Internationally Wrongful Acts in Domestic Courts

André Nollkaemper

doi:10.1017/S0002930000037714

Internationally Wrongful Acts in Domestic Courts

Published online by Cambridge University Press: 27 February 2017

André Nollkaemper

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André Nollkaemper*: Affiliation:
Amsterdam Center of International Law, University of Amsterdam

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This article explores the relevance of the law of international responsibility to the practice of domestic courts. In addition to proposing analytical distinctions that allow us to systematize and differentiate domestic case law pertaining to international responsibility, the article essentially advances three arguments. First, in certain circumstances domestic courts may find that a breach of an international obligation by the forum state constitutes an internationally wrongful act. Principles of international responsibility may be applicable to such a wrong. Second, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect. Third, international law leaves much leeway to states and their courts in applying principles of international responsibility in a specific domestic legal and factual context. The application of such principles will be colored by their interaction with domestic law and will vary among states.

Type: Research Article
Information: American Journal of International Law , Volume 101 , Issue 4 , October 2007 , pp. 760 - 799

DOI: https://doi.org/10.1017/S0002930000037714 [Opens in a new window]
Copyright: Copyright © American Society of International Law 2007

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Co-Editor in Chief, International Law in Domestic Courts, an online service reporting domestic cases relevant to international law, with translations and commentary. The author thanks Catherina Brölmann, Jann Kleffner, Edda Kristjánsdóttir, Geranne Lautenbach, Enrico Milano, Amaka Okany, Simona Stirling Zanda, and Erika de Wet for comments on an earlier version, and Cassandra Steer and Anna Marhold for research assistance. Useful comments were also received during presentations at the British Institute for International and Comparative Law and the Public International Law Discussion Group at the University of Oxford in January 2006. The article was written as part of the Pioneer Program on Interactions between International Law and Domestic Law, funded by the Netherlands Organisation for Scientific Research.

References

1 Rosalyn, Higgins, Problems and Process: International Law and How We Use it 20 6–07 (1994).Google Scholar

2 Third Report of the Committee on International Law in Domestic Courts, in 68 International Law Association, Conference Report 67 2–73 (1998). This is the focus of the American Society of International Law’s judicial outreach program. See, e.g., David, J. Bederman, International Law: A Handbook for Judges (2003)Google Scholar.

3 One of the most comprehensive arguments for this proposition is provided by Benedetto, Conforti, International Law and the Role of Domestic Legal Systems (1993).Google Scholar

4 This article uses the terms “primary” and “secondary” rules in conformity with the meaning in which they were used by the International Law Commission in its work on state responsibility. While primary norms lay down rights and obligations (“rules of conduct”), secondary norms state the consequences for breaches of primary norms. See Combacau, J. & Alland, D., Primary and Secondary Rules in the Law of State Responsibility: Categorizing International Obligations, 16 Neth.Y.B. Int’l L. 81 (1995)Google Scholar. For the Articles on Responsibility of States for Internationally Wrongful Acts and the ILC commentary to the articles, see Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted m James, Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002)Google Scholar [hereinafter Articles on State Responsibility and ILC Commentary].

5 Proceedings are under way in Nuhanovic v. The Netherlands and Mustafic v. The Netherlands (Dist. Ct. The Hague). See Survivors of 1995 Srebrenica Massacre File Suit Against Netherlands, UN, Voice of Am. News, June 4, 2007, available in LEXIS, News Library, Wire Service File; see also Ed, Vulliamy, Searching for the Truth About Srebrenica: Survivor Confronts Dutch Colonel over UN Actions, Guardian, June 10, 2005, at 16Google Scholar; Marlise, Simons, 2 Bosnian Muslim Families Sue Dutch over Srebrenica Massacre, N.Y. Times, May 13, 2005, at A7.Google Scholar

6 The International Court of Justice held in the Elettronica Simla case that” [c]ompliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision.” Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15, 51, para. 73 (July 20); see also Compañiade Aguas del Aconquija S.A. v. Argentina, Decision on Annulment, ICSID No. ARB/97/3 (July 3, 2002), 19 ICSID Rev. 89 (2004), 41 ILM 1135, 1154, para. 96 (2002) [hereinafter Vivendi].

7 Council of Canadians v. Canada (Attorney General), No. 01-CV-208141, 2005 Carswell Ont. Cases 2973, paras. 41, 43 (Ont. Sup. Ct. Justice July 8, 2005).

8 Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006).

9 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006); see Peter, J. Spiro, Case Report: Hamdan v. Rumsfeld, in 100 AJIL 888 (2006).Google Scholar

10 A (FC) v. Secretary of State for the Home Dep’t (Conjoined Appeals), [2005] UKHL 71.

11 Al-M, Individual Constitutional Complaint Procedure, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Nov. 5, 2003, 109 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 13, para. 47, Int’l L. Domestic Cts. [ILDC] 10 (DE 2003). However, the Court eventually rejected the individual complaint and allowed the extradition. See infra notes 10 1–02 and corresponding text.

12 See, e.g., Ian, Leigh & Laurence, Lustgarten, Making Rights Real: The Courts, Remedies, and the Human Rights Act, 58 C.L.J. 509, 527, 531 (1999)Google Scholar (noting that in the United Kingdom, there were several cases where violations of fundamental rights deserved compensation under the European Convention on Human Rights (ECHR), yet none was available under English public law).

13 This article uses the term “implementation of state responsibility” in the same manner as the International Law Commission in the Articles on State Responsibility: it refers to the effectuation of the obligation of cessation and reparation. See ILC Commentary, supra note 4, introductory para. 6.

14 See James, Crawford & Simon, Olleson, The Nature and Forms of International Responsibility, in International Law 451, 456 (Malcolm, D. Evans ed., 2d ed. 2006)Google Scholar (noting that in certain circumstances claims for responsibility can be “domesticated,” and that “the principles of subsidiarity and complementarity indicate an increasing role for national courts in the implementation and enforcement of international law”); see also Harold Hongju, Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996).Google Scholar

15 Mann, F. A., The Consequences of an International Wrong in International and National Law, 197 6–77 Brit. Y.B. Int’l L. 1Google Scholar [hereinafter Mann, Consequences] See also the earlier discussion in Mann, F. A., International Delinquencies Before National Courts, in Studies in International Law 366 (Mann, F. A. ed., 1973).Google Scholar

16 However, Mann does discuss the effects of breaches of customary law or treaty obligations in the forum state. Mann, Consequences, supra note 15, at 14–2 8 . The legal effects for domestic courts of wrongful acts of a foreign state are also the focus of Richard Falk, The Role of Domestic Courts in the International Legal Order (1964). See also Malcolm, Evans, International Wrongs and National Jurisdiction, in Remedies in International Law: The Institutional Dilemma 173, 186–89 (Malcolm, Evans ed., 1998)Google Scholar (focusing mainly on the possibility [or lack thereof] for a state to be held liable before the courts of another state); Prosper, Weil, Le contrôle par les tribunaux nationaux de la licéité Internationale des actes des états étrangers, 1977 Annuaire Francçais de Droit International 9.Google Scholar See also the brief, but insightful, discussion of that question in Hazel, Fox, The Law of State Immunity 52 2–23 (2002).Google Scholar

17 Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006).

18 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

19 See, for example, the contributions by Tomuschat, infra note 49, Pisillo Mazzeschi, infra note 73, and Pellonpää, infra note 111, in State Responsibility and the Individual (Albrecht, Randelzhofer & Christian, Tomuschat eds., 1999)Google Scholar [hereinafter State Responsibility & Individual]. For a useful, short discussion of some aspects of the matter in the context of U.S. law, see Frederic, L. Kirgis, Restitution as a Remedy in U.S. Courts for Violations of International Law, 95 AJIL 341 (2001)Google Scholar. See also William, J. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31 Vand. J. Transnat’l L. 257 (1998).Google Scholar For a brief overview, see Simonetta, Stirling Zanda, L’application judiciaire du droit international coutumier: Etude Comparée de la Pratique Européenne 84–85 (2000).Google Scholar The discussion of Menno, Kamminga, Legal Consequences of an Internationally Wrongful Act Against an Individual, in The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order 68 (Tom, Barkhuysen et al. eds., 1999),Google Scholar is relevant (see in particular section 3) but does not focus on domestic courts.

