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A Matter of Interest: Diplomatic Protection and State Responsibility Erga Omnes

Published online by Cambridge University Press:  17 January 2008

Annemarieke Vermeer-Künzli
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Abstract

International law recognizes two mechanisms for the protection of individuals in case of violations of peremptory norms affecting individuals: invocation of State responsibility erga omnes and diplomatic protection. While they share some fields of applications and are both based on some measure of indirect injury, there are important differences between these two mechanisms. This paper analyses and discusses these differences and similarities, and concludes by demonstrating that the essential distinction is to be found in the legal interest in the claim and the nature of the claim. The traditional conditions for the bringing of a claim based on indirect injury that are applicable to diplomatic protection (exhaustion of local remedies and nationality of claims) are not applicable to invocation of responsibility erga omnes. This paper will argue that the latter is based on an obligation owed to the community as a whole, including the claimant State, and therefore constitutes a direct claim. In the interest of enhancing protection of individuals against violations of peremptory norms, the simultaneous existence of these two mechanisms should be welcomed.

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Articles
Information
International & Comparative Law Quarterly , Volume 56 , Issue 3 , July 2007 , pp. 553 - 581
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v Spain), Judgment of 5 Feb 1970, ICJ Reports 1970, 32, para 33.Google Scholar

2 International Law Commission, Report on the work of its 53rd session, GA Official Records 55th Session, supplement No 10, A/56/10 (2001), Art 48.Google Scholar (Hereinafter: Articles on State Responsibility and Art 48 resp.) For the purpose of this discussion, the term ‘peremptory norm’ will be used predominantly, consistent with the practice of the ILC. However, in quoting other sources, the term jus cogens will not be replaced and will be taken as a synonym for ‘peremptory norm’. The author is aware of debates distinguishing peremptory norms from norms of jus cogens. However, it is felt that it is unnecessary to enter into such debates for the present purpose, since invocation erga omnes can be based both on rules of jus cogens and on peremptory norms.

3 48(1)(b) reads as follows: ‘Any State other than the injured state is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: … the obligation breached is owed to the international community as a whole.’ Articles on State Responsibility, above n 2, Art 48.

4 From this discussion are excluded treaty-based mechanisms such as inter-state complaints procedures under the ICCPR, the ECHR and other human rights treaties. These mechanisms are fundamentally different since their application depends on prior consent of the States parties to the relevant treaties and the specific rules of the treaty regimes. Diplomatic protection is part of customary international law and the Articles on State Responsibility, including the parts that constitute progressive development and in particular Art 48(1)(b), are also designed to be part of general international law.

5 Articles on State Responsibility, above n 2, Art 44. It is provided here that any claim is inadmissible if ‘the claim is not brought in accordance with any applicable rule relating to the nationality of claims’ (sub a) and ‘the claim is one to which the rule of exhaustion of local remedies applies …’ (sub b).

6 The Commentary to Art 44 features amongst the shortest in the Commentary to the Articles on State Responsibility and it basically affirms the conditions for admissibility usually applicable to indirect claims. It does however not clarify when those conditions will be applicable nor does it explain the content and scope of these conditions in detail. Instead it refers to the ILC project on diplomatic protection. See Articles on State Responsibility, above n 2, Commentary to Art 44, at 304–7.Google Scholar

7 See Tams, C, Enforcing Obligations Erga omnes in International Law, Cambridge (CUP), 2005, at 158–179 for an excellent analysis of this issue in Barcelona Traction.CrossRefGoogle Scholar

8 Scobbie, I, ‘The Invocation of Responsibility for the Breach of “Obligations under Peremptory Norms of General International Law”’ (2002), 13 EJIL 1201–20, at 1215.CrossRefGoogle Scholar

9 See Articles on State Responsibility, above n 2, Commentary to Art 55, which states that ‘article 55 makes it clear that the present articles operate in a residual way’, at 357.

