Abstract
The obligations to investigate and prosecute mass atrocities pose a daunting challenge for states reviving after legacies of systematic abuse. Invoking the principle of effectiveness in the interpretation of international obligations, this chapter adds to the debate on whether international law provides a basis for “mitigating” these procedural obligations in face of the “peculiar constraints” successor governments have to cope with. The author provides a detailed account of the techniques international law offers states facing the uncertainty and complexity of a transition to at least “freeze” the implementation of these procedural obligations until a new government is secure and equipped enough to take action. The chapter first examines the aptness, and applicability to transitions, of the denunciation clause contained in the 1949 Geneva Conventions and Additional Protocols . Then, focusing particularly on the procedural and judicial guarantees that are considered “inherent” in the rights recognized as non-derogable, it addresses the suspension and limitation clauses enshrined in the ECHR , ICCPR , and ACHR , which allow states parties the right to temporarily derogate from certain rights and guarantees in times of national emergency . Finally, the international law defenses of force majeure and necessity are analyzed in this perspective. The author here weighs the contribution of human rights treaty bodies , international and arbitral tribunals as well as state practice in this connection.
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Notes
- 1.
See, e.g., IACtHR, Velásquez Rodríguez Case , 29 July 1998, Judgment (ser. C) No. 4, para 184. For the most complete study on the question of the continuity of the state, see Marek 1954 (affirming that: “The second customary rule, which is equally established as the first [that territorial changes do not affect the identity and continuity of states], lays down that the identity and continuity of the State are not affected by changes of government which it may undergo. Here again, the starting point for the development of the rule was provided not by theoretical considerations, but by practical concern for the maintenance of international rights and obligations, - in other words, for the stability and security of international legal relations. For such stability would be non-existent, if treaties were to become void with every internal change within a State and moreover, if a State could at will repudiate its international obligations by the simple device of changing its form of government.”).
- 2.
Cf. Orentlicher 1991, p. 2595 (arguing that “comprehensive treaties should be interpreted in a manner that avoids imposing impossible obligations or duties whose discharge would prove harmful.”).
- 3.
See ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 20 July 2012, ICJ Rep. 2012, p. 422 (Belgium v. Senegal 2012), para 121 (finding that “in failing to comply with its obligations under Article 6, paragraph 2 [obligation to make a preliminary inquiry ], and Article 7, paragraph 1 [obligation to submit the case to the competent authorities for the purpose of prosecution ], of the Convention, Senegal has engaged its international responsibility . Consequently, Senegal is required to cease this continuing wrongful act, in accordance with general international law on the responsibility of States for internationally wrongful acts.”). See also Medina Quiroga 2005, pp. 28–36. See generally Meron 1989. Cf. Seibert-Fohr 2009, pp. 238–248 (stating that “Whether human rights are primary norms which in the case of their violation trigger State responsibility is a controversial issue.”). Addressing the complex issue of the relationship between human rights and state responsibility, as well as the issue of attribution go beyond the objective of this book which is much more limited in nature.
- 4.
See Seibert-Fohr 2009, p. 238 (noting that “if the victim of a human rights violation is a national of the State responsible for the violation, there is no immediate harm to another State[,]” unless an injury to the other state is assumed under the erga omnes obligations doctrine). For instance, in Belgium v. Senegal, the ICJ found that: “The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end.” Belgium v. Senegal 2012, above n 3, para 69. However, I must acknowledge that a state, which does not suffer any direct harm, is often not interested in invoking the international responsibility of another state for not prosecuting human rights violations committed on its territory against its own nationals. On the consequences of the expansion of the domain of individual responsibility for the law of state responsibility, see Nollkaemper 2003. See also Nollkaemper 2010.
- 5.
See generally Sànchez de Tagle 2015 (affirming that: “The State’s obligations under International Human Rights Law transcend the classical definition of State responsibility under International Law, since the primary objective of Human Rights law is to protect the rights of individuals. This distinction significantly alters the nature of States’ obligations under these treaties. In this respect, “the objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect victims and provide for reparation of damages.””). The problem arises as to cases where the instruments under consideration are not applicable, thus leaving open the question whether a state can claim the right to prosecute if another state violates serious human rights of its nationals to be determined under customary international law . Seibert-Fohr, with whom I agree, is of the view that it is “unpersuasive” to find “an erga omnes State responsibility towards third States compelling prosecution under customary international law .” Seibert-Fohr 2009, pp. 239, 246.
- 6.
See, e.g., ECHR, rubricated “Inter-State cases”, Article 33. On state’s international responsibility for breaching multilateral obligations, see Dominicé 1999.
- 7.
Dominicé 1999, p. 355. Dominicé is of the view that systematic human rights breaches by a state party to the relevant convention give every other state party the power to respond through measures not involving the use of armed force, no matter whether a judicial-type of procedure is envisaged in the instrument. Ibid., pp. 362–363.
- 8.
See Orentlicher 1991, p. 2600.
- 9.
See Robinson 2003, p. 495.
- 10.
Some treaties also set forth the possibility of denouncing the treaty in its entirety. See, e.g., Genocide Convention, Article 14, and Torture Convention, Article 31. However, only the denunciation clause contained in the 1949 Geneva Conventions , and in the Additional Protocols , will be analyzed infra due to the fact that such instruments do not contain any suspension clause because they regulate an exceptional circumstance per se, which is an armed conflict .
- 11.
An example is the ACHR.
- 12.
See Joseph and Castan 2013, p. 910.
- 13.
See Alston and Goodman 2013, p. 394.
- 14.
See Hafner-Burton et al. 2011, p. 674 (offering “the first systematic empirical evidence on derogations from human rights treaties ”, and considering different theories of why states derogate from such instruments from an international relations point of view).
- 15.
See, e.g., the Universal Declaration of Human Rights, Article 29. While the ICCPR does not contain a general limitation clause, some of its provisions include specific limitation clauses while others, referring to core rights such as torture or slavery , do not contain any. Limitation clauses are not a subject, though, of this book.
- 16.
Vienna Convention on the Law of Treaties , adopted 23 May 1969, 1155 U.N.T.S. 331, entered into force 27 January 1980 (VCLT), Article 43.
- 17.
See, e.g., ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, Judgment, 27 June 1986, ICJ Rep 14 (Military Activities in Nicaragua Case 1986), paras 175–182.
- 18.
The terms “derogation ” and “suspension” are used as synonyms.
- 19.
Nevertheless, as far as the rules on protected civilians are concerned, Geneva Convention IV allows for derogation in respect of certain categories of persons. See, e.g., Article 5.
- 20.
