lately become of major concern.
639. Lately because earlier embargos on Southern Rhodesia 1065
and South Africa 1066 had, so to speak, a natural policeman in the
United Kingdom which had special interests at stake. In both cases
special committees of the Security Council (Watch-dog Committees)
were set up for the purpose of surveillance 1067. Their delibera-
tions 1068 indicate that nearly all information about intended or actual
embargo violations came from the United Kingdom, apparently
obtained through its worldwide web of consular posts in major ports.
And in the only instance in which it appeared necessary to prevent
embargo jumping eventually by force, namely to intercept ships
carrying oil for Rhodesia, the Security Council entrusted the task to
the United Kingdom in resolution 221 (1966) of 9 April 1966 1069.
640. In the cases of Iraq and of the former Yugoslavia it proved
necessary to look farther for States willing and able to supervise the
implementation of the boycotts. In resolution 665 (1990) the Secur-
ity Council authorized the Member States co-operating with the
Government of Kuwait in this respect 1070 and in resolution 787
(1992) it called upon States, acting nationally or through regional
agencies or arrangements which, in fact, meant the Western
European Union (WEU), to police the boycott against the former
Yugoslavia in the Adriatic and on the Danube.
1065. SC res. 253 (1968), of 29 May 1968.

1066. SC res. 418 (1977), of 4 November 1977.
1067. SC res. 253 (1968) for Rhodesia ; and SC res. 421 (1977) for South
Africa.
1068. The records are restricted but those on Southern Rhodesia were made
available to this author. Cf. however P. J. Kuyper, The Limits of Supervision :
The Security Council Watchdog Committee on Rhodesian Sanctions, 25 NILR
(1978), 159-194 ; and R. Zacklin, The United Nations and Rhodesia : A Study in
International Law, New York, 1974, 91-105.
1069. Cf. J. A. Frowein, Commentary on Article 39, in B. Simma et al.
(eds.), supra footnote 279, at 605-616, MN 35.
304 K. Zemanek
One should note, incidentally, that in these resolutions the Security

Council avoided the controversial point whether the enforcement of
a boycott with military means was a permissible measure under Ar-
ticle 41 of the Charter 1071 by referring generally to Chapter VII of the
Charter rather than to a specific provision as a basis of its decision.
641. The lesson to be drawn from these cases is obvious. If it
becomes necessary to control the implementation of embargos by
military means, the Security Council is again at a dead end : it has no
forces at its disposal and can only authorize States or another inter-
national organization to undertake the operation for the United
Nations, provided that they are interested and therefore willing.
II. The New Challenge : Peace-Keeping or Peace-Making ?
A. Traditional peace-keeping
642. Peace-keeping operations are not expressly provided for in
the Charter. However, as the ICJ stated in its Advisory Opinion on Cer-
tain Expenses of the United Nations 1072, they are justified by a func-
tional interpretation 1073 of the general basic purpose of the United
Nations to maintain international peace and security. They were
empirically developed as measures to help maintain peace in areas of
conflict by interposing a United Nations force between the parties 1074.
643. What began in 1948 as the United Nations Truce Super-
vision Organization (UNTSO) acquired, through such instances as
the United Nations Emergency Force (UNEF I and II, 1956 and 1973
respectively), the United Nations Operation in the Congo (ONUC,
1960), the United Nations Force in Cyprus (UNFICYP, 1964), and
some others 1075, a more or less settled structure which, at the end of
the 1980s, had the following characteristic features 1076 :
1071. Cf. J. A. Frowein, Commentary on Article 41, in B. Simma et al.

(eds.), supra footnote 279, at 621-628, MN 7.
1072. ICJ Reports 1962, 151-180, 167-168.
1073. Cf. Chap. IV, MN 145-160.
1074. See generally E. Suy, Legal Aspects of UN Peace-Keeping Opera-
tions, 35 NILR (1988), 318-330 ; B. Urquart, The Future of Peace-Keeping,
36 NILR (1989), 51-56 ; A. James, Peace-Keeping in International Politics, Lon-
don, 1990 ; and M. Bothe, Peace-Keeping, in B. Simma et al. (eds.), supra
1075. For a detailed history of peace-keeping operations cf. Bothe, ibid.,
MN 13-56.
1076. See UN Department of Public Information, The Blue Helmets. A
Review of United Nations Peace-Keeping, New York, 1985, 3-4 ; and L. L.
Fabian, Soldiers without Enemies, Washington, 1971.
they were normally established by the Security Council which

also determined their mandate, but were directed by the Secre-
tary-General ;
they needed the consent of the host Government and, normally,
also of the other party or parties directly involved. The former
was, in most cases, formalized in an exchange of letters between
the Government concerned and the United Nations which also
regulated, inter alia, the status of the force ;
the military personnel required was provided by members of the
United Nations on a voluntary basis. They carried light defensive
weapons, but were not authorized to use them except in self-
defence. There was one exception to that rule in Security Coun-
cil resolution 161 (1961), which authorized ONUC to use force,
as a last resort, to prevent civil war in the Congo ;
the operation should not interfere in the internal affairs of the
host country and should not be used to favour one party over
another in internal conflicts affecting member States.
644. These features put the operations half way between the volun-
tary settlement of disputes in Chapter VI of the Charter and the
enforcement action envisaged in Chapter VII, hence their name
Chapter Six and a Half operations. The features do not particularly
commend peace-keeping as an instrument for dealing with civil
wars, although the Congo and Cyprus had or have aspects of this
kind.
However, these two cases teach also an important lesson : in the
Congo it was finally necessary to authorize the use of force, and in
Cyprus, where this was and is not the case, the operation has, after
more than three decades, not led to a settlement 1077.
B. The new challenge
645. Around the beginning of the 1990s the picture changed.

More and more situations requiring peace-keeping were not inter-
State conflicts but resulted from internal strife, often taking place in
what has become known as failed States, meaning a deteriorated
government machinery no longer able to fulfil the functions of a
1077. Cf. the prediction of A. N. Papadopoulos, Peace-Making and Peace-

Keeping by the United Nations. Cyprus. A Case Study, Nicosia, 1969, 59.
306 K. Zemanek
State in providing security, order and welfare for its citizens, as for
instance in Cambodia or Somalia 1078.
This not only upset the established mode of peace-keeping opera-
tions but made it also necessary to supplement them with civilian
functions, like assisting refugees, reconstructing administrative
structures or supervising elections, etc. 1079
1. Selected recent cases
646. Cambodia. At the beginning, Cambodia looked like a case

in which peace-keeping might work. Decades of civil war, in which
various parties were assisted by foreign powers at some time, and
ten years of protracted endeavours by different United Nations
organs to help end the strife, preceded the 1989 Paris Peace Confer-
ence, sponsored by France and attended by eighteen countries, the
Secretary-General of the United Nations and the Cambodian parties.
Under the umbrella of that Conference the five permanent members
of the Security Council prepared the framework of a comprehen-
sive political settlement which the four Cambodian factions (CPP,
FUNCINPEC, KPNLF, and PDK (Khmer Rouge)) accepted on
10 September 1990 in a common Statement, signed in Djakarta.
In this statement they also agreed on a Supreme National Council
(SNC) as the unique legitimate body in Cambodia throughout the
transitional period. The statement was welcomed by the Security
Council 1080.
647. In 1991 a second session of the Paris Conference thereupon
adopted Agreements on a Comprehensive Political Settlement of the
Cambodia Conflict 1081, which inter alia provided for a United
Nations peace-keeping operation, to be named United Nations
1078. See W. Khne, The United Nations, Fragmenting States, and the Need
for Enlarged Peacekeeping, in C. Tomuschat (ed.). supra footnote 266, at 91-
112 ; and cf. generally D. Warner (ed.), New Dimensions of Peacekeeping, Dor-
drecht, 1995.
1079. Cf. H. Freudenschuss, Drei Generationen von Friedensoperationen der
Vereinten Nationen : Stand und Ausblick, sterreichisches Jahrbuch fr inter-
nationale Politik (1993), 44-72. Civilian tasks had already been performed
earlier under the heading of peace-keeping, for instance in West New Guinea/
West Irian (UNSF, 1962) ; see Bothe, supra footnote 1074, MN 21. But they did
not become an essential feature until the 1990s. Cf. L. Garber, A New Era of
Peacemaking : United Nations Election Monitoring, in W. Khne (ed.), supra
footnote 271, at 217-229 ; and Y. Beigbeder, Le contrle international des
lections, Brussels, 1995.
1080. SC res. 668 of 20 September 1990.
1081. Signed in Paris, 23 October 1991 ; texts issued as UN publication.
Transitional Authority in Cambodia (UNTAC), and settled its man-