10 Articles on State Responsibility, above n 2, Commentary to Art 55, at 358.Google Scholar

11 Note that the Commentary to Art 55 emphasizes that ‘it is not enough that the same subject matter is dealt with by two provisions’ and that if there is no inconsistency, there should at least be ‘a discernible intention that one provision is to exclude the other’, above n 2, at 358. The ILC evidently had no intention to subject invocation under Art 48 to the rules on diplomatic protection.

12 Although there is some academic debate on the question of which norms exactly constitute peremptory norms, no attempt will be made in this paper to clarify that discussion. For the present purpose the following norms will be assumed to belong to the corpus of peremptory norms: the prohibition on aggression, the basic rules of international humanitarian law applicable in armed conflict such as the prohibition on war crimes and crimes against humanity, the prohibitions on genocide, torture, slavery and apartheid and the right to self determination. This list, however, is not exhaustive. See Articles on State Responsibility, above n 2, commentary to Art 40, at 283–4. On the status of the prohibition on arbitrary detention, see below nn 48 and 49, and accompanying text.Google Scholar

13 Articles on State Responsibility, above n 2, commentary to Art 40, at 285.Google Scholar

14 Diplomatic Protection–title and texts of the draft articles on Diplomatic Protection adopted by the Drafting Committee on second reading, International Law Commission 58th session, A/CN.4/L/684 (2006), Art 8(3) (hereinafter: Draft Articles on Diplomatic Protection).Google Scholar

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16 A similar argument would apply to the local remedies rule. However, considering the nonabsolute character of this rule, it is not unlikely that the exhaustion of local remedies will not be considered necessary—because that would be unreasonable—in situations of serious breaches of peremptory norms. See Articles on State Responsibility, above n 2, commentary to Art 40, at 285. In addition, the question of nationality has ‘legal priority’ vis-á-vis the local remedies rule. See Scobbie, above n 8, at 1215. It is therefore not necessary to pursue this issue.

17 Draft Article 19 provides that States ‘should:

(a) give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred;

(b) take into account, wherever feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought; and

(c) transfer to the injured person any compensation obtained for the injury from the responsible State subject to any reasonable deductions ….’.

See Draft Articles on Diplomatic Protection, above n 14, Art 19.

18 Part Two, Chapter II of the Articles on State Responsibility, above n 2, Art 34–9.

19 Part Three, Chapter II of the Articles on State Responsibility, above n 2, Arts 49–53.

20 ILC Report 2006, above n 15, at 22.Google Scholar

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22 Articles on State Responsibility, above n 2, commentary to Art 48, at 323.Google Scholar

23 See below for further analysis of ‘beneficiaries’ and ‘international community as a whole’.

24 See Vermeer-Künzli, AMH, ‘As If, the Fiction in Diplomatic Protection’ (2007) 18 EJIL 37–68.CrossRefGoogle Scholar

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30 Draft Articles on Diplomatic Protection, above n 14, Art 1 reads: ‘For the purpose of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to implementing such responsibility.’

31 See Comments and Observations Received from Governments, International Law Commission, 58th Session, A/CN.4/561/Add 2 (2006) (hereinafter: Comments and Observations, Add 2), at 2.Google Scholar

32 For a detailed discussion of the fiction in diplomatic protection see Vermeer-Künzli, above n 24.

33 LaGrand case (Germany v United States), Judgment of 27 June 2001, ICJ Reports 2001, 466, at 494 (para 78)Google Scholar; Case Concerning Avena and Other Mexican Nationals (Mexico v United States), Judgment of 31 March 2004, ICJ Reports 2004 p 12, at 60–1 (para 124).Google Scholar

34 John Dugard, First Report on Diplomatic Protection, International Law Commission 52nd session, A/CN.4/506, para 32 (hereinafter: First Report on Diplomatic Protection).

35 First Report on Diplomatic Protection, above n 34, para 74.

36 ibid n 34, paras 81–7.

37 ibid above n 34, para 89 (footnotes omitted).

