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From Bilateralism to Community InterestEssays in Honour of Bruno Simma$

Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder

Print publication date: 2011

Print ISBN-13: 9780199588817

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199588817.001.0001

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Reciprocity Revisited

Reciprocity Revisited

Chapter:
(p.113) Reciprocity Revisited
Source:
From Bilateralism to Community Interest
Author(s):

Andreas Paulus

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588817.003.0010

Abstract and Keywords

This chapter recalls both Bruno Simma's considerable contribution to our understanding of reciprocity in his early academic work — on Article 60 of the Vienna Convention on the Law of Treaties, on reciprocity in customary law, and in treaties — as well as the later phase in his academic career when he did not abandon but considerably modified his position by looking to the formulation and protection of community interests in international law in his two grand lectures at the academies of The Hague and Florence. Here, the role of reciprocity changes from a prime mover of international law to that of a mere enforcement mechanism, from the master to the slave, so to speak. But Simma is and remains reluctant, even misgiving, about attempts to leave the enforcement of community interests to international organizations alone, as long as central institutions remain underdeveloped to implement them. Thus, in a decentralized system, decentralized means of enforcement continue to be necessary. In other words: reciprocity is transformed, but should not be abandoned altogether.

Keywords:   Bruno Simma, reciprocity, Vienna Convention, customary law, international law

Why should I care about posterity?

What's posterity ever done for me?

Groucho Marx

I. Introduction: Reciprocity in International Law

Much of the early work of the dedicatee of this volume has centred on the workings of reciprocity.1 As Bruno Simma aptly remarked in his most recent piece on the issue, the importance of reciprocity in international law is due to its relative lack of effective central enforcement mechanisms.2 Thus, reciprocity continues to be the basic proposition for the development and working of international law in a world of co-existent sovereigns or, in the words of the United Nations (UN) Charter, ‘sovereign equality’. Whether the result is a ‘primitive’ legal system, though, is questionable in light of its rising complexity.3 In any case, contemporary international law is a decentralized legal system, in which the central development and enforcement of the law constitutes the exception rather than the rule.

Since the 1970s, however, international law has taken an almost revolutionary turn. Not only has globalization—for better or for worse—brought the world closer together than ever, but the advent of global warming and global terrorism has increased the necessity of global regulation to a point where national sovereignty itself seems to be at stake, and with it the separation of the domestic and (p.114) international spheres, the first being a realm of democracy and individual rights, the latter one of coexistence and cooperation between independent states.

This raises the question of what will happen to reciprocity. The more centralistic the international community becomes, the less important, it seems, is the reciprocity of rights and obligations between States. Does not the title of one of Simma's most famous gems—that the editors of this volume have borrowed for the title of these essays—suggest as much? ‘From bilateralism to community interest’—this title seems to imply that reciprocity is part of the ‘old’, traditional, or classic international law, whereas, in the new era, ‘community interests’ will confine reciprocity to a much more narrow space. For the central questions of our age, from arms control and environmental protectionto human rights and financial regulation, reciprocity appears to do more harm than good. Insisting on reciprocity would result in legalizing rather than abolishing torture, in developing rather than banning weapons of mass destruction, or in destroying rather than protecting the environment, not to speak of the inevitable race to the bottom in financial regulation, coupled with a perverse divergence of wealth between the super-rich and the hungry. All due to the ‘tit-for-tat’ of classical international law, which can either, in a positive sense, lead to a virtual circle of law abidance, or, in a negative sense, to a downward spiral in which one violation follows the next and obligation and violation become indistinguishable from each other. The attitude Groucho Marx so aptly describes in the initial quotation seems to capture reciprocity and its consequences all too well as a tool of the strong against the weak.