20 Articles on State Responsibility, supra note 4, Arts. 2 9–30.

21 Julio, Barboza, Legal Injury: The Tip of the Iceberg in the Law of State Responsibility? in International Responsibility Today: Essays in Memory of Oscar Schachter 7, 13 (Maurizio, Ragazzi ed., 2005).Google Scholar

22 E.g., Airport Linz v. United States, Oberster Gerichtshof [Supreme Court], Aug. 28, 2003, Decision No. 2 Ob 156/03k, 126 Juristische Blätter 390 (2004); see Stephan, Wittich, Case Report: Airport Linz v. United States, 99 AJIL 248 (2005).Google Scholar

23 C.D.S. v. The Netherlands, Hoge Raad [HR] [Supreme Court of the Netherlands], Mar. 30, 1990, 1991 Nederlandse Jurisprudentie [NJ] 249, 1991 Neth. Y.B. Int’l L. 432. The House of Lords held that Article 8 of the ECHR (protecting the right to respect for private and family life) could be engaged in principle by the foreseeable consequences for the mental health of an asylum seeker’s removal from the United Kingdom. Regina v. Secretary of State for the Home Dep’t, ex parte Razgar, [2004] UKHL 27, para. 10; see European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 8, opened for signature Nov. 4, 1950, 213 UNTS 221; see also Regina v. Special Adjudicator, ex parte Ulla, [2004] UKHL 26, ILDC 103 (UK 2004). Another example is application of Article 33 of the Refugee Convention as a ground for refusal of expulsion. E.g., The Netherlands v. F.V., HR. May 13, 1988, 1988 NJ 910, 1989 Neth. Y.B. Int’lL, 329; see Convention Relating to the Status of Refugees, Art. 33, July 28, 1951, 189 UNTS 150, as amended by Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 UST 6223, 606 UNTS 267.

24 See infra text at notes 15 0–51.

25 Cf. United States v. Burns, [2001] 1 S.C.R. 283 (Can.), ILDC 187 (CA 2001) (holding that extradition of Burns to the United States, without assurances by the United States that the death penalty would not be imposed, would violate his rights under the Canadian Charter of Rights and Freedoms). The Supreme Court itself did not appear to consider that it was preventing an international wrong, since it did not find an international legal norm against the death penalty, see id., para. 89, and did not express itself on the existence of an international customary prohibition to extradite when that would result in an unduly lengthy stay on death row, see id., para. 123. However, on the latter point the Court clearly made an effort to bring its case law into line with that of other domestic and international courts. See William, A. Schabas, Case Report: United States v. Burns, in 95 AJIL 666 (2001).Google Scholar

26 126 S.Ct. 2749 (2006).

27 Id. at 284 6–47 (Thomas, J., dissenting).

28 However, the majority wrote of this argument that” [t]he text of the Geneva Conventions does not direct an accused to wait until sentence is imposed to challenge the legality of the tribunal that is to try him.” Id. at 2793 n.55. Compare, for the situation under human rights law, the Castillo Petruzzi case, in which the Inter-American Court of Human Rights reiterated that “domestic laws that place civilians under the jurisdiction of the military courts are a violation of the principles of the American Convention.” Castillo Petruzzi Case, 1999 Inter-Am. Ct. H.R. (ser. C) No. 52, at 6, para. 222 (May 30, 1999); see also Jeanine, Bucherer, Case Report: Castillo Petruzzi, in 95 AJIL 171 (2001).Google Scholar

29 The Military Commissions Act of 2006, Pub. L. No. 10 9–366, 120 Stat. 2600 (West 2006) (to be codified at 10 U.S.C. §§948a-950w and other sections of titles 10, 18, 28, and 42), is also aimed at preventing international wrongs, as it seeks to ensure that trials by military commissions do not violate the Geneva Conventions. It provides that “ [a] military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” Id. §948b(f). It is doubtful whether the Act in itself can achieve that result. See Carlos, M. Vazquez, The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide, 101 AJIL 73 (2007)Google Scholar (arguing that the courts will continue to have a role in preventing violations of international law). After the enactment of the Act, Hamdan petitioned the Supreme Court for certiorari, arguing, inter alia, that the Act is unconstitutional because it strips the federal courts of habeas jurisdiction to prevent implementation of “this Court’s ruling that Petitioners can invoke rights secured by the Geneva Conventions.” Petition for Writ of Certiorari and Writ of Certiorari Before Judgment at 23, Hamdan v. Gates, No. 0 6–1169 (filed Feb. 27, 2007). On April 30, 2007, the Supreme Court denied Hamdan’s renewed petition for certiorari, but on June 29, 2007, it granted certiorari in the consolidated Boumediene and Al-Odah cases (No. 0 6–1195) involving some of the same questions raised in Hamdan.

30 James Crawford, Second Report on State Responsibility, UN Doc. A/CN.4/498, para. 75 (1999).

31 Jennings, Laughland & Co. v. Mexico, 3 John Bassett Moore, International Arbitrations to Which the United States Has Been A Party 3135, 3136 (U.S. & Mex. Claims Comm’n 1874); see also 1 Oppenheim’s International Law 543–45 (Robert, Jennings & Arthur, Watts eds., 9th ed. 1992).Google Scholar

32 Loewen Group, Inc. v. United States, ICSID No. ARB(AF)/98/3 (June 26, 2003), 19 ICSID Rep. 89 (2004), 42 ILM 811, 837, para. 156 (2003) (stating the principle in general terms, but apparently intending to refer to denial of justice); see also Christopher, Greenwood, State Responsibility for the Decisions of National Courts, in Issues of State Responsibility Before International Judicial Institutions 55 (Malgosia, Fitzmaurke & Dan, Sarooshi eds., 2004).Google Scholar

33 Cf. Carlos Manuel, Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, 1157 (1992)Google Scholar. (noting that “the failure of the courts to remedy a violation of a foreign national’s primary rights under a treaty would render the United States responsible on the international plane to the state of the individual’s nationality”); Mann, Consequences, supra note 15, at 24 (noting that the very rationale of the presumption that the courts are to apply rules of international law is “to protect the nations against complaints by a foreign State”).

34 Corte Suprema de Justicia, Apr. 7, 1995, Giroldi, Horacio David/recurso decasación, 318 Fallos 514 (head-note to Codices Eng. translation paraphrasing para. 12) (emphasis added), available at <http://www.coe.int/t/e/general/search.asp> (follow CODICES hyperlink; then search “G.342.XXVI”).

35 Görgülü, BVerfG, Oct. 14, 2004, 111 BVerfGE 307, ILDC 65 (DE 2004). The Court stated that

as part of its competence the Federal Constitutional Court is . . . competent to prevent and remove, if possible, violations of public international law that consist in the incorrect application or non-observance by German courts of international-law obligations and may give rise to an international-law responsibility on the part of Germany. In this, the Federal Constitutional Court is indirectly in the service of enforcing international law and in this way reduces the risk of failing to comply with international law.

Id., para. 61.

36 Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 ICJ Rep. 12, 49, para. 88 (Mar. 31).

37 This was the scenario in Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) [hereinafter Jogi II] (declining to discuss whether the Convention may be the source of such a remedy since Jogi could pursue his claim under 42 U.S.C.A. §1983). This opinion withdrew and superseded the 2005 opinion, 425 F.3d 367 (7th Cir. 2005) [hereinafter Jogi I] in which the court had held that the Convention itself gave rise to an implied private right of action for damages.

38 The process will be different for Article 36(2) of the Vienna Convention, which provides that the rights referred to in its paragraph 1 “shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” Vienna Convention on Consular Relations, Art. 36, Apr. 24, 1963, 21 UST 77, 596 UNTS 161. In the Avena case, the ICJ held that this obligation had been breached only in the three cases where the sentences had become final. Avena, supra note 36, at 57, para. 114.

39 Articles on State Responsibility, supra note 4, Art. 2 (stating that there is an internationally wrongful act of a state when conduct consisting of an action or omission: “(a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State”).

40 See infra text at notes 15 0–51.

41 Federal Republic of Germany v. Margellos, Areios Pagos [Supreme Court] 6/2002, ILDC 87, para. 14 (GR 2002).

42 Compare the practice of the International Court of Justice, where states have frequently asked for a finding of a breach of international law, coupled with a request for remedies, rather than requesting a free-standing finding that international responsibility is incurred. In its judgment in Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, 3 1–32, paras. 7 5–76 (Feb. 14), the Court determined that Belgium was not entitled to issue the arrest warrant and proceeded to order that it be withdrawn. No separate finding of responsibility was necessary. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, 20 1–02, para. 163 (July 9) (finding that the construction of the wall is contrary to international law and proceeding to formulate obligation of reparation, without making a separate finding of responsibility); Rosalyn, Higgins, The International Court of justice: Selected Issues of State Responsibility, in International Responsibility Today, supra note 21, at 271, 284–85.Google Scholar

43 An individual has an international primary right if a state party to a treaty has an international obligation to behave in a particular way, or to refrain from behaving in a particular way, toward that person. Cf Henry, M. Hart Jr. & Albert, M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 130–31 (William, N. Eskridge Jr. & Philip, P. Frickey eds., 1994)Google Scholar (distinguishing primary and secondary rights in municipal law); Vazquez, supra note 33, at 1090 n.26 (citing Hart & Sacks).

44 All internationally guaranteed human rights (to the extent they are binding on the state concerned) provide individuals with entitlements against the state. This does not mean that international law requires that all rights (notably economic, social, and cultural rights) be justiciable and can be the basis of a legal claim in a court of law. See Michael, J. Dennis & David, P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health? 98 AJIL 462 (2004).Google Scholar For the view that economic, social, and cultural rights should be justiciable, see General Comment No. 9 of the Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/C. 12/1998/24.