38 Diplomatic Protection—titles and texts of the draft articles on Diplomatic Protection adopted by the Drafting Committee on first reading, International Law Commission 56th session, A/CN.4/L/647 (2004).Google Scholar See also Vermeer-Künzli, AMH, ‘Restricting Discretion: Judicial Review of Diplomatic Protection’ (2006) 75 Nordic Journal of International Law 279–307, at 281–3.CrossRefGoogle Scholar

39 Comments and Observations, Add 2, above n 31, at 2–3.Google Scholar

40 ibid n 31, at 3.

41 ibid.

42 It would include serious violations of human rights violations, in particular ‘the right to life, the prohibition on torture and inhuman or degrading treatment or punishment, the prohibition on slavery and the prohibition on racial discrimination’, see Comments and Observations, Add 2, above n 31, at 3. War crimes and crimes against humanity thus seem to have been excluded.

43 Draft Articles on Diplomatic Protection, above n 14, Art 19(a).

44 ILC Report 2006, above n 15, at 96.Google Scholar

45 2005 World Summit Outcome Resolution, GA 60th Session, UN Doc A/RES/60/1.

46 ILC Report 2006, above n 15, at 95.Google Scholar

47 2005 World Summit Outcome Resolution, above n 45, para 139.

48 See Marks, S ands Clapham, A, International Human Rights Lexicon OUP, Oxford, 2005) 78.Google Scholar

49 See Orakhelashvili, A, above n 29, at 58–60, who specifically refers to ‘illegal deprivation of liberty’ as an example of a prohibition that is peremptory because it is non-derogable, at 60. It should be noted that the applicants in Abbasi and Kaunda also argued that the circumstances of their detention amounted to torture or inhuman or degrading treatment. The Courts in both cases however only considered the arbitrariness of the detention, although they may have weighed the allegations of torture in their assessment of the urgency of the situations.Google Scholar

50 It is interesting to note that the ILC, when debating State Responsibility, also found that violations of peremptory norms ‘by definition’ involve a ‘risk of substantial harm’. See ILC Yearbook 2001 (Vol I), A/CN.4/SER A/2001, report of the 2682nd meeting, at 105, para 16.Google Scholar

51 Draft Articles on Diplomatic Protection, above n 14, Art 16.

52 ILC Report 2006, above n 15, at 87.Google Scholar

53 ibid, n 15, at 87, n 245.

54 Milano, E, ‘Diplomatic Protection and Human Rights before the International Court of Justice: Re-Fashioning Tradition’ (2004) 35 Netherlands Yb of Int'l Law 85–142, at 107.CrossRefGoogle Scholar

55 It should be noted that the ILC deliberately avoided the use of the words ‘erga omnes’ because of a perceived lack of clarity. See Arts on State Responsibility, above n 2, Commentary to Art 48, at 321. Although one clearly can question the preciseness of the term ‘erga omnes’ it will be used here as a synonym to ‘owed to the community as a whole’.Google Scholar

56 Byers, M, ‘Conceptualising the Relationship between Jus cogens and Erga omnes Rules’ (1997) 66 Nord JIL 211–39, at 238.Google Scholar

57 Kadelbach, above n 21, at 26, and similarly at 35.Google Scholar

58 See also Okowa, P, ‘Issues of Admissibility and the Law on International Responsibility’ (2006) in MD Evans, International Law (OUP, Oxford, 2006) at 494Google Scholar who stated that ‘[a]n implicit feature of this category of obligations [ie obligations erga omnes] is that the specific requirements of legal interest based either on direct injury or ties of nationality are dispensed with.’ No explanation is given here however of the ways in which this can be achieved.

