Unilateral Implementation of Duties arising from Collective Norms: Theory, Practice, and Reconstruction

Abstract

The question of whether states, without being directly affected, may implement duties imposed by collective norms has long persisted in international law. The 'traditional' or synallagmatic view of legal relations posits that there is an 'exact correlation' between a right one holds and a duty borne by another. Under this view, only 'injured' states, those whose rights are infringed, may implement responsibility. Yet, contemporary scholarship considers this problematic as states even if not 'directly affected' have an interest in these duties' fulfilment. The International Court of Justice, in the 1970 Barcelona Traction decision, recognised the existence of duties owed erga omnes or those that 'concern all states' and in which all states 'have a legal interest'. Most view this as an endorsement of the non-synallagmatic view of legal relations which submits that duties imposed by collective norms are fulfilled towards an international community. This view also influenced the International Law Commission's work on the 2001 Draft Articles of State Responsibility. The Commission, in a 'progressive measure', recognised the existence of 'states other than an injured state'. These states do not possess rights that correlate to duties owed erga omnes as it is the community which is the duty's beneficiary. What they have is a 'legal interest' as a member of the community in these duties' observance. This interest permits all states, even those not 'directly affected', to implement responsibility on behalf of the community should a duty owed erga omnes be breached. Such measures of implementation include those of a 'relatively formal character' like the resort to judicial dispute resolution. However, due to states' divergent views, their competence to enforce duties owed erga omnes via countermeasures was left to international law's 'further development'. This thesis examines if states have accepted the rules under the 2001 Draft Article on the implementation of duties owed erga omnes by 'states other than an injured state' whether through judicial dispute resolution or unilateral measures. Given the instances in which states have claimed or objected to this prerogative, determining whether international law recognises this competence sheds light on the lawfulness of these instances of implementation. This thesis also analyses the premises of these rules and determines if they reflect present the international order's realities and limitations. As a normative system, international law is deeply influenced by the structures of the order that it seeks to govern. Thus, rules develop only insofar as the order's structures can accommodate them. If they are to 'serve social needs', not only must they be responsive to the demands of the group that they serve, they must also reflect the legal systems' 'sociological reality'. Part I, through doctrinal analysis and historical tracing, examines the rules as articulated under the 2001 Draft Articles and their premises. Next, Part II, via an empirical and qualitative examination, determines if state practice and opinio juris support the ILC's conclusions under the 2001 Draft Articles on the implementation of duties owed erga omnes and if states have accepted as law the competence of 'states other than an injured state' to implement these duties. Finally, Part III through fundamental and theoretical examination, determines if the present rules' premises reflect the international order's realities and limitations. It offers an alternative framework based on the synallagmatic approach. This posits that duties owed erga omnes correlate to every state's individual right. In case of breach, every state may be deemed 'injured' and may implement responsibility. This approach does not require the recourse to the existence of an 'international community' to whom duties may be owed and on whose behalf states may act. Nor does it require the international legal system's public law construction. Show more