45 LaGrand (Ger. v. U.S.), 2001 ICJ Rep. 466, 494, para. 77 (June 27). The decision of the Supreme Court in Sanchez-llamas, 126 S.Ct. 2669 (2006), was unduly cautious on this point. The majority assumed for purposes of the case, without deciding, that the Vienna Convention creates individual rights. Id. at 267 7–78. Justice Stephen Breyer’s dissenting opinion is in line with the holding of the International Court of Justice and acknowledges the existence of individual rights under the treaty. The Supreme Court had left open the question in Breard v. Greene, 523 U.S. 371 (1998), but the ICJ’s ruling in LaGrand authoritatively settled the matter. See Bruno, Simma & Carsten, Hoppe, From LaGrand and Avena to Medellin: A Rocky Road Towards Implementation, 14 Tulane J. Int’l & Comp. L. 7, 54 (2005).Google Scholar Also, the Court of Appeals for the Seventh Circuit held that “even though many if not most parts of the Vienna Convention address only state-to-state matters, Article 36 confers individual rights on detained nationals.” Jogi II, 480 F.3d 822, 834 (7th Cir. 2007).

46 On investment law, see Ecuador v. Occidental Exploration & Prod. Co., [2005] EWHC (Comm) 774, paras. 1 7–20, ILDC 201 (UK 2005) (holding in paragraph 20 that under the bilateral investment treaty at hand, “injured nationals or companies are to have a direct claim for their own benefit”); see also Zachary, Douglas, The Hybrid Foundations of Investment Treaty Arbitration, 2003 Brit. Y.B. Int’lL. 151, 182.Google Scholar

On treatment of foreign nationals, see, for example, McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101 (D.C. Cir. 2001) (holding that individuals can derive property rights from the Treaty of Amity, Economic Relations, and Consular Rights, U.S.-Iran, Aug. 15, 1955, Art. IV, cl. 2, 8 UST 899, 903, and that that treaty contemplates judicial enforcement of those rights. See id., Art. IV, cl. 1 (“Each High Contracting Party. . . shall assure that [the] lawful contractual rights [of foreign nationals] are afforded effective means of enforcement. . .”)). The same conclusion was reached by the U.S. District Court for the District of Columbia in its latest decision in this case: McKesson Corp. v. Islamic Republic of Iran, No. 8 2–220 (RJL), 2007 U.S. Dist. LEXIS 51870 (D.D.C. July 17, 2007).

47 Frits, Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, 40 Int’l & Comp. L.Q. 40, 827 (1991)Google Scholar; Jann, Kleffner & Liesbeth, Zegveld, Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law, 2000 Y.B. Int’l Humanitarian L. 384Google Scholar; Riccardo Pisillo, Mazzeschi, Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview, 1 J. Int’l Crim. Just. 339 (2003).Google Scholar A (rare) example of a domestic judicial recognition of such a right is Oberlandesgericht Köln [Cologne Regional Court of Appeals], July 28, 2005, No. 7 U 8/04, 2005 Neue Juristische Wochenschrift 2860.

48 The existence of individual rights is particularly contested with regard to (liability) claims for compensation. See Rudolf, Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a Victim’s Private Right of Action? Lessons After 1945, 20 Berkeley J. Int’l L. 296 (2002).Google Scholar A negative opinion was also expressed by the Getman Constitutional Court in the Italian Military Internees Case (Individual Constitutional Complaint Procedure), BVerfG, No. 2 BvR 1379/01, June 28, 2004, ILDC 438, para. 38 (DE 2004) (denying reparation claims of Italian nationals who in the Second World War, after 1943, were interned by Germany). The U.S. Supreme Court in Hamdan v. Rumsfeldleft the wider question (not confined to compensation issues) undecided. See Hamdan, 126 S.Ct. at 2794 (assuming, but not holding, that the scheme of the 1949 Conventions “preclude[s] Hamdan’s invocation of [their] provisions as an independent source of law binding the Government’s actions and furnishing petitioner with any enforceable right”).

49 Edith Brown, Weiss, Invoking State Responsibility in the Twenty-first Century, 96 AJIL 798, 809 (2002)Google Scholar (noting that the articles “should have done more to recognize the expanded universe of participants in the international system entitled to invoke state responsibility”); Christian, Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position Under General International Law, in State Responsibility & Individual, supra note 19, at 1, 2–4.Google Scholar

50 Article 33 of the Articles on State Responsibility, supra note 4, provides:

(1) The obligations of the responsible State set out in this part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach.
(2) This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.

51 For the relevance of the distinction in the context of treaty-based remedies in U.S. law, see Vazquez, supra note 33, at 1116.

52 See infra text at notes 16 3–65.

53 Note that the International Law Commission used a relatively narrow concept of invocation, defined as “taking measures of a relatively formal character, for example, the raising or presentation of a claim against another State.” ILC Commentary to Art. 42, supra note 4, para. 2. However, the ILC noted that responsibility can arise under international law independently of its invocation by another state. See introductory Commentary to Part III of the Articles on State Responsibility, supra note 4. On the latter aspect (the notion of so-called objective responsibility), see also infra text at notes 5 9–62.

54 Where domestic law allows plaintiffs to bring such an action, this can be characterized as a form of private enforcement of international law. See Alan, O. Sykes, Public Versus Private Enforcement of International Economic Law: Standing and Remedy, 34 J. Legal Stud. 631 (2005).Google Scholar

55 Public Prosecutor/J.E.J.P., Gerechtshof ‘s-Gravenhage [Court of Appeal of The Hague], Mar. 3, 1998, 1998 NJ 923, 2001 Neth. Y.B. Int’l L. 312. But see Bundesgerichtshof [Federal Court of Justice], Nov. 2, 2006, No. III ZR 190/05 (noting that Articles 42 and those that follow of the Articles on State Responsibility envisage only the invocation of responsibility by the injured state and indicate that a principle of state responsibility toward individuals has yet to emerge), excerpted and translated in Responsibility of States for Internationally Wrongful Acts: Comments and Information Received from Governments, Report of the Secretary-General, UN Doc. A/62/63, at 10, paras. 1 5–16 (Mar. 9, 2007); Simon Olleson, The Impact of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts—Preliminary Draft 248 (Oct. 17, 2007), available at <http://www.biicl.org/files/3107_impactofthearticlesonstate_responsibilitypreliminarydraftfmal.pdf>.

56 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-9 4–1-AR72, para. 55 (Oct. 2, 1995), 35 ILM 32 (1996), held

that an accused, being entitled to a full defence, cannot be deprived of a plea so intimately connected with, and grounded in, international law as a defence based on violation of State sovereignty. To bar an accused from raising such a plea is tantamount to deciding that, in this day and age, an international court could not, in a criminal matter where the liberty of an accused is at stake, examine a plea raising the issue of violation of State sovereignty. Such a startling conclusion would imply a contradiction in terms which this Chamber feels it is its duty to refute and lay to rest.

57 See infra text at notes 15 0–51.

58 Arguably, any concept of international responsibility (or, more broadly formulated, accountability) requires a relationship between the wrongdoing actor and an account holder. Mark, Bovens, The Quest for Responsibility: Accountability and Citizenship in Complex Organizations 23–24 (1998)Google Scholar; see also Brigitte, Stern, A Plea for ‘Reconstruction’ of International Responsibility Based on the Notion of Legal Injury, in International Responsibility Today, supra note 21, at 93.Google ScholarBut see John, Gardner, The Mark of Responsibility, 23 Oxford J. Legal Stud. 157, 164–65 (2003)Google Scholar (for a critique on the relational conception of responsibility).

59 “Objective” is meant not in the sense of responsibility without fault or material damage, but in the sense that responsibility can arise regardless of legal injury.

60 Alain, Pellet, Remarques sur une révolution inachevée: Leprojet d’articles de la CDI sur la responsabilité des Etats, 1996 Annuaire français de droit international 7Google Scholar; Stern, supra note 58, at 101; Gardner, supra note 58. Compare the discussion of principles of reparation by James Crawford in Third Report on State Responsibility, UN Doc. A/CN.4/507, para. 26 (2000) (stating that “the general obligation of reparation arises automatically upon the commission of the internationally wrongful act. That obligation is not, as such, contingent upon a demand or protest by any injured State, even if the form which reparation should take in the circumstances may be contingent.”).

61 Stern, supra note 58, at 94 (noting that the ILC’s elimination of injury as a condition for the existence of international responsibility displayed the will to introduce “a sort of review of legality through the institution of international responsibility”).

62 This seems to be the point made by Mann, who noted that the nullity of an internationally wrongful act exists erga omnes, and should therefore, in principle, be fully cognizable by municipal courts, though he adds that “the circumstances in which such recognition is appropriate need definition.” Mann, Consequences, supra note 15, at 16.

63 Cf. Barboza, supra note 21, at 9 (noting that the ILC articles do not provide a remedy for breaches of intetnational obligations where no material or moral damage has occurred). It has therefore been observed that the objective responsibility as envisaged in the Articles on State Responsibility is largely a “platonic responsibility.” Nguyen Quoc, Dinh, Patrick, Daillier, & Alain, Pellet, Droit International Public 765 (6th ed. 1999).Google Scholar

64 Articles on State Responsibility, supra note 4, Arts. 1, 2.

65 Draft Articles on State Responsibility, [1977] 2 Y.B. Int’l L. Comm’n, pt. 2, at 9, para. 48, UN Doc. A/CN.4/ SER.A/1977/Add. 1 (pt. 2). Judge Jimenez de Arechaga stated that an essential condition for holding a state responsible for a judicial decision in breach of municipal law is that the decision must be a decision of a court of last resort, all remedies having been exhausted. Eduardo Jimenez, de Arechaga, International Law in the Past Third of a Century, 159 Recueil des Cours 282 (1978 I)Google Scholar (also noting that another reason for the requirement would be that states should provide remedies to correct the natural fallibility of their judges).