date. While the negotiations were still going on, the Security Council
had initiated a United Nations Advance Mission in Cambodia 1082,
later to be absorbed in UNTAC. By resolution 745 of 28 February
1992 it established UNTAC for a period not exceeding 18 months.
UNTAC became operational on 15 March, comprising roughly
15,000 to 20,000 military and civilian personnel.
648. Its mandate was nothing less than the reconstruction of the
Cambodian State 1083. The success of the operation rested on three
assumptions : that the PDK would abide by their obligations under
the Paris agreements ; that they would constructively co-operate in
the SNC 1084 ; and that UNTAC could effectively disarm the factional
armies. None of these assumptions came true because the PDC
refused to co-operate in the SNC and failed to canton the National
Army of Democratic Kampuchea 1085. Thus, in the end, only part of
the mandate could be fulfilled : elections were held, the administra-
tion was more or less put in order, but peace was not secured until
later and is still shaky.
649. Somalia. The case of Somalia had a totally different appear-
ance. The downfall of President Barre in January 1991 had resulted
in a power struggle and clan clashes in most parts of Somalia. Hun-
dreds of thousands of civilians fled their homes, causing a dire need
for emergency humanitarian assistance. But the same circumstances
which caused the need for assistance obstructed its delivery 1086.
650. Meeting at the request of Somalia, the Security Council
adopted resolution 733 on 23 January 1992, urging the parties to stop
fighting and requesting the Secretary-General, in co-operation with
the Secretary-Generals of the OAU and the Arab League, to continue
to prevail upon the parties towards that end. Concerned that the con-
tinuation of this situation constitutes . . . a threat to international
peace and security, it invoked Chapter VII for imposing an embargo
on all deliveries of weapons and military equipment to Somalia.
1082. SC res. 712 of 16 October 1991.

1083. See M. W. Doyle, UN Peacekeeping in Cambodia : UNCTADs Civilian
Mandate, Boulder, Co., 1995.
1084. See the Secretary-Generals Reports S/23097, para. 15 ; S/23613,
paras. 6 and 81 ; S/24286, paras. 3-9 ; S/25784.
1085. As provided in Article I, paragraph 5, of Annex 2 to the Paris Agree-
ments, entitled Withdrawal, Cease-Fire and Related Measures.
1086. See UN Department of Public Information, The United Nations and the
Situation in Somalia, Reference Paper (15 December 1992), 2.
308 K. Zemanek
The endeavours of the three Secretary-Generals having, on 14 Feb-

ruary 1992, finally produced an apparent understanding among the
Somali factions 1087, a cease-fire agreement was signed in Mogadishu
on 3 March. Thereupon the Security Council established a United
Nations Operation in Somalia (UNOSOM) 1088 with the primary aim
of giving security to the relief operations.
651. The operation quickly fell into difficulties, above all be-
cause, as the Secretary-General put it in a letter to the President of the
Security Council on 30 November 1992, the de facto authorities . . .,
by their own admission, . . . do not exercise effective authority over
all the armed elements in the areas which they claim to control 1089.
To overcome the difficulty the Security Council accepted in resolution
794 of 3 December 1992 the offer of the United States to establish,
in co-operation with some other member States, a secure environ-
ment ; acting under Chapter VII it authorized the use of all neces-
sary means towards that end. As requested by the United States, the
Unified Task Force (UNITAF) was under their command.
It is not necessary to continue in detail because the result is too
well known. The operation ended in disaster, UNITAF was quickly
withdrawn and a short time afterwards UNOSOM had to be closed
down altogether.
652. Former Yugoslavia. Yugoslavia is the most complex of the
three cases. Borders between the republics forming the SFRY left
unchanged since the Austro-Hungarian and Turkish Empires, reli-
gious/ethnic quarrels rooted in the distant past, and sharp differences
in the socio-economic development of the republics were the cause
of political tension which surfaced after the demise of communism
as unifying State ideology. It turned into armed violence when, in
the spring of 1991, the Serbian minority in the Krajina region of
Croatia revolted against the Croatian authorities with the intention of
establishing its own republic. The situation was complicated by the
fact that until April 1992 the fiction of an all-Yugoslav Peoples
Army (JNA) was maintained 1090, although it had, in reality, become
an instrument of Serbian policy.
1087. See supra footnote 1086, Annex II.

1088. SC res. 751 of 24 April 1992, para. 2.
1089. UN doc. S/24868, para. 7.
1090. See the Secretary-Generals Report S/23900 of 12 May 1992, para. 24.
In fact, however, the interference by the JNA continued, but the Croatian Army
interfered as well. Cf. on the whole situation M. Weller, The International
Response to the Dissolution of the SFRY, 86 AJIL (1992), 569-607.
653. The complexity of the situation explains, at least in part, the

cautious approach of the Security Council to the problem. The
United States apparently saw none of its interests directly affected
and left it to the Europeans to find a solution. European interests, on
the other hand, were too divided to permit any decisive action.
654. The Security Council did not act until 15 September 1991
when, apparently meeting at the request of Yugoslavia, it adopted
resolution 713 : Concerned that the continuation of this situation
constitutes a threat to international peace and security, it ordered a
general and complete embargo on all deliveries of weapons and mili-
tary equipment to Yugoslavia. That embargo was only lifted in
1996, after having all the time discriminated against those forces
which did not have the stores of the former JNA under their control.
From then on the scenario is familiar : efforts were made to bring
about an agreement between the warring parties which would allow
a peace-keeping operation, in the hope that this would pave the
way for a political settlement. For a long time the strategy was not
successful.
655. The concept of a peace-keeping operation was submitted by
the Secretary-General in Annex III of his report of 11 December
1991, but he concluded that the necessary conditions for it did not
yet exist 1091. The Security Council endorsed that view 1092. Only
more than two months later, on 21 February 1992, the United
Nations Protection Force (UNPROFOR) was established by resolu-
tion 743 1093 for an initial period of 12 months 1094. It was to be
deployed in UN Protected Areas in Eastern Slavonia, Western Sla-
vonia and Krajina 1095, all regions of Croatia. By resolution 758, of
8 June 1992, its mandate was extended to Bosnia-Herzegovina 1096.
On 11 December 1992 a final adjustment extended the mandate to
1091. UN doc. S/23280, para. 21.

1092. SC res. 724 of 14 December 1991.
1093. SC res. 743 refers back to SC res. 721 of 27 November 1991 and to the
request of the Government of Yugoslavia for the establishment of a peace-keep-
ing operation, expressed in a letter to the President of the Security Council
(S/23240).
1094. SC res. 724, para. 3. The mandate was repeatedly extended.
1095. See the Secretary-Generals Reports supra footnote 1091, paras. 8 and
9 ; and in S/23592 of 15 February 1992, para. 20.
1096. SC res. 752 of 15 May 1992, para. 10, had requested the Secretary-
General to keep under review the possibility of deploying a peace-keeping mis-
sion in Bosnia-Herzegovina, as had been suggested in the Secretary-Generals
Report S/23900. In a subsequent Secretary-Generals Report S/24075, paras. 5-8
(6 June 1992), the deployment was recommended.
310 K. Zemanek
Macedonia 1097, the first instance of a preventive operation in the his-

tory of United Nations peace-keeping 1098. Through several resolu-
tions the right of the force to use weapons was gradually expanded
to include the protection of humanitarian activities 1099, but never to
achieve the missions purpose.
656. None of these measures put an end to the fighting. In
reality, UNPROFOR became, unfortunately, hostage to the warring
parties, which threatened to attack the but lightly armed force if
ever military enforcement action was taken against them. Thus
atrocities against civilians were committed right under the eyes of
UNPROFOR 1100.
But in the absence of a common goal among its permanent mem-
bers and aware of a clear reluctance of the international community
to commit military forces to the task, the Security Council could not
rouse itself to a decisive action 1101.
657. The political task of bringing about an agreement between
the warring parties to stop the fighting and reach a political settle-
ment was extremely complicated. Numerous cease-fires were agreed
on and then broken, partly for the same reasons as in Somalia 1102,
that those claiming authority did not fully control their alleged fol-
lowers, but partly in the firm belief that, notwithstanding all protes-
tations to the contrary, situations established by force would, in the
end be accepted by the international community, as they were to a
large extent in the Dayton Agreement. In that quagmire the United
Nations had but two options, which the Secretary-General spelled
out in a report concerning Croatia : either to give up the mandate and
withdraw, or to resort to enforcement action 1103.
658. Only when the United States finally decided to get involved
and engineered the Dayton Agreement 1104 and NATO joined with
1097. SC res. 795. The measure was recommended in the Secretary-Generals

Report S/24923 of 9 December 1992.
1098. See the Secretary-Generals Report S/25264 of 10 February 1993,
paras. 11 and 21.
1099. SC res. 770 of 13 August 1992 ; SC res. 776 of 14 September 1992 ; SC
res. 836 of 6 June 1993.
1100. In SC res. 780 of 5 October 1992 the Secretary-General was requested
to establish an impartial Commission of Experts to examine the violations of
international humanitarian law.
1101. Cf. Chap. II, para. 56-62.
1102. See the letter of the Secretary-General to the President of the Security
Council supra footnote 1089.
1103. Secretary-Generals Report S/25777, para. 20 (15 May 1993).
other States in establishing the Implementation Force (IFOR) for

stabilizing the military situation in Bosnia-Herzegovina did a slow
progress towards peace in the troubled area begin.
2. Evaluation of the cases