And yet, for the time being, the dedicatee has not abandoned reciprocity, and neither should we. Even in his famous Hague course Simma did not equate bilateralism with reciprocity and community interest with constitutionalization. Rather, he speaks of a ‘bilateralist grounding’ of community interests.4 While he argued, in his earlier work with Alfred Verdross, that the Charter is the constitution of the universal community of States,5 he seems lately to have joined the sceptics when exclaiming that the governing attitude towards the UN ‘is not the way to treat a constitution’.6 Finally, while remaining less than enthusiastic about the rather crude enforcement mechanism that is euphemistically labelled ‘countermeasures’ by the International Law Commission's (ILC) Articles on State Responsibility,7 Simma continues to advocate the permissibility of such countermeasures for the (p.115) enforcement of obligations towards the international community as a whole.8 But there is no enthusiasm whatsoever for this choice; rather, the weakness of an enforcement mechanism that is basically reserved for the strong States against the weak has not eluded him. Nevertheless, the alternative, that States could unilaterally react to violations of investment agreements, but not to genocide, is and remains unacceptable.

In the following, we will recall both Bruno Simma's considerable contribution to our understanding of reciprocity in his early academic work—on Article 60 of the Vienna Convention on the Law of Treaties,9 on reciprocity in customary law,10 and in treaties11—as well as the later phase in his academic career when he did not abandon but considerably modified his position by looking to the formulation and protection of community interests in international law in his two grand lectures at the academies of The Hague and Florence.12 Here, the role of reciprocity changes from a prime mover of international law to that of a mere enforcement mechanism, from the master to the slave, so to speak. But Simma is and remains reluctant, even misgiving, about attempts to leave the enforcement of community interests to international organizations alone, as long as central institutions remain underdeveloped to implement them. Thus, in a decentralized system, decentralized means of enforcement continue to be necessary. In other words: reciprocity is transformed, but should not be abandoned altogether.

One area that Simma had not yet covered as intensively as the bulk of international law, at least before his election, in 2002, to the International Court of Justice, was international humanitarian law. I recollect his scepticism over the very idea of regulating the slaughter that is so innocently called ‘armed conflict’ in post-classical international law. Simma the military historian knows too much about the subject to be enthusiastic about the hell that any kind of armed conflict entails. But it is in international humanitarian law where the most recent attempts have been made to lay reciprocity to rest for good. One author, Mark Osiel, even offers a book-length treatment of the ‘end of reciprocity’13 with the claim that the treatment of alleged (p.116) terrorists should not be based on reciprocity but rather on notions of honour and self-respect.

After the attacks of 11 September a decade ago, in the field of international humanitarian law, reciprocity has become the central focus of a debate on the future of the discipline. Whereas some, in particular humanitarian groups, but also the International Committee of the Red Cross, aim at limiting reciprocity for the sake of the protection of civilians not taking part in hostilities, others, in particular some governments and military lawyers, regard reciprocity as the cornerstone to the implementation of humanitarian law by the military and defend its use to limit the rights of non-State actors in ‘asymmetrical’ warfare. By also demanding reciprocity against terrorists, however, this view threatens the other task of humanitarian law, namely the preservation of a minimum standard of protection of human beings from inhumanity. The debate raises fundamental questions about the nature of the international legal order, as well as about the role of States and non-State actors in the ‘postmodern’ international law of the twenty-first century.

The following contribution first recalls the role of reciprocity in international law, then turns to the question of whether reciprocity can survive the turn to community interests. We will analyse closely Judge Simma's work on the Bench to find traces of community interests in his jurisprudence—and in that of the Court. Finally, we look at the role of reciprocity in the recent debates in international humanitarian law. This contribution comes to the conclusion that reciprocity remains an enduring feature of contemporary international law, but that the minimum rules of civilized behaviour are not modifiable by it.

But such minimum rules are far from attempts to ‘constitutionalize’ international law14 towards a system in which reciprocity only plays a limited role. It remains the comparative lack of central institutions in law-making and law-implementation that renders reciprocity, in Simma's words, ‘the principal leitmotiv’15 of the international legal system.

II. The Role of Reciprocity in International Law

While there seems to be general agreement that reciprocity is a central feature of contemporary international law, there is great confusion regarding the exact meaning of the term. For some, reciprocity is a purely formal notion in the doctrine of the sources of international law, describing the synallagmatic, do ut des or tit-for-tat (p.117) nature of the respective rights and duties between two or more parties, as well as the legal consequences resulting from such a legal relationship. For others, reciprocity stands for the broader notion that States do not observe international law as an objective system of rules regardless of other parties, but rather for more concrete gains commensurable with the burden undertaken by freely assuming an obligation. We will here employ the term in both the narrow and the broader senses, as described in the following part. We will then look to the legal ramifications of reciprocity in the classical, decentralized system of international law.

