CYIL Vol. 4, 2013

Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého

Vol. 4

www.cyil.eu

Česká společnost pro mezinárodní právo Czech Society of International Law

Praha 2013

Editor-in-Chief: Professor PAVEL ŠTURMA Reviewers: Associate Professor VLADIMÍR BALAŠ Professor MAHULENA HOFMANN Professor PAVEL ŠTURMA Dr. EVA VILLACIS

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR Czech yearbook of public & private international law = Česká ročenka mezinárodního práva veřejného a soukromého. Czech yearbook of public & private international law = Česká ročenka mezinárodního práva ve- řejného a soukromého. Vol. 4. – Praha : Česká společnost promezinárodní právo, 2013. – 346 s. Vydáno v nakl. Eva Rozkotová, Beroun ISBN 978-80-87488-11-9 (Eva Rozkotová)

341.1/.8 * 341.9 * (437.3) – public international law – public international law – Czechia – private international law – private international law – Czechia – yearbooks – mezinárodní právo veřejné – mezinárodní právo veřejné – Česko – mezinárodní právo soukromé – mezinárodní právo soukromé – Česko – ročenky

341 – International law [16] 341 – Mezinárodní právo [16]

Tato Ročenka je vydávána s ϐinanční podporou Rady vědeckých společností Akademie věd ČR. This Yearbook is published with a ϐinancial support of the Academy of Sciences of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodní- ho práva veřejného a soukromého advokátní kanceláři Weil, Gotshal & Manges LLP. © Česká společnost pro mezinárodní právo, 2013 Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, Na Ptačí skále 547, 266 01 Beroun ISSN 1805-0565 ISBN 978-80-87488-11-9

BOARDS AND EDITORS

EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Dr. VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Institute IMS, Brno Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law

Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor VLADIMÍR KOPAL West-Bohemian University, Faculty of Law

Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris Dr. PETER TOMKA President, International Court of Justice, The Hague EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS Associate Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law Professor MAHULENA HOFMANN SES Chair in Space Communications and Media Law, University of Luxembourg Faculty of Law, Economics and Finance Dr. EVA VILLACIS, PhD. Ministry of Foreign Affairs, Bratislava

CONTENTS

PREFACE Pavel Šturma

V

ABBREVIATIONS

VII

I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS

1

The ILC Articles on State Responsibility: A Reflection Years Later Čestmír Čepelka The Attitude of the United States Toward International Law Max Hilaire 13 Sovereignty and Ownership in Relation to Outer Space and Activities of Private Persons Jan Ondřej 35 The Protocol of 1997 to Amend the Vienna Convention on Nuclear Liability and the European Union Jakub Handrlica 53 Addressing the Relationship between State Immunity and Jus Cogens Michaela Rišová 67 II. INTERNATIONAL LAW AND EUROPEAN LAW 89 When the Suit doesn’t Suit Them: Jurisdictional Immunities of States in the context of EU Law Emil Ruffer 91 Mutual Respect and Residual Tensions between the Systems of Protection of Fundamental Rights in Europe David Petrlík 105 III. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW 125 The Burden of Proof in European Anti-Discrimination Law Harald Christian Scheu 127 Pre-implantation Genetic Diagnosis under the European Court of Human Rights’ Review: An Opening toward a Wider Acceptance of the Technique in Europe? Ludovica Poli 141 Some Guarantees Regarding Criminal Proceedings Applicable to Non-Governmental Organizations: Protocol No. 7 to the European Convention on Human Rights Alla Tymofeyeva 153 IV. INTERNATIONAL CRIMINAL LAW 171 3

Universal Jurisdiction under Customary International Law, International Conventions and Criminal Law of the Czech Republic: Comments Pavel Caban

173

Universal Jurisdiction: a Tool against Impunity Petra Baumruk

201

The Issue of Reparations Before the International Criminal Court: Case Study Prosecutor v. Thomas Lubanga Dyilo Agata Foksa

219

V. VIEWS ON INVESTMENT AND TRADE LAW

233

The State of Play and Future of Services Negotiations in the WTO Bregt Natens – Jan Wouters

235

The Czech Republic in the WCIT-12 Annelies Vrbova – Markéta Nováková – Martin Bulánek 255 Thinking Big – Bifurcation of Arbitration Proceedings – to Bifurcate or not to Bifurcate Vojtěch Trapl 267 VI. CZECH PRACTICE OF INTERNATIONAL LAW 279 The Work of the International Law Commission in 2013 Pavel Šturma 281

List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st June 2012 till 31st December 2012 Milan Beránek

291

VII. SHORTER ARTICLES AND NOTES

297

Juridical Days in Olomouc, 9. – 10. 5. 2013 Pavel Bureš – Martin Faix Moot Courts on Issues of Public International Law Milan Lipovský

299

303

VIII. BOOK REVIEWS

307

Fernández de Casadevante Romani, C. International Law of Victims Veronika Bílková

309

The Judge and International Custom. Le juge et la coutume internationale Pavel Šturma

313

Šturma, P., Balaš, V. Protection of International Investment in the Context of General International Law Vojtěch Trapl 317 Šturma, P., Balaš, V. International Economic Law Theodor Klán 321 IX. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY Zuzana Trávníčková 325

