The special regime of responsibility in case of contravention of community obligations provided for in multilateral treaties

· Multilateral treaties that protect fundamental values sometimes contain rules on aggravated responsibility.

· These treaties also include complex mechanisms for ensuring compliance and set up institutionalized responses to breaches of those provisions (replace customary law rules on response).

· The collective response to violations not only covers gross or systematic breaches, but any contravention of the treaty.

· However, except for European Convention on Human Rights and Inter-American Convention on Human Rights, this sweeping mechanism weakened by weakness of supervisory and sanctioning mechanism

9.6.1 Treaty regulation

· All the contracting obligations are under the general obligations arising in cases of aggravated responsibility as laid down in customary law.

· Provisions of each treaty specify the legal rights, powers, or claims of contracting states (other than wrongdoer). Some examples of such regimes follow.

1949 Geneva Conventions

· These lay down community obligations – Confirmed by ICTY in Kupreskic

Two mechanisms to enforce state responsibility

· Art. 1 (common to all four conventions) – any contracting party must respect and ensure respect for the Convention in all circumstances

o ICJ, Nicaragua – this principle has become part of “general principles of humanitarian law.”

o Empowers and obligates any state party to demand of another state party that it comply with obligations under Convention

o Entitles each state party to demand cessation of serious violation of Conventions

o Special regime for grave breaches

o If a belligerent commits such a grave breach, any other state party may react at two levels:

o At inter-state level – any state has the right to invoke the international responsibility of another contracting party for grave breach perpetrated by member of its armed forces or other individuals acting on its behalf (Arts. 51, 52, 131, 148).

· At level of internal criminal punishment at national level. Each state under obligation to

o Enact penal legislation to punish grave breaches

o To search for persons alleged to have committed such breaches

o To bring them before its own courts, unless it decides to hand them over to another concerned contracting state (art. 49, 50, 129, 146).

o These obligations at an internal level are a way of implementing the aggravated responsibility of the state.

· Conventions have no provisions ruling out invocation of ordinary responsibility.

1966 UN Covenant on Civil and Political Rights

· Extends notion of aggravated responsibility to any breach of the Covenant

· Any state party is legally entitled to demand cessation of violation of Covenant, even if this violation is not gross and large scale.

· Obligation – to fully respect the covenant

· However, this obligation is not bilaterally monitored.

· Instead, a body responsible for handling allegations by states or individuals of violations of the Covenant – the UN Human Rights Committee

· A state may invoke the responsibility of another contracting party by asking the Committee to declare that the state complained of has indeed breached the covenant.

· Both individuals and states have a right to submit ‘communications’ against other states for violations of the Covenant.

1993 The Statute of ICTY

ICTY, Blaskic

· Art. 29 of ICTY Statute imposes on all states obligations to comply with orders and decisions of the tribunal.

· Every member of UN has a legal interest in the fulfilment of the obligation laid down in art. 29

· Legal interest can be exercised after a judicial finding of the Tribunal that a state has violated art. 29

9.6.2 State practice

Geneva Conventions

· Regime provided for has not been consistently used.

· In less recent years, in most cases, resort to art. 1 has been made privately rather than publicly.

· In more recent times, more states have gone public, or made public their actions subsequently.

o e.g. Jordan has protested against violations of international humanitarian law in the Arab territories occupied by Israel; Germany has reminded Russia of its Protocol II obligations in Chechnya

· International organizations have also called on state parties to honour Geneva conventions

o e.g. Committee of Ministers of Council of Europe re massive rape of women and children in former Yugoslavia

· Provisions on national prosecution of grave breaches were not applied until 1994, when national courts of some European states began to prosecute persons allegedly guilty of serious breaches in former Yugoslavia.

UNCCPR

· Central supervisory mechanism have been consistently used and become more effective (particularly re communications by individuals)

· This is probably due to a lack of sanctioning action by individual states based on HRC ruling.

ICTY

· States have also made scant use of this legal regime, deferring to Security Council in face of breaches of art. 29.

9.6.3 Treaty regimes and resort to international customary law measures

· Relationship between remedial action provided for in a multilateral treaty imposing community obligations and the right to resort to measures envisaged in customary int’l law on aggravated responsibility?

· In case of breach of a treaty on human rights:

o Only if institutional remedies can the aggrieved or any other state activate the legal means under customary law, including resort to uni-lateral counter measures. Need to exhaust institutional or collective mechanisms first (shows public interest and community values which underpin aggravated responsibility).

o Same would hold true for other treaties, e.g. those on nuclear tests

· When faced with a failure of institutional treaty-made mechanisms to react effectively against a gross violation, the fall-back solutions are those under customary international law. BUT these are available to everyone, not just parties to the treaty. Treaty collectivity is replaced by whole international community.