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What should third states do if another state violates international law?

State responsibility for internationally wrongful acts extends to all states violating or assisting in the violation of a legal obligation.[1] Hence a state may be guilty of committing a wrongful act by assisting another state in violating international law.

International law also sets out obligations for third states that arise where a State commits a serious breach.  These obligations are triggered where the serious breach arises under what is known as a peremptory norm of general international law.  Peremptory norms are norms accepted and recognized by the international community of States as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law[2] having the same character.[3] 

Third states have obligations where peremptory norms are breached. These obligations include non-assistance and non-recognition:

  • Non-assistance 

          The obligation by third states when addressing a serious breach is to “not render aid or assistance to the responsible state in maintaining the situation so created.”[4]

  • Non-Recognition

States have an obligation not to recognise as lawful a situation created by a serious breach of international law arising under a peremptory norm.[5] Nor may they render aid or assistance in maintaining that situation.[6] This obligation applies to “situations” created by these serious breaches. For example, where a state attempts to acquire sovereignty over territory through the denial of the right of self-determination of peoples, other States have an obligation to refrain from affording formal recognition of the situation and also to refrain from taking steps that would imply such recognition.

Dawidowicz has summarised the rationale for the obligation of non-recognition in the following way:

….the rationale .. is to prevent, in so far as possible, the validation of an unlawful situation by seeking to ensure that a fait accompli resulting from serious illegalities do not consolidate and crystalize over time into situations recognized by the international legal order- a concern expressed by the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory…In such circumstances, the function of non-recognition is to vindicate the ‘legal character of international law against the “law creating effect of facts”. [7]

The obligation to all states not to recognize as lawful a situation created by a serious breach of international law is confirmed by Article 41(2) of the Draft Articles on State Responsibility. This obligation arises from substantive rules of conduct that prohibit what has come to be seen as intolerable, because of the threat it presents to the survival of States and their peoples and the most basic human values.[8]

The most common examples of peremptory norms noted in the International Law Commission’s Commentary refer almost exclusively to unlawful situations resulting from territorial acquisitions brought about or maintained by the threat or use of force. It is unclear whether it covers all peremptory norms, but according to Dawidowicz the principle relates to:[9]

The right to self determination;

The prohibition of racial discrimination and apartheid;

Basic principles of international humanitarian law.

The content of the obligation of non-recognition

It is important to assess what the obligation of non-recognition actually entails in practical terms for third states. While the Draft Articles on State Responsibility do not elaborate the precise content of the obligation, the commentary does. The obligation “not only refers to the formal recognition” [of situations created by the relevant breaches], but also prohibits “acts which would imply such recognition.’[10] Practice also supports this broad approach to the obligation.  In this respect, commentators have noted that:

“Where the Security Council and the General Assembly have elaborated upon the content of the obligation of non-recognition, they have generally defined it broadly to include any dealings with the responsible state that could imply formal recognition of an unlawful situation…[11]

In addition to thisgeneralized obligation of non-recognition, the Security Council and General Assembly have referred to the following obligations:

  • Not to recognise passports or travel documents issued by a regime;
  • To withdraw consular representation;
  • To withdraw diplomatic missions;
  • To deny the legal validity of any public or official acts of the regime; and
  • To refuse any membership of an international organization. [12]

In the Advisory Opinion on the Wall the Court held that all States were ‘under an obligation not to recognize the illegal situation resulting from the construction of the wall in the OPT, including in and around East Jerusalem.”[13] Yet again the specific steps were not elaborated, although the Court called upon the United Nations to formulate what further action it needs to take to bring an end to the illegal situation resulting from the construction of the Wall.[14]

The obligation to not assist “is limited to acts that would assist in preserving the situation created by the breach. It does not cover international cooperation with the responsible state in unrelated fields. In other words, it does not require the complete isolation of the responsible State. However, a State may legitimately avoid all types of international cooperation with the responsible state.”[15]

 


[1] For example if Israel was to violate IHL, and Sweden was also failing in its duty to ensure respect for IHL under CA1, both would face the consequences stated under 3.1

[2] Article 53, 1969 Vienna Convention on the Law of Treaties.

[3] Article 53, 1969 Vienna Convention on the Law of Treaties.

[4] Article 41, ASRWA.

[5] There are 3 elements which should be considered and recalled when assessing the issue of non-recognition:

  1. All peremptory norms may in principle give rise to an obligation of non-recognition
  2. Only a serious breach of a preemptory norm is subject to the obligation of non-recognition
  3. The principle of non-recognition is only applicable where a serious breach results in the assertion of a legal claim to status or rights by the wrongdoing State- ‘a situation’ all states are obliged not to recognize ‘as lawful’.

[6] Article 41, Articles of State Responsibility.

[7] M. Dawidowicz, “The Obligation of Non Recognition of an Unlawful Situation” in J. Crawford, A. Pellet, and S. Olleson The Law of State Responsibility (Oxford, 2010) 677-686, at 678.

[8] ILC Commentary

[9] M. Dawidowicz, “The Obligation of Non Recognition of an Unlawful Situation” in J. Crawford, A. Pellet, and S. Olleson The Law of State Responsibility (Oxford, 2010) 677-686, at 678.

[10] Commentary to Article 41, para 5. Extracted from Dawidowicz, supra note 4, at 684.

[11] Crawford, Pellet, Olleson, The law of international responsibility, p684.

[12] Ibid.

[13] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 200 (para 159).

[14] Ibid., 200 (para 160)

[15] N. Jorgensen, “The Obligation of Non-Assistance to the Responsible State” in J. Crawford, A. Pellet, and S. Olleson The Law of State Responsibility (Oxford, 2010) 687-693, at 691.