PREFACE

Dear Readers, You now have in your hands the fourth volume of the Czech Yearbook of Public & Private International Law (CYIL), appearing, as usual, in October. Now we can speak about a certain tradition of “International Law Harvest”. This Czech Yearbook is a scholarly publication of the Czech Society of International Law, acting in cooperation with the Czech Branch of the International Law Association. According to its Statute, the CSIL covers both Public and Private International Law in its Czech Yearbook, including some aspects of European law. The CSIL publishes the Yearbook both in printed and electronic versions (www.cyil.eu). As of the third volume we have been proud to offer an electronic version in the user-friendly format of an E-book, suitable for PCs, notebooks and tablets. The Czech Yearbook stems from an academic tradition, but it is also open to new technologies. In 2013 the Czech Yearbook applied to be indexed in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS database. We will inform you about the results of this on our web site. However, the content is or should be, in our opinion, just as important as the form, if not even more important. From this point of view, Volume 4 (2013) upholds the standards set up in previous volumes. The variety of studies and articles in this volume covers many issues of contemporary International and European law. They include, inter alia, State responsibility, nuclear liability, State immunity or issues of sovereignty and ownership in Outer Space law. For the first time, the CYIL also presents a section on EU law. An important number of articles deal with international human rights law, in particular from the perspective of the European system. Some contributions concern various issues of international criminal law and criminal justice, including universal jurisdiction and reparations before the ICC. In accord with its tradition, in the Volume 4 the CYIL also covers certain aspects of international economic law (investment and trade law, including new developments in the WTO). Moreover, the publication also presents topical information on the work of the UN International Law Commission in 2013. As usual the authors of this publication come both from Czech and foreign institutions, from academia and legal practice. More so than in previous years, this volume includes contributions of foreign professors and researchers, coming from or teaching in Austria, Belgium, Island, Italy, Poland, Slovakia, Ukraine and the USA. As to the Czech institutions involved, these include Charles University in Prague, Palacky University in Olomouc, the Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Ministry of Foreign Affairs and

its Institute of International Relations, the Ministry of Industry and Trade, as well as some private law firms. Keeping the Yearbook as open as possible, we want it to be not only a Czech but also a European and international project, the Prague-based platform for a dialogue of scholars and practitioners of international law. This publication appears thanks to a financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for generous financial support from the Prague branch of the law firm Weil, Gotshal and Manges. We wish that this volume of the Czech Yearbook will also find many readers, and we are looking forward to new authors and new contributions for the next volume.

Prof. Pavel Šturma Editor-in-Chief

ABBREVIATIONS

ASP – Assembly of States Parties ASPA – American Service Members Protection Act BITs – Bilateral investment treaties

CCPCJ – Commission on Crime Prevention and Criminal Justice CEC – Commission for Environmental Cooperation of North America CEDAW – Convention on the Elimination of Discrimination Against Women CEPT – European Conference of Postal and Telecommunications Administrations COPUOS – Committee on the Peaceful Uses of Outer Space CPA – Coalition Provisional Administration CJEU – Court of Justice of the EU DEA – Drug Enforcement Administration DDA – Doha Development Agenda DRC – Democratic Republic of Congo EC – European Commission ECCC – Extraordinary Chambers in the Courts of Cambodia ECJ – European Court of Justice ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR – European Court of Human Rights EEOC – Equal Employment Opportunity Commission ESA – European Space Agency EU – European Union

Euroatom – European Atomic Energy Community EU/EC – European Union/ European Community FATCA – Foreign Account Tax Compliance Act FCPA – Foreign Corrupt Practices Act FTA – Free Trade Agreement FSIA – Foreign Sovereign Immunities Act IAEA – International Atomic Energy Agency

ICAC – International Commercial Arbitration Court ICC – International Criminal Court ICESCR – International Covenant on Economic, Social and Cultural Rights ICCPR – International Covenant on Civil and Political Rights ICJ – International Court of Justice ICSID – International Centre for Settlement of Investment Disputes ICTY – International Criminal Tribunal for the former Yugoslavia ICTR – International Criminal Tribunal for Rwanda

ILC – International Law Commission ISA – International Seabed Authority ITRs – International Telecommunications Regulations ITU – International Telecommunication Union LDCs – Least-developed countries MFA – Ministry of Foreign Affairs of the Czech Republic MFN – Most-Favoured-Nation

NATO – North Atlantic Treaty Organization NGOs – Non-Governmental Organizations OECD – Organisation for Economic Co-operation and Development OJ – Official Journal of EU PCIJ – Permanent Court of International Justice RS – Rome Statute of the International Criminal Court TEU – Treaty on European Union TFEU – Treaty on the Functioning of the European Union TFV – Trust Fund for Victims TISA – Trade in Services Agreement TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights UK – United Kingdom UN – United Nations UNCC – United Nations Compensations Commission UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea

UNESCO – United Nations Educational Scientific and Cultural Organization UNICEF – United Nations Children's Fund UNITAF – Unified Task Force UNOSOM – United Nations Mission in Somalia USA – United States of America WCIT-12 – World Conference on International Telecommunications WPDR – Working Party on Domestic Regulation WPGR – Working Party on GATS Rules VPRS – Victims’ Participation and Reparation Section WTO – Word Trade Organization

I. STUDIES

IN INTERNATIONAL LAW AND ORGANIZATIONS

THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER

Čestmír Čepelka

Abstract: The draft articles on Responsibility of States for internationally wrongful acts, elaborated by the International Law Commission (ILC), has been facing a dilemma concerning its future for more than ten years and still is. The UN General Assembly has already three times assessed the question of the final form of these draft articles. Although the Commission hoped that, at a later stage and in light of the importance of the topic, the draft articles would be incorporated in a codifying international convention, there is no chance that this can be performed. The rationale for this lies, inter alia, in the concept of countermeasures which deal with circumstances precluding wrongfulness. This was undeniable only in the past, but not today. If the said articles on State Responsibility remain a simple declaration of the UN General Assembly, as they have been since 2001, they could hardly develop a new customary law of State responsibility; this because, apart from countermeasures, the notion of self-defence as well is inconsistent with legal thinking. The concept of self-defence is, according to the Commission, an “undisputed” exception to the prohibited use of force; this rule being a primary one and therefore outside the scope of State responsibility. But, it is generally recognized that self-defence serves as a law-enforcement device, and hence a secondary rule. There is only one way to escape this dilemma. Although the existing draft articles on Responsibility are considered as an indivisible whole which should not be reopened for negotiation, it contains proposed rules of two different domains: those of proper State responsibility, and those of law- enforcement of the unfulfilled responsibility obligations by the wrongdoing State. Whilst the first one has large support in the international community and could therefore easily be codified in a convention, the concept of countermeasures and self- defence must be presently excluded as measures not yet stabilized for codification. Resumé: Návrh článků o odpovědnosti států za mezinárodně protiprávní čin, vy- pracovaný Komisí pro mezinárodní právo (KMP), je stále a více jak deset let před otázkou své budoucnosti. Valné shromáždění OSN se už třikrát zabývalo problé- mem konečné podoby řečených článků. Ačkoli KMP doufala, že někdy později a také s ohledem na důležitost dané tématiky, dojde k jejímu uplatnění v kodifi- kační úmluvě, není vyhlídky, že by se tak mohlo státi. Důvodem je mj. i zařazení protiopatření (represálií) do okolností vylučujících protiprávnost. To se nepochyb- ně hodilo pro represálie v minulosti, dnes ale už nikoliv. Pokud by řečený Návrh článků zůstal jen pouhou deklarací Valného shromáždění (což je od r. 2001), pak ovšem nepřispěje k utváření nového obyčejového práva, neboť je inter alia i pojetí

ČESTMÍR ČEPELKA CYIL 4 ȍ2013Ȏ sebeobrany v rozporu s právním myšlením. Podle KMP zůstává sebeobrana „mimo diskusi“ pouhou výjimkou ze zákazu uchylování se k síle, což je ale primární pravi- dlo. Je však všeobecně uznáváno, že sebeobrana je donucovacím prostředkem a tedy pravidlem sekundárním. Zbývá tudíž jen jediná cesta jak se vymanit z výše uvede- ného dilema. Jakkoli existující Návrh článků o odpovědnosti států je pokládán za nedělitelný celek, který nemá být znovuotevřen k dalšímu projednávání, obsahuje nicméně pra- vidla dvou odlišných oblastí. A sice pravidla vlastní odpovědnosti státu za protiprávní čin a dále ta pravidla, jež se týkají vynucení případně nesplněných odpovědnostních závazků. Pravidla týkající se odpovědnosti státu mají už širokou podporu meziná- rodního společenství a mohou být snadno kodifikována, oproti tomu protiopatření (represálie) a sebeobrana jsou instituty, které postrádají tuto stabilizaci. Key words: International Law Commission (ILC), Draft articles on Responsibility of States for internationally wrongful acts, codifying international convention, countermeasures (non-forcible) reprisals, self-defence. On the Author: Čestmír Čepelka (born in 1927) is emeritus professor of international law. Till 1993 he was a member of the Department of International Law at the Faculty of Law, Charles University, in Prague . Since then he has been cooperating externally with this department. In his research he mainly focuses on general international law and its codification. 1. Introduction The International Law Commission’s draft articles on Responsibility of States for internationally wrongful acts (with commentaries) was adopted in 2001 after some 48 years of work. The UN General Assembly took note of it (A/RES/56/83 of 12 Dec. 2001) and decided to consider at a later stage, in light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries with a view to concluding an international convention on the topic. Since then, it has dealt with this draft three times every three years, in 2004, 2007 and 2010, without reaching consensus on the final form of these articles. In 2004 the resolution of the UNGeneral Assembly (A/RES/59/35 of 2Dec. 2004) requested Governments to submit their written comments on any future action regarding the articles. Further, it requested the Secretary-General to prepare an initial compilation of decisions of international courts, tribunals and other bodies referring to the articles and to invite Governments to submit information on their practice in this regard, and further requested the Secretary-General to submit this material well in advance of the sixty-second session (2007). In 2007 the resolution of the General Assembly (A/RES/62/61 of 6 Dec. 2007) once more commended the articles on responsibility of States to the attention of Governments and repeated the previous requests (of 2004).

THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER In 2010 the pertinent resolution of the General Assembly (A/RES/65/19 of 6 Dec. 2010) again acknowledged the importance of the articles on responsibility and commended them once more to the attention of Governments. After the renewed request of the demands formerly made already in 2004 and 2007, it decided during its sixty-eighth session (2013) to further examine the question of a convention on responsibility of States or other appropriate action on the basis of the articles. The deadline for the submission of information and the receipt of comments from Governments is 1 Feb. 2013 (LA/COD/26). Under these circumstances it would be interesting to follow the opinions presented in the Sixth Committee (Legal) as the primary forum for the consideration of legal questions in the UN General Assembly – mainly as far as concerns choosing the right form for the ILC draft articles. 1 2. Final form of the draft articles on State responsibility Several States support the adoption of the articles as an international convention. It is noted that a convention would contribute to respect for international law and stability in international relations. Reference is also made to the continuous and positive impact of treaties on the development of international customary law. The view is expressed that the articles were a well-conceived and balanced set of secondary rules. 2 Although the relevant resolutions of the UN General Assembly mostly, in the first place, call for the conclusion of an appropriate convention, 3 several other States do not favour negotiating a convention at present. 4 The concern is raised that the process of negotiating a convention could risk undermining the whole work, in particular the delicate balance built into the articles. It is also pointed out that the articles in their entirety do not reflect a settled view of customary international law, and that there remain elements that are disputed and unclear. The view is therefore expressed that the articles were in the strongest position as an annex to a resolution of the UN General Assembly. 1 Cf. Petr Válek, The Activities of the Sixth Committee During the 66th Session of the UN General Assembly: Business as Usual? In: Czech Yearbook of Public & Private International Law. Vol. 3. (2012), p. 293; p. 295 “The Sixth Committee’s Dilemma: Choosing the Right Form for the ILC Draft Articles”. 2 e.g. Comments and observations received from Governments – U.N.Doc. A/CN.4/515 (2001), p. 20: “Bearing in mind the importance of the topic, (…) Slovakia is of the view that a legally binding instrument, i.e. a convention, would be the most appropriate in this regard. (…) The instrument of State responsibility should represent, side by side with the Vienna Convention on the Law of Treaties, one of the pillars of international law.” 3 e.g. the resolution A/RES/56/83 (2001) requires: “(…) to examine the draft articles with a view to concluding a convention on the topic”. The resolution A/62/61 (2007) demands: “(…) further examine (…) the question of a convention on responsibility of States (…) or other appropriate action on the basis of the articles.” Finally, the resolution A/RES/65/19 (2010) asks: “(….) to further examine (…) the question of a convention on responsibility of States (…) or other appropriate action on the basis of the articles.” 4 See Petr Válek, op. cit. supra, p. 297: “The number of States preferring the conclusion of a new treaty on this matter and those having some doubts regarding the need for such a treaty is about same”.

ČESTMÍR ČEPELKA CYIL 4 ȍ2013Ȏ Just this conclusion often produces the rhetorical question: “Would it not be better if they (these Articles) remained an annex of a resolution adopted by the General Assembly?” 5 The advocates of this rhetorical question often reach the view that ‘most of the rules contained in these articles are already considered to be a codification of customary international law by the doctrine of international law.’ 6 Only a few States, in their comments and observations, criticize the content of the draft of the Articles on Responsibility of States. So the Netherlands observe: “(…) the elements in the draft that could be regarded as de lege ferenda or progressive development will come under pressure (for example, countermeasures and serious breaches).” 7 The ILC conception of countermeasures could hardly be allowed to guide the continuing development of the customary law of State responsibility. This is because the notion itself as described by the ILC is inconsistent with the requirements of formal logic in legal thinking. 3. The ILC conception of countermeasures The countermeasures or (non-forcible) reprisals are perhaps the most difficult and controversial aspect of the whole regime of State responsibility, as well as the most sensitive issue in international disputes related to this domain. They are, in the first place, treated by the ILC under circumstances precluding wrongfulness (Part One, Chapter V) 8 and later in Part Three, Chapter II, with this Part dedicated to the implementation of the international responsibility of a State (Articles 49 to 54). Under circumstances precluding wrongfulness the purpose of countermeasures was described as a measure that is legitimate under international law against another State as a reaction to an international offence in consequence of an internationally wrongful act of that responsible State. 9 In other words and according to its commentaries, 10 it is a measure permissible in international law which this other State has performed committed previously. The lawfulness of the conduct of the State, although that conduct is not in conformity with the requirements of an international obligation, lies in the fact that the circumstance exhibited by the situation in question exceptionally renders the obligation inoperative. Once again, there is no wrongfulness because, in 5 See Petr Válek, op. cit. supra, p. 296. 6 ibid . Petr Válek, p. 297. In this connection reference is made to a manual of international law written by Č. Čepelka, P. Šturma, Mezinárodní právo veřejné, 2008, p. 572. Nevertheless, at this point it is only mentioned that the relevant resolution with the ILC Articles on State responsibility in the annex (i.e. A/RES/56/83, 2001) is the first authoritative statement in a written form of customary general international rules on State responsibility ( první autoritativní vyjádření v písemné formě ). The codification of customary international rules in a form stating the law could only be done through convention as an international codifying convention; this is mentioned ibidem on page 109. 7 See A/CN.4/515 (19 March 2001), section “Final form of the draft articles”, p. 19. 8 In Article 30 of the so called first reading on 1996 and in Article 22 of the final (second) version on 2001. 9 This is the wording of the first reading; the final text is different and rather descriptive. See below.. 10 Cf. ILC Report, 1979, A/34/10, p. 115 et seq. (Art, 30), ILC Report, 1996, A/51/10, p. 66 et seq. (Art. 47), and ILC Report, 2001, A/56/10, p. 75 (Art. 22), and p. 128 et seq. (Art. 49 et seq.).

THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER the case in point, application of the obligation is set aside, and hence the obligation is not breached. The circumstance precluding wrongfulness is constituted by the prior conduct of the subject for which the obligation is in force. The above mentioned characterization “as a measure legitimate under international law” [See A/CN.4/515 (19 March 2001), section “Final form of the draft articles”, p. 19]. 11 has been a typical feature of reprisals in the past, i.e., in the historical period when the using of forcible measures was allowed as freedom of action 12 and this instrument was treated rather as a form of punishment for wrongful conduct. Consequently, it was a case of the possibility or faculty of a particular kind of action. 13 Of course, with the risk that this action can in turn provoke a further unilateral reaction from that State which has committed the internationally wrongful act, namely counter-reprisals followed by counter-counter-reprisals, and so on. We have to keep in mind that this legal institution favours powerful States which, in most instances, were the only ones having the means to avail themselves of the use of countermeasures to protect their interests. Indeed the potentially negative aspects of countermeasures are such that the desirability is sometimes questioned of providing any legal regime of countermeasures within the framework of State responsibility pointing, in particular, to potentially unjust results when applied between States of unequal strength or means. So, for example, the Chinese member of the ILC, Mr. Jiuyong Shi : „Countermeasures were controversial; rather than reflecting generally recognized rules of international law, they were simply power relationships in disguise. Countermeasures were not suitable for codification or progressive development of the law. (…) [T]hey did not fall within the scope of the topic of State responsibility”. 14 Albeit the ILC avoided, in the last (second) version of the Draft Articles on State Responsibility, indicating the legitimacy of countermeasures, decisive and juridically 11 As indicated above, this is due to the wording of Article 30 of the first reading. The descriptive definitíon of the second (final) reading is rather different. Article 22. Countermeasures in respect of an internationally wrongful act The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a (non-forcible) countermeasure taken against the latter State in accordance with Chapter II of Part Three. (i.e. Articles 49 to 54). 12 Cf. Funck-Brentano, Th., Sorel, A . Précis du Droit des Gens . Paris, 1894, 2 e éd., p. 229: „Lorsqu’un Etat lésé (…) n’a pu obtenir la réparation qu’il jugeait convenable, il n’a d’autre ressource que l’emploi de la force: il déclare la guerre, ou (…) il fait un acte de guerre isolé (…), c’est ce qu’on appelle exercer les représailles. Les représailles sont un acte de guerre isolé, mais elles sont un acte de guerre; (…) elles sont un fait et non l’exercice d’un droit.” 13 See Report of the International Law Commission on the work of its thirty-first session, 1979, A/34/10, p. 115, par. 4: “(…) a State injured by an internationally wrongful act committed to its detriment (may use) the possibility ( sic ) of adopting against the State guilty of that act a (counter)measure” [Le texte français, p. 128, § 4: «(…) l’État lésé par un fait internationalement illicite commis à son détriment (jouit de) la faculté ( sic ) d’avoir recours, à une (contre)mesure (…)»]. Cf. Spinedi, M . Les crimes internationaux de l’Etat dans les travaux de codification de la responsabilité des Etats entrepris par les Nations Unies , Institut Universitaire Européen, San Domenico di Fiesole, 1984 (Working Paper No. 88), p. 165-6, note 272: «A la ‘faculté’ ne correspond aucune obligation juridique.» 14 In YILC, 1992, Vol. I, p. 133, par. 73.