66 In its later work on state responsibility, the ILC treated exhaustion of local remedies as a condition of admissibility, not as a condition of a wrongful act. See Report of the Drafting Committee, UN Doc. A/CN.4/SR.2662, at 2 5–26 (2000). Special Rapporteur on Diplomatic Protection John Dugard also favored the procedural interpretation. Report of the International Law Commission, Fifty-fourth Session, UN GAOR, 57th Sess., Supp. No. 10, at 131, para. 151, UN Doc. A/57/10 (2002). The ILC itself was divided on the issue, see id. at 134–3 6 , and Dugard eventually proposed avoiding the question whether the local remedies rule was procedural or substantive, see id. At 137, para. 176. The Draft Articles on Diplomatic Protection as adopted in 2006 do not expressly address the issue. See ILC, Report on the Work of Its Fifty-eighth Session, UN GAOR, 61st Sess., Supp. No. 10, at 13, 20, UN Doc. A/61/10 (2006) [hereinafter ILC 2006 Report] (the local remedies rule is contained in Articles 14 and 15). The procedural approach has been confirmed in international case law. See, e.g., Elettronica Sicula, supra note 6, at 4 7–48, para. 63;Avena, supra note 36, at 27, para. 40; Loewen, supra note 32, para. 149 (noting: “The local remedies rule which requires a party complaining of a breach of international law by a State to exhaust the local remedies in that State before the party can raise the complaint at the level of international law is procedural in character.”).

67 Avena, supra note 36, at 27, para. 40; see also supra text at note 36.

68 As indicated above, this will be different for Article 36(2) of the Vienna Convention. See note 38 supra.

69 FOX, supra note 16, at 522.

70 Regina (Eur. Roma Rts. Centre) v. Immigration Officer at Prague Airport, [2004] UKHL 55, ILDC 110 (UK 2004).

71 ILDC 110, supra note 70, para. C2. He adds that “this sort of undisciplined judicial free-fire does nothing to help the cause of public international law, especially human rights, in the domestic courts.” Id.

72 Absent incorporation, UK courts would normally say, in the words of Lord Oliver Aylmerton in . H. Rayner (Mincing Lane) Ltd v. Department of Trade and Industry: “It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law.” [1990] 2A.C. 418, 499(H.L.).

73 See Jennings, R., The Judiciary, International and National, and the Development of International Law, 45 Int’l & Comp. L.Q. 1 (1996)Google Scholar; Riccardo Pisillo, Mazzeschi, International Obligations to Provide for Reparation Claims? In State Responsibility & Individual, supra note 19, at 149, 157.Google Scholar

74 Jennings supra note 73.

75 Hamdan, 126 S.Ct. at 2794; see supra notes 2 6–29 and corresponding text.

76 BVerfG, May 8, 2007, No. 2 BvM 1/03, available at <http://www.bverfg.de/entscheidungen/ms20070508_2bvm000103.html>; see Stefan, W. Schill, German Constitutional Court Rules on Necessity in Argentine Bond-bolder Case, Asil Insights, No. 20, July 31, 2007.Google Scholar

77 No. 2 BvM 1/03, supra note 76, para. 44.

78 FOX, supra note 16, at 522. A similar view was expressed by the Constance Regional Court in considering whether Germany was liable to a Russian airline in connection with an air crash in Germany. It said that Swiss air traffic controllers, who were responsible for air traffic control, were acting as a German state organ, since ensuring air safety is an inherent state duty. It considered the principle on state organs placed at the disposal of another state contained in Article 6 of the Articles on State Responsibility, but noted that the principle governed only interstate responsibility while the case at hand concerned individual claims. Constance Regional Court, July 27, 2006, No. 4 O 234/05 H, excerpted and translated in Responsibility of States for Internationally Wrongful Acts, supra note 55, at 1 1–12, paras. 1 8–22; Olleson, supra note 55, at 75.

79 For a comparable argument in connection with the invalidity and termination of treaties, see Benedetto, Confbrti & Angelo, Labella, Invalidity and Termination of Treaties: The Role of National Courts, 1 Eur. J. Int’l L. 44 (1990).Google Scholar

80 Article 46 of the ECHR, supra note 23, and Article 62 of the American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123 (under which parties can declare that they recognize the binding jurisdiction of the Court).

81 As regards Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 114 (June 27), an attempt to enforce the judgment in the United States was rejected in Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988).

The efforts to enforce the Avena judgment, supra note 36, in the United States include the various procedures initiated by Jose Medellin. See infra note 93. For enforcement of judgments of the ICJ in domestic courts, see generally Constanze, Schulte, Compliance with Decisions of the International Court of Justice 78 (2004)Google Scholar; Mohammed, Bedjaoui, The Reception by National Courts of Decisions of International Tribunals, in International Law Decisions in National Courts 21, 22 (Thomas, M. Franck & Gregory, H. Fox eds., 1996).Google Scholar

82 For other states such findings are not binding. However, when an international court rules in general terms that certain remedies flow from a breach of an international obligation, these holdings are also relevant for courts from other states. See BVerfG, Sept. 19, 2006, No. 2 BvR 2115/01, ILDC 668, paras. 62, 69 (DE 2006) (stating, in a factual situation comparable to the U.S. cases on the application of Article 36 of the Vienna Convention, that the consequences that the ICJ attached to a breach of Article 36 should also be guiding for the German courts); see also Jana, Gogolin, Avena and Sanchez-Llamas Come to Germany—The German Constitutional Court Upholds Rights Under the Vienna Convention on Consular Relations, 8 GER. L.J. 261 (2007), available at <http://www.germanlawjournal.com/article.php?id=805>Google Scholar.

83 Lorsé v. The Netherlands, App. No. 52750/99 (Eur. Ct. H.R. Feb. 4, 2003), available at <http://www.echr.coe.int>.

84 The Netherlands v. L., HR, Oct. 31, 2003, 2005 NJ 196.

85 Cf Schulte, supra note 81, at 79 (discussing factors that may be relevant to the reception of ICJ judgments in domestic courts).

86 In Avena, supra note 36, at 60, para. 122, the ICJ left it expressly to domestic courts to determine the causality between the failure to notify and the eventual conviction; but it also indicated that the freedom of domestic courts to fashion relief was limited by the conditions indicated by the Court itself, see infra text at notes 17 5–82. See also Simma & Hoppe, supra note 45, at 25.

87 See generally Sarita, Ordonez & David, Reilly, Effect of the Jurisprudence of the International Court of Justice on National Courts, in International Law Decisions in National Courts, supra note 81, at 335, 344–46.Google Scholar

88 See Christoph, Schreuer, The Implementation of International Judicial Decisions by Domestic Courts, 27 Int’l & Comp. L.Q. 153 (1975).Google Scholar

89 Gorgulu, supra note 35, para. 41 (stating that the effect of decisions of the European Court of Human Rights “relates only to the res judicata and that the factual and legal position may change before new domestic proceedings to which the complainant is a party”); see Frank, Hoffmeister, Germany: Status of the European Convention in Domestic Law, 4 I-CON 722 (2006).Google Scholar

90 See infra text at notes 15 2–55.

91 Görgülü, supra note 35, para. 45 (holding that “[o]n the domestic level, appropriate Convention provisions in conjunction with the consent Act and constitutional requirements . . . bind all organisations responsible for German public authority in principle to the decisions of the [European Court of Human Rights]”) (citation omitted)). However, the Court also stated that what is meant is that the courts should take decisions of the European Court into account and may be required to deviate from them, in view of the constitutional system of competences and the binding effect of statute and law. Id., para. 47; see also Hoffmeister, supra note 89, at 72 8–29.

92 Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2683 (2006).

93 The question as to the binding effect of the Avena judgment for state courts is now before the Supreme Court, which granted certiorari, Medellin v. Texas, No. 0 6–984, cert, granted, 127 S.Ct. 2129 (Apr. 30, 2007), after the Court of Criminal Appeals of Texas, on November 15, 2006, dismissed Medellin’s application. Ex parte Medellin, 223 S.W.3d 315 (2006) (holding in part IIIA that it was bound by the Supreme Court’s determination in Sanchez-Llamas that ICJ decisions are not binding on U.S. courts: “As a result, Medellin, even as one of the named individuals in the decision, cannot show that Avena requires us to set aside Section 5 [a precondition for review under Texas law] and review and reconsider his Vienna Convention claim.”). Earlier, the president had determined that the United States in this case would discharge its international obligations under the Avena judgment, and directed state courts to give effect to the decision under principles of comity. President’s Memorandum for the Attorney General, Subject: Compliance with the Decision of the International Court of Justice in Avena (Feb. 28, 2005), available at <http://www.whitehouse.gov/news/releases/2005/02/20050228–18.html>; see also John, R. Crook, Contemporary Practice of the United States, 99 AJIL 489 (2005)Google Scholar. The question whether the president had the authority to do so is also before the Supreme Court in Medellin.

