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    International Law Antonio Cassese

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    Fatzie Mendoza

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    © All Rights Reserved
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    of 23
    INTERNATIONAL LAW Second Edition ANTONIO CASSESE [UNIVERSITY PRESS iL THE MAIN LEGAL FEATURES OF THE INTERNATIONAL COMMUNITY- 1.1 INTRODUCTION ‘Weal ive within the framework of national legl onder. We therefore tend to assume that each legal system should be modelled on Sate la, or atleast strongly resemble it Accordingly, and almost unwittingly, we tke the view that all legal systems should address themselves to individuals or goups of individuals, and i addition. that they should include certain centralized insitutions responsible for making lew, sdjudieating disputes, and enforcing legal norms, However the picture offered by the intemational community 1s completely Alifrent. This enquiry should therefore begin witha note of warning. The features of the world community are unique. Failure to grasp this crucial fet would inevitably ental serious misinterpretation ofthe impact af kw on cis community. 1.2. THE NATURE OF INTERNATIONAL LEGAL SUBJECTS ‘The frst salient feature of international lw is that most of ts rules aim at regulating the behaviour of States, not tht of individuals. tates are the principal actors on the ‘international scene, They are legal entities, aggregates of human beings dominated by er ean el oe is leap fe flees iets pemeeeemnn lle Releh from the goals of exch individual er group. Each State owns and controls separate territory; and each is held together by political, economic, cultural (and frequently ako ethnic or religious) links. ‘Within States individuals are the principal leyal subject, and such legal entities as public corporations, private associations ec. te merely secondary subjects whose possible suppression would not result in the demise ofthe whole legal system. (How- cer, the possible collapse ofthe governmental authorities may only be transitory; otherwise the whole State, asa distinct international entity, breaks dover.) In the 4 FOUNDATIONS OF THE INTERNATIONAL COMMUNITY foterational eommuniy the reverse hols tre: Sates are the primary subjects and individuals play «limited sole (4¢ 73 and 7.6) The ater ate as puny Davids conftonted by ovrpoeting Goliath holding all the instruments of power ‘Although the protagonists of inteenainal life are Sates as legal entes or conporate structures, of couse they can ory operate through individual, who donot act on thei om account but as Slate fas, as the tools ofthe structures to which they belong, Thus fOr instance, a erety of exadin fy eoucluded by Praise ‘wth Ci hs deal should not Blind us to wat actualy happen, nara hat the International instrument is bought into being by individuals and is subsequently implemented by individual. The agreement i negotiated by diplomats belonging to the two Sti thes Ministers of Foreign Airs sign the testy; the instrument of ‘ation formally approved and aigand by the Heads of Stat, i necessary afer authorization by paramentary assemblies Once te treaty bas entered int foc itis implemented by the courts of each county inded, iti genealy for the courts 10 sant or refse extradition in each particu case) and, fouled also by ofc of the respective Ministries of use. Simul, a State may consider that mother country has committed an inter- rational tangression and therefore decides o react by sorting peace eprisals (oday called countermeasures; see jnf 153.1) such a6 the expulsion ofall the rationals ofthe Staten question. This pone is decided upon and eared out by individual ating as Stat agents th deciion is normal taken atthe suggestion of the Foreign Msists, bythe Minister for Home Ais, after possible deliberation by the Cabinet the actal expulsion is arid out by pole officers o oficial of ober caforcemen agencies. Indeed, in international Iw more than ia any other fd the phenomenon of the ficitious person’, manifets itself in « conspicuous form: individuals engage in transactions or perform sets notin thir pasonal capaci, thts to protector farther their oven interests, but oa behalf ofcllectvtes or a multitde of individuals ‘Why is ic that the world community conse of sovereign and independent States ssile human beings as such play a ese ot We shal ss in Chapter 2 how the Intemational community valved and how, fe the it moder States (England, Feance, Spa) came into being in the feenlh century, the various communis in Europe and elsewhere gradually considated and ‘hardened? into Stats, It sy suffice now ostress that tis powerful dev hasbeen constant and alien festre of the orld nun so uch so tat mest indvidual aw belong to one State ot nother: the world poptstion of about sixbilion haman beings is curently divided ‘up amongst ncrly two hundred States. the Midale Ages it was usual to say that cute the Church no salvation cold be fund (xtra Bela ula sais) —at east {his was what the Charch encourage peopet belive. Today it could be maintained ith greater ruthfanese chat without he prtecon ofa State husisn being are likely to endure more surg and bardstp than wha is ily to be their lo inthe normal course of events—Wvites the pig ofstateles persons, which has onl lately ben taken up by iteration institutions MAIN LEGAL FEATURES 5 1.3. THE LACK OF A CENTRAL AUTHORITY, AND DECENTRALIZATION OF LEGAL ‘FUNCTIONS’ National legal systems ae highly developed. in ation 2 substantive rales, which enjoin citizens to behave in a certain way, sophisticated organizational rules have ‘volved. Spel machinery exists concerned with the ie” of the legal order. These development reuted roa the exiergence within the ute community of group of indvidvals who succeded n wielding elective rower they considered it convenient to create a special structure aimed at insttutionaiing tat power and crystalizing, the elatiwabips between the ruling group and thei fellow member. In devising the intiuonlappaats, a common pattern evoed ial modern Sates Fir the use of fore by members ofthe community was forbidden, exept for emergency situations sucha selP-defence (the right to use fore to impede unl violence ‘which would otherwise be unavoidable); States monopolized ll coercion Second, the centel organs acting oa bel ofthe whole camamanty were responsible forthe tree mui functions typical of any legal system (aw making aw determination, and law enforcement). Acconingly, fst the monarch and subsequently an asembly (Generally called & palament) held the power to crete and modify aw, courts Sseetained breaches of la and special bodies of professionals (pli oles) were {he aw enfores It should be added tha these wee Sanctions proper and not simple ‘powers. For all these bods bad to exercise thee powers in the interest ofthe whole ‘community and not in tht own inset they vere wed witha power but also a Jeol duty t maketh lav to establish whether lal rules had bean breached and enforce them, if peesary, By contrat, in the international community no State oF group of States has ‘managed to held helsing power requied to impos is wil on the whole world community. Power is feagmented and dispersed roe, poitcal and military aliznccs hve occasionally been Set up or a strong convergence of interests between two cr more member of the community has evolved However, hese have not hardened into permanent power structure. The rations betwee the States comprising the intentional community remain largely horizon No vertizal structure ass yet copsalied as instead the rule within the domestic tems of Sates, ‘This situation is all the more striking and unsatisictory today. AL pest as cererody know, most components of national structures and of the international ‘community (individuals, groups, asocations, Stte‘ike entities, multinational ‘corporations, transnational organizations, multinational financial structures, medi networks) are so ose intertwined aces ational borders that hey make up the phenomenon usualy called ‘plabaliation’ It has now become wae that the Altering ofthe wings of buttery in New York aay tigger off typhoon in Asa ower, global governance capable of sting all the problems that globalization ‘may enti doesnot match this fctul situation, Relative anarchy tl preva tthe level of central management. ° 6 FOUNDATIONS OF THE INTERNATIONAL COMMUNITY ‘The major consequence ofthe horizoaal structure ofthe international community is that organizational rules areata very embryonic stage. There are no rules eeting ‘up special machinery for discharging the three functions referred to above, nor for entrusting them to any particular body or member ofthe international community. All three ‘functions are decentralized, (Cleary. in relation tothe international com- unity one cannot spcak of functions proper: when making law, acting disputes, for enforcing the la, States do not act in the interest and on behalf of the inter- national community; they do not fli an obligation, but primarily pursue thelr owa Interests) Its fr each Stat, acting togrher with other Sates under the impulse of ‘overtiding economic, political or other fctors to set new legal standards oto change them, either deliberately (asin the case of trates, that is, contractual stipulations ‘entered into by two or more States, and only binding upon the contracting parties: 2 infra Chapter 9) or almost uniting (as inthe ese of customary la thats, sgeneea rules evolved through a spontineaus process and binding upon all inter national legal subjects; see nt, 8.2). Is fr each of them to decide how to settle Alisputes orto impel compliance with ly that is whether t ion out disagreements ‘peacefully or enforce the law uailateraly or collectively. OF particular significance is the fact that each State has the pover of ‘auto-interpretation’ of legal rules, a [power that necessarily fllows from the absence of courts endowed with general and ‘compulsory jurisdiction, In addition, in traditional international la, tat is, the lae which came