1. Narrow and broader notions of reciprocity in international law

According to Simma's work on the matter, the analysis of the role of reciprocity in international law requires a broad terminology going beyond the mere exchange of benefits and burdens between two or more parties. He understands reciprocity in this sense ‘as the status of a relationship between two or more States under which a certain conduct by one party is in one way or another juridically dependent upon that of the other party’.16 One may further distinguish between subjective reciprocity, in other words when reciprocity is also the motivation for entering into an obligation, and objective reciprocity as an observation of factual behaviour independent of the motivation of the parties. When the motivation of the parties is known, it is relatively easy to identify reciprocal obligations; otherwise, a judgment must be made as from the outside.

However, reciprocity can also remain purely formal rather than substantive. In this sense, any treaty is reciprocal, because every party that enters into a treaty is legally entitled to expect compliance from the other parties, and vice versa. In a substantive sense, however, parties may engage in a one-sided or unequal treaty because they expect to benefit from other aspects in the further legal or political relationship between the parties. For instance, one State may agree to the exploitation of its ocean by another to be able to benefit from military protection by the stronger State, without spelling out this expectation in the treaty itself.

Equally important is the distinction between positive and negative reciprocity, the former leading States positively to engage in and implement international obligations, the latter trying to induce another State back to compliance by suspending the observation of a rule the other party has violated. Some would also include the notion of reprisals or countermeasures in reciprocity,17 such as the non-observance of any rule of international law as a response to a violation of any other rule by the other party with the view to induce the violator to return to observance of the law. (p.118)

Finally, reciprocity may be legal or socio-political in character. The legal notion of reciprocity deals with the more or less formal relationship between two obligations or duties and the respective rights, the obligation of one party being the right of the other. However, the socio-political term describes the context of the adoption of a rule binding two more or less equal partners. Of course, this equality is formal rather than substantive. Thus, the United States can make a treaty with Haiti either on the formal basis of an inter-State relationship or by coercion, the former being the consequence of the principle of sovereign equality according to Article 2(1) of the UN Charter, the latter being a question of fact. The expectation of reciprocity is one of the prime reasons why States engage in international legal relations in the first place. However, such reciprocity can look very different depending on the power relationships between the parties involved. In this sense, one can distinguish between legal reciprocity, on the one hand, and social and political reciprocity, on the other. While the role of the latter for the development of new international legal rules can hardly be overestimated, the following remarks will centre on the former.

2. Reciprocity in international law

The central role of legal reciprocity in the law of treaties is well established and does not require extensive elaboration here. In general, the ‘treaty on treaties’, the Vienna Convention on the Law of Treaties (VCLT),18 regulates this area of the law comprehensively and on the basis of the reciprocity of the undertakings by the parties. Only in the mutual relationship of the parties does a treaty provision come into practice; all parties need to observe the treaty equally, but only a party that has a direct benefit from the performance of an obligation can successfully invoke the duty of another party to perform. Such is the importance of reciprocity that one can ask whether a treaty that does not contain any concrete and mutual obligation is ‘law’ in the material sense of the term, with the intrinsic authority this designation implies.19

The ‘mechanics’ of treaty law almost all deal with the consequences of reciprocity, from the regime of reservations—in which Simma has a particular interest20—to the non adimpleti non adimplendum clause in Article 60 VCLT.21 The latter also contains, however, the most characteristic exception to reciprocity, by excluding (p.119) ‘provisions relating to the protection of the human person contained in treaties of a humanitarian character’ from its scope. Thus, the question of reciprocity cannot ignore the contents of the obligation in question—if the obligation is strictly reciprocal between the States parties, reciprocity applies. If, however, the provision also serves the more general interest of the international community, or if it benefits other, third persons, it goes beyond the bilateral relationship between the parties and thereby also beyond reciprocity.