As to international human rights treaties , the ECHR contains a denunciation clause (Article 58) but it “shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective” (Article 58, para 2). Given that the ICCPR does not contain any provision regarding its termination, and does not provide for denunciation or withdrawal, in light of applicable rules of customary international law reflected in the Vienna Convention on the Law of Treaties , the HRC has expressly affirmed that international law does not permit a state party to denounce or withdraw from it. HRC, General Comment No. 26 (61): General Comment on Issues Relating to the Continuity of Obligations to the International Covenant on Civil and Political Rights, 8 December 1997, UN Doc. CCPR/C/21/Rev.1/Add.8/Rev.1, para 5 (stressing that “[t]he rights enshrined in the Covenant belong to the people living in the territory of the State party”, and that “such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any other subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.”). In its turn, the ACHR contains a provision on denunciation (Article 78) but clarifies that it “shall not have the effect of releasing the State Party concerned from the obligations contained in this Convention with respect to any act that may constitute a violation of those obligations and that has been taken by that state prior to the effective date of denunciation ” (Article 78, para 2).
- 21.
VCLT, above n 16, Article 54(a).
- 22.
Distefano and Henry 2015, p. 176.
- 23.
GC I, Common Article 63 reads:
Each of the High Contracting Parties shall be at liberty to denounce the present Convention.
The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties .
The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated.
The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.
See also GC II, Article 63; GC III, Article 142; and GC IV, Article 158. Also Additional Protocols contain a similar clause. See AP I, Article 99; AP II, Article 25; and AP III, Article 14. Reference will be made only to Article 63 of Geneva Convention I because the same considerations apply to the similar clauses included in the Additional Protocols .
- 24.
But see Kolb and Del Mar 2014, p. 86.
- 25.
Common Article 63, para 3, of the 1949 Geneva Conventions specifically refers to the release and repatriation of protected persons.
- 26.
See ICRC 2016, GC I, Article 63, para 3285, https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=E6BD0D82E2A36F3EC1257F7A00588C50 [Accessed 16 September 2018]. Scholars concur in that, at very least, the Martens Clause acts as a reminder of the “continued validity of customary international law beside treaty law.”
- 27.
See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Rep 226, para 84.
- 28.
See ICRC 2016, GC I, Article 63, para 3269, https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=E6BD0D82E2A36F3EC1257F7A00588C50 [Accessed 16 September 2018].
- 29.
See ibid., para 3301.
- 30.
See Military Activities in Nicaragua Case 1986, above n 17, para 218. See also ICTY, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, Case No. IT-94-1-I, para 98; and ICTR, Prosecutor v. Jean-Paul Akayesu, Judgment (Trial Chamber), 2 September 1998, Case No. ICTR-96-4-T, para 608.
- 31.
VCLT, above n 16, Article 60 (5).
- 32.
It is interesting to note that the Universal Declaration of Human Rights does not contain a suspension clause due to the fact that it was considered an aspirational text. Neither the 1948 Genocide Convention nor the 1984 Torture Convention nor the 2005 Enforced Disappearance Convention contain any derogation clause due to the fundamental nature of the rights guaranteed therein (the right to life and the freedom from torture ). Also the International Covenant on Economic, Social and Cultural Rights, and the African Charter on Human and Peoples’ Rights do not provide for this possibility.
- 33.
ECHR, Article 15.
- 34.
ICCPR, Article 4.
- 35.
ACHR, Article 27.
- 36.
HRC, General Comment No. 29, States of Emergency (Article 4), 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, para 2. Unfortunately, it predates the September 11 attack.
- 37.
Ibid., para 1.
- 38.
ICJ, Legal Consequences of the Construction of a Wall in The Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Rep 136 (Wall Case 2004), para 136 (referring to HRC, General Comment No. 27 on Freedom of Movement (Article 12), 1999, UN Doc. CCPR/C/21/Rev.1/Add.9, para 3, sub 14).
- 39.
See, e.g., Schabas 2015, p. 592.
- 40.
Cf., e.g., ECtHR, Assenov and Others v. Bulgaria, Judgment, 28 October 1998, App. No. 24760/94, Reports 1998-VIII, para 93; ECtHR, Selmouni v. France , Judgment (Grand Chamber), 28 July 1999, App. No. 25803/94, Reports 1999-V, para 95; ECtHR, Labita v. Italy, Judgment (Grand Chamber), 6 April 2000, App. No. 26772/95, Reports 2000-IV, para 119; ECtHR, Ramirez Sanchez v. France , Judgment (Grand Chamber), 4 July 2006, App. No. 59450/00, Reports 2006-IX, para 116; ECtHR, A. and Others v. the United Kingdom, Judgment (Grand Chamber), 19 February 2009, App. No. 3455/05, para 126; ECtHR, Jendrowiak v. Germany , Judgment, 14 April 2011, App. No. 30060/04, para 48; ECtHR, O.H. v. Germany , Judgment, 24 November 2011, App. No. 4646/08, para 107; ECtHR, K v. Germany , Judgment, 7 June 2012, App. No. 61827/09, para 88; and ECtHR, G v. Germany , Judgment, 7 June 2012, App. No. 65210/09, para 79.
- 41.
HRC, General Comment No. 24 (52), General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 1994, UN Doc. CCPR/C/21/Rev.1/Add.6, para 10 (declaring also that another reason why some rights despite their utmost importance were not made derogable is due to the fact that their suspension is “irrelevant to the legitimate control of the state on national emergency ” or else it is “impossible”).
- 42.
- 43.
Another two rights introduced by subsequent protocols to the ECHR rule out the possibility of derogation from the abolition of the death penalty and the protection against double jeopardy. Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty , Article 3; Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in all Circumstances, Article 2; and Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 4(3).
- 44.
There is no case law on this exception, and nothing in the travaux préparatoires that can help in explaining the intentions of the drafters. The inclusion of the “lawful acts of war exception” in the ECHR confirm that the drafters deemed the Convention applicable to war situations. Schabas 2015, p. 601.
- 45.
A subsequent protocol to the ICCPR specifies that the prohibition of capital punishment is non-derogable. Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , adopted 15 December 1989 by U.N.G.A. Res. 44/128, 999 U.N.T.S. 414, entered into force 11 July 1991, Article 6.
- 46.
See HRC, General Comment No. 29, States of Emergency (Article 4), 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, paras 11–16.
- 47.
Ibid., paras 15–16.
- 48.
In two opinions dealing with the judicial guarantees indispensable for the protection of non-derogable rights, the IACtHR referred to: the principle of representative democracy ; the rule of law ; the legal due process; and the regime of personal freedom, including habeas corpus and amparo. See IACtHR, Habeas Corpus in Emergency Situations (Articles 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, 30 January 1987, (ser. A) No. 8, paras 20, 24, 30; and IACtHR, Judicial Guarantees in States of Emergency (Articles 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87, 6 October 1987, (ser. A) No. 9, paras 27, 29, 34–35, 37, 41. Nothing though is to be found as to “the guarantees relating to the punishment of crimes of the past.” Chinchón Álvarez 2007, p. 508.