ito being land governed international relations between the Peace of Westphalia of 1648 and the First World War (ee 2.3), resort 9 force was lawful both to enforce 2 right and fo protect economic, political, or athe interests. This State of affies greatly Favoured powerful Sates. As we shall ee, some improvements, including the ban ‘on the use of fore by individual Sttesare to be found inthe present international system (2.5; 34) 14 COLLECTIVE RESPONSIBILITY ‘As in all primitive legal systems where groupe play a much greater cole than individuals, responsibilty for violation of the ruler governing the beheviour of ‘States doesnot fall upon the transgrestor (the individval state agent) but onthe group to which he or she belongs (the State corsmunity), Here agin we ate confronted with a strlking deviation from domestic egal systems, ‘Within the national egal orders which frame our dil ives, we are accustomed to the notion of individaal responsibility: the one wha commits «tort oF any other ‘reach of lav shall suffer in consequence. One either aust make good the damage or, {in case of crime, is abe to a criminal penalty. Such isthe cule There ate, however, exceptions. One is ‘vieatious responsibilty which comes into play when the law provides that someone bears responsibilty for ations performed by another person MAIN LEGAL FEATURES ? eth whom the former has special is (fr example, parents eal responsible for damage caused by his or her chiles); sometimes a whole group is held responsible {for the ats pesfrmedby one ofits repeseataves on bel ofthe group (ain the civ ably of corporations for tot) In the international egal system the exception becomes the rule. A State ofc may bce: interastional efor ita, tary examen pl tn intrude ‘pon the sirspace of + neighbouring Stas oa cout diaregards an international raty granting cota hts to foreigners, or a pole oe infknges diplomatic ‘zmmanite by aesing diplomat or malecatg him, fa these and similar cases the ‘wronged State ie allow’ to take sevenge’ agaist the whol commaity to which hat Stat ofl belongs, eventhough the comsmunty has ache earied out nor owdered the infraction, For instance, the State which has become the vitien of the intx- national tansgreson ca claim the payment cf sum of money (to be drawn fom the State ueasury), or wil resort to countemneasues(tcditionlly calle reprisals) damaging individuals other than the actual auors of the offence (for example, the xpulton of foreigners the suspension ofa commercial treaty, ands 02). ence, collective esponsibility means both thatthe wile State community is liable for any breach of international law committed by aay State official and that tho whole State community may suffer fom theconseguences of the wrongful act (an this matter see Ghaptr 13). The incident of Cofa of 1923 is instructive in this regard. On 27 August 1923 the Ten members of the Itenalioos] Commission charged by the Conference of Arbastdocs (a body consisting of diplomats fom Franc, the UK aly and Japan and respoasible for the fmmpemeniaton of he peace treaties) to clit th Grasc-Abania fone were Kilda Zep, nex th town of aia, on Grck eriory a ne ands of uaknoven trroxss. Two days leer Ialy requested Gree to formally apologize, old a solema eligious ceremony, py ‘honour tothe Hain fag sod miliary honours to te dead, conduct a most serious ingly ‘wlhin Give day, nie the death penley on ll capi, and py an indemnity of $0 milion {lian lr pyable within ive days The nex day the Grek Government responded that it regarded a unjust the Ilion charges that Greece was responsible fr the asasinaton of he Talians it ao dismived the requests concerning a criminal ingury, the imposition of dea penal and the payment of compensation, atthe sme time Grose submitted the rater 10 the Counc ofthe Leagus of Nations witha view o an ainiable etlement ofthe matter Neverthe, the next dey upon the ores of the Italian dictator, Musso ian ships ‘bombarded Cots, enusing nimerous csuaties atong clans (16 people were Kiled and ‘more than three times that number wounded); Ilan troops occupied the iad, 10 force {Greece to comply wih the Ilan requ. Inthe event llowing the fll report by en {ternational commision of inquiry tad et up, the Confrence of Ambaeadore found tht Gresce deen mgigent in pursuing the perpetates of the crime on 27 September Italie troops ected Corfe and aly wat amarded ia compensation 50 mln lire which Greece Ina previous depose security inthe Sviss Notional Bank, on the understanding that the PCH would determine the amount ofthe indemnity tue a determination that, owes tok place). Thus, even sstuming that Greece was rsponibe (a mater that was never fs laid), Greek cians and the Greck‘Tresury bore the Brant of the consequences saison perpetrated by some bandits a Zepi (forthe rlevant documents see 3 RDI (1920), 339 et 56q). For more recent and simay instructive instances of eallective responsibilty, one may _menti the reaction, in 198, othe unlewhs invasion by Argenta of the Falk (Male is). The (then ten) members of the European