Reciprocity in the substantive sense is involved in the application of the clausula rebus sic stantibus (Article 62 VCLT) and the question of so-called ‘unequal treaties’. In other words, when are the rights and duties so unequal regarding the burden imposed on the parties that the treaty becomes not only unjust, but inexistent? The International Court of Justice (ICJ) is remarkably reticent in allowing the application of the clausula, to the point of sending the parties back home without a practical solution for the implementation of a treaty that does not take present-day environmental requirements into account.22 In general, international law does not admit the argument that an unfair balance between the reciprocal rights and duties of the parties allows for the suspension or termination of a treaty. In general, legal certainty trumps justice in these cases, similar to the treatment of ‘unequal treaties’23 under international law.

While treaties exemplify the formal aspects of reciprocity, customary law demonstrates the influence of reciprocity on the formation of international law by an informal process of tit for tat, in other words by the informal acceptance of claims by other States that are in the mutual interest. The best example is probably the Truman proclamation by which a unilateral act by the United States codified the concept of the continental shelf and was generally accepted by other States.24 It is this reciprocal process—namely the formulation of a balanced and generally acceptable regime and its acceptance by other States—that characterizes successful customary law-making.

As to reciprocity of performance of international obligations, regardless from which source, the ILC's Articles on State Responsibility, which have recently become almost as authoritative as the VCLT, and to which Simma contributed (p.120) a great deal while he was serving in the Law Commission at its second reading, have enshrined reciprocity even further. Whereas one could read Part One of the Articles on State Responsibility believing that international law deals with violations of ‘objective’ law, as it were (see, in particular, Article 12),25 Parts Two (see, in particular, Articles 34–37) and Three (Articles 42–47, 49–53) make it clear that the ‘objective’ wording of Part One was not intended to do away with requirements of reciprocity by at least requiring an injury on the side of the other party to allow for the invocation of the breach and for giving a right to demand reparation to the injured party.26 Only with regard to obligations erga omnes does Article 48 provide an exception, and Article 54 leaves open the permissibility of countermeasures.27

It is highly questionable, however, whether the concept of reprisals or, more euphemistically, countermeasures (Articles 49–53 Articles on State Responsibility) in itself is an element of reciprocity, as some scholars believe.28 Whereas Article 60 VCLT provides for the suspension of the same obligation that is not observed by the other party and is thus of a truly reciprocal character, bringing rights and obligations back into balance, reprisals are a means of enforcement—or, in the language of the ILC, inducement (Article 49 Articles on State Responsibility)—of the other party to return to lawfulness.29

In a broader sense, however, countermeasures are reciprocal in character by harming the other side as a consequence of its own wrongdoing. But in the restrictive view of countermeasures advanced by the ILC, the Articles on State Responsibility limit an existing practice rather than encouraging its further use.30 In addition, the Commission has explicitly rejected the distinction between reciprocal and other countermeasures:

There is no requirement that States taking countermeasures are limited to suspension of performance of the same or a closely related obligation.31

(p.121) Thus, the Commission's approach confirms Simma's insight of 40 years ago that reprisals are not reciprocal in the legal meaning of the term. But they continue to be an important feature of ?‘systemic reciprocity’, in other words, for the responsiveness of the international legal system with regard to its non-observance. Systemic reciprocity of this sort is still far from a centralized international enforcement system that would be able considerably to curtail individual reactions to breaches of the law. In a certain sense, therefore, it seems justified to regard reprisals as part of the reciprocal nature of much of international law that responds to breaches by reciprocal reactions of the individual subjects rather than by central enforcement.

Nevertheless, in the age of globalization, David Bell's insight that ‘the nation State is becoming too small for the big problems of life, and too big for the small problems of life’32 continues to haunt exclusive reliance on State sovereignty. Thus contemporary international law has developed mechanisms to take account of community interests from the preservation of life on the planet to the protection of human rights. It is one of Simma's great academic achievements to have analysed these new developments regarding their effects on the structure of international law.33 It is to these elements which we now turn.