ČESTMÍR ČEPELKA CYIL 4 ȍ2013Ȏ relevant is the fact that the category of circumstances precluding wrongfulness has been used for explanation of the concept “countermeasures”. Many criticisms on this matter have been stated. The view is even expressed that the provisions concerning countermeasures are a striking anomaly in the draft articles. This is because countermeasures are treated in two different places, i.e. (outside of Circumstances precluding wrongfulness, Part One, Chapter V) and also in PartThree (Implementation of State responsibility) and its Chapter II, whereas other cases are not – mainly self- defence being as well a reaction to an international offence that has been committed previously.There is no good reason why countermeasures should be treated in this way. 15 Some Governments even require that it is clearly necessary to refer to the right to take countermeasures. 16 This same meaning was expressed by the then Czech member of the ILC, Mr. Václav Mikulka (1992–1998): “(…) (A)n injured State had the right ( sic ) to resort to countermeasures, while making it quite clear that resort to countermeasures was not a direct and automatic consequence of the commission of an internationally wrongful act, but was allowed only after the demands addressed to the wrongdoing State by the injured State to obtain cessation of, or reparation for, the internationally wrongful act had failed to meet with an adequate response”. 17 But the ILC utilizes the term “right to take countermeasures” only in Article 54, dedicated to conditions of the use of so called collective countermeasures. Article 54 stipulates: “ Measures taken by States other than an injured State . This chapter does not prejudice the right ( sic ) of any State, (…), to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached. ”18 A further substantial difficulty concerns this provision in the draft Article 54 which would permit any State, in the case of ‘serious breach’, to take countermeasures ‘in the interests of the beneficiaries of the obligation breached’. 19 This above-mentioned general feature serves to distinguish the application of these countermeasures from the mere exercise of the right to obtain reparation for damage. The international law requires the State that is the victim of a breach of a particular international obligation to not resort to such action of countermeasures until it has first sought adequate reparation and failed to obtain this reparation. It should be noted that past punitive actions of reprisals are already outlawed. And the 15 Cf. Comments of Governments, United Kingdom of Great Britain, A/CN.4/515, p. 76. 16 ibid . p. 76 (United Kingdom of Great Britain): “It is clearly necessary to refer in general terms to the right to take countermeasures, and in this connection reference may be made to the constraints that are necessary to protect States against possible abuses of the right to take countermeasures. The manner in which the draft articles approach this task is, however, unsatisfactory.” 17 Cf. YILC 1992, Vol. I, p 172, par. 2. This view of Mr. Mikulka is, however, in contradiction to the official statement of the Czech Government. In. A/CN.4/488 (25 March 1998), p. 114: “(…) (C)ountermeasures are not considered to constitute a ‘right’ per se of an injured State.” 18 Cf. Report of ILC, A/56/10, 2001, In par.1 of the commentary to Article 54: “Chapter II deals with the right ( sic ) of an injured State to take countermeasures against a responsible State in order to induce that State to comply with its obligations of cessation and reparation.” 19 Comments of Governments A/CN.4/515, United Kingdom of Great Britain, p. 89.

THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER present aim of countermeasures is just to procure the cessation of the breach (if it is continuing) of an international obligation by the wrongdoer and to achieve reparation for the injury. These countermeasures must be suspended if the internationally wrongful act has ceased and the possible dispute is submitted in good faith to a court or tribunal with the authority to make decisions binding on the parties. On the other hand, the current countermeasure which in its application goes beyond the limits prescribed by international law (by rules of non-derogable status) is no longer lawful or at least legitimate; and in that case conduct adopted by the State that is not in conformity with an international obligation remains wrongful (prohibited countermeasures). 4. The ILC conception of self-defence The conception of self-defence is treated in only one place, namely, under those circumstances precluding wrongfulness (Part One, Chapter V, Art. 34 [1996], Art. 21 [2001]). 20 Though countermeasures 21 and self-defence constitute different reactions to different wrongful acts, they serve the same purpose, namely, to combat breaches of international obligations and restore a situation in conformity with international law. Even in the beginning of the relevant commentary to Article 21 of the draft, dealing with the conception of self-defence in its final version, the Commission observed that it is “an exception to the prohibition against the use of force in international relations” and that this statement “is undisputed”. 22 The Commission found inspiration in the nearly twenty year old (1980) text of the first reading commentary to the then Article 34 that reads as follows: “self-defence as a definite exception, which cannot be renounced, to the general prohibition on recourse to the use of armed force”. 23 Only in that previous text can we find the indispensable rationale providing reasoning for the inclusion in circumstances precluding wrongfulness. But even in this connection the reasoning used there is probably not correct. Namely, there is the point of not permitting derogation of a peremptory rule. The text reads as follows: “(…)[A]s in the case of the other circumstances dealt with in Chapter V, the effect of a situation of self-defence underlying the conduct adopted by the State is to suspend or negate altogether (…), the duty to observe the international obligation (…) to refrain from the use or threat of force in international relations.” 24 20 Article 34 of the draft provisionally adopted on first reading: “The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.” Article 21 of the draft on final reading is only a little bit different: “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.” 21 Treated on two different places, see supra.

22 Cf. ILC Report, 2001, A/56/10, Art. 21 (Self-defence ), commentary, par. 1. 23 Cf. ILC Report, 1980, A/35/10, Art. 34 (Self-defence ), commentary, par. 1. 24 Cf. ILC Report, 1980, A/35/10, Art. 34 (Self-defence), Commentary, par. 24.