- 49.
See Chinchón Álvarez 2007, p. 506.
- 50.
As put by Schabas, the connection “or” indicates that a situation of war is considered as a public emergency , and more important, a state is not allowed to invoke the article under consideration unless the “time of war ” is at the same time a “public emergency threatening the life of the nation .” See Schabas 2015, p. 594.
- 51.
No derogation has ever been claimed due to a “time of war .” See ibid.
- 52.
See Joseph and Castan 2013, p. 911.
- 53.
ECtHR, Lawless v. Ireland , Judgment, 1 July 1961, App. No. 332/57, Series A No. 3, para 28.
- 54.
ECommHR, Denmark, Norway, Sweden, and the Netherlands v. Greece , Commission Report, 5 November 1969, App. Nos. 3321/67, 3322/67, 3323/67, and 3344/67, p. 70, para 113 (1969) 12 YB ‘The Greek Case ’ 1.
- 55.
IACHR, Walter Humberto Vasquez Vejarano v. Peru , Rep. No. 48/00, 1999, Case 11.166, OEA/Ser.L/V/II.106 Doc. 3 rev. at 1200, para 65.
- 56.
ECtHR, A. and Others v. the United Kingdom, Judgment (Grand Chamber), 19 February 2009, App. No. 3455/05, paras 177, 179.
- 57.
Ibid., para 177.
- 58.
See ECtHR, A. and Others v. the United Kingdom, Judgment (Grand Chamber), 19 February 2009, App. No. 3455/05, para 178.
- 59.
HRC, General Comment No. 29, States of Emergency (Article 4), 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, para 2. See also HRC, General Comment No. 5: Article 4 (Derogations), 1981, para 3, UN Doc. HRI/GEN/1/Rev.1 at 5.
- 60.
The reference is mainly to the executive but also to the legislative and judiciary branches.
- 61.
ECtHR, Brannigan and McBride v. the United Kingdom, Judgment, 25 May 1993, App. Nos. 14553/89 and 14554/89, Series A No. 258-B, para 43.
- 62.
See Joseph and Castan 2013, p. 922.
- 63.
- 64.
ECOSOC 1985, Annex, UN Doc. E/CN.4/1985/4. See also Lillich 1985.
- 65.
See ECtHR, Lawless v. Ireland , Judgment, 1 July 1961, App. No. 332/57, Series A No. 3, paras 31–38.
- 66.
See ECommHR, Denmark, Norway, Sweden, and the Netherlands v. Greece , Commission Report, 5 November 1969, App. Nos. 3321/67, 3322/67, 3323/67, and 3344/67, p. 109, para 201 and p. 123, para 234 (1969), 12 YB ‘The Greek Case ’ 1.
- 67.
ECtHR, Ireland v. the United Kingdom , Judgment, 18 January 1978, App. 5310/71, Series A No. 25, para 243. See also ECtHR, Brannigan and McBride v. the United Kingdom, Judgment, 25 May 1993, App. Nos. 14553/89 and 14554/89, Series A No. 258-B, para 66 (referring to longer detention of suspects without judicial supervision). But see ECtHR, Aksoy v. Turkey , Judgment, 18 December 1996, App. No. 21987/93, Reports 1996-VI, paras 77–78; ECtHR, Bilen v. Turkey , Judgment, 21 February 2006, App. No. 34482/97, paras 47–50; and ECtHR, Demir and Others v. Turkey , Judgment, 23 September 1998, App. Nos. 21380/93, 21381/93, and 21383/93, Reports 1998-VI, paras 49–57 (all establishing that long detention without judicial supervision was not warranted on the basis of the exigencies of the case).
- 68.
HRC, General Comment No. 29, States of Emergency (Article 4), 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, para 4.
- 69.
Ibid., para 6.
- 70.
See Medina 2014, pp. 33–34.
- 71.
IACtHR, Habeas Corpus in Emergency Situations (Articles 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, 30 January 1987, (ser. A) No. 8, para 22.
- 72.
Prémont et al. 1996, Report of the Meeting of Experts on Rights not Subject to Derogation During States of Emergency and Exceptional Circumstances (Geneva, 17–19 May 1995), para 12.
- 73.
See Schabas 2015, p. 601. See also HRC, General Comment No. 29, States of Emergency (Article 4), 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, para 9.
- 74.
Ibid.
- 75.
See Fitzpatrick 1994, p. 60.
- 76.
See HRC, General Comment No. 29, States of Emergency (Article 4), 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, para 2.
- 77.
See Schabas 2015, p. 601.
- 78.
See ECtHR, Brannigan and McBride v. the United Kingdom, Judgment, 25 May 1993, App. Nos. 14553/89 and 14554/89, Series A No. 258-B, para 73 (accepting the interpretation given by the applicants but concluding at the same time that the United Kingdom met the relevant requirement).
- 79.
See Medina 2014, p. 36.
- 80.
ECommHR, Cyprus v. Turkey , Commission Report, 10 July 1976, App. Nos. 6780/74 and 6950/75, para 527.
- 81.
See ECtHR, Lawless v. Ireland , Judgment, 1 July 1961, App. No. 332/57, Series A No. 3, para 47.
- 82.
See ECommHR, Denmark, Norway, Sweden, and the Netherlands v. Greece , Commission Report, 5 November 1969, App. Nos. 3321/67, 3322/67, 3323/67, and 3344/67, p. 30, para 45 (1969) 12 YB ‘The Greek Case ’ 1.
- 83.
See HRC, Jorge Landinelli Silva et al. v. Uruguay , Communication No. 34/1978, 1984, UN Doc. CCPR/C/OP/1 at 65. But see HRC, Sid Ahmed Aber v. Algeria , Communication No. 1439/2005, 2007, UN Doc. CCPR/C/90/D/1439/2005.
- 84.
For an interpretation, see HRC, General Comment No. 29, States of Emergency (Article 4), 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, para 8.
- 85.
Both instruments do not include, inter alia, political or other opinions, nationality, and economic status at birth as possible means of discrimination. Nonetheless, the principle of proportionality and necessity will represent “powerful barrier[s]” to differences of treatment. Ibid.
- 86.
ECtHR, A. and Others v. the United Kingdom, Judgment (Grand Chamber), 19 February 2009, App. No. 3455/05, para 190.
- 87.
See Hafner-Burton et al. 2011, pp. 678–679.
- 88.
Ibid., p. 675.
- 89.