59 Regina v Bartle and the Commissioner of Police for the Metropolis, Ex Parte Pinochet Ugarte (No 3) [1999] 2 WLR, 827, per Lord Phillips of Worth Matravers.Google Scholar See also Jennings, R and Watts, A (eds), Oppenheim's International Law, Vol 1 Peace (9th edn, Longman, London, 1992) 998.Google Scholar

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62 Case Concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v Rwanda), Judgment of 3 02 2006, available at <http://www.icj-cij.org>, paras 64 and 125.,+paras+64+and+125.>Google Scholar See also Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Merits) (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 02 2007, para 162, available at <http://www.icj-cij.org> (not yet published).+(not+yet+published).>Google Scholar

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64 See Panevezys–Saldutiskis Railway case (Estonia v Lithuania), PCIJ, Series A/B, No 76 (1937), at 16.Google Scholar

65 Congo–Uganda case, above n 63, Separate Opinion Judge Simma, para 19.

66 ibid, para 37. It is interesting to note that the Court, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, 136Google Scholar, decided in the dispositif sub D, not only that the international community is under an obligation not to recognize the situation in violation of international humanitarian law, but that all States Parties to the Fourth Geneva Convention ‘have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention’ (202).

67 Congo–Uganda case, above n 63, Separate Opinion Judge Simma, para 35.

68 ibid, para 41. See also Congo–Uganda case, above n 63, Dissenting Opinion of Judge Kateka, at para 69 who stated that ‘the Court should have invoked international humanitarian law to protect the rights of these persons. The Court would seem not to have given enough weight to violations of the rights of these persons at Ngjili Airport by the DRC.’

69 For these principles see Fitzmaurice, G, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and other Treaty Points’ (1957) 33 Brit. YB Int'l Law 211.Google Scholar

70 Byers, above n 56, 230.Google Scholar

71 Tams, above n 7, 310–11.Google Scholar

72 ibid, at n 7, stated that ‘proceedings could only be brought against States that have accepted the Court's jurisdiction to entertain claims based on breaches of customary international law’, 311. Considering that this group of States is rather small, the statement referred to in the text accompanying n 71, is less generous than it seems to be. See also Meron, above n 61, 12.Google Scholar

73 Case Concerning Armed Activities on the Territory of the Congo, above n 62, Separate Opinion Judge ad hoc Dugard, para 14.

74 Orakhelashvili, above n 29, 490.Google Scholar

75 ibid, 492. A similar point has been made by Ruffert, who noted, in relation to the ICJ's refusal to give the peremptory nature of jus cogens prevalence over the principle of consent that ‘this state of the law seems to be scandalous from the standpoint of modern international law, which has moved away from bilateral consensual relationships towards the promotion of the interest of the international community. Fundamental norms are as a matter of principle independent of individual consent. On the contrary, obligations derived from peremptory norms … are deliberately designed to apply to States without consent or against their will.’ Ruffert, M, ‘Special Jurisdiction of the ICJ in the Case of Infringement of Fundamental Rules of the International Legal Order’ in: Tomuschat and Thouvenin, above n 21, 295–310, at 296–7 (footnotes omitted).Google Scholar See, however, Thirlway, H, ‘Injured and Non-Injured States before the ICJ’, in Ragazzi, M (ed), International Responsibility Today, Essays in Memory of Oscar Schachter (Martinus Nijhoff, Dordrecht, 2005) 311–28, who shows the complexities of applications to the ICJ of non-injured States.Google Scholar

76 Orakhelashvili, above n 29, 499–508.Google Scholar

77 On actio popularis see generally Voeffray, F, L' Actio Popularis ou la Defense de l'Interêt Collectif devant les Juridictions Internationales (Presses Universitaires de France, Paris 2004)CrossRefGoogle Scholar; see also Rubin, AP, ‘Actio Popularis, Jus cogens and Offences Erga omnes’ (2001) 35 New Eng L Rev 265–80Google Scholar; Mercer, PP, ‘The Citizens Right to Sue in the Public Interest: the Roman Actio Popularis revisited’ (1983) 21 UW Ontario L Rev. 89–103Google Scholar; Aceves, WJ, ‘Actio Popularis? The Class Action in International Law’ (2003) 2003 U Chicago LF 353–402.Google Scholar

78 See Voeffray, above n 77, 6–13.Google Scholar

79 ibid n 77, 13.