Community adopted economic counter ‘measures (eenally th suspension of npoas of texas and meat from Arestins) and the USA followed suit by among other hings suspending "new export-nport cet and guaran {eer (ee inf 15.5 the partis adversely aleted by such “sanction were individual and conportons, thats persons and entices other than the Argentine leadership tht had deidad the invasion, Anethe uszation ofeallctieexponability eon beeen inthe US i strikes on ‘THiol acl Benghazi on 1 April 1986 a8 « rapone othe bombing a Bein, organized by Libyan apets on 5 Api ofthe La Ble ies, where ty US solders and «Tusksh woman were and mote dhe 200 person were wrondod (enfin, 181.2). coning to Liye 4} ‘etsons ded and 226 were wounded asa rest of those i srikes (in 2001 the Belin Dict ‘Court ruled thatthe Libyan secret service was behind the bombing of the Bern sco, and the ruling wat confirmed in 200 bythe German Supreme Cour in Yasser Mohamed ar othe) ‘Yt ancer instance canbe found in the econanic sanctions adopted in 1992 by Sates asia Libya tthe request ofthe UN SC (SC res. 745-199) and aa reaction to the terrorist at Lockerbie; these measures included the blocking of as eommunieatone with Lib (ae if, 1531 and 224.2); the clearly afta Libyans 2 el as interests of iby corporation in sudo eo Libyan Sat oil ‘This forin of responsibilty is typical of primitive and rudimentary legal systems! Indeed, the law governing the international community is typical of primitive societies with the aggravating circumstarce—rightly emphasized by Hoffman?— ‘hat unlike primitive communities (which are highly integrated, with al the ensuing benefits, the world community is largely based on the non-integration ofits subjects, from the viewpoint oftheir social intereaions, Later ou we shall see that two new trends have significantly altered the traditional picture. First, next to traditional tate accountabiliy for ‘ordinary breaches of inter- national rules, a new cass of State responsibility has emerged for gross violations ‘of fundamental rules ensrining esental values (so-called ‘aggravate responsibil. see infin 13.5-6)- Second, while previously the only category of individuals criminally liable under international aw was that of pirates, since the end ofthe ninetenth century individual responsibility bas graduclly evolved, It was considered that serious ‘offences committed by Stat oficial in exeptionalctcumstances. for example wat crimes, should entail the personal ibility oftheir authors in addition tothe possible " len waa of the Git aioe to ea tent hi penn He pone at at: Coles reposts xs inca oad ee hich ie ot nt sagan the embers Calne pos ete nh Ta Caden were Yb dress ko puih the iden ad eer en forthe of i a (ric). 2S Hoflann tational Law ad the Control Faia K, Desh and ina The aroerof martin! de hes Baka 1) 38 MAIN LEGAL FEATURES 9 international esponsibility of the State to which they belonged. The category of war crimes gradually expanded afte the Second World War and further categories were add: those of crimes aguinst peace (chiiy aggression) and of crimes against humanity (chilly genocide) (see infra, Chapter 21). Hovever, despite these ‘momentous advances, collective responsibility stil remains the rule. 15 THE NEED FOR MOST INTERNATIONAL RULES TO BE TRANSLATED INTO NATIONAL LEGISLATION ‘As we shall see inj (Chapter 12), international rules tbe applied by States within their own legal sjstems generally need to be incorporated into national lav This is [because the international eommanity is composed of sovereign States, each eager ‘contro the individuals subject to its jurisdiction and consequently to decide on the extent to which they may hold rights and obligations. Hence, when international rules need to be applied within a Stats, or by a State official in most cases they must be ‘turned into municipal sv ‘Thos, for instance, fr an international rule forbidding the use of certain categories .of weapon (such as chemical or bacteriological weapons) to take elect, the Minister ‘of Defence and the miliary commanders of a given State must be under a national ‘obligation to comply with the rule, become cogaizant of the scope of the rule, and take all the necessary measures to implement it A provision such a Article 29 ofthe Vienna Convention of 1961 on diplomatic relations ("The person of a diplomatic agent shall be inviolable He chall not be lable to any form of arrestor detention. The ‘eceivng State shall teat him with due respect acd shall ake all appropriate stepe to ‘Prevent any attack on his person, freedom or dignity’) obliges the enforcement agen- ics of State to refeain from arresting or detaining foreign diplomats, and to take all necessary measures to prevent undue attacks or them, Similaily, Article 34 of the same Convention (‘A diplomatic agent shall be exempt from all duce, taxes, person ‘or teal, national, regional or municipal’ exept for certain categories of taxes enumer- std in the same provision) requires the tax authorities ofthe ‘receiving Stat’ (hat it the State where he performs his diplomatic atvity) to take the requisite regulatory or sdiministeative steps to exempt foreign diplomats rom all the dues and taxes ta which they may not be subjected It is therefore apparent that most international rules cannot work without the constant help, co-operation, and support of national legal syste. Exaggerating Somewhat (on account of his strictly dualistic approach), the German publicist ‘repel observed in 1923 that international lawis like afield marshal who ean only, give orders to generals Ii soley through the generals that bis orders can reach the troops Ifthe generals do not transmit them to the soldiers in the fed, he wil lose the batle (HIE (1923) at 106). 