659. The case studies show that the United Nations system has
difficulties in dealing effectively with some of the present interna-
tional crises. All cases were instances of civil war, Bosnia-Herzego-
vina with the additional aspect of clandestine or not so clandestine
interference by neighbouring Croatia and Serbia. They were handled
through peace-keeping operations, though in all of them some meas-
ure of enforcement was required at some stage to implement the
mandate. However, due to the reluctance of the European permanent
members of the Security Council enforcement decisions were only
taken in the cases of Somalia and Yugoslavia and then only after the
United States had committed itself to active participation.
660. Peace-keeping operations in civil strife encounter conditions
which are radically different from the conditions which were once
considered essential for a peace-keeping mission 1105. In his letter to
the President of the Security Council during the Somalia opera-
tion 1106 the Secretary-General of the United Nations has listed them
succinctly as follows :
due to the absence of authorities with whom a peace-keeping
force can safely negotiate an agreed basis for its operations, the
situation is prone to deteriorate beyond a point at which it is not
susceptible to the peace-keeping treatment (para. 7) ;
the peace-keeping force is (usually) not strong enough, espe-
cially in equipment, to risk a show of force (para. 17) ;
there is therefore need to move to Chapter VII of the Charter and
into enforcement action (paras. 4, 14, 25). Since no central
authority which could request and allow the use of force exists
in the country, the Security Council needs to determine, under
Article 39 of the Charter, that a threat to the peace in the area
exists (para. 13) ;
the United Nations has neither the required forces at its direct
disposal nor has the Secretariat the capability of commanding
1105. See paras. 642-643 supra.

312 K. Zemanek
and controlling an enforcement action of some magnitude

(para. 23). Moreover, member States may hesitate to put their
troops under United Nations command when many lives and much
valuable equipment could be at stake (para. 24) ;
this leaves only the option to authorize one or more member
States, or a group of them, to undertake the enforcement action
(para. 19). That, however, causes problems with the control of
the operation by the United Nations (paras. 21 and 22).
661. Traditional peace-keeping, it seems, requires firmly estab-
lished parties, decided, in principle, to settle their differences
peacefully, obeyed by their followers, and able and willing to make
commitments and to keep them. If one or more of these conditions
are absent, as they will be in most civil wars, the peace-keeping
force will have no clear mandate and may soon be drawn into the
conflict. It will then either lose authority by not responding or risk
becoming a party to it. This raises the question whether the situa-
tions can be adequately dealt with under Chapter Six and a Half.
662. If international action is to answer the challenge of the new
type of conflicts properly, it must be adjusted to it. Two basic con-
siderations impose themselves :
It should be made clear from the outset that enforcement of
Security Council resolutions, though not the primary task of the
operation, will inevitably follow if the parties to the conflict do
not keep their commitments. Military forces used in the mission
should therefore be equipped and have a strength adequate to
enforcement, so as not to become an object of ridicule. Only if
the parties are convinced of the firm intention of the United
Nations will they move towards a political settlement.
The situations cannot adequately be dealt with by military means
alone. Again from the outset, a comprehensive programme of
humanitarian, economic and administrative assistance needs to
be designed to prevent the deterioration of the situation to a point
where the despair of the population becomes so intense that the
continued fighting makes not only no difference but appears to
be the only hope of survival.
If these conditions cannot be met, the United Nations would be
well advised to admit their inability rather than lose the last vestige
of authority.
3. Is the United Nations up to the task ?
663. It is, of course, legitimate to ask, why the United Nations

should intervene in civil wars at all 1107. Mainly two reasons militate
in favour : security and humanity.
There exists a vast potential for internal conflicts, especially in
Central and Eastern Europe and in Africa but also in other regions of
the world, as ethnic or religious groups which feel discriminated or
oppressed get so fascinated with self-determination as a cure for all
ills that they are prepared to achieve it by force if necessary. They
are apparently convinced that force supplies three-quarters of legiti-
macy.
The danger of civil wars for international peace and security is
evident. They may, intentionally or through more or less uncontrol-
lable events, spill over to neighbouring countries ; moreover, other
countries may be provoked to intervene if they identify with one of
the involved ethnic or religious groups.
664. Equally important is the humanitarian aspect. The suffering
of innocent civilians alone would warrant decisive action to prevent
or end it. It becomes dangerous if it results in mass migration which,
when it brings large numbers of refugees to adjoining countries,
may, and at present actually does, disturb social peace there. More-
over, if refugees are housed in camps for a long time without the
chance of repatriation, but at the same time are not permitted to
work in the host country, and thus left without hope for their future,
they may, as in the Lebanon, turn in frustration to terrorism as a last
resort of reminding an indifferent international community of their
existence.
665. Yet, in respect of these situations, the United Nations is
more or less in a strait-jacket. Article 2, paragraph 7, of the Char-
ter 1108 prevents it from intervening in matters which are essentially
1107. Cf. L. B. Sohn, The Role of the United Nations in Civil Wars, ASIL
Proceedings (1963), 208-216 ; H. McCoubrey and D. N. White, supra footnote
1046, at 31-50 ; L. Fisler Damrosch (ed.), Enforcing Restraint : Collective Inter-
vention in Internal Conflicts, New York, 1993 ; O. Corten, Lautorisation de
recourir la force des fins humanitaires : droit dingrence ou le retour aux
sources ?, 4 EJIL (1993), 506-533 ; and E. Mortimer, Under What Circum-
stances Should the UN Intervene Militarily in a Domestic Crisis ?, in Interna-
tional Peace Academy, Peacemaking and Peacekeeping for the Next Century,
Report of the 25th Vienna Seminar, New York, 1995, 33-34 (full version on file
with the author).
1108. See Chap. II, para. 76.
314 K. Zemanek
within the domestic jurisdiction of any State and exempts only the
application of enforcement measures under Chapter VII.
666. That leaves three options for United Nations action :
The United Nations could try to bring the opposing factions
round to a political consensus prior to setting up a traditional
peace-keeping operation. That approach has failed largely in
Cambodia, and totally in Somalia and Bosnia. The last case
seems to indicate that if mediation is to have a chance it needs
backing by a big power, preferably the United States.
The Security Council could determine that the situation consti-
tuted a threat to international peace and security and decide to
use force for ending it.
In cases of genocide or gross violation of basic human rights the
Security Council could either undertake or authorize humanitar-
ian intervention 1109. One is on rather shaky legal ground here,
but the Councils determination that a threat to international
peace and security existed is one way to legitimize such inter-
vention 1110. In respect of failed States one could also argue
that, if there exists no legitimate and functioning domestic juris-
diction, the intervention of the United Nations is permissible
without consent and without invoking Chapter VII.
667. However, even if the legal obstacles were removed, that
does not solve the problem of implementation. A response to civil
strife must either come before fighting has broken out, and be pre-
ventive as in Macedonia ; or, should it come after fighting has
started, and the parties do not (yet) want to end it or fear that their
followers will not obey them should they agree to an end, it must
necessarily use force.
668. As has been explained above 1111, the United Nations does
not have the means to pursue that course. This has to be accepted as
an unpleasant but hard fact. The peace-enforcement units to be made
1109. See para. 624 supra ; and cf. D. J. Scheffer, R. N. Gardner and G. B.
Helman, Post-Gulf War Challenges to the UN Collective Security System : Three
Views on the Issue of Humanitarian Intervention, Washington, DC, 1992.
1110. See P.-M. Dupuy, Scurit collective et construction de la paix dans la
pratique contemporaine du Conseil de scurit, in U. Beyerlin et al. (eds.),
supra footnote 536, at 41-56, 53-54. Cf. also H. Gading, Der Schutz grund-
legender Menschenrechte durch militrische Manahmen des Sicherheitsrates
das Ende staatlicher Souvernitt ?, Berlin, 1996.
1111. See paras. 634-635 supra.
available on call and consisting of volunteers, proposed by the

Secretary-General in his report An Agenda for Peace1112 for restor-
ing and maintaining cease-fires previously agreed to but not complied
with, did not yet materialize 1113. If the United Nations want to act
decisively by force, it is compelled to act by proxy 1114. It would,
however, be preferable that this proxy be an international organiza-
tion, like NATO, where national interests are balanced in group deci-
sions, instead of a single State or an ad hoc group under the leader-
ship of a single State. Thought should, therefore, be given to
restructuring existing organizations which are capable of the task
and to forming comparable ones in regions of the world where they
do not yet exist 1115, to be prepared for such an eventuality.
1112. UN doc. S/24111 and A/47/277, of 17 June 1992, para. 44.