80 See ibid n 77, 261–2; Tams, above n 7, 161.Google Scholar

81 This would be the case when responsibility is invoked for violation of the prohibition on genocide against a State's own population. The population would not have standing under international law in the way a third State has under the Articles on State Responsibility.

82 South-West Africa case (Ethiopia v South Africa; Liberia v South Africa), Judgment of 18 July 1966, ICJ Reports 1966 p 6, 47 (para 88). But see Tams, above n 7, who shows that the applicant States in this case were not in fact arguing on the basis of actio popularis, but on the interpretation of a special treaty-based jurisdiction clause, 63–9.Google Scholar

83 Nuclear Tests case (New Zealand v France; Australia v France), Judgments of 20 Dec 1974, ICJ Reports 1974, 457 and 253Google Scholar, where arguments related to the erga omnes character of the claim, brought forward both by New Zealand and by Australia, were not referred to in the judgment which was narrowed down to the existence of a legal dispute. In the 1995 Request made by New Zealand, the applicant specifically referred to its own rights and those of other States. See Request for an Examination of the Situation in Accordance with para 63 of the Court's Judgment of 20 Dec 1974 in the Nuclear Tests (New Zealand v France) Case (Order of 22 Sept 1995), ICJ Reports 1995, 288, at 291 (para 6). The Request was found inadmissible, because of the difference in subject-matter between the 1974 case and the current request.Google Scholar

84 LaGrand, above n 33, Oral Pleadings, CR 2000/26, 13 11 2000, Agent for the Federal Republic of Germany, para 9, who stated that Germany was presenting this claim ‘not only for the sake of the citizens of our two countries, but for the benefit of human beings worldwide’.Google Scholar

85 Avena, above n 33, Oral Pleadings, CR 2003/24, 15 Dec 2003, Agent for the United Mexican States, para 38, who stated that the Court ‘fait face á une responsabilité dont la gravité ne peut être dissimulée. Autant pour le sort des cinquante-deux ressortissants mexicains visés dans notre requête et dans notre mémoire, que pour les millions de personnes qui, tous les jours, traversent les frontières et se rendent dans un pays qui n'est pas le leur, il est indispensable de savoir, en définitive, quelle est la portée des droits reconnus par l'article 36 et le contenu précis de la réparation qui découle de leur violation, et dont l'arrêt LaGrand est l'indéniable précurseur.’Google Scholar

86 Oil Platforms case (Islamic Republic of Iran v United States), Judgment of 6 11 2003Google Scholar, ICJ Reports 2003, 161, at 208 and 211 (paras 101, and 108–9).Google Scholar The United States claimed that Iran endangered maritime commerce in general and gave examples of ships flying the flag of other States that had suffered. Iran objected to this claim and the Court responded by stating that it ‘recalls that the first submission presented by the United States in regard to its counter-claim simply requests the Court to adjudge and declare that the alleged actions of Iran breached its obligations to the United States, without mention of any third States. Accordingly, the Court will strictly limit itself to consideration of whether the alleged actions by Iran infringed freedoms guaranteed to the United States under Art X, para 1, of the 1955 Treaty’ (para 109). See also Thouvenin, J-M, ‘La Saisine de la CIJ en cas de violation des régles fondamentales’ in Tomuschat and Thouvenin, above n 21, 311–34, who offers a brief analysis of the issue of consent and fundamental rules of international law.Google Scholar

87 Orakhelashvili, above n 29, 524.Google Scholar

88 Barcelona Traction case, above n 1, Separate Opinion of Judge Ammoun, 326–7.Google Scholar

89 South-West Africa case, above n 82, 479–82.Google Scholar

90 Articles on State Responsibility, above n 2, Art 42.

91 ibid n 2, Commentary to Art 42, 300.