94 Sarah, Joseph, Jenny, Schultz, & Melissa, Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and commentary 24, para. 1.51 (2d ed. 2004)Google Scholar.

95 In some states, views of the Human Rights Committee have been recognized as authority. Christof, Heyns & Frans, Viljoen, The Impact of United Nations Human Rights Treaties on the Domestic Level 30 (2002)Google Scholar, note such instances in Colombia, id. at 189, and Finland, id. at 288.

96 Joseph, Schultz, & Castan, supra note 94, at 24, para. 1.50; see Kavanagh v. Governor of Mountjoy Prison, [2002] 3 I.R. 97 (Ir.), ILDC 488 (IE 2002) (holding that neither the Covenant nor the Protocol makes a claim that the views of the Human Rights Committee would be binding). For examples of courts that have felt at liberty to deviate from findings by treaty-based organs, see Heyns & Viljoen, supra note 95, at 13.

97 See text infra at note 147.

98 On attribution, see infra note 133; on state “complicity,” see supra note 11; on reparation, see infra note 175; on interest, see infra note 149; and on aggravated responsibility, see supra note 10.

99 Articles on State Responsibility, supra note 4, Art. 41(2). For the domestic judicial application of obligations arising out of a breach of a peremptory norm of international law, see A (FC) v. Secretary of State for the Home Department, supra note 10. Article 41 of the Articles on State Responsibility was also relied on by the Italian Court of Cassation as an argument for denying the immunity of Germany in a case involving alleged violations of jus cogens (forced labor in the Second World War). Ferrini v. Federal Republic of Germany, Cass., Mar. 11, 2004, n.5044/4, ILDC 19, para. 9 (IT 2004) (holding that the recognition of immunity from jurisdiction of a state that is responsible for a breach of peremptory norms would be in contrast with, inter alia, the obligation of states not to recognize situations determined by its commission, the prohibition on providing help or assistance for maintaining situations that originated in such violations, and the obligation to use legitimate means to bring about the end of illicit activities); see also Andrea, Bianchi, Case Report: Ferrini v. Federal Republic of Germany, in 99 AJIL 242 (2005)Google Scholar; Andrea, Gattini, War Crimes and State Immunity in the Ferrini Decision, 3 J. Int’l Crim. Just. 224, 236 & n.41 (2005)Google Scholar (correctly critical of the latter).

100 Articles on State Responsibility, supra note 4, Art. 16. This principle has the character more of a primary than of a secondary norm. See Bernhard, Graefrath, Complicity in the Law of International Responsibility, 1996 Revue Belge de Droit International 370, 371–72.Google Scholar

101 Al-M, supra note 11, para. 47.

102 The Court held that “the general rule of international law that is alleged by the complainant does not exist,” id., para. 53; that is, that “no one may be extradited who has been lured, by means of trickery, from his or her state of origin to the requesting state,” id, para. 48. It thus considered the matter by examining whether or not the primary rule would preclude extradition, rather than by applying the general principle of complicity.

103 Another example is the decision by the highest German administrative court of June 21, 2005, in which the court considered that the attacks on Iraq by the United States and the United Kingdom in 2003 were unlawful and that aid or assistance to the commission of that international wrong by Germany would in itself constitute a wrongful act, expressly referring to Article 16 of the Articles on State Responsibility. Bundesverwaltungsgericht [B VerwG] [Federal Administrative Court], June 21, 2005, 2 WS 12.04, ILDC 483 (DE 2005); see Nikolaus, Schultz, Was the War on Iraq Illegal?— The German Federal Administrative Court’s judgement of 21st June 2005, 7 Ger. L.J. 25 (2006), available at <http;//www.germanlawjournal.com/article.php?id=684>.Google Scholar

104 Articles on State Responsibility, supra note 4, Art. 30 (cessation), & Arts. 31, 3 5–37 (reparation).

105 Article 33 is quoted in note 50 supra.

106 Crawford notes that “[i]n form a saving clause, it nonetheless clearly envisages that some ‘person or entity other than a State’ may be directly entitled to claim reparation arising from an internationally wrongful act of a state.” James, Crawford, The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect, 96 AJIL 874, 887 (2002)Google Scholar. See, to similar effect, Restatement (Third) of the Foreign Relations Law of the United States §906 (1987).

107 Tomuschat, supra note 49, at 7.

108 Human rights law, for instance under Article 13 of the ECHR, supra note 23, and Article 2(3) of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR], provides for a right to an effective remedy in domestic courts.

109 LaGrand, supra note 45, at 51 3–14, para. 125; Avena, supra note 36, at 5 9–60, para. 121. These interpretations are not limited to these two specific cases but now authoritatively define the remedies for a violation of a primary right under Article 36(1). See Avena, supra, at 70, para. 151 (stating that “the fact that in this case the Court’s ruling has concerned only Mexican nationals cannot be taken to imply that the conclusions reached by it in the present Judgment do not apply to other foreign nationals finding themselves in similar situations in the United States”).

110 The ICJ derived from the requirement of full effect, combined with the fact that the domestic U.S. law prevented judicial appeal, an obligation to provide for a remedy (“review and reconsideration”) within the “overall judicial proceedings.” Avena, supra note 36, at 66, para. 141; see also BVerfG, No. 2 BvR 2115/01, supra note 82, para. 68.

111 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 13, Dec. 10, 1984, S. Treaty Doc. NO. 10 0–20 (1988), 1465 UNTS 112; ECHR, supra note 23, Art. 5(5). On the right to reparation under the ECHR, see, for example, Matti, Pelionpää, Individual Reparation Claims Under the European Convention on Human Rights, in State Responsibility & Individual, supra note 19, at 109.Google Scholar

112 ICCPR, supra note 108, Arts. 9(4), 14(6).

113 See generally Dinah, Shelton, Remedies in International Human Rights Law, ch. 9 (2ded. 2005).Google Scholar

114 BVerfG, No. 2 BvR 1379/01, supra note 48, para. 38; see also references in note 48 supra.

115 See supra note 29.

116 The saving clause of Article 33 of the Articles on State Responsibility, see supra nott 50, appears to have been introduced precisely with a view to such treaty-based rights or reparation, without concern for their status as primary or secondary rules.

117 E.g., UN Charter Art. 94; ICJ Statute, Art. 59; ECHR, supra note 23, Art. 46; American Convention on Human Rights, supra note 80, Art. 62.

118 The observations by the European Court of Human Rights that” [t] he Convention . . . cannot be interpreted in a vacuum,” that it must “take the relevant rules of international law into account,” and that “[t]he Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part,” Al Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, para. 55, apply equally to principles on reparation. In fact, they are reflected in the common statement by the Court that “a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.” Papamichalopoulos v. Greece, 330-B Eur. Ct. H.R. (ser. A), para. 34 (1995); see also Report of the ILC Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, in ILC 2006 Report, supra note 66, at 412, para. 15 (referring to the phenomenon whereby general international law can fill gaps in specific regimes and stating: “The scope of special laws is by definition narrower than that of general laws. It will thus frequently be the case that a matter not regulated by special law will arise in the institutions charged to administer it. In such cases, the relevant general law will apply.”).

119 See Pisillo Mazzeschi, supra note 73, at 171. Compare, for the situation in general international law, Higgins, supra note 42, at 27 7–79 (noting, on the basis of the LaGrand judgment, that remedies need not be contained in the primary obligation and that the ICJ can determine remedies under the general law of state responsibility).

120 Factory at Chorzów, Jurisdiction, 1927 PCIJ (ser. A) No. 9, at 21; LaGrand, supra note 45, at 51 3–14, para. 125; Avena, supra note 36, at 59, paras. 11 9–20. Though in these cases the principle was applied in an interstate context, the pronouncements are of a general nature and appear not to be confined to such a relationship. See Joe, Verhoeven, Remarks, in State Responsibility & Individual, supra note 19, at 55, 197.Google Scholar

121 See, e.g., CMS Gas Transmission Co. v. Argentine Republic, Award, ICSID No. ARB/01/8 (May 12, 2005), 44 ILM 1205, 124 8–49, paras. 39 9–402 (2005).

122 GA Res. 60/147 (Dec. 16, 2005); see Martin, Zwanenburg, The Van Boven/Bassiouni Principles: An Appraisal, 24 Neth. Hum. Rts. Q. 641 (2006).Google Scholar

123 In Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004), the Supreme Court accepted that U.S. courts could consider claims when these were based on norms “of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Also, the U.S. government itself has taken the position that at least some violations of human rights give rise to a judicially enforceable remedy in domestic courts. See in this respect, as early as 1980, the Memorandum for the United States Submitted to the Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, reprinted in 19 ILM 585(1980) (arguing that official torture is a tort that gives rise to a judicially enforceable remedy).

124 Pisillo Mazzeschi, supra note 73, at 164.

125 The possibility of such a right was not considered in Sanchez-Llamas, and the Supreme Court confined itself to noting that the Vienna Convention on Consular Relations was silent on remedies, without probing into any rules that may apply under customary international law. Sanchez-Llamas, 126 S.Ct. 2669, 2678 (2006).