1113. G. Gaja, Use of Force Made or Authorized by the United Nations, in
C. Tomuschat (ed.), supra footnote 267, at 39-58, develops nevertheless an opti-
mistic perspective for its implementation (54-58). C. Greenwood, The UN as
Guarantor of International Peace and Security : Past, Present and Future A
UK View, ibid., 59-75, at 74, rather supports the submission in the text.
Whether the Standby High Readiness Brigade (SHIRBRIG) of 4,000
soldiers, which seven States agreed on 15 December 1996 to establish and
which should be ready on 1 January 1999, will require a revision of the con-
clusion cannot yet be judged. It is, particularly, not clear what the terms peace-
keeping operations mandated by the UN Security Council under Chapter VI of
the Charter of the UN, including humanitarian tasks, by which it is defined,
will mean in practice.
1114. See R. Higgins, Peace and Security. Achievements and Failures,
6 EJIL (1995), 445-460, 459.
1115. See O. Kimminich, Peace-keeping on a Universal or Regional Level,
in R. Wolfrum (ed.), Strengthening the World Order : Universalism v. Regional-
ism, Berlin, 1990, 37-47 ; T. J. Fraser, The Role of Regional Organizations in
International Peacemaking and Peace-keeping : Legal, Political and Military
Problems, in W. Khne (ed.), supra footnote 271, at 275-292 ; and J. A. Fro-
wein, Zwangsmanahmen von Regionalorganisationen, in U. Beyerlin et al.
(eds.), supra footnote 536, at 57-69. The entire problem is addressed by the con-
tributions to the volume edited by J. Delbrck, Allocation of Enforcement
Authority in the International System, Berlin, 1995.
316
CHAPTER XV
INDIVIDUAL ENFORCEMENT
I. The Concomitant of a Decentralized System
A. A necessary evil
669. Self-enforcement is an unavoidable concomitant of a decen-

tralized system of law. Since such a system has no institutions which
sanction breaches of the law or enforce legitimate claims, system
partners must individually protect their legal position and enforce
their rights if they are violated. It is obvious that in this arrangement
the power of the system partners involved is a condition of success,
a situation which is not necessarily conducive to justice.
670. Although self-enforcement is unavoidable, it is regrettably
prone to abuse. Coupled with another evil, auto-judgment 1116, it
makes the acting individual system partner at least temporarily
master of the law and may tempt powerful States to use it as pretext
for other ends 1117. The formation of empires is but one example.
Bartolus believed that the twin evils of auto-judgment and self-
enforcement were inflicted on us for our sins.
671. Within a decentralized system little can be done to rein in
abuse. The law may, of course, set conditions for legitimate enforce-
ment and may limit the measures to be used. But compliance with
such restraints will presumably not exceed the degree of compliance
with other rules of the decentralized system.
672. As has been shown at the beginning of the course 1118, the
international system remains by and large decentralized. With the
prohibition of the use of armed force for enforcement measures one
step to restrain abuse has been made, but that step weakens at the
same time the possibility of enforcing justified claims. As described
1116. See L.-A. Sicilianos, supra footnote 92, at 31-35 ; for one aspect of
autodetermination see G. Abi-Saab, Interpretation et Auto-Interpretation ,
in U. Beyerlin et al. (eds.), supra footnote 336, at 9-19.
1117. See Y. Matsui, Countermeasures in the International Legal Order,
37 Japanese Annual of IL (1994), 1-37, 33.
1118. Chap. I, particularly paras. 29-31.
in the preceding chapter, international institutions have been

entrusted with competence to control and/or legitimize the use of
force, but they do not dispose of instruments of power since States
have not transferred them to the institutions and are, so far as one
may judge, not ready to give them up 1119.
B. Individual enforcement and countermeasures
673. In legal doctrine enforcement of the law is a sanction for its

violation. In international law, however, the combination of auto-
judgment and self-enforcement makes it possible for States to apply
sanctions even if the conditions for them are objectively non-
existent or if the right which is enforced is invented by the enforcer.
In this extremely sensitive matter in which interests play an important
role but vary with time and with the changing means to pursue them,
it is small wonder that a number of terms have been invented with
the aim to hide the true intentions of the actors. These terms have to
be sorted out before the legal rgime of countermeasures can be
examined.
674. Legal sanctions answer the violation of legal obligations by
exceptionally intervening in normally protected legal position of the
author of the violation with the aim of obtaining the performance of
the obligation and redress for any damage caused by the viola-
tion 1120. Societal sanctions are the answer to the non-compliance
with political or moral standards but they may also supplement or
even replace legal sanctions.
675. Retorsion is such a societal sanction, long known in interna-
tional law although it has, strictly speaking, no legal character. It
means that a State reacts to an unfriendly act by an unfriendly act,
sometimes of the same nature 1121. But it may also accompany or
replace a legal sanction if the aggrieved State so chooses.
676. Political commitments are effectively performed when they
are based on mutual interest and reciprocity, although they are often
1119. See supra paras. 67 and 107-110.

1120. See Sicilianos, supra footnote 92, at 57-63.
1121. See P. Malanczuk, Countermeasures and Self-Defence as Circum-
stances Precluding Wrongfulness in the ILCs Draft Articles on State Respon-
sibility, in M. Spinedi and B. Simma (eds.), supra footnote 14, at 197-286,
207 ; and D. Alland, International Responsibility and Sanctions : Self-Defence
and Counter-Measures in the ILC Codification of Rules Governing International
Responsibility, ibid., 150.
318 K. Zemanek
referred to as soft law 1122, like the Helsinki Final Act or environ-
mental protection standards 1123. A violation of such a commitment
may have political or economic consequences which are often per-
ceived as a stronger deterrent than some legal sanctions, especially
in case of material reciprocity. As the Institut de droit international
observed in a resolution on International Texts of Legal Importance
in the Mutual Relations of their Authors and Texts Devoid of Such
Import :
The violation of a purely political commitment justifies the
aggrieved party in resorting to all means within its power in
order to put an end to, or compensation for, its harmful conse-
quences or drawbacks, in so far as such means are not pro-
hibited by international law. 1124
Since legal sanctions may also only use peaceful means, there seems
to be no great difference between the two.
677. Sometimes a confusion occurs between measures of protec-
tion under primary law 1125 and countermeasures because they may
involve the same act, for instance the suspension of a treaty 1126. Yet
they have not only a different legal basis primary or secondary
law but also a different aim : measures of protection are adopted
to prevent further harm being caused by a breach of an obligation,
whereas countermeasures shall bring about the fulfilment of that
obligation. In political reality measures of protection may, however,
have an enforcement side-effect and predate or replace counter-
measures in the proper sense of the term.
678. The typical sanctions of international law are reprisals.
While the term appears in the Friendly Relations Declaration 1127, the
Geneva Conventions of 1949 1128, and in commentaries on Articles in
Part One of the ILC draft 1129, the ILC has later changed the termi-
1122. See paras. 255-260 ; and O. Schachter, The Twilight Existence of Non-
binding International Agreements, 71 AJIL (1977), 296-304.
1123. See W. Lang, Verrechtlichung des internationalen Umweltschutzes :
Vom soft law zum hard law , 22 AVR (1984), 283-305.
1124. Cambridge Session (1983) ; 60 Annuaire de lInstitut de droit interna-
tional, Vol. II (1984), 285-291, 289.
1125. See Chap. XI, paras. 472 and 475 and infra paras. 684 and 691.
1126. See L.-A. Sicilianos, The Relationship between Reprisals and Denun-
ciation or Suspension of a Treaty, 4 EJIL (1993), 341-359.
1127. See para. 701.
1128. See para. 707.
1129. See para. 702.
nology to countermeasures 1130. The term reprisal was apparently

regarded as no longer appropriate ; one may speculate that reminis-
cences of former abuses or the idea of force formerly associated
with reprisals as enforcement measures were reasons for the change.
But the new term is not well chosen. It creates confusion with
primary law measures because it suggests, wrongly, that counter-
measures are a reaction against breaches of primary law obligations
while they are in reality reactions to the non-performance of duties
which have arisen under secondary rules 1131.
679. In United States communications the term retaliation is
sometimes used 1132. It is an ambiguous notion which can hint at
immediate punishment, for instance in the form of retaliation in kind
and would as such be illegal, or describe a reprisal/countermeasure.
But retaliation in kind may also be used as synonym for retorsion ; or
it may disguise self-help. In any case, the multitude of possible
meanings makes the word ill-suited for the use in law, although
possibly attractive in politics.
II. When are Countermeasures Legitimate ?
A. The emergence of an international dispute
680. When an internationally wrongful act occurs, the injured