Ibid.
- 90.
Ibid.
- 91.
See Schabas 2015, p. 587.
- 92.
While with regard to former colonies these derogations date back to the 1950s and 1960s, from 1969 onwards derogations were made in relation to Northern Ireland , for an emergency threatening the territorial integrity of the United Kingdom. In relation to Northern Ireland , the last notice of derogation was withdrawn in 2001.
- 93.
(2001) 44 YB 20–23. Withdrawn (2005) 48 YB 12.
- 94.
Notification JJ8187C Tr./005-191, 22 July 2016.
- 95.
Council of Europe , Opinion 1/2002, 2002, para 33 (acknowledging “the obligation of governments to protect their citizens against the threat of terrorism” but at the same time stressing that “general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention.”) https://rm.coe.int/opinion-of-the-council-of-europe-commissioner-for-human-rights-alvaro-/16806da6c9 [Accessed 16 September 2018].
- 96.
See ECommHR, Denmark, Norway, Sweden, and the Netherlands v. Greece , Commission Report, 5 November 1969, App. Nos. 3321/67, 3322/67, 3323/67, and 3344/67, p. 86, paras 143–144 (1969) 12 YB ‘The Greek Case ’ 1.
- 97.
IACHR, Annual Report 1981–82, 20 September 1982, Chapter VI, para A-2, OEA/Ser.L/V/II.57 doc. 6 rev.1.
- 98.
See Chinchón Álvarez 2007, p. 508.
- 99.
See ibid., p. 509.
- 100.
While only the ACHR includes “the judicial guarantees indispensable for the protection of the rights” among the list of rights not subject to derogation , the jurisprudence of the HRC rules out the possibility of derogating from procedural guarantees , including judicial ones, that are considered “inherent” in the rights recognized as non-derogable. By analogy, and considering that all the parties to the ECHR are also parties to the ICCPR, it could be argued that the extensive interpretation given by the HRC extends also to the ECHR. The argument raised in the Brannigan and McBride case can be employed to support this line of argument.
- 101.
Chinchón Álvarez is of the view that such non-derogable guarantees are: “1) El derecho a ser informado sin demora, en forma detallada y en un idioma que comprenda de la naturaleza y causas de los cargos que se le imputan; 2) el derecho a contar con los medios de defensa necesarios; 3) el derecho a un juicio en un tiempo razonable; 4) el derecho de presunción de inocencia; 5) el derecho a estar presente en el juicio; 6) el derecho a no ser obligado a declarar contra sí mismo; 7) el derecho a no ser condenado por un delito si no es sobre la base de su responsabilidad penal individual; 8) el derecho a no ser inculpado dos veces por el mismo delito; 9) el derecho a que una jurisdicción superior pueda examinar la declaración de culpabilidad y de condena, de conformidad con la ley; y 10) el principio de irretroactividad de la ley penal.” Chinchón Álvarez 2007, p. 512.
- 102.
Cf. Orentlicher 1991, p. 2607 (recognizing that, with the exception of the ACHR, although the ICCPR and ECHR “do not explicitly provide that judicial guarantees cannot be suspended if they are essential to the protection of non-derogable rights, it is implicit in the conventions’ recognition of rights as non-derogable that States Parties must do that which is necessary to secure the rights” enshrined therein).
- 103.
See Chap. 3 above.
- 104.
Ibid.
- 105.
See Chinchón Álvarez 2007, pp. 510–513 (no matter whether these procedural obligations are considered norms of customary law or even jus cogens ); Bassiouni 2002, p. 14 (stressing the non-derogability of the obligations to investigate and prosecute crimes against humanity , genocide , war crimes , and torture under states of emergency ).
- 106.
See Chinchón Álvarez 2007, p. 510.
- 107.
Orentlicher 1991, p. 2608 (applying a similar rationale also to the Torture Convention but acknowledging that “in view of the consistent recognition by international bodies that prosecution is necessary to secure certain nonderogable rights, a rule of law allowing states to derogate from the duty to prosecute violations of those rights would produce untenable results”).
- 108.
But see Roht-Arriaza 1995, pp. 62–63.
- 109.
See Freeman 2009, p. 43 (analyzing “treaty sources implicitly related to amnesty ”).
- 110.
See generally Orentlicher 2007.
- 111.
See ibid., p. 21.
- 112.
See ibid.
- 113.
One may speculate whether Article 62 on “Fundamental change of circumstances ” of the Vienna Convention on the Law of Treaties applies to transitions. But given that Article 62 codifies a residuary rule that applies only if the relevant treaty—affected by a change of circumstances—does not specify otherwise, I ruled out this possibility. The universal and regional human rights instruments under analysis include suspension (and limitation ) clauses that allow states to derogate from (and limit) their treaty obligations in times of national emergency . The provisions contained therein can be styled leges speciales to Article 62, and thus take precedence over it. On the application of the rebus sic stantibus principle—the purposes of which are to encourage and facilitate a peaceful change in treaty relations as well as to preserve the security of treaties by channeling international disputes into a regularized dispute resolution process—to human rights, see Munnelly 1989. See also ECJ, A. Racke GmbH & Co. v. Hauptzollamt Mainz, Judgment, 16 June 1998, Case C-162/96. Moreover, commentators consider Article 62 a lex specialis vis-à-vis the defenses of force majeure and necessity because, unlike Articles 23 and 25, which operate as excuses for non-fulfillment of certain treaty obligations, it enables a state to be released from its treaty obligations by operation of the law. See Dörr and Schmalenbach 2012, Article 62, p. 1103. Cf. Binder 2010.
- 114.
See Crawford 2013, p. 279 (referring to a comment by the United Kingdom and France in ILC YB 1998/II(1), 130).
- 115.
See ibid., p. 282.
- 116.
See ILC, Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 2001, Article 55, para 2, U.N. Doc. A/56/10 (ILC Articles with Commentaries).
- 117.
See Crawford 2013, p. 281. See also ILC Articles with Commentaries, above n 116, Part 1, Chapter 5, Circumstances Precluding Wrongfulness , p. 71, paras 2–4.
- 118.
See ILC, Fourth Report on the Law of Treaties by Sir Gerald Fitzmaurice 1959, p. 41, UN Doc. A/CN.4/120.
- 119.
Wright 2003, p. 16.
- 120.
It should be stressed, however, that force majeure and the ad impossibilia nemo tenetur principle were originally considered to envisage two different concepts. While the former was used in relation to supervening events, which caused the non-performance of the relevant obligation, the latter concerned “initial impossibility only, and served to determine the validity of contractual agreements.” Paddeu 2012, p. 440, and n 332. On this issue, see Gordley 2004.
- 121.