126 Joined cases C-6/90 & C-9/90, Francovich & Bonifaci v. Italy, 1991 ECR I-5357; Tomuschat, supra note 49, at 9.

127 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174 (Apr. 11).

128 Id. at 180.

129 Vivendi, supra note 6, at 1154, para. 96 (footnote omitted). Similarly, a UK court held, when an arbitral tribunal addressed the rights in international law of a private party, Occidental Exploration & Production Co. (OEPC), vis-à-vis Ecuador:

It must follow . . . that if the tribunal concluded that international law rights of OEPC had been violated by Ecuador, or the latter was in breach of its international law obligations, then the tribunal will have to consider what remedies are available in international law to repair any damage caused to OEPC by Ecuador’s breach of OEPC’s international law rights.

Republic of Ecuador v. Occidental Exploration & Prod. Co., [2006] EWHC(Comm) 345, para. 122 (per Aikens, J.) (emphasis added).

130 E.g.,Reginav. Secretary of State for the Home Dep’t, exparte Adam, [2001] 2A.C. 477, 516D-E(H.L.) (per Steyn, L.J.); Attorney-General v. Zaoui, [2006] 1 N.Z.S.C. 289, para. 12, ILDC 81 (NZ 2005). On the other hand, there is ample practice where domestic courts apply principles of domestic (statutory) interpretation without referring to international principles of interpretation. See, e.g., Societe Generale de Surveillance S.A. v. Pakistan, 2002 S.C.M.R. 1694, para. C5, ILDC 82 (PK 2002). For a critical review of treaty interpretation by the U.S. Supreme Court, short of what international law would require, see John, K. Setear, A Forest with No Trees: The Supreme Court and International law in the 2003 Term, 91 VA. L. Rev. 579, 614–15 (2005).Google Scholar

131 Republic of Ecuador v. Occidental Exploration & Prod. Co., supra note 129, para. 90.

132 Articles on State Responsibility, supra note 4, Art. 4(2). Crawford noted that “[w]ithout a fixed prescription for State authority, international law has to accept, by and large, the actual systems adopted by States, and the notion of attribution thus consists primarily of a renvoi to the public institutions or organs in place in the different States.” James Crawford, First Report on State Responsibility, UN Doc. A/CN.4/490/Add.5, para. 158 (1998).

133 In such cases it seems that a domestic court has to consider whether it will accept the internal legal arrangement of a foreign state or rather resort to the more neutral principles of international law. An example of a case in which the question of attribution did arise is the decision of the U.S. Court of Appeals for the Second Circuit in Compagnie Noga D’Importation et D’Exportation v. Russian Federation, 361 F.3d 676 (2d Cir. 2004). The plaintiff sought to confirm and enforce a Swedish arbitration award against the Russian Federation. The Russian Federation opposed confirmation on the ground that the party to the arbitration agreement and to the Swedish arbitration proceedings was the government of the Russian Federation rather than the federation itself. A lower court accepted the argument, but the court of appeals disagreed, holding, inter alia, that under international law the Russian Federation and the government are the same party. The court based its conclusion expressly on Article 4(1) of the Articles on State Responsibility. See also the decision of the U.S. Supreme Court in First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983); see also infra note 149.

134 See supra text at note 5.

135 See supra text at note 50.

136 BVerfG, No. 2 BvM 1/03, supra note 76.

137 See supra text at note 77.

138 BVerfG, No. 2 BvM 1/03, supra note 76, para. 29.

139 Different conclusions were reached in three investment law decisions that, though reaching different outcomes on the basis of their interpretation and application of the facts, did not doubt that in principle the state could rely on necessity against a private person. The three decisions are CMS Gas Transmission Co. v. Argentine Republic, supra note 121, paras. 30 4–94; LG & E Energy Corp. v. Argentine Republic, Decision on Liability, ICSID No. ARB/ 02/1 (Oct. 3, 2006), 21 ICSID Rev. 203, paras. 20 1–66 (2006); and Enron Corp. v. Argentine Republic, Award, ICSID No. ARB/01/3, paras. 288, 345 (May 22, 2007), available at <http://ita.law.uvic.ca/documents/Enron-Award.pdf> . See August, Reinisch, Necessity in International Investment Arbitration—An Unnecessary Split of Opinions in Recent ICSID Cases? Comments on CMS v. Argentina and LG&E v. Argentina, 8 J. World Inv. & Trade 191 (2007).Google Scholar On whether the legal consequences of wrongful acts against states are the same as those of wrongful acts against individuals, see also Kamminga, supra note 19.

140 As suggested in the dissenting opinion of Judge Lubbe-Wolf, BVerfG, No. 2 BvM 1/03, supra note 76, para. 80.

141 Breard v. Greene, 523 U.S. 371, 375 (1998). The Court affirmed this statement in Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 268 2–85 (2006). It also follows from Article 36(2) of the Vienna Convention. See to similar effect the judgment of the Court of Appeal of Singapore, Nguyen Tuong Van v. Public Prosecutor, Oct. 20, 2004, 2004 SGCA 47, para. 34, ILDC 88 (SG 2004).

142 Cf. James v. United Kingdom, 98 Eur. Ct. H.R. (ser. A), para. 44 (1986) (stating that under the system of protection established by the Convention, it is for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting interference with rights and of the remedial action to be taken). See also Laurence, R. Heifer & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 309—10 (1997)Google Scholar; Yuval, Shany, Toward a General Margin of Appreciation Doctrine in International Law? 16 Eur. J. Int’l L. 907, 921–22 (2005).Google Scholar

143 This also explains why international courts generally address remedies to states, rather than directly to domestic courts. For instance, in Avena, supra note 36, at 60, para. 121, the ICJ said “that the remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of these nationals’ cases by the United States courts.” See generally Ward, Ferdinandusse, Out of the Black Box? 29 Brook. J. Int’l L. 45 (2003).Google Scholar

144 On the specific question of the domestic effect of decisions of international courts and tribunals, see supra text at notes 8 0–96.

145 In the United Kingdom, this is also the basis for the application of the rules of interpretation of the law of treaties. See Republic of Ecuador v. Occidental Exploration & Prod. Co., supra note 129, para. 90.

146 Al-M, supra note 11; BVerwG, 2 WS 12.04, supra note 103 (on the war in Iraq).

147 Handelskwekerij Firma Gebr. Strik B.V./Mines de Potassed Alsace, S.A., District Court of Rotterdam, Jan. 8, 1979, 1979 NJ 113, 1980 Neth. Y.B. Int’l L. 326, & Dec. 16, 1983, 1984 NJ 341, 1984 Neth. Y.B. Int’lL. 471.

148 Crawford observes that though the secondary rules on state responsibility may not be directly applicable in domestic courts, and therefore do not require legislative implementation, they may be indirectly applicable. Crawford, supra note 106, at 890. In the rare cases of “direct application” of secondary rules, the question may arise as to the self-executing nature of such rules. This may happen especially if an individual relies on a (secondary) right to reparation that has not been transformed into domestic law. See Pisillo Mazzeschi, supra note 73, at 163; Pisillo Mazzeschi, supra note 47, at 345 (stating that the rules on reparation under international human rights law should be considered as self-executing norms).

149 As regards attribution, in First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983), the U.S. Supreme Court said that the international principles governing the Cuban trade bank’s juridical status “are common to both international law and federal common law, which in these circumstances is necessarily informed both by international law principles and by articulated congressional policies.” On aiding and assisting, see Al-M, supra note 11; on aggravated responsibility, see A (FC) v. Secretary of State for the Home Department, supra note 10.

For a decision in which a domestic court seems to rely expressly on international secondary rules as a basis for domestic reparation, see the Judgment of the Constitutional Court of the Republic of Latvia on a Request for Constitutional Review, July 7, 2004, No. 200 4–0 1–06, ILDC 189 (LV 2004). The Court had to consider whether the Latvian Code of Administrative Penalties is compatible with the International Convention on Facilitation of International Maritime Traffic, which provides that states shall not impose any penalty upon shipowners if their passengers possess inadequate control documents. The Court derived from the obligations of Latvia under the Vienna Convention on the Law of Treaties, in particular the obligation to perform treaties in good faith, that in a case of contradiction between rules of international law and national legislation, the provisions of international law must be applied, and proceeded to set aside the domestic law.

An example on interest may be McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101 (D.C. Cir. 2001), in which a U.S. court of appeals had to decide on the issue of compound interest. The district court had awarded simple rather than compound interest. According to the plaintiff, the district court erred by holding that in light of its “finding that the clear majority of international courts have historically awarded only simple interest,” such an award was required by customary international law. Zaf. at 1111. The court reviewed determinations of internationallaw de novo and found that the plaintiff had made a convincing case that contemporary international law does not require simple interest.