ČESTMÍR ČEPELKA CYIL 4 ȍ2013Ȏ It is generally known that the prohibition of the use or threat of force in international relations is a peremptory rule ( jus cogens ) not permitting any derogation. Since the Second World War the thinking of States has changed, and according to newly-established customary law all recognize that the use of armed force by a State in order to repel an aggression is to be considered as lawful notwithstanding the general prohibition on the use of such force. In other words, the using of self-defence as a form of self-help is an enforcement of the cessation of this aggression, especially if it is continuing. The exercise of the right of self-defence shall be immediately reported to the UN Security Council and shall not in any way affect the authority and responsibility of the Council under the UN Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. 25 5. Conclusions The aim of this contribution is to draw the doctrine’s attention to another possibility of how to accomplish undertake the existing draft articles on Responsibility of States for internationally wrongful acts. And in this way, consequently, to surmount today’s dilemma: to obtain the conclusion of an appropriate convention, or to be satisfied with a simple recommending declaration of the UN General Assembly. After all, the signing of a convention would be the most suitable way to conclude an effort that has been going on for nearly 50 years. Moreover, a binding instrument is the only way of providing security to States and establishing concrete mechanisms for resolving differences that may arise in practice. Although the result of the work of the International Law Commission on the topic of State responsibility should take the form of a binding instrument, there are very many problems that necessary adjustments, as well as further refinement and improvement, will remove. As far as the declaration is concerned, it could hardly develop a new customary law of State responsibility. This because the notion of countermeasures or (non- forcible) reprisals as described by the ILC is inconsistent with legal thinking, because this instrument was only treated in the past under circumstances precluding wrongfulness. Nowadays it is a law-enforcement device which should induce a wrongdoing State to comply with its secondary obligations arising from its responsibility – these obligations being otherwise so unfulfilled. The notion of self- defence is, according to the Commission, an exception to the prohibited use of force, this rule being a primary one and therefore outside the scope of State responsibility. But, it is generally recognized that self-defence serves as a law-enforcement device, hence a secondary rule. In view of all this and towards the promised possibility of how to escape from the above stated dilemma: remain faithful to the concept of international responsibility. The term “international responsibility” covers the new legal relations which arise under customary international law by reason of the internationally wrongful act of

25 Cf. Art 51 of the Charter of the United Nations.

THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER a State. The content of these new legal relations include the obligations of cessation of, and reparation for, the internationally wrongful act. 26 These obligations being so an automatic logical legal consequence of State responsibility. Although the existing draft articles on Responsibility of States for internationally wrongful acts are considered as an indivisible whole which should not be reopened for negotiation, it contains proposed rules of two different domains. Those of proper State responsibility, and those of law-enforcement of the unfulfilled responsibility obligations by the wrongdoing State. Whilst the first one has large support in the international community and could therefore easily be codified in a convention, the conception of countermeasures and self-defence must be presently excluded as institutions not stabilized for codification. The Articles on State Responsibility may have been the last great codification exercise undertaken by the Commission. 27

26 Cf. Art. 1 Draft Articles on State responsibility, ILC Report 2001, A/56/10, Commentary, par. 1. 27 Cf. Caron, D.D . The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority. AJIL, Vol. 96, No. 4, 2002, p. 859.

THE ATTITUDE OF THE UNITED STATES TOWARD INTERNATIONAL LAW

THE ATTITUDE OF THE UNITED STATES TOWARD INTERNATIONAL LAW

Max Hilaire

Abstract: This article surveys the attitude of the United States toward international law from its birth as a new nation to the present. The article begins by looking at how international law influenced the Declaration of Independence, the drafting of the U.S. Constitution, and the growth of the United States from a new nation to a global power. The article shows the respect the Founding Fathers and the drafters of the Constitution had for international law and how they incorporated it into the Constitution as equal to domestic law. International law helped define the type of government the framers wanted for the U.S. and the limits of its power vis-à-vis the people of the United States. The article further sheds light on the attitude of successive administrations, from Reagan to Obama, to international law and how it served to justify their foreign policies. Finally, this article examines the role of the U.S. as a strong advocate for international law and its many contributions to the development and enforcement of international law. Resumé: Článek zkoumá postoj Spojených států k mezinárodnímu právu, a to od svého vzniku jako národa až do současnosti. Text uvozuje pohled na to, jak mezinárodní právo ovlivnilo Deklaraci nezávislosti, vypracování Ústavy Spojených států, a konečně další růst Spojených států z postavení nového národa až na pozici globální mocnosti. Článek poukazuje na respekt Otců zakladatelů a autorů Ústavy k mezinárodnímu právu a jeho začleňování do Ústavy Spojených států na úrovni vnitrostátního práva. Mezinárodní právo pomohlo Otcům zakladatelům definovat typ vlády, o který usilovali, a limity její moci tváří v tvář lidu Spojených států. Článek se dále zaměřuje na postoj posledních vládních administrativ, od Reagana k Obamovi, k mezinárodnímu právu, jako nástroji ospravedlnění jejich zahraniční politiky. A konečně článek zkoumá roli USA jako silného obhájce mezinárodního práva a jeho příspěvku k vývoji a prosazování mezinárodního práva. Key words: International Law, United States, Declaration of Independence, Cold War, United Nations Charter, Geneva Conventions, Western democracies On the Author: Dr. Max Hilaire is Associate Professor and Chair of the Department of Political Science at Morgan State University. He holds a B.A. in Political Science from Morgan State University, and M.A., M. Phil, and Ph.D. degrees from Columbia University in New York in International Relations, with specializations in International Law, United States Foreign Relations Law and United Nations Law. Dr. Hilaire is a two time Fulbright Scholar (Nigeria and Czech Republic), and has lectured extensively in over 40 universities in over 30 countries in Africa, Europe and Latin America under the auspices of the Department of State Speakers