State will normally raise a protest to safeguard its legal position and
request cessation. It may also, though not necessarily at the same
time, claim reparation 1133.
The reaction of the alleged author of the internationally wrongful
act becomes then decisive. If it adheres to the request and accepts
the claim the procedure ends, and it is irrelevant whether this
happens spontaneously or at the end of diplomatic consultations
or negotiations 1134.
1130. On the history of the term cf. E. Zoller, Peacetime Unilateral Rem-
edies : An Analysis of Counter-measures, Dobbs Ferry, New York, 1984, XVI and
137 ; and Malanczuk, supra footnote 1121, at 203-205.
1131. This is clearly indicated in Article 47, para. 1, of the ILCs draft (source
supra footnote 867) which states that countermeasures may be taken in order to
induce [a State] to comply with its obligations under Articles 41 to 46 . . ..
1132. See E. S. Colbert, Retaliation in International Law, New York, 1948.
1133. See supra, paras. 563-565.
1134. See C. Dominic, La rparation non contentieuse, in Soc. fran. d.
dr. int., Colloque du Mans : La responsabilit dans le systme international,
Paris, 1991, 191-223 ; and P. Cahier, Les ngociations diplomatiques comme
320 K. Zemanek
681. If, however, the (alleged) author State denies either the facts,
or the existence of the legal obligation that it has allegedly violated,
or disputes the allegation that its conduct constituted a violation of
that obligation, then an international dispute arises. As the ICJ stated
in the South West Africa case (Preliminary Objections), a dispute
begins when the claim of one party is positively opposed by the
other 1135.
B. Countermeasures and political expediency
682. It would, however, be wrong to assume that the sequence of

the options in this scheme is automatic. Whether a claim is put for-
ward, whether it is opposed, or whether an opposed claim is pursued
depends not only on the legal prospect of the claim. More important,
and often decisive, is the context of general relations between the
States concerned and the evaluation of the interests which the oppo-
nents believe to be involved. If the opponent is a big power, a major
supplier of essential resources or a principal trade partner, mis-
givings about the effect on these essential relations may induce the
injured State not to pursue the claim or at least not energetically. A
further deterrent is the weakness inherent in a decentralized enforce-
ment system : when the chances of success through the application
of available measures are small, it may not be expedient to risk
imperilling relations for nothing unless there is strong popular pres-
sure for action. It is thus not rare that States, after having considered
their interests and the chances to succeed, do not claim or claim only
pro forma. The outcome of these considerations is, however, quite
different when the positions are reversed and it is the victim that is
an economically or politically important State, maybe even a great
power : the aforementioned restraints will then turn into advantages.
In dealing with countermeasures one should therefore keep in mind
that in a decentralized system of law the latters unilateral enforce-
ment is, ultimately, a function of power 1136.
pralable laction judiciaire, in V.-Y. Ghebali and D. Kappeler (eds.), Les

multiples aspects des relations internationales : tudes la mmoire du Profes-
seur Jean Siotis, Brussels, 1995.
1135. ICJ Reports 1962, 319-347, 328 ; see also Mavrommatis Palestine Con-
cessions cases, 1924, PCIJ, Series A, No. 2, 11.
1136. See K. Zemanek, The Unilateral Enforcement of International Obliga-
tions, 47 ZaRV (1987), 32-43, 43.
C. Is the existence of a dispute a condition for legitimately applying

countermeasures ?
683. In this respect it is useful to recall the function of counter-

measures 1137. Countermeasures are not a punishment ; their purpose
is to obtain redress for violation of a right. They aim at inducing the
author of the violation to cease the internationally wrongful act if it
still continues, and to make reparation for the violation. Although
the theoretical distinction between primary and secondary rules is
not reflected in current customary law, it follows from the function
of countermeasures that they may be applied only after the State
which has allegedly violated an international right of another State
has refused the latters appropriate claim. Or in other words : when
an international dispute over the matter exists between the States
concerned. In current customary law this is expressed in the require-
ment that diplomatic means to settle the issue must have been unsuc-
cessful before countermeasures (reprisals) may be legitimately
applied 1138.
Translated into the terminology of the ILC this means that counter-
measures are not a reaction against the violation of the primary
norm obligation, but are directed against the violation of the duty to
cease the violation and make reparation, which arises from the
secondary norms of State responsibility 1139.
684. The law of State responsibility does therefore not authorize
immediate reactions against an internationally wrongful act in
the form of countermeasures, although a certain confusion exists in
theory as well as in State practice 1140. Immediate reactions are per-
missible as measures of protection by the injured State against further
harm being caused to its interests by the violation of its right 1141. But
1137. See supra para. 674.

1138. See Responsabilit de lAllemagne raison des dommages causs
dans les Colonies Portugaises du Sud de lAfrique (Naulilaa) (1928), 2 RIAA,
1013-1077, 1024 : La reprsaille nest licite que lorsquelle a t prcde
dune sommation reste infructueuse. Cf. also L. Reitzer, La rparation comme
consquence de lacte illicite en droit international, Paris, 1938, 48.
1139. See supra footnote 1131 and cf. Zemanek, supra footnote 890, at 84-
85.
1140. Cf. e.g. Chap. II, paras. 62-64 and para. 679 ; and see P.-M. Dupuy,
Observations sur la pratique rcente des sanctions de lillicit, 87 RGDIP
(1983), 506-548.
1141. Supra para. 677 ; and T. D. Gill, The Forcible Protection, Affirmation
and Exercise of Rights by States under Contemporary International Law,
23 NYIL (1992), 105-173.
322 K. Zemanek
these are measures of primary law, and some special rgimes or

sub-systems make express provision for them 1142. The best-known
examples are probably Article 51 of the Charter and Article 60
of the VCLT, the latter embodying the maxim inadimplenti non est
adimplendum.
But such primary law measures are no licence for retaliation or
punitive action.
685. From the point of view of ordered international relations the
question may, on the contrary, be asked whether the taking of counter-
measures without the prior use of other means for the peaceful
settlement of disputes, apart from the preceding but inconclusive use
of diplomatic consultations or negotiations, does not violate the obli-
gations under Articles 2, paragraph 3, and 33 of the Charter. As the
law stands today, the question must be answered in the negative 1143.
The opinion that the peaceful means listed in Article 33 of the
Charter are the only legitimate means for settling a dispute 1144 is not
corroborated by State practice. It is even refuted by the text of
Article 33 which refers to other peaceful means of their own choice,
which does not necessarily imply agreement on the choice. Since the
use of force in countermeasures is prohibited, they are peaceful
means and aim at the settlement of the dispute by forcing the author
of an internationally wrongful act to adopt a conduct in conformity
with its international obligations. Countermeasures may therefore be
applied, once the existence of an international dispute is established,
and may even be continued during subsequent dispute settlement
procedures 1145.
They may indeed contribute substantially to the opponents will-
ingness of engaging in, or continuing the peaceful settlement of the
dispute in earnest 1146.
1142. See Chap. XI.

1143. See Zoller, supra footnote 1130, at 71, 120-121 ; and C. Tomuschat,
Commentary on Article 2 (3), in B. Simma (ed.), supra footnote 279, at 105,
MN 28. Cf. also Annacker, supra footnote 863, at 243.
1144. See I. Diaconu, Peaceful Settlement of Disputes between States : His-
tory and Prospect, in R. St. J. Macdonald and D. M. Johnston (eds.), supra
footnote 10, at 1095-1119, 1102.
1145. See Case Concerning the Air Service Agreement of 27 March 1946
between the United States of America and France (1978), 18 RIAA, 417-447,
445 (paras. 91 and 94). Cf. L. Fisler Damrosch, Retaliation or Arbitration
Or Both ? The 1978 U.S.-France Aviation Dispute, 74 AJIL (1980), 785-807.
1146. See Zemanek, supra footnote 1136, at 37 ; Fisler Damrosch, supra foot-
note 1145, at 797-802 ; and O. Y. Elagab, The Legality of Non-Forcible Counter-
Measures in International Law, Oxford, 1988, 184.
D. The ILCs proposition

686. The Commission found it difficult to agree on the juncture
at which it would become legitimate to take countermeasures
because the Special Rapporteur and other members of the Commis-
sion were at odds over the question.
687. In his Fourth Report 1147 the Special Rapporteur had pro-
posed a text of Article 12 of Part Two based on the following con-
cept : to be legitimate, countermeasures required the exhaustion of
all the amicable settlement procedures available under general inter-
national law, the United Nations Charter or any other dispute settle-
ment instrument to which [the State] is a party 1148 prior to their
application. That condition would, however, not apply
to interim measures of protection taken by the injured State,
until the admissibility of such measures has been decided upon
by an international body within the framework of a third party
settlement procedure 1149.
688. That concept reflected the Special Rapporteurs conviction
that the mechanics of State responsibility must be brought under the
control of third-party settlement procedures, preferably under judi-
cial control, and also the academics contempt for the hypocrisy of
States. In his Fifth Report 1150 he stated :
We only advocate the establishment of the machinery
strictly indispensable in order to correct, by the mere applica-
tion of existing law, the most preoccupying aspects of the exist-
ing system of unilateral countermeasures. International law-
yers, in particular, should play a more active role in promoting
such a development. They cannot escape that responsibility by
resorting to the outdated argument that Governments will not
accept more adequate settlement commitments. Let Govern-
ments take responsibility for accepting or rejecting them.
Unfortunately, the Special Rapporteur did not substantiate his
optimism and demonstrate why the cited argument is outdated.
1147. A/CN.4/444 (1992), para. 52