150 See, for the United States, Vázquez, supra note 33, at 1157. See also infra text at notes 16 3–76.

151 The practice of states of resorting to domestic law has one drawback in any case: it is hard to derive general principles of customary law from such practice because of the difficulty of identifying the acts of the forum state with regard to international law, as well as its opinion on what international law required it to do. It is noteworthy that International Law Reports includes cases where claims of responsibility are made against a state under the heading “State Responsibility,” even though the court considers the matter under the domestic law of responsibility. Such cases are included even when the cause of action is based on domestic rather than international law. See, e.g., Heirs of Pierre S. v. Austria, 86 ILR 546 (Austria Sup. Ct. 1982); Mauritanian Fisheries Protection Case, 88 ILR 683 (Spain Sup. Ct. 1986); Alejandre v. Republic of Cuba, 996 F.Supp. 1239 (S.D. Fla. 1997), 121 ILR 603.

152 In Avena, supra note 36, at 65, para. 139, the ICJ stated that

the defendant raises his claim in this respect not as a case of “harm to a particular right essential to a fair trial”—a concept relevant to the enjoyment of due process rights under the United States Constitution—but as a case involving the infringement of his rights under Article 36, paragraph 1. The rights guaranteed under the Vienna Convention are treaty rights which the United States has undertaken to comply with in relation to the individual concerned, irrespective of the due process rights under United States constitutional law.

153 Singarasa v. Attorney General of Sri Lanka, Sept. 15, 2006, S.C. Spl (LA) No. 182/99, ILDC 518 (LK 2006).

154 Human Rights Comm. Communication No. 1033/2001, UN Doc. CCPR/C/81/D/1033/2001, para. 7.6 (Aug. 23, 2004).

155 Sanchez-Llamas v. Oregon, Bustillo v. Johnson, 126 S.Ct. 2669, 2687 (2006) (consolidated cases).

156 Human Rights Act, 1998, c.42, §4(6). See generally Geoffrey, Lindell, Invalidity, Disapplication and the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the European Communities Act and the Human Rights Act, 1999 Cambridge Y.B. Eur. Legal Stud. 399.Google Scholar

157 Articles on State Responsibility, supra note 4, Art. 32.

158 The principles of state responsibility apply equally to a breach of a primary obligation and to a breach of a secondary obligation, which is itself triggered by a prior breach of a primary obligation. See Crawford, supra note 60, para. 7 (noting the “internal application” and the “reflexive nature” of the draft articles).

159 Kirgis, supra note 19, at 345. See generally Germ, Betlem & Andre, Nollkaemper, Giving Effect to Public International Law and European Community Law Before Domestic Courts. A Comparative Analysis of the Practice of Consistent Interpretation, 14 Eur. J. Int’l L. 569 (2003).Google Scholar

160 A (FC) v secretary of State for the Home Dep’t, supra note 10.

161 People’s Union for Civil Liberties v. Union of India, 125 ILR 510 (Sup. Ct. 1997).

162 See, e.g., Hosking v. Runting, [2004] NZCA 34, para. [6] (per Gault, P., & Blanchard, J.), ILDC 215 (NZ 2004). Gault and Blanchard state:

The historical approach to the State’s international obligations as having no part in the domestic law unless incorporated by statute is now recognised as too rigid. To ignore international obligations would be to exclude a vital source of relevant guidance. It is unreal to draw upon the decisions of courts in other jurisdictions (as we commonly do) yet not draw upon the teachings of international law. There is the additional factor in the field of human rights declared by the International Covenant on Civil and Political Rights (the International Covenant) that individuals can seek temedies against the State at international law after exhausting domestic remedies. This cannot be disregarded in considering whether, in a particular case in the domestic courts, a remedy should be available.

163 Cf. Craig, Scott, Translating Torture into Transnational Tort: Conceptual Divides in the Debate on Corporate Accountability for Human Rights Harms, in Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation 45 (Craig, Scott ed., 2001)Google Scholar; Beth, Stephens, Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int’lL. 1, 4 (2002).Google Scholar The concept of translation is also used by Karen, Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. Int’l L. & POL. 501, 504 (2000).Google Scholar

164 Rainbow Warrior (N.Z. v. Fr.), 20 Rep. Int’l Arb. Awards 217 (Arb. Trib. 1990); Crawford & Olleson, supra note 14, at 45 1–52.

165 Crawford & Olleson, supra note 14, at 451.

166 On the divergence of national practice on matters of reparation, see Christine, Gray, Judicial Remedies in International Law 8 (1987).Google Scholar

167 28 U.S.C. §1350(2000).

168 E.g., C.D.S. v. The Netherlands, supra note 23.

169 No. 7 U 8/04, supra note 47. For other examples of state responsibility issues under domestic law, see Russet, 89 ILR 15 (Conseil d’Etat 1984) (Fr.); Nachfolger Navigation Co., 89 ILR 3 (Conseil d’Etat 1987) (Fr.).

170 People’s Union for Civil Liberties v. Union of India, supra note 161. Compare the statement of the United States Court of Appeals for the Seventh Circuit in Jogi I, 425 F.3d 367, 385 (7th Cir. 2005), that the consequences of the United States’ violation of Article 36 of the Vienna Convention on Consular Relations might be either “a ‘tort’ . . . or a regulatory violation.”

171 Articles 20 and 21 of the draft articles adopted on first reading made a distinction between breaches of an obligation requiring the adoption of a particular course of conduct, and breaches of an obligation requiring the achievement of a specific result. On second reading the ILC decided not to include these articles, but the fact remains that many international obligations can be characterized as falling under either of those categories (even if that distinction is not always practically relevant). See generally Pierre-Marie, Dupuy, Reviewing the Difficulties of Codification: On Ago s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility, 10 Eur. J. Int’l L. 371 (1999).Google Scholar

172 Ferrando, Mantovani, The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer, 1 J. Int’l Crim. Just. 26, 38 (2003).Google Scholar

173 ECHR, supra note 23, Art. 41; see also Görgülü, supra note 35, para. 44 (stating that “Convention law recognizes that in general only the State party affected can assess what legal possibilities of action exist in the national legal system for the enforcement of the decision”).

174 On this basis the Supreme Court of the Netherlands expressly stated that it was not confined by the principles of just satisfaction in Article 41 of the ECHR, which in the practice of the European Court allow only for modest compensation to a victim, and instead went on to prescribe a larger sum under national law. HR, Mar. 18, 2005, 2005 NJ 201, para. 3.12. See also, for the UK, Leigh & Lustgarten, supra note 12, at 529 (noting that domestic courts should also award damages where litigants in Strasbourg would gain no more than a finding of a violation).

175 This is the case under the ECHR. In Aktas v. Turkey, App. No. 24351/94, para. 329 (Eur. Ct. H.R. Apr. 24, 2003), the European Court held that whereas Article 13 of the Convention (right to a remedy) normally would require compensation, in case of torture a criminal remedy would also be required.

The nature of the rights safeguarded under Articles 2 and 3 of the Convention has implications for Article 13. Where there is an arguable claim that an individual has been tortured or subjected to serious ill-treatment, or deprived of his or her life, by agents of the State, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the treatment in question or the deprivation of life, including effective access for the complainant to the investigation procedure.

In addition, several of the “primary remedies” identified in text at notes 10 8–15 supra provide guidance on the nature of the remedy that would be required at the domestic level.

176 See, for an express statement to this effect, H.R., Oct. 31, 2003, supra note 84, para. 3.3.2 (referring to Papamichalopoulos v. Greece, supra note 118, para. 34).

177 Simma & Hoppe, supra note 45, at 55. See also the dissenting opinion of Justice Breyer in Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2706 (2006), arguing mat “sometimes suppression could prove the only effective remedy.”

178 Jogi I, 425 F.3d 367, 385 (7th Cir. 2005). While the decision was later withdrawn, this particular statement was not addressed in the new decision.

179 Sanchez-Llamas, 126 S.Ct. at 2680.

180 This is indeed a difference between issues of responsibility in a domestic setting, where the competence of courts plays a greater role, and the general law of international responsibility, which is formulated in terms of rights and obligations. See Crawford, supra note 60, para. 7.

181 Sanchez-Llamas, 126 S.Ct. at 268 7–88.

182 European Community law allows member states large deference, subject to requirements of effectiveness and nondiscrimination. See Case 33/76, Rewe-Zentralfinanz EG v. Landwirtschaftskammer für das Saarland, 1976 ECR 1989, para. 5; Case 45/76, Comet BV v. Produktschap voor Siergewassen, 1976 ECR 2043, paras. 1 1–18.

183 Avena, supra note 36, paras. 13 8–39 (indicating that “effective” meant that the review and reconsideration should take account of the violation of the rights set forth in the Convention, that it should guarantee that the violation and possible prejudice caused by that violation would be fully examined and taken into account in the review and reconsideration process, and that review and reconsideration should be of both the sentence and the conviction). The Court also based its reasoning on the requirement of “full effect” in Article 36(2). See, e.g., id., para. 113.

184 Id., paras. 13 1–34.

185 Aktaş. v. Turkey, supra note 175, para. 328.

186 Id. (citations omitted).

187 See generally Christine, Gray, The Choice Between Restitution and Compensation, 10 Eur. J. Int’l L. 413 (1999).Google Scholar

188 Regina v. Safi, [2003] EWCA (Crim.) 1809, 2003 Brit. Y.B. Int’l L. 471.

189 Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), Dec. 16, 1970, 22 UST 1641, 860 UNTS 105.