MAX HILAIRE CYIL 4 ȍ2013Ȏ Program. He has traveled extensively, and consulted for the Department of State, United States Agency for International Development, the Africa Center for Strategic Studies at the National Defense University inWashington, and various international organizations. Dr. Hilaire teaches courses both at the graduate and undergraduate levels in Public International Law, International Organizations & International Humanitarian Law, United States Foreign Relations Law, International Human Rights & Humanitarian Law, United Nations Law, and International Relations Theory. Dr. Hilaire has authored three books: International Law and United States Military Intervention in the Western Hemisphere (Kluwer Law International Pub.), United Nations Law and the Security Council (Ashgate Publisher), and The United States and International Law (Kendall Hunt Publisher); and a number of journal articles on international law, international human rights and humanitarian law. Dr. Hilaire has previously taught at Morgan State University, the Washington Center, Empire State College in Prague, and University of New York Prague (UNYP), Central European University in Budapest, Charles University Faculty of Law in Prague, Anglo-American University in Prague, Obafemi Awolowo University in Nigeria, Colgate University in New York, Marymount College of New York, and Universidad de las Americas in Puebla, Mexico. 1. Introduction United States attitude toward international law is mixed; it is both positive and negative, depending on the time frame which one is looking at and the administration in power. It also depends on the issue areas. Different administrations take different approaches to international law, and their tendency toward trade is quite different from security issues. However, there is a general underlining trend in United States attitude toward international law from one administration to the next. To get a better understanding of U.S. attitude toward international law one must first understand the structure of the Government of the United States, specifically the allocation of power between the three equal branches of the federal government, and the division of power and responsibility between the federal government and the various states. The U.S. government is unique among Western democracies. In Europe the Prime Minister or President has absolute power because the executive and legislative branches are combined, and the head of government commands a majority in parliament, which allows for automatic passage of any legislation. In the United States system of government, on the other hand, the executive branch, headed by the president, shares equal power with the legislative branch, comprising the House of Representatives and the Senate, and the Supreme Court. The structure of the United States federal system of government, with several layers of governmental authority at the federal, state and local levels, makes it difficult to implement and enforce international law domestically. I will address that structure of power within the federal government and between the federal government and the states. But before I begin, let me speak

THE ATTITUDE OF THE UNITED STATES TOWARD INTERNATIONAL LAW briefly about the relevance of international law in the United States Declaration of Independence and the place of international law in the American legal system. 2. International Law and the U.S. Declaration of Independence Upon becoming a new sovereign nation in 1776, the United States had to invoke international law and the criteria international law establishes for becoming an independent nation. The United States had to accept the sovereignty of existing nations, accept the principles of sovereign equality of states, non-intervention, the right to self-defense, freedom of the seas, diplomatic relations with other states, the right to self-determination, and sovereign immunity for other states and their officials, the Act of State Doctrine, freedom to trade with other nations, respect for international law and the right to neutrality. In its formative years the United States was a strong advocate for international law in order to gain recognition from other states as an equal member of the community of nations. 1 Indeed, the leaders of the American Revolution had to recognize the existence of international law in order to win recognition for their new nation as an equal in the family of nations. 2 Denying the existence of international law would have deprived the United States of its international legal personality as a sovereign and independent state. The Founding Fathers and the Framers of the Constitution were keenly aware of the relevance of international law in framing the Declaration of Independence, and they relied on the writings of European legal scholars and philosophers for guidance for the kind of constitution and system of government they wanted to construct. 3 Their system was one based on the rule of law instead of men. The concepts of Checks and Balances and Separation of Powers were at the center of the new system of government they wanted to establish. The rights of the individual also featured prominently in the minds of the framers of the new constitutional order. The Bill of Rights, the first ten amendments of the constitution, were not invented by the United States but rather are shared concepts referenced in the writings of many European philosophers and incorporated in the legal traditions of European nations. The United States Constitution basically universalized these rights to make them applicable to all peoples and not just the nobility, as was the case in Europe. The Constitution makes specific references to international law in Article I, Section 8, in which it grants Congress the power to declare war, to regulate commerce between nations, and to punish piracy and violations of the law of nations, and to issue letters of marque. In Article II, Section 2 it gives power to the President to negotiate treaties, and send and receive ambassadors. In Article III, Section 1 it grants power to the Supreme Court to adjudicate cases arising under treaties, affecting ambassadors, 1 See Paul, R. Dubinsky’s chapter: “ United State,” in Dinah Shelton, ed. International Law and Domestic Legal Systems (2011), p. 635. 2 Harold Hongju Koh, International Law as Part of Our Law, 98 AJIL, 43, 44 (2004). 3 Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law , 71 VA. L. Rev, 1073, (Oct. 1985).