See ILC Articles with Commentaries, above n 116, Article 23, para 8 (referring, for the case law of the Iran-United States Claims Tribunal, to Aldrich 1996, pp. 306–320; for the jurisprudence of the European Court of Justice , to ECJ, Denkavit v. Belgium, Judgment, 5 February 1987, Case 145/85, Reports 1987-2, pp. 565–566, and ECJ, Commission of the European Communities v. Italian Republic, 1985, Case 101/84, Reports 1985-6, p. 2629; to Article 79 of the United Nations Convention on Contracts for the International Sale of Goods; to Schlechtriem 1998, pp. 600–626; and to Article 7.1.7 of the UNIDROIT Principles , in Principles of International Commercial Contracts 1994, pp. 169–171). See also Bjorklund 2008, p. 499; Hentrei and Soley 2011, paras 2–3; Paddeu 2012, pp. 476–493 (2012); and Crawford 2013, p. 295.
- 122.
See, e.g., Convention on the Territorial Sea and Contiguous Zone, adopted 29 April 1958, 516 U.N.T.S. 205, entered into force 10 September 1964, Article 14(3); Convention on Transit Trade of Land-locked States, adopted 8 July 1965, 597 U.N.T.S. 3, entered into force 9 June 1967, Article 7(1); and United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 U.N.T.S. 397, entered into force 16 November 1994, Article 18(2). See also similar provisions in BITs.
- 123.
See ILC Articles with Commentaries, above n 116, Article 23, para 6.
- 124.
See Hentrei and Soley 2011, para 6.
- 125.
See ILC Articles with Commentaries, above n 116, Article 23, para 1.
- 126.
Ibid.
- 127.
Ibid., Article 23, para 2.
- 128.
- 129.
See ILC Articles with Commentaries, above n 116, Article 23, para 5, and n 351.
- 130.
ILC, Study prepared by the Secretariat 1977, p. 66, para 4, UN Doc. A/CN.4/315. See also ILC Articles with Commentaries, above n 116, Article 23, para 3.
- 131.
See ILC Articles with Commentaries, above n 116, Article 23, para 3. The Ottoman Lighthouses arbitration stands as a quintessential example of a case involving acts of war and duress .
- 132.
See Crawford 2013, p. 299.
- 133.
See ILC Articles with Commentaries, above n 116, Article 23, para 3.
- 134.
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 Related to the Problems arising from the Rainbow Warrior Affair , Award, 30 April 1990, 20 UNRIAA 217 (Sales No. E/F.93.V.3) (Rainbow Warrior Arbitration 1990), p. 253 (though excluding the excuse of force majeure from being of any relevance to the case). See also PCIJ, Case concerning various Serbian Loans Contracted in France (France v. Serbia ), Judgment No. 14, 1929, Series A, No. 20 (Serbian Loans Case 1929), pp. 39–40; and PCIJ, Case concerning the Payment in Gold of Brazilian Federal Loans Contracted in France (France v. Brazil ), Judgment No. 15, 1929, Series A, No. 21 (Brazilian Loans Case 1929), p. 120. But see PCA, Russian Indemnities Case (Russia v. Turkey ), 1912, 11 UNRIAA 431 (where the tribunal seems to implicitly accept the view that a grave financial crisis may hamper the performance of an international obligation, and thus, where all the other requirements are met, can supplement a case of force majeure ).
- 135.
See Paddeu 2012, p. 439.
- 136.
PCA, Russian Indemnities Case (Russia v. Turkey ), 1912, 11 UNRIAA 431, p. 446; Serbian Loans Case 1929, above n 134, pp. 39–40; Brazilian Loans Case 1929, above n 134, p. 120.
- 137.
ICSID , LG&E Energy Corp et al v. The Argentine Republic, Decision on Liability, 3 October 2006, ARB/02/1, 46 ILM 36 (2007) (LG&E Arbitration 2006).
- 138.
ICSID , CMS Gas Transmission Co v. The Argentine Republic, Award, 12 May 2005, ARB/01/8, 44 ILM 1205 (2005) (CMS Arbitration 2005); ICSID , CMS Gas Transmissions Co v. The Argentine Republic, Annulment Proceeding, 25 September 2007, ARB/01/8 (CMS Annulment Arbitration 2007); ICSID , Enron Corp et al. v. The Argentine Republic, Award, 22 May 2007, ARB/01/3 (Enron Arbitration 2007); and ICSID , Sempra Energy Int’l v. The Argentine Republic, Award, 28 September 2007, ARB/02/16 (Sempra Arbitration 2007). However, it should be noted that in these cases, as well as in the LG&G Arbitration 2006, Argentina was invoking the necessity defense. The Sempra Arbitration 2007 and Enron Arbitration 2007 awards were both annulled in 2010 for “manifest excess of power”, due to the arbitral tribunals’ failure to correctly apply Article 25 of the ILC Articles and Article XI of the US-Argentina BIT. See ICSID , Sempra Energy Int’l v. The Argentine Republic, Decision on Annulment, 29 June 2010, ARB/02/16, paras 212–213; and ICSID , Enron Corp et al v. The Argentine Republic, Decision on Annulment, 30 July 2010, ARB/01/3, paras 377–378.
- 139.
See Hentrei and Soley 2011, para 14.
- 140.
See ILC Articles with Commentaries, above n 116, Article 23, para 2.
- 141.
PCA, Ottoman Empire Lighthouses Concession (France v. Greece ), 1956, 12 UNRIAA 155, pp. 219–220 (upholding Greece ’s claim of force majeure ).
- 142.
See ILC Articles with Commentaries, above n 116, Article 23, para 7 and n 352 (referring to American-British, US-Venezuelan, and British-Mexican Mixed Claims Commissions respectively in Saint Albans Raid, Wipperman, and Gill cases).
- 143.
See ibid., Article 23, para 3.
- 144.
Cf. Crawford 2013, pp. 298–299.
- 145.
See Hentrei and Soley 2011, para 15.
- 146.
Ibid.
- 147.
See Bjorklund 2008, p. 500.
- 148.
Ibid.
- 149.
Ibid. (referring to ILC, Study prepared by the Secretariat 1977, pp. 209–219, UN Doc. A/CN.4/315). See also Iran-US Claims Tribunal , Gould Marketing Inc. v. Ministry of National Defence of Iran, Interlocutory Award No. 24-49-2, 27 July 1983, 3 Iran-US Cl. Trib. Rep. 147, p. 153 (pointing out that a successful defense of force majeure encompasses “social and economic forces beyond the power of the state to control through the exercise of due diligence ”).
- 150.
See ILC Articles with Commentaries, above n 116, Article 23, para 9.
- 151.