190 The point is also made by Roger O’Keefe in his comment on this case in 2003 Brit. Y.B. Int’l L. 471, 473.

191 See supra text at notes 4 9–50.

192 See supra text at notes 4 3–48.

193 In Jogi II, 425 F.3d 822, 827 (7th Cir. 2007), the court indicated that while the cause of action was based on domestic law (42 U.S.C.A. § 1983), Jogi could proceed only when a personal right could be inferred from Article 36 of the Vienna Convention. Individual claims under section 1983 thus were limited to cases where a private right exists under the treaty.

194 No. 7 U 8/04, supra note 47 (stating that while the obligation to provide reparation under international humanitarian law only applies between states, this does not take away the possibility for individuals to claim compensation under domestic German civil law).

195 HCJ 7015/02, HCJ 7019/02, Ajuri v. IDF Commander, 56(6) P.D. 352, ILDC 14 (IL 2002). But see, for authority for the proposition that humanitarian law does provide for individual rights, supra note 47.

196 Public Prosecutor v. J.E.J.P., supra note 55.

197 The interaction between international and domestic remedies is also noted by SHELTON, supra note 113, at 22.

198 Eyal, Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4 Eur. J. Int’l L. 159 (1993)Google Scholar; Jan, Paulsson, Enclaves of Justice (Speech at the University of Richmond, Apr. 12, 2007)Google Scholar, 4 Transnat’l Dispute Mgmt., NO. 5, Sept. 2007, <http://ww.transnational-disputemanagement.com> (arguing that a rule of law system where courts control the government is an anomaly, rather than the rule).

199 As noted by the ILC:

[A]ll that international law—and international bodies—are normally fit or enabled to do with regard to internal legal acts, provisions or situations is to declare them to be in violation of international obligations and as such sources of international responsibility and further to declare the duty of reparation, such reparation requiring, as the case may be, invalidation or annulment of internal legal acts on the part of the author State itself.

Report of the International Law Commission on the Work of Its Forty-fifth Session, UN GAOR, 48th Sess., Supp. No. 10, at 60, para. 9, UN Doc. A/48/10(1993) (commentary on then-draft Article 7 of the articles on state responsibility on restitution in kind).

200 These steps may be taken, in particular, in states where treaties are part of domestic law and a treaty prevails over all (e.g., the Netherlands) or at least prior (e.g., the United States) statutory law. Mann, Consequences, supra note 15, at 16, even notes that “the (relative) harmony between the international and the municipal legal order can, in the sphere of State responsibility, be achieved only in so far as the nullity of the internationally wrongful act is concerned.”

201 Convention Against Torture, supra note 111, Art. 15. The European Court of Human Rights has indicated that in case of torture, the use of evidence obtained as a result of acts of violence or brutality or other forms of treatment that can be characterized as torture would be in violation of Article 6 (right to a fair trial) and thus unlawful. Jalloh v. Germany, App. No. 54810/00, paras. 10 5–06 (Eur. Ct. H.R. July 11, 2006).

202 The House of Lords had to consider, when hearing an appeal by persons detained under the Anti-terrorism, Crime and Security Act, 2001, whether the Special Immigration Appeals Commission may receive evidence that has or may have been procured by torture inflicted by officials of a foreign state in order to obtain that evidence. The Law Lords concluded that exclusion of evidence was indeed appropriate. They expressly referred to the remedies provided for by the UN Convention Against Torture, supra note 111, as well as to Article 41 of the Articles on State Responsibility, supra note 4. They concluded from Article 41 that “[t]here is reason to regard it as a duty of states, save perhaps in limited and exceptional circumstances, as where immediately necessary to protect a person from unlawful violence or property from destruction, to reject the fruits of torture inflicted in breach of international law.” A (FC) v. Secretary of State for the Home Dep’t, supra note 10, para. 34 (per Cornhill, L.J.).

203 Avena, supra note 36.

204 Sanchez-Llamas v.Oregon, 126 S.Ct. 2669, 2678 (2006). Other courts found the remedy of dismissal of the indictment not applicable. In United States v. Duarte-Acero, the court held that a criminal defendant could not seek to have an indictment dismissed on the basis of an alleged violation of Article 36 of the Vienna Convention. As support, the court cited the U.S. Department of State’s view “that the only remedies for a violation of the Vienna Convention are diplomatic, political, or derived from international law,” and the fact diat no party to the Vienna Convention had ever dismissed an indictment based on a violation of Article 36. United States v. Duarte-Acero, 296 F.3d 1277, 128 1–82 (11th Or. 2002); see also United States v. De La Pava, 268 F.3d 157, 165 (2d Cir. 2001) (“Even if we assume arguendo that De La Pava had judicially enforceable rights under the Vienna Convention—a position we do not adopt—the Government’s failure to comply with the consular-notification provision is not grounds for dismissal of the indictment.”).

205 The materials presented to the Supreme Court in Sanchez-Llamas cited UK and Australian domestic cases where the suppression of evidence was considered appropriate. See, e.g., 126 S.Ct. at 2707 (Breyer, J., dissenting) (citing Tan SengKiah v. Queen, (2001) 160 F.L.R. 26 (Ct. Crim. App. N. Terr.); Queen v. Tan, (2001) W.A.S.C. 275 (Sup. Ct. W. Australia in Crim.)).

206 HR, Mar. 18, 2005, supra note 174, para. 3(6) (noting that in case of a breach of the ECHR, the ECHR obliges the state “to bring about a situation as close to restitutio in integrum as is possible in the nature of things,” and that for that reason Dutch law now provides for the possibility of revision of criminal sentences).

207 In Avena, supra note 36, para. 123, the ICJ said that “[i]t is not to be presumed. . . that partial or total annulment of conviction or sentence provides the necessary and sole remedy.” But see Castillo Petruzzi, supra note 28, at 65, para. 221, & 67, op. para. 13. Also, in 2000 the Committee of Ministers of the Council of Europe called upon states parties to allow in domestic law for the possibility of reopening proceedings. See Committee of Ministers, Recommendation No. R (2000) 2 to Member States on the Re-examination or Reopening of Certain Cases at Domestic Level Following Judgments of the European Court of Human Rights (Jan. 19, 2000), available at <http://www.coe.int/t/e/human_rights/execution/02_Documents/Rec2000_2.asp>.

208 For an overview of this issue, see The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order (Barkhuysen, T. et al. eds., 1999)Google Scholar; European Court of Human Rights: Remedies and Execution of Judgments (Theodora, A. Christou & Juan Pablo, Raymond eds., 2005).Google Scholar

209 However, some human rights courts and treaty-based bodies, in particular the Inter-American Court of Human Rights and the Human Rights Committee, have been more forthcoming in indicating specific remedies, leaving less leeway to domestic institutions. See, e.g., Human Rights Comm., Patricio Ndong Bee v. Equatorial Guinea, Communication Nos. 1152/2003, 1190/2003, UN Doc. CCPR/C/85/D/1152 & 1190/2003, para. 8 (2005) (stating that the state party is required to provide the victims “with an effective remedy that entails their immediate release and includes adequate compensation, and also to make the same solution available to other detainees and convicted prisoners in the same situation as the authors”). Similarly far-reaching are the remedies indicated by the Inter-American Court of Human Rights, see Castillo Petruzzi, supra note 28. See generally Shelton, supra note 113, at 285.

210 H.R., Oct. 31, 2003, supra note 84, para. 3.3.

211 Sanchez-Llamas, 126 S.Ct. 2669, 2679 (2006) (quoting The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (Story, J.) (“[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty”)). Specifically as to the exclusionary rule, the Court said: “even if Sanchez-Llamas is correct that Article 36 implicitly requires a judicial remedy, the Convention equally states that Article 36 rights ‘shall be exercised in conformity with the laws and regulations of the receiving State.’ Under our domestic law, the exclusionary rule is not a remedy we apply lightly.” Id. at 2680 (citation omitted).

212 Knop, supra note 163, at 527 (critiquing the assumption that a neutral body of international law would be transmitted intact through domestic interpretation and application).

213 E.g., Anne-Marie, Slaughter, A Typology of Transjudicial Communication, 29 U. RICH. L. Rev. 99 (1994).Google Scholar

214 Melissa, A. Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 Geo. L.J. 487 (2005)Google Scholar (arguing that this process is particularly relevant to the development of international law).

215 This is the result, for instance, of the decisions that gave effect to Article 41 of the Articles on State Responsibility. See, e.g., A (FC) v. Secretary of State for the Home Dep’t, supra note 10; Al-M, supra note 11.

216 See, e.g., Ferrini v. Federal Republic of Germany, supra note 99.

217 See Anne-Marie, Slaughter, A New World Order (2004)Google Scholar; Ferdinandusse, supra note 143; Rosalyn, Higgins, The Concept of “the State”: Variable Geometry and Dualist Perceptions, in The International Legal System in Quest of Equity and Universality 547 (Laurence Boisson, de Chazournes & Gowlland-Debbas, Vera eds., 2002)Google Scholar.

218 James, Crawford, International Law and the Rule of Law, 24 Adelaide L. Rev. 3, 10 (2003)Google Scholar; Mann, Consequences supra note 15, at 16.

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