International law, Sixth edition
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International Law MALCOLM N. SHAW
Serious breaches of peremptory norms (jus cogens)
One of the major debates taking place with regard to state responsibility concerns the question of international crimes. A distinction was drawn in article 19 of the ILC Draft Articles 1996 between international crimes and international delicts within the context of internationally unlawful acts. It was provided that an internationally wrongful act which results from the breach by a state of an international obligation so essential for the protection of fundamental interests of the international community that its breach was recognised as a crime by that community as a whole consti- tutes an international crime. All other internationally wrongful acts were termed international delicts. 189 Examples of such international crimes provided were aggression, the establishment or maintenance by force of colonial domination, slavery, genocide, apartheid and massive pollution of the atmosphere or of the seas. However, the question as to whether states can be criminally responsible has been highly controversial. 190 Some have argued that the concept is of no legal value and cannot be justified in principle, not least because the problem of exacting penal sanctions from states, while in principle possible, could only be creative of insta- bility. 191 Others argued that, particularly since 1945, the attitude towards certain crimes by states has altered so as to bring them within the realm of international law. 192 The Rapporteur in his commentary to draft ar- ticle 19 pointed to three specific changes since 1945 in this context to justify its inclusion: first, the development of the concept of jus cogens as a set of principles from which no derogation is permitted; 193 secondly, the rise of individual criminal responsibility directly under international law; and thirdly, the UN Charter and its provision for enforcement action against a state in the event of threats to or breaches of the peace or acts of 189 See M. Mohr, ‘The ILC’s Distinction between “International Crimes” and “International Delicts” and Its Implications’ in Spinedi and Simma, UN Codification, p. 115, and K. Marek, ‘Criminalising State Responsibility’, 14 Revue Belge de Droit International, 1978– 9, p. 460. 190 See e.g. Oppenheim’s International Law, pp. 533 ff. See also G. Gilbert, ‘The Criminal Responsibility of States’, 39 ICLQ, 1990, p. 345, and N. Jorgensen, The Responsibility of States for International Crimes, Oxford, 2000. As to individual criminal responsibility, see above, chapter 8. 191 See e.g. I. Brownlie, International Law and the Use of Force by States, Oxford, 1963, pp. 150–4. 192 See e.g. de Ar´echaga, ‘International Law’. 193 See e.g. article 53 of the Vienna Convention on the Law of Treaties, 1969 and below, p. 944. 808 i n t e r nat i o na l l aw aggression. 194 However, the ILC changed its approach 195 in the light of the controversial nature of the suggestion and the Articles as finally approved in 2001 omit any mention of international crimes of states, but rather seek to focus upon the particular consequences flowing from a breach of obligations erga omnes and of peremptory norms (jus cogens). 196 Article 41 provides that states are under a duty to co-operate to bring to an end, through lawful means, any serious breach 197 by a state of an obligation arising under a peremptory norm of international law 198 and not to recognise as lawful any such situation. 199 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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