See Libyan Arab Foreign Investment Company v. Republic of Burundi, Award, 4 March 1991, para 55, in 96 International Law Reports 282 (1994).
- 152.
See ICJ, Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997, ICJ Rep 7 (Gabcikovo-Nagymaros Case 1997), para 102.
- 153.
See Bjorklund 2008, p. 502.
- 154.
Ibid. See also ILC Articles with Commentaries, above n 116, Article 23, para 10.
- 155.
See Paddeu 2012, pp. 443–444, 483, 485 (referring to the French Company of Venezuelan Railroads, Russian Indemnities, Serbian and Brazilian Loans, and Société Commerciale de Belgique cases).
- 156.
See Paddeu 2012, pp. 437–438.
- 157.
Ibid., p. 437.
- 158.
See ibid., p. 438.
- 159.
Ibid.
- 160.
See ibid., pp. 438–439. Paddeu refers to the British Zones of Morocco case in which arbitrator Huber stressed that claims arising out of events of force majeure should not be rejected a limine, by characterizing the events as such, but required individual analysis. Affaire des biens britanniques au Maroc espagnol (Espagne contre Royaume Uni), 1 May 1925, Rapport sur les responsabilités de l’État dans les situations visées par les réclamations britanniques, 23 October 1924, 2 UNRIAA 615, p. 642.
- 161.
Paddeu 2012, pp. 439, 445, 479, 490.
- 162.
Ibid., p. 446.
- 163.
Ibid., pp. 438, 493.
- 164.
See Serbian Loans Case 1929, above n 134, and Brazilian Loans Case 1929, above n 134; and PCIJ, Société Commerciale de Belgique, Judgment, 15 June 1939, Series A/B, No. 78, p. 160 (Société Commerciale de Belgique 1939).
- 165.
See ICJ, Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment, 27 August 1952, ICJ Rep 176.
- 166.
See, e.g., the American-British, US-Venezuelan, and British-Mexican Mixed Claims Commissions in Saint Albans Raid, Wipperman, and Gill cases (in ILC Articles with Commentaries, above n 116, Article 23, para 7, and n 352).
- 167.
See, e.g., PCA, Ottoman Empire Lighthouses Concession (France v. Greece ), 1956, 12 UNRIAA 155; PCA, Russian Indemnities Case (Russia v. Turkey ), 1912, 11 UNRIAA 431; Rainbow Warrior Arbitration 1990, above n 134; and Libyan Arab Foreign Investment Company v. Republic of Burundi, Award, 4 March 1991, 96 Int’l L. Rep. 282.
- 168.
See, e.g., Iran-US Claims Tribunal , Gould Marketing Inc. v. Ministry of National Defence of Iran, Interlocutory Award No. 24-49-2, 27 July 1983, 3 Iran-U.S. C. T. Rev. 147; and Iran-US Claims Tribunal , Anaconda Iran Inc. v. Islamic Republic of Iran, Interlocutory Award, 10 December 1986, 13 Iran-U.S. C. T. Rev. 199.
- 169.
See, e.g., ECJ, Denkavit v. Belgium, Judgment, 5 February 1987, Case 145/85, Reports 1987-2; and ECJ, Commission of the European Communities v. Italian Republic, 1985, Case 101/84, Reports 1985-6.
- 170.
UNIDROIT Principles , Principles of International Commercial Contracts, Article 7.1.7.
- 171.
See Paddeu 2012, p. 492.
- 172.
See ibid., p. 487.
- 173.
See ibid., pp. 487–488.
- 174.
See ibid., pp. 489, 492.
- 175.
See ibid., p. 492. Bjorklund reports that while force majeure was frequently invoked before World War II, it was later on only rarely relied upon by states, especially in foreign investment related matters. See Bjorklund 2008, pp. 498–499.
- 176.
- 177.
See Hentrei and Soley 2011, para 5.
- 178.
See, e.g., The Wipperman Case (United States of America v. Venezuela ) (1889), in Moore 1898, p. 3039. See also ILC, Study prepared by the Secretariat 1977, p. 156, paras 349–350, UN Doc. A/CN.4/315.
- 179.
Unfortunately, however, the Iran-US Claims Tribunal in Gould Marketing seems to mix up the notions of force majeure , impossibility of performance , and frustration. In addition, in order to avoid any possible confusion, it should also be pointed out that force majeure operates differently under a contract between a state and a private company. In fact, in that instance, it is possible to have the contract terminated, whereas force majeure , as envisaged in the ILC Articles , does not per se terminate the relevant obligation but only suspends its application. See Crawford 2013, p. 300. For International Chamber of Commerce awards on force majeure , see http://www.trans-lex.org/944000/#references [Accessed 14 September 2018].
- 180.
See Bjorklund 2008, p. 521 (referring more correctly to the state of necessity but, nonetheless, by analogy, the same argument can be made for the force majeure defense).
- 181.
Ibid., p. 520.
- 182.
See ILC Articles with Commentaries, above n 116, Article 1.
- 183.
See ibid., Article 12.
- 184.
See Hentrei and Soley 2011, para 10.
- 185.
See ibid., para 12.
- 186.
For other cases involving acts of war or duress by another state, see American Electric & Manufacturing Co., Kelley v. Mexico, and Chevreau (France v. UK); for insurrections, see Spanish Zone of Morocco; for social and economic forces, see Gould Marketing ; and for riots and other acts of civil strife, see Anaconda-Iran. Crawford 2013, p. 297, and ns 142–147.
- 187.
See Rainbow Warrior Arbitration 1990, above n 134, p. 253.
- 188.
See ILC Articles with Commentaries, above n 116, Article 23, para 3.
- 189.
See ILC, Study prepared by the Secretariat 1977, p. 69, para 15, UN Doc. A/CN.4/315.
- 190.
See Hentrei and Soley 2011, para 15.
- 191.
But see Orentlicher 1991, p. 2610, and n 335 (arguing that “conduct of a state organ – including the military – is attributable to the state”, “even if the state organ exceeded its competence or contravened its instructions pursuant to national law”).
- 192.
See Bjorklund 2008, p. 500.
- 193.
Cf. Scharf 2006, p. 373. But see Orentlicher 1991, pp. 2609–2610 (arguing that “Under each of these standards, governments would not be excused from their duty to prosecute human rights violations merely to placate restive military forces; the excuses are available only to avert a threat to the life of a nation or, in the case of force majeure , when compliance is rendered materially impossible.”); Naqvi 2003, p. 591, and n 36 (arguing that force majeure does “not easily accommodate amnesties”).
- 194.
Scharf and Rodley 2002, p. 96.
- 195.
See Crawford 2013, p. 279 (referring to a comment by the United Kingdom and France in ILC YB 1998/II(1), 130).
- 196.