10 FOUNDATIONS OF THE INTERNATIONAL COMMUNITY 1.6 THE RANGE OF STATES’ FREEDOM OF ACTION “To iustrate yet another typical feature ofthe international community its useful to refer once agai, by way of comparison, ta domestic legal systems. In most notianal ores individuals the primary’legal subjecte—enjy gre free dom in their private transactions. They can variously enter ito agreements with other persons or refrain fom so doing, or they can setup companies, create associations, and son. Their bad contractual freedom ie not unfettered, however, in that central juthorties usually place legal restraints ypoa them. Thus, for instance, one cannot ‘make private transactions which are contrary to public order snd moral (such a 3 contract whereby one party undertakes w hand over to another a next of kin, for ‘purposes of prostitution); fsuch etransaaion is made tis null and void. Ieshould be noted that national public orders include norms prohibiting physical persons fom disposing oftheir body or their freedom. Thus, contract whereby one party under- {kes to multe his body or to deliver to another party one of his limbs is norally| contrary to public order and consequently null and void, The same consideration applies toa contract whereby one party undertaks to commit sulcde or to submit ‘permanently 10 a postion akin to slavery in relation to another party, Every domestic system contains a core of values that members of the community cannot disregard, pot even wiiem they engage in private transactions fster ee In the case of any such disregard, the response of the central authorities isto make the private undertaking devoid of legal effet. A orcior individuals ae not allowed to depart from certain basic values which are held in such high exteem as tobe embodied in rules governing ima Raat ape in 1989 he eat Delrin (a6 Ana (190), 398-48) =a omting tn pling ot cit esta nl oe sa te sae ate ‘tose of finda haan sig t's datetime pote aman pen rt ‘oes nee af braces of ham hs an ahr Seneca eet by mene of are ‘eprint wel pre werl eputios of aes arpa ers ifthe bear Ii sc or tomate thr Sates rei to be stesso, adele ase mesa ‘anh th repo Sarthe ge Lasterct pay hel oprte Oo Grice ont Hexagon. gara (bia ad Menem), 0] Sapo 1983 13-15) ‘der Are of e946 Genocide Convention och canta uy tore (though perp big) w anya gence y ny ther conc Se Caray ew etter ard been ee oblige and in ese of ee nears ties fare nero proton efconsmuny interes ethene ‘onsdraions by B Simm, “roo Rite to Carty ett in Inteatinal Ls 0 18 (issevyer ase ry FOUNDATIONS OF THE INTERNATIONAL, comMUNerY obligation ‘to ensure respet’ for these instruments ‘i all circumstances’, Common Article 1 not a substantive lgal provision tat is, a provision that lays down a specific obligation (such as for instance, Article 12.1 ofthe ist Convention, whereby “Members of the armed forces and other persons mentioned inthe following Article, ‘who are wounded and sick, shall be respacted and protected in all ircumstances) In other worls, common Artie 1 does not yrovide foraspecificcondinct with regard toa speciic matter. I is not a primary rule, that is (in Hart's terminology) a rule that requires legal subjects to do or abstain fiom certain actions, Instead, that Article lays any effective direction of international afaes (Britain, France, and China, the latte ‘being a that dime formally represented bythe ‘nationalist’ Government of Chiang Kalshel) The superiority of ew powerful countries wis formally acknowledged in law: Artie 273 of the UN Charter lays down thatthe SC cannot adopt any deliber. ation on matters of substance unless all Gve permanent members agtee (ether by voting in favour oF acconding to the practice evclred later by abstaining). This isthe so-called veto by any of the Big Five. By the sume taken, the Charter exvisoged « “system of collective security: if the SC, withthe concurring vote ofthe Big ive, agreed ‘hat there was a threat to peae, a breach of the pesce, or an act of aggrtsiom it could ‘ther take canctions or dispatch UN armed frees agains the ollending Sat However, two events undermined from the outset the whole edifice built at San Francisco First, less than two months afer the adoption of the Charter, the USA {roped atomic bombs on Hitoshima and Nagasaki this itvmeciately posed new and

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