92 Articles on State Responsibility, above n 2, Commentary to Art 42, at 294, and Commentary to Art 48, 319Google Scholar; see also Commentary to Art 33, 234.Google Scholar

93 Articles on State Responsibility, above n 2, 293.Google Scholar

94 Articles on State Responsibility, above n 2, Commentary to Art 48, 322.Google Scholar

95 Articles on State Responsibility, above n 2, Commentary to Art 42, 300.Google Scholar

96 Sicilianos, L-A, above n 28, 1138.Google Scholar See also Weiss, E Brown, ‘Invoking State Responsibility in the Twenty-First Century’ 96 AJIL 798–816 (2002), 802–8.CrossRefGoogle Scholar

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98 Articles on State Responsibility, above n 2, Commentary to Art 42, 300 and Commentary to Art 48, 320–1 and 322. The Commentary to Art 48 directly refers to Art 42 with respect to the term ‘collective interest’ at n 764.Google Scholar

99 Perhaps this question is less pertinent with respect to the peremptory norms to which the present study is limited: it is not necessary that State A complies with the prohibition on racial discrimination for State B to be able to perform its obligations under this rule and although the international community has an interest in ensuring compliance with this prohibition, it is not the case that the performance of one State is ‘effectively conditioned upon or requires’ compliance of other States. However, the collective interest, which goes beyond the sum of bilateral obligations, will be threatened by any breach.

100 Articles on State Responsibility, above n 2, Commentary to Art 42, 301.Google Scholar

101 Tams, above n 7, 125.Google Scholar

102 See James, Crawford, Third Report on State Responsibility, International Law Commission, 52nd Session, A/CN.4/507 (2000), paras 92 and 106 (hereinafter: Third Report on State Responsibility)Google Scholar; Tams, above n 7, 120.Google Scholar

103 Whereas James Crawford (Third Report on State Responsibility, above n 102, para 106) had noted that obligations erga omnes arise both under general international law and under ‘generally accepted multilateral treaties (eg in the field of human rights)’, Tams (above n 7, 121–8) has convincingly demonstrated that, in order to be obligations erga omnes capable of creating legal interest in the interest of the international community as a whole, they must derive from general international law, even if they may also be contained in multilateral treaties.

104 See also the Meron cited above, n 61 and accompanying text.

105 See, eg, Okowa, P, above n 58, 495–6.Google Scholar

106 Geneva Conventions of 12 Aug 1949, International Committee of the Red Cross, Geneva. See on this point also the Wall Advisory Opinion, above n 66, 199–200, para 158.Google Scholar

107 For instance in non-proliferation of nuclear weapons treaties and environmental treaties. See Third Report on State Responsibility, above n 102, para 106; Tams, above n 7, 70–8 and 120Google Scholar; Orakhelashvili, above n 29, 84.Google Scholar

108 Congo–Uganda case, above n 63, Separate Opinion Judge Simma, para 32.

109 ibid, para 31.

110 Tams, above n 7, 122.Google Scholar

111 Wall Advisory Opinion, above n 66, paras 155–9, where it distinguished the character of the right to self determination and some of the rules under international humanitarian law from specific obligations under the Fourth Geneva Convention. The former were to be complied with by all States erga omnes because of their status in customary international law; the latter only by all States parties to this convention. Although the Court refrained from using the language of erga omnes and erga omnes parties it is clear from the text and the specific reference to ‘States’ in the former case and ‘States parties’ in the latter that it categorised the obligations differently.