See ILC Articles with Commentaries, above n 116, Part 1, Chapter V.
- 197.
See Paddeu 2012, p. 460 (arguing that also the fundamental change of circumstances exception enshrined in Article 62 of the Vienna Convention on the Law of Treaties appears to be “closer” to necessity ).
- 198.
ILC, Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago 1980, p. 14, para 2, UN Doc. A/CN.4/318/ADD.5-7.
- 199.
ILC Articles with Commentaries, above n 116, Article 25, paras 1–2. See also Tanzi 2013, para 2.
- 200.
Bjorklund 2008, p. 520.
- 201.
Paddeu 2012, p. 463.
- 202.
Rodick 1928, p. 2. The author stressed however that Macchiavelli, writing more than 100 years before Grotius, and starting from different premises, arrived at similar conclusions on the notion of necessity .
- 203.
See Boed 2000, pp. 4–5.
- 204.
See Rodick 1928, pp. 1–25. To have a sense of the controversy among writers, see ILC Articles with Commentaries, above n 116, Article 25, para 13, ns. 394–395.
- 205.
See Boed 2000, p. 4.
- 206.
See Paddeu 2012, pp. 443–446.
- 207.
Ibid.
- 208.
See Rodick 1928, pp. 5–6.
- 209.
- 210.
See, e.g., Gabcikovo-Nagymaros Case 1997, above n 152, paras 51–52. See also CMS Arbitration 2005, above n 138, para 315; LG&E Arbitration 2006, above n 137, para 245 (although following a different reasoning); Enron Arbitration 2007, above n 138, para 303; Sempra Arbitration 2007, above n 138, para 344; and ICSID , Continental Casualty Company v. The Argentine Republic, Award, 5 September 2008, ARB/03/9, (Continental Casualty Arbitration 2008), paras 168, 233. See Bjorklund 2008, p. 474. See also Tanzi 2013, para 1. But see Rainbow Warrior Arbitration 1990, above n 134, p. 254 (casting doubts as to the existence of the excuse of necessity ). See also Crawford 2013, p. 314.
- 211.
See Tanzi 2013, para 20.
- 212.
See ILC Articles with Commentaries, above n 116, Article 25, paras 3–12, 14 (analyzing the most important cases in which this defense arose).
- 213.
Ibid., para 5.
- 214.
Many similar provisions are contained in BITs. See, e.g., 1994 US-Argentina BIT, Article 11; and 2012 US-Rwanda BIT, Article 18.
- 215.
See above n 124.
- 216.
See Crawford 2013, p. 306 (referring to the conclusion reached by the ILC that [necessity was] “too deeply rooted in general legal thinking for silence on the subject to be considered a sufficient reason for regarding the notion as totally inapplicable in international law”).
- 217.
See Gabcikovo-Nagymaros Case 1997, above n 152, paras 40–41 (endorsing the cumulative requirement).
- 218.
ILC Articles with Commentaries, above n 116, Article 25, para 2. This negative formulation resembles the negative language used in Article 62 of the Vienna Convention on the Law of Treaties as well as the conditions and exceptions established therein.
- 219.
See Tanzi 2013, para 13. See also Gabcikovo-Nagymaros Case 1997, above n 152, para 51.
- 220.
See ILC Articles with Commentaries, above n 116, Article 25, para 15. See also Tanzi 2013, para 15.
- 221.
ILC, Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago 1980, p. 14, para 2, UN Doc. A/CN.4/318/ADD.5-7.
- 222.
See Gabcikovo-Nagymaros Case 1997, above n 152, para 53.
- 223.
See ILC Articles with Commentaries, Article 25, para 15.
- 224.
Gabcikovo-Nagymaros Case 1997, above n 152, para 54.
- 225.
Ibid. (interpreting “peril” as referring to danger in as much as it “evokes the idea of ‘risk’” rather than “material damage”).
- 226.
Ibid.
- 227.
ILC Articles with Commentaries, above n 116, Article 25, para 16. This is especially true in case of scientific uncertainties.
- 228.
See Crawford 2013, p. 311.
- 229.
See ILC Articles with Commentaries, above n 116, Article 25, para 15. See also Crawford 2013, p. 311.
- 230.
See Crawford 2013, p. 311.
- 231.
See Gabcikovo-Nagymaros Case 1997, above n 152, para 55.
- 232.
Wall Case 2004, above n 38, para 140.
- 233.
Reinisch 2007, p. 201.
- 234.
See Gabcikovo-Nagymaros Project Case 1997, above n 152, para 51.
- 235.
Bjorklund 2008, p. 506.
- 236.
The expression “international community as a whole” was employed by the ICJ in the Barcelona Traction case. ICJ, Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain ), Judgment, 5 February 1970, ICJ Rep 3, para 33.
- 237.
In fact, as advocated by Boed, a “bilateral paradigm” alone, as resulted from the previous version of ILC Articles , would have been “too simplistic”, because it would have failed to take into due consideration the “advent of human rights law ” and “the resulting creation of erga omnes obligations .” Boed 2000, p. 19.
- 238.
See ILC Articles with Commentaries, above n 116, Article 25, para 17.
- 239.
See Boed 2000, p. 18.
- 240.
See Wall Case 2004, above n 38, paras 137, 141–142.
- 241.
See Crawford 2013, p. 313 (referring to Heathcote).
- 242.
See ibid., p. 313.
- 243.
See ILC Articles with Commentaries, above n 116, Article 25, para 19. GC I, Article 33(2); GC IV, Articles 49(2), 49(5), 53, 55(3), and 108(2); and AP I, Article 54(5) stand as examples in point. It is important to recall here that the plea of necessity does not cover conduct, which is in principle regulated by primary obligations. The reference is, inter alia, to the rules regulating the use of force especially in relation to humanitarian interventions. See ibid., Article 25, para 21.
- 244.
Ibid.
- 245.
See Gabcikovo-Nagymaros Case 1997, above n 152, para 57.
- 246.
ILC Articles with Commentaries, Article 25, para 20. From a comparison of the wording of Articles 23 and 25, it seems that the degree of state contribution is higher in the latter.
- 247.
CMS Arbitration 2005, above n 138, para 329. But see LG&G Arbitration 2006, above n 137, para 256 (reaching the opposite conclusion).
- 248.
See Bjorklund 2008, p. 483.
- 249.
See Tanzi 2013, para 19.
- 250.
See Paddeu 2012, p. 444.
- 251.
See, e.g., Bjorklund 2008, p. 465.
- 252.
See Paddeu 2012, p. 446.
- 253.
Gabcikovo-Nagymaros Case 1997, above n 152, para 51 (referring to ILC Commentaries on former Article 33 of the ILC Draft Articles on State Responsibility).