1148. Ibid., Art. 12, para. 1 (a).
1149. Ibid., Art. 12, para. 2 (b). A comparable provision is proposed by the
Special Rapporteur in Article 17, paragraph 2, for the reaction to international
crimes. This text is still before the DC.
1150. A/CN.4/453 (1993), para. 95.
324 K. Zemanek
689. But the Special Rapporteur paid, on the other hand, tribute
to realism by allowing immediate interim measures of protection.
He thereby attenuated the severity of the requirements for counter-
measures but also provoked objections. There is no gainsaying that,
for all practical purposes, the interim measures of protection in the
sense of his proposal are indistinguishable from countermeasures
under current customary law. What the text says is that they are sub-
ject to third-party review if a settlement procedure takes place, and
that is not a novelty.
690. The 1993 Drafting Committee of the ILC (DC), to which the
text was referred after discussion, eliminated the interim measures of
protection from the text and dispensed with the requirement of prior
exhaustion of settlement procedures as condition for legitimate
countermeasures. It inserted instead a new subparagraph (b) in
Article 12, paragraph 1, providing that, in the absence of a treaty
obligation to use a specific dispute settlement procedure, a State
may not take countermeasures unless it offers a [binding/third
party] 1151 dispute settlement procedure to the State which has
committed the internationally wrongful act 1152.
691. The Special Rapporteur devoted part of his Sixth Report to
a rejoinder and proposed a revised version of Article 12 1153 in which
he insisted on what he now called urgent interim measures. Apart
from the fact that the new text further increased the confusion with
measures available under primary law 1154, the Special Rapporteur
could not convince the DC that the concept of interim measures
cannot be stretched beyond reasonable limits 1155. The DC did not
find it possible in 1994 1156 to modify Article 12 as adopted at the
previous session and deferred action again in 1995 1157.
1151. Brackets in the original.

1152. A/CN.4/L.480 and Add.1 ; text reprinted in the Sixth Report of the
Special Rapporteur, A/CN.4/461 (1994), para. 2, note 3.
1153. Ibid., and Add.2. G. Arangio-Ruiz repeats his arguments also in
Countermeasures and Amicable Dispute Settlement. Means in the Implementa-
tion of State Responsibility : A Crucial Issue before the ILC, 5 EJIL (1994), 20-53.
1154. . . . to protect its rights infringed by the internationally wrongful act
[breach] or limit [reduce] the damage deriving therefrom. Words in brackets in
the original ; source ibid.
1155. Ibid.
1156. Report of the ILC on its 46th Session (1994), supra footnote 883,
para. 351.
1157. Report of the ILC on its 47th Session (1995), supra footnote 868,
para. 340. Cf. however the critique of the DCs text by J. Crawford, Counter-
measures as Interim Measures, 5 EJIL (1994), 65-76, 73-75.
692. In what is now Article 48, adopted in 1996 1158, the Commis-
sion returned to a more conservative line and arrived at a more
realistic result, although it inexplicably re-introduced interim meas-
ures of protection.
693. Paragraph 1 requires that an allegedly injured State should
try to solve the problem by negotiations in accordance with
Article 54 1159, but may simultaneously take such interim measures
of protection which are necessary to preserve its rights. These
interim measures of protection are a weak link in an otherwise
tightly reasoned scheme. They are a concession to reality but appar-
ently difficult to define precisely. In paragraph 4 of the commentary
to the Article the Commission attempts that definition by analogy,
referring to the interim measures of protection which may be
ordered by international courts or tribunals. It invokes the urgency
which for instance the freezing of assets requires should it intervene
before the assets are removed. It further states that interim measures
are characterized by their reversibility, once the dispute is settled and
cites the difference between temporary detention of property and its
confiscation, or between the suspension of a licence and its revo-
cation as illustrations.
694. All this makes undeniable sense and in the examples given
the dividing line is clear. Yet in other situations it may be quite dif-
ficult to decide whether a certain measure was permissible as interim
measure or was a full-scale countermeasure. Construed with a cer-
tain finesse, the provision may even tempt a State to refrain from
resorting to proper countermeasures which are subject to review in
an arbitral procedure, and content itself with interim measures of
protection which are not. In addition, interim measures of protec-
tion may be confused with measures of protection under primary
law systems 1160 which are not subject to secondary law conditions,
as for instance the suspension of a treaty in answer to its violation
by the other party 1161. These doubts are not dispelled by the
Commissions reference to the ultimate resolution of these diffi-
culties in a settlement procedure ; provisions should be drafted in
such a manner that States know in advance what conduct was permis-
sible.
1158. Source supra footnote 867, para. 66 (p. 159).

1159. Formerly Article 1 of Part Three ; source in footnote 868.
1160. Supra para. 684, footnotes 1141-1142 and accompanying text.
1161. VCLT, Art. 60, para. 1.
326 K. Zemanek
695. Paragraph 4 of the commentary 1162 suggests that if it

becomes clear that negotiations are unlikely to succeed, proper
countermeasures may be taken. Besides other binding dispute settle-
ment procedures which may apply between the two States, the injured
State taking countermeasures is bound by Article 48, paragraph 2, to
fulfil eventually the obligations to dispute settlement arising under
Part Three. This is a reference to Article 58, paragraph 2 1163, which
entitles a State against which countermeasures are taken unilaterally
to submit at any time . . . the dispute to an arbitral tribunal to be
constituted in conformity with Annex II to the present articles.
696. This text is a definite improvement over earlier plans 1164 to
make the legitimacy of countermeasures dependent on the prior offer
of a binding dispute settlement procedure by the State which intends
to apply countermeasures. It strikes a fair balance between the legiti-
mate claim of the injured State to obtain redress of the wrong on the
one hand, and the protection of an alleged lawbreaking State against
rash or arbitrary action by a self-proclaimed victim on the other. In a
phase in which no objective assessment has yet taken place, it is
equitable and realistic to make it a right of the alleged lawbreaker to
offer a dispute settlement procedure, because it can thereby avoid
countermeasures.
Consequently, Article 48, paragraph 3, provides that countermeas-
ures shall be suspended when the State which has allegedly com-
mitted the wrongful act implements its obligations under the dispute
settlement procedure in good faith. But the present text protects also
the injured State since it allows the application of countermeasures
as long as the alleged lawbreaker does not resort to arbitration under
Article 58, paragraph 2 1165.
697. It must, however, be pointed out again, that the effectiveness
of this scheme depends entirely on the acceptance of Part Three by
States, the prospect of which is rather doubtful. Many provisions of
the draft, and especially those concerning countermeasures, are so
1162. Source supra footnote 867, para. 66 (p. 161).

1164. See supra paras. 687-691.
1165. The idea was first suggested by B. Simma, Counter-measures and Dis-
pute Settlement : A Plea for a Different Balance, 5 EJIL (1994), 102-105, 104.
A model along these lines was suggested by the Austrian Delegation to the Sixth
Committee of the General Assembly in 1994 ; see topical summary of the dis-
cussions held in the Sixth Committee of the General Assembly during its forty-
ninth session, A/CN.4/464/Add.2, para. 55.
interspersed with uncertain terms needing judicial clarification, that

States will be severely tested in deciding how to remain within the
law with their measures.
III. The Limits of Countermeasures
698. Although countermeasures legitimately interfere with inter-

national rights of the State which does not fulfil its obligations under
the secondary rules of State responsibility 1166, they have to keep
within certain bounds. Through the growing regulation of interna-
tional relations during this century limits to countermeasures have
customarily developed and have now been refined and sometimes
amended by the ILC in Part Two of its draft. These limits are either
expressed in prohibitions or in limitations.
A. Norms of jus cogens
699. The rules laid down in the VCLT prohibit the derogation
from peremptory norms of international law by treaty, eliminating
thus the normal autonomy of contracting States in forming an agree-
ment. As far as reliable positive law is concerned norms of jus
cogens are strictly conventional rules, but contemporary doctrine
recognizes a wider application 1167. And indeed, if one accepts the
concept of jus cogens, logic dictates that it must extend to unilateral
acts as well 1168. If two or more States may not derogate from
peremptory norms by agreement, then a single State must simi-
larly be bound in its unilateral acts. It follows from this reflection
that countermeasures may not violate rights which derive from
peremptory norms, and the Commission provides accordingly in
Article 50 (e) 1169.
700. The non-use of force, as part of jus cogens, has some special
aspects in connection with individual enforcement.
1166. Cf. Article 30 of the ILCs draft, supra footnote 866 ; and the definition
by the Institut de droit international in Article 1 of its Rsolution sur le rgime
des reprsailles en temps de paix, 38 Annuaire de lInstitut de droit interna-
tional (1934), 708.
1167. See paragraph 25 of the ILCs commentary on former Article 14 of Part
Two, Report of the ILC on its 47th Session (1995), supra footnote 868, at 172 ;
and G. Gaja, Ius Cogens beyond the Vienna Convention, 172 Recueil des
cours (1981-III), 275-313.
1168. Cf. Gaja, ibid., 297.
1169. Formerly Article 14 (e) of Part Two ; source in footnote 868.
328 K. Zemanek
701. The Friendly Relations Declaration 1170 interprets Article 2,