112 See, eg, Scobbie, above n 8, and E Milano, above n 54.

113 Orakhelashvili, above n 29, 80.Google Scholar

114 For such a view see, eg, Byers, , above n 56, 232–8.Google Scholar

115 A natural language interpretation of the ‘beneficiaries’ of claims in the interest of the international community would suggest that these include individuals and other private parties since they are part of the international community as a whole. Crawford has stated, ‘our conception of “the international community as a whole” needs to be an inclusive and open-ended one’ (see Crawford, J, ‘Responsibility to the International Community as a Whole; the Earl Snyder Lecture in International Law’ (2001) 8 Ind J Global Leg Stud 303–22, at 315Google Scholar), not least because violations of peremptory norms will mostly affect individuals and not just States. This interpretation is supported by the fact that the ILC deliberately did not adopt the language of the Vienna Convention on the Law of Treaties, which contains the phrase ‘International Community of States’ (Art 53), but omitted the words ‘of States’ in favour of other entities. The ILC clearly included private parties such as the ICRC in the international community as a whole. See Fourth Report on State Responsibility, above n 60, paras 36–7. See also Sicilianos, , above n 96, at 1140.Google Scholar The ‘international community of States as a whole’ was considered a ‘subset’ of the international community as a whole (see ILC Yearbook 2001, above n 50, report of the 2682nd meeting, 105, para 15Google Scholar). The inclusion of other entities in the ‘beneficiaries’ of such claims has however not been universally accepted and it has been argued that this matter should have been further clarified by the ILC. See, eg, See Mazzseschi, R Pisillo, ‘The Marginal Role of the Individual in the ILC's Articles on State Responsibility’ (2004) 14 Italian Yb of Int'l Law 39–51, 44–5.Google Scholar

116 Fourth Report on State Responsibility, above n 60, para 52.

117 See above n 22 and accompanying text.

118 Articles on State Responsibility, above n 2, commentary to Art 48, 319–24.Google Scholar

119 eg A/RES/60/288 (2006): ‘Reaffirming that … the international community should take the necessary steps to enhance cooperation to prevent and combat terrorism’, 2.Google Scholar

120 eg S/RES/1718 (2006): ‘Underlining the importance that the Democratic People's Republic of Korea respond to other security and humanitarian concerns of the international community’, 1.Google Scholar

121 See Barcelona Traction, cited above n 1 and accompanying text, and numerous references to this dictum.

122 Tomuschat, C, ‘Die Internationale Gemeinschaft’ (1995) 33 Archiv des Völkerrechts 1–20, 4.Google Scholar

123 Tomuschat, , above n 122, 6Google Scholar: ‘The states of this earth—and indeed also the International Organizations created by them and partly even the international alliances—are joined together in a legal entity, that caries in its entirety the responsibility for the security of the essential needs of human existence’ (translation by the author). It should be noted that the world's civil society can also have a significant role in the protection against violations erga omnes even if this role is hardly ever legal and even if they cannot invoke State responsibility the way other States can.

124 See also the rather sophisticated article by Tsagourias, N, ‘The Will of The International Community as a Normative Source of International Law’, in Dekker, IF and Werner, WG (eds), Governance and International Legal Theory (Martinus Nijhoff, Leiden, 2004) 97–121.CrossRefGoogle Scholar

125 Articles on State Responsibility, above n 2, Commentary to Art 48, 319.Google Scholar

126 Barcelona Traction, above n 1, 32, para 33.

127 A good example of this is provided by the case of Mr Arar, in Canada. For details see <http://www.ararcommission.ca> (accessed 30 05 2007). Mr Arar initially did not receive any protection from Canada after the US extradited him to Syria where he allegedly was subjected to torture. However, when his situation was made known by Canadian media, the Canadian Government eventually set up an inquiry commission to investigate what had happened to Mr Arar and why the Canadian Government had failed to react.+(accessed+30+05+2007).+Mr+Arar+initially+did+not+receive+any+protection+from+Canada+after+the+US+extradited+him+to+Syria+where+he+allegedly+was+subjected+to+torture.+However,+when+his+situation+was+made+known+by+Canadian+media,+the+Canadian+Government+eventually+set+up+an+inquiry+commission+to+investigate+what+had+happened+to+Mr+Arar+and+why+the+Canadian+Government+had+failed+to+react.>Google Scholar

128 This would, it is submitted, be particularly unjustifiable in case of breaches of peremptory norms.

129 Perhaps it is instructive in this respect to note that proceedings before the European Court of Human Rights do not exclude other means of protection. When a national of State A is complaining for violations of his rights against State B, State A is allowed to simultaneously exercise diplomatic protection. States have on occasion actively supported their national claimants in cases against other States, short of exercising diplomatic protection. This was the case in Selmouni v France, Appl No 25803/94 [ECHR], and Soehring v United Kingdom. Appl No 14038/88 [ECHR].