- 254.
See generally http://legal.un.org/ilc/guide/9_6.shtml#govcoms [Accessed 15 September 2018].
- 255.
See Tanzi 2013, para 21.
- 256.
See ILC Articles with Commentaries, Article 25, paras 4–6 (referring to the 1832 Anglo-Portuguese dispute, the 1837 Caroline incident , and the 1893 Russian Fur Seals controversy). See also UK Home Office, The ‘Torrey Canyon,’ Command Paper No. 3246, 1967.
- 257.
See PCA, Russian Indemnities Case (Russia v. Turkey ), 1912, 11 UNRIAA 431 (which is considered a case better described by necessity , despite the fact that force majeure was actually pleaded). See also Rainbow Warrior Arbitration 1990, above n 134.
- 258.
See Société Commerciale de Belgique 1939, above n 164.
- 259.
See Gabcikovo-Nagymaros Case 1997, above n 152. See also ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, 4 December 1998, ICJ Rep 432 (Fisheries Jurisdiction Case 1998), para 20 (a case in which the plea of necessity was “apparently an issue” but the ICJ declared it had no jurisdiction over it).
- 260.
See, e.g., ITLOS, M/V ‘SAIGA’ (No 2) (Saint Vincent and the Grenadines v. Guinea), Judgment (Merits), 1 July 1999, ITLOS Case No 2, 1999 ITLOS Rep 10.
- 261.
See, e.g., CMS Arbitration 2005, above n 138; LG&E Arbitration 2006, above n 137; Enron Arbitration 2007, above n 138; Sempra Arbitration 2007, above n 138; and Continental Casualty Arbitration 2008, above n 210.
- 262.
See ILC Articles with Commentaries, Article 25, para 14. See also Crawford 2013, p. 308. As to the existence of the state , see PCA, Russian Indemnities Case (Russia v. Turkey ), 1912, 11 UNRIAA 431. As to vital and essential interests, and the safety of the civilian population, see CMS Arbitration 2005, above n 138; LG&E Arbitration 2006, above n 137; Enron Arbitration 2007, above n 138; Sempra Arbitration 2007, above n 138; and Continental Casualty Arbitration 2008, above 210. And as to the protection of the environment, see the Russian Fur Seals controversy, in ILC Articles with Commentaries, above n 116, Article 25, para 6; UK Home Office, The ‘Torrey Canyon,’ Command Paper No. 3246, 1967; Gabcikovo-Nagymaros Case 1997, above n 152; and Fisheries Jurisdiction Case 1998, above n 259.
- 263.
See Crawford 2013, p. 308. For Boed, the ‘Torrey Canyon’ incident is a fitting example of the fact that necessity is “not inextricably linked to preserving the very existence of the State ”, but it is rather a principle that state can legitimately make use of in order to safeguard its essential interests in a broader set of circumstances. Boed 2000, p. 11.
- 264.
See Rainbow Warrior Arbitration 1990, above n 134, p. 254.
- 265.
See CMS Arbitration 2005, above n 138; Enron Arbitration 2007, above n 138; and Sempra Arbitration 2007, above n 138. But, as already clarified, the last two awards were later annulled in 2010.
- 266.
See LG&E Arbitration 2006, above n 137; and Continental Casualty Arbitration 2008, above n 210. It will be recalled that other ICSID tribunals have considered the applicability of the necessity defense to BITs that did not contain an “emergency ” clause. In these cases, the arbitral tribunals rejected the plea of necessity because all the cumulative requirements were not complied with. See, e.g., ICSID , Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. The Argentine Republic, Decision on Liability, 30 July 2010, ARB/03/19. In any case, this is not the proper place to deal any deeper with the relationship between the “emergency ” clause to be found in many BITs and Article 25, and especially on whether this “emergency ” clause can be qualified as lex specialis vis-à-vis the same article of the ILC Draft Articles on State Responsibility.
- 267.
ILC, Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago 1980, p. 51, para 80, UN Doc. A/CN.4/318/ADD.5-7.
- 268.
See Bjorklund 2008, p. 521.
- 269.
See ibid., p. 520.
- 270.
See Rodick 1928, p. 25.
- 271.
See Crawford 2013, pp. 316–317.
- 272.
Cf. Orentlicher 1991, pp. 2582–2585.
- 273.
See Chinchón Álvarez 2007, p. 494.
- 274.
Gabcikovo-Nagymaros Case 1997, above n 152, para 54.
- 275.
See Chap. 4 above.
- 276.
Orentlicher 1991, p. 2595.
- 277.
See Tanzi 2013, para 15.
- 278.
Cf. Chinchón Álvarez 2007, p. 498. But see Orentlicher 1991, pp. 2608–2609 (arguing that “the customary duty to prosecute torture , disappearances, and extra-legal executions “arises out of” rights that have the status of peremptory norms ”); and Naqvi 2003, p. 591, and n 36 (maintaining that “the duty to prosecute those accused of war crimes is an essential interest of the international community ”).
- 279.
ILC Articles with Commentaries, above n 116, Article 25, para 19.
- 280.
See Bjorklund 2008, p. 500.
- 281.
See Roht-Arriaza 1995, p. 63 (arguing that: “There is no allowance for a common situation in which amnesty arises: one part of the state (military or security forces) threatens another part (a civilian government) with rebellion if its demands are not met.”). See also Orentlicher 1991, pp. 2610–2611, and n 337 (maintaining that “if a state failed because of military intimidation to punish atrocious crimes that it was otherwise required to prosecute, the state would be in breach of its international obligations[,]” but suggesting that a different approach, like the one followed by the European Commission in the Greek Case , is feasible under the derogation clause of the ECHR); and Chinchón Álvarez 2007, p. 496 (suggesting that generally this is the reason why the necessity defense is excluded in similar cases). Cf. IACtHR, Velásquez Rodríguez Case , Judgment, 29 July 1988, (ser. C) No. 4, paras 169–172.
- 282.
- 283.
See Chinchón Álvarez 2007, p. 497.
- 284.
Orentlicher 1991, pp. 2611–2612.
- 285.
But see Naqvi 2003, p. 591, and n 36 (arguing that “the duty to prosecute those accused of war crimes is an essential interest of the international community .”).
- 286.
Robinson 2003, p. 497 (suggesting that “the balance between the extent of the departure from full prosecution ” should be tested in order to apply the defense of necessity to a given case).
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Roberti di Sarsina, J. (2019). State’s International Responsibility for Failing to Investigate and Prosecute Mass Atrocities: Are There Techniques Within International Law to Solve the Dilemmas Raised by Transitions?. In: Transitional Justice and a State’s Response to Mass Atrocity. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-276-7_5
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