paragraph 4, of the Charter as a limit to countermeasures. In the
formulation of the principle of non-use of force it states that States
have a duty to refrain from acts of reprisals involving the use of
force 1171. While it is undisputed that this prohibition refers to
armed force, views on whether it also includes economic force
are divided 1172.
702. In paragraph 5 of its commentary on Article 30 1173 the Com-
mission had still found
that modern international law does not normally place any
obstacles of principle in the way of the application of certain
forms of reaction to an internationally wrongful act eco-
nomic reprisals, for example.
Taking note of the controversy, however, the Commission now
attempts in Article 50 (b) 1174 to strike a balance between the oppos-
ing views and refers to economic coercion, but limits the prohibition
to an essential core. It provides that States shall not resort, by way
of countermeasures, to extreme economic or political coercion
designed to endanger the territorial integrity or political indepen-
dence of the State which has committed an internationally wrongful
act. Whether such conduct would violate the principle of non-use of
force or rather that of non-intervention 1175 is not at issue because
both are designed to safeguard the sovereign existence of States
including their territorial integrity and political independence.
703. A critical remark is nevertheless in order, because undefined
terms like extreme coercion or endanger may become dangerous
if no third-party settlement procedure is used. As has been shown
1171. For the customary law character of this rule cf. the Nicaragua case,
supra footnote 69, at 89-91, paras. 188, 190, 191. And further R. Barsotti,
Armed Reprisals, in A. Cassese (ed.), The Current Legal Regulation of the
Use of Force, Dordrecht, 1986, 79-110.
1172. For the debate concerning economic force in countermeasures see
D. Bowett, Economic Coercion and Reprisals by States, 13 Virg. JIL (1972-
1973), 1-12 ; A. Beirlaen, Economic Coercion and Justifying Circumstances,
18 RBDI (1984-1985), 57-78 ; O. Y. Elagab, supra footnote 1146, at 201 ; L. A.
Sicilianos, supra footnote 92, at 248-253 ; and L. Boisson de Chazournes, Les
contre-mesures dans les relations internationales conomiques, Geneva, 1990.
Cf. also supra paras. 65, 69 and 71-73.
1173. Text and commentary in UN, GAOR, 34th Session (1979), A/34/10,
Report of the ILC on its 31st Session, 313.
1174. Formerly Article 14 (b) of Part Two ; source in footnote 868.
1175. See Chap. II, para. 65, and Chap. XIV, para. 618.
earlier 1176, no reliable parameter for distinguishing the legitimate

use of economic measures from economic coercion has yet been
suggested.
704. In spite of the clear state of the law armed force is some-
times used in individual enforcement 1177. Since it may not be justi-
fied as countermeasure, other circumstances precluding wrongful-
ness are invoked.
705. One of these circumstances is self-defence in accordance
with Article 51 of the Charter 1178. Its misuse has been discussed
earlier 1179. Another favourite argument, particularly of the United
States 1180, is the existence of a state of necessity. Quite apart from
doubts whether the required conditions that the act was the only
means of safeguarding an essential interest of the State against a
grave and imminent peril and that the act did not seriously impair
an essential interest of the State towards which the obligation
existed are always met in these cases, Article 33 of the ILCs
draft 1181 expressly provides that even when they exist the state of
necessity may not be invoked to justify a violation of jus cogens, and
hence the use of force.
706. Nor is it possible to rely on consent for justifying the use of
force in an intervention into the internal affairs of a State, as the
Soviet Union had done in the past 1182. Although the ILC has embod-
ied the maxim volenti non fit injuria1183 in Article 29 of its draft 1184,
it has expressly excluded the violation of a peremptory norm from
its application. It is thus evident that consent can legitimize neither
the use of force nor intervention 1185.

1177. See the review of practice between 1953 and 1970 by D. Bowett,
Reprisals Involving Recourse to Armed Force, 66 AJIL (1972), 1-36 ; and
Sicilianos, supra footnote 92, at 337-425.
1178. Article 34 of the ILCs draft, supra footnote 866. Cf. P. Malanczuk,
1179. In paras. 63-64. See also R. W. Tucker, Reprisals and Self-Defence :
The Customary Law, 66 AJIL (1972), 586-596.
1180. Cf. text in footnote 95 and 103. Turkey used the same pretext in July
1995 for attacking Kurds in the United Nations Protection Zone in Northern
Iraq.
1183. See S. Verosta, Zur Anwendung der Regel Volenti non fit injuria im
Vlkerrecht, in H. Miehsler et al. (eds.), Ius Humanitatis, Festschrift fr A.
Verdross, Berlin, 1980, 689-699, 697-699.
1185. See also Salmon, supra footnote 907, at 101.
330 K. Zemanek
B. Protection of the human person
1. Humanitarian law
707. The prohibition to derogate from humanitarian law is dic-

tated by fundamental humanitarian considerations. It was initially
developed in the context of the laws of war since such considera-
tions were most frequently sacrificed as a result of the exceptional
circumstances existing in time of war 1186. Humanitarian considera-
tions are, indeed, at the root of the idea to reduce human suffering in
armed conflicts by means of multilateral conventions. It was the suf-
fering caused by reprisals during the First World War which led to
the adoption of a rule prohibiting reprisals against prisoners of war
in the Geneva Convention of 1929 1187. Such provisions are now a
standard feature of the four Geneva Conventions of 1949 and of the
First Additional Protocol of 1977 1188.
708. In a similar vein Article 60 of the VCLT, which regulates the
termination or suspension of a treaty in case of its material breach by
another contracting party, prohibits in paragraph 5 such termination
or suspension in respect of
provisions relating to the protection of the human person con-
tained in treaties of a humanitarian character, in particular to
provisions prohibiting any form of reprisals against persons
protected by such treaties.
It is not totally clear whether that text refers exclusively to humani-
tarian law conventions proper or whether it applies also to human
rights treaties 1189.
From a legal point of view it is interesting to note that these pro-
hibitions are part of primary law which raises the question of their
relation to and effect on rights under secondary rules, unless one
construes the respective parts of that primary law as self-contained
rgimes 1190.
1186. For an overview see F. Lattanzi, Garanzie dei diritti delluomo nel
diritto internazionale generale, Milan, 1983, 295-302.
1187. LNTS 118, 343-411, Art. 2.
1188. E.g. Art. 13 (3), III Geneva Convention ; Art. 33 (3), IV Geneva Con-
vention ; Art. 20, I Additional Protocol.
1189. The introductory statement of the Swiss delegation which sponsored
the amendment that led to the present text refers to both ; see UN Conference on
the Law of Treaties, OR Second Session (1969), 112.
1190. See Chap. XI, paras. 476-478, and infra paras. 713-715.
2. Human rights
709. Legal doctrine has not yet reached a consensus on the status
in international law of norms protecting human rights. Some authors
suggest that at least the rights protected by the Universal Declaration
of Human Rights of 1948 are peremptory norms of international
law 1191. For these writers no special prohibition of countermeasures
is needed since these human rights are covered by the prohibition to
violate jus cogens.
710. Others hold that the prohibition should and does in fact
extend to rights protected by human rights conventions, some of
which are regional in character and cannot, as such, lay claim to jus
cogens, at least not as far as provisions are concerned which go
beyond the 1948 Declaration. For these reasons they postulate that
custom has developed a special prohibition. There is some evidence
to this effect, but the exact substance of the prohibition is difficult to
determine.
711. The drafting of Article 50 (d) 1192 is not felicitous. It prohib-
its countermeasures which derogate from basic human rights with-
out indicating which human rights it regards as basic. The deter-
mination of the human rights in question is left to a value judgment
for which not even the commentary 1193 suggests helpful parameters.
It refers to provisions in human rights instruments which prohibit the
derogation from certain rights even in case of public emergency, and
these rights are apparently considered by the ILC as constituting the
core. It further cites scholarly writers who have adopted the
notion. And at the end of a footnote 1194 it offers the observation that
[t]he most essential among human rights may be those the promo-
tion and observance of which are the object of customary interna-
tional law.
Since it is uncertain which human rights are part of customary
international law, the observation is not really helpful, which is per-
haps the reason why it was put in a footnote and not in the text of
the commentary.
712. All these references sustain the idea that a core of human

1192. Formerly Article 14 (d) of Part Two ; text see supra footnote 868, at
149.
1193. Ibid., paras. 17-24, esp. 23-24.
1194. Ibid., 171, footnote 199.
332 K. Zemanek
rights exists, but none helps to determine the rights which form it.
A more precisely defined point of reference will be needed to avoid
problems for States which consider applying countermeasures and
wish to remain within the law.
C. Self-contained rgimes 1195
713. In the case concerning United States Diplomatic and Con-

sular Staff in Tehran 1196, the ICJ discovered the existence of self-
contained rgimes in international law and identified the rules of
diplomatic law and, in a later passage, the principle of inviolabil-
ity of the person of diplomatic agents and the premises of diplomatic
missions as one.
What it apparently intended to stress was that a breach of obliga-
tions established by these rules did not entitle to use other measures
against the protected persons or premises than those provided by the
rgime itself.
714. One fails to comprehend why an artificial construct 1197 was
necessary to protect diplomatic personnel and premises from harass-
ment and why a statement that the relevant rules were not subject to
countermeasures would not have sufficed. That this minimum guar-
antee of protection was essential to communication and interaction
between States in times of crisis as well as under normal conditions
should have been self-evident 1198.
715. Fortunately, the ILC avoids the controversial notion in
Article 50 (c) 1199. It simply provides that any conduct which
infringes the inviolability of diplomatic or consular agents, premises,
archives and documents may not be justified as countermeasure.
It thereby achieves the objective which the ICJ had in mind and
states, at the same time, the existing law without recourse to a
bewildering concept.
1195. See Chap. XI, paras. 476-478.

1196. ICJ Reports 1980, 3-46, 40, para. 86.
1197. See Chap. XI, para. 478.
1198. Cf. B. V. A. Rlling, Aspects of the Case concerning U.S. Diplomats
and Consular Staff in Teheran, 11 NYIL (1980), 125-153, 147 ; Sicilianos,
supra footnote 92, at 351 ; and C. Dominic, Les rapports entre le droit diplo-
matique et le systme des contre-mesures entre Etats, in A. Migliazza and
E. Decleva (eds.), Diplomazia et storia delle relazioni internazionali, Studi in
onore di E. Serra, Milan, 1991, 795-811.
1199. Formerly Article 14 (c) of Part Two ; text see supra footnote 868, at
149.
D. Proportionality
716. While the preceding prohibitions exclude certain rules of

international law from the reach of countermeasures and are thus
exemptions, the requirement of proportionality is a true limitation
on the scope of countermeasures. It is a time-honoured principle,
endorsed in the famous Naulilaa Arbitration between Portugal and
Germany in 1928 1200 and appears in every textbook of international
law. And rightly so, since there is nothing wrong, in theory, with
proportionality. But it is difficult to make that proposition opera-
tional and in practice it was mostly invoked to justify counter-
reprisals against a pretended excess of reprisal.
717. The ILC devotes Article 49 1201 to proportionality and pro-
vides that a countermeasure shall not be out of proportion to the
degree of gravity of the internationally wrongful act and the effects
thereof on the injured State.
718. This text does not dispel the misgivings voiced above. If one
means by proportionality that the reaction to a violation of rights
should not be disproportional to the violation or, in other words, that
it should not affect more essential interests than those violated, one
is faced with an empty formula. When not dealing with measures of
self-protection within the same sub-system, which are, however, not
subject to proportionality, how is one to compare the respective
interests ? The task seems as easy as comparing apples with pears.
The award in the Air Service Agreement case 1202 puts that in a nut-
shell when it states that judging the proportionality of counter-
measures is not an easy task and can at best be accomplished by
approximation. If a countermeasure is not reciprocal to the viola-
tion, measures effecting two different areas have to be compared for
establishing proportionality. No parameter which would allow this to
be done objectively has as yet been discovered 1203.
719. Comparison relies thus on a subjective appreciation which a
Court, tribunal or conciliation commission may undertake by assess-
ing the effects of violations and countermeasure after both have
1200. Source in footnote, 1028, para. c/2. See also Air Service Agreement
case, supra footnote 1145, at 443, para. 83.
1201. Formerly Article 13 of Part Two ; text and commentary see supra foot-
note 868, at 144-149.
1202. Supra footnote 1145, at 443, para. 83.
1203. Cf. the balanced considerations of Sicilianos, supra footnote 92, at
276-280.
334 K. Zemanek
taken place, because the balancing of individual estimates within the

Court, tribunal or commission will lead to a reasonably fair result.
But it offers no guidance to a State which intends to remain within
the law in applying a countermeasure since that State would have to
divine the future approximation by a third party. For individual
application a firmer parameter is required.
720. The text of Article 49 does not address that question because
it does not take the effect of the countermeasure on the author of the
internationally wrongful act into account when measuring propor-
tionality. Even when a countermeasure is proportional to the degree
of gravity of the internationally wrongful act and proportional to
the effect [of the internationally wrongful act] on the injured State,
it may still have a disproportionate effect on the State which has
committed the internationally wrongful act. It would be the true task
of proportionality to avoid that.
721. In sum it must be stated that the draft Article does not dispel
the doubts about making proportionality operational. For the protec-
tion of essential interests of States it would seem preferable to
enlarge the group of norms which are protected from counter-
measures and abandon proportionality for the rest, instead of relying
for protection on a vague concept which is subject to individual
appreciation.
335
VALEDICTION
At the end of the course one may well ask what conclusions may
be drawn for the future. In the introduction I have stated that the
peculiar organization of the international system exposes it to a
higher degree of politicization than that existing in a modern State
under the rule of law. The prevalence of individual State interests
over the common interest was apparent in every aspect of the system
examined in the course and is responsible for the widening gap
between social necessities and the systems responses.
Can this be changed and will it ever change ? One thing is clear : the
initiative will not come from traditional governmental machineries.
Dynamism and development, if they are to come, must be gen-
erated through the activity of citizens, who form groups to put pres-
sure on their own Governments and organize in international NGOs
for acting on the global stage, as the relative progress in the field of
human rights or environmental protection demonstrates. The exten-
sion and deepening of the international order becomes thus the con-
cern of each and every one of us. To paraphrase President Kennedy :
do not bewail the weakness of international law if your expectations
of its performance in a given case are frustrated ask yourself
instead what you can do for its improvement !

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9

THE LEGAL FOUNDATIONS

General Course on Public International Law

II. Sovereign equality and membership . . . . . . . . . . . . . . . . 100

2. Types of practice . . . . . . . . . . . . . . . . . . . . . . 160

2. Do codification conventions generate custom ? . . . . . . . 221

Chapter XIV. Collective enforcement . . . . . . . . . . . . . . . . . . 293

Karl Zemanek, born on 18 November 1929 in Vienna, Austria.

Das Vertragsrecht der internationalen Organisationen, Vienna, 1957.

I. Orientation of the Course

1. Cf. e.g. A. C. Kiss and D. Shelton, System Analysis of International Law :

of general international law by themselves, simply because they are

II. Aim and Method of the Course

2. S. Hoffmann, International Systems and International Law, in R. A. Falk

their political context, because separating law from politics is as

3. See M. Koskenniemi, The Politics of International Law, 1 EJIL (1990),

decision-makers is another. That application has to do with the self-

8. Sir A. Watts, The International Rule of Law, 36 GYIL (1993), 15-45, at

It should put us, at the end of the course, in a position to assess

THE STRUCTURE OF THE INTERNATIONAL SYSTEM

I. Characteristics of a Legally Ordered Community

If one looks for features which distinguish a legally ordered com-

11. See Chap. III, para. 92.

ism and subsidiarity in the European Union and the frequency of

12. Already apparent in the Scriptures, Genesis 4: 23 : The Song of Lamech.

monopolize power and to establish an effectively centralized admin-

13. H. Kelsen, Principles of International Law, New York, 1952, 6 ; see

macy 17 by their determination to belong to the community which is

II. International Law as Accepted Order

16. Shared values and interests reflect what is broadly a common

17. Cf. the interesting explanation by T. M. Franck, Legitimacy in the Inter-

beginning of the modern era European States accumulated power to

19. Cf. the thought-provoking paper by Y. Onuma, Eurocentrism in the His-

development. They sometimes view the existing international eco-

29. See K. Zemanek, Majority Rule and Consensus Technique in Law-

affect the well-being and advancement of its people. Powerful States

III. International Law as a Coercive Order

31. See infra, paras. 94-97.

primitive by legal historians when they compare them with the

rest of the system. In that way most European kingdoms or princi-

IV. The Submission Underlying the Course

decentralized since only a few functions have been transferred to

37. Watts, supra footnote 8, at 42.

legal system, all aforementioned features are linked to the institu-

V. The International System and the Global Village

which cannot be controlled by individual States, provides a new

44. Cf. F. A. v. d. Heydte, ffentliche Meinung und Vlkerrecht, Interna-

ular event. In democratic States public pressure on the government

THE LEGAL ORGANIZATION OF

45. See L. Wildhaber, Sovereignty and International Law, in R. St. J. Mac-

power and have thus an unequal influence on the international

42. International (inter-governmental) organizations are estab-

51. See R. Padirac, Lgalit des tats et lorganisation internationale, Paris,

44. More than 350 existing international organizations would

45. Although States and international organizations seem to domi-

54. See C. W. Jenks, Co-ordination : A New Problem of International

46. Non-profit international non-governmental organizations

62. See L. C. White, International Non-Governmental Organizations, New

be unnecessary to worry whether public or private law applies

II. Fundamental Principles

A. The Friendly Relations Declaration

49. Nearly all principles which underlie the international system

71. Infra, paras. 325-327.