III. From Reciprocity to Community Interest?

As we have seen, reciprocity is the hallmark of a decentralized legal system whose subjects cannot rely on a centralized reaction to breaches of the law. While institutionalization is the main feature of the development of international law in the twentieth century, however, it is by far less clear that such institutionalization necessarily leads to the constitutionalization of the international system.34

While treaties establishing international organizations continue to be reciprocal between the members of the organization, and the constituent treaty thus falls under the regime of the VCLT (Article 5), this reciprocity is purely formal in nature. Rather, it is the relationship between the organization and the member which is more relevant. Thus, in principle, a treaty establishing an international organization transfers the reciprocal relationship between States members to a more general reciprocity between membership in the institution, on the one hand, and institutional protection by the institution, on the other.

However, in international relations, States hardly rely on an institutional reaction to violations of their rights. Thus, it would be naïve, to say the least, if a State faced (p.122) with aggression waited for the reaction of the Security Council to an invasion rather than defending itself in the exercise of its right under Article 51 of the UN Charter until, eventually, the Security Council intervenes. In order to protect their interests, States are thus unlikely to renounce their capacity to react reciprocally to breaches of the law. For the same reason, the right to (peaceful) reprisals or countermeasures will not fall into desuetude any time soon.

Nevertheless, the new developments and challenges had a profound impact on international law. In the following, we will look to various ways in which the new ‘community interest’ regime transforms international law and thereby also the role of reciprocity within the international legal system.

1. The deficits of bilateralism

In his Hague lecture of 1995, Simma used the term ‘bilateralism’ to distinguish the obligations between States from those between States and the international community at large.35 He borrowed it from the former ILC rapporteur on State responsibility, Willem Riphagen, as well as from Shabtai Rosenne, who, in an article of 1972, had first juxtaposed ‘bilateralism’ and ‘community interests’.36 Even in a multilateral treaty, concrete rights and duties only arise between pairs of States, and, in the words of the ICJ, ‘only the party to whom an international obligation is due can bring a claim in respect of its breach’.37 In other words, in a bilateralist system, legal norms do not define an objective standard against which to hold individual state behaviour to account, but rather a relative standard giving another party the right to demand compliance in case of breach. One may compare this to a domestic legal system without centralized enforcement. In addition, in such a system, obligations can only be derived from the consent of its legal subjects, or at least, as in customary law, from their acquiescence. General principles of law may apply to the management of the system, as it were, but not to the creation of binding obligations of action or omission in the first place.38

As to the moral deficiencies of this system, Simma follows one of its main critics, namely Philipp Allott, who denounces the immorality of the ‘interstatal unsociety’, in which ‘governments…are able to will and act internationally in ways that they would be morally restrained from willing and acting internally’.39 Alas, not (p.123) much seems to have changed in this regard. And yet, the recent recognition of the ‘responsibility to protect’40 shows that there exists not only a general sentiment that States are not only prohibited from, again in Allott's words, ‘murdering human beings by the million in wars, tolerating oppression and starvation and disease and poverty, human cruelty and suffering, human misery and human indignity’,41 but that States are under an obligation to prevent the worst of international crimes from happening; and that if they fail to do so, there is at least a ‘soft law’ obligation on the international community to intervene.42 But because the Outcome Document does not oblige the international community actively to prevent violations of basic rights, this document also demonstrates that institutional intervention cannot be relied upon even in the most egregious cases of abuse of sovereign prerogatives by States, or failure to fulfil their basic purpose, namely to safeguard the bare survival of their citizens.

Thus, the main problem with bilateralism and the concomitant legal order based on reciprocity between States lies in the lack of implementation of obligations that are not undertaken for the benefit of subjects other than States, but either for the sake of humanity at large, such as protecting the atmosphere from global warming, or for the sake of non-State entities or individual human beings, such as self-determination and human rights. The introductory quotation by the comic Groucho Marx exemplifies the absurdity of reciprocal thinking in this regard: it is not the benefits accruing to us—and even less so to contemporary states or their leaders—from future generations that motivate us to protect the environment, but the responsibility to protect (sic!) the necessary conditions for survival for all human beings, whether contemporaries or future generations. Neither do we fight poverty for investment purposes. The underlying rational of a bilateralist system does not fit into the most important considerations of our time.

But does this also imply the ‘end of reciprocity’? While sceptical regarding the current state of affairs, some writers have indeed argued for a continuous development from bilateralism to the constitutionalization of the international community.43 While sympathetic, in principle, to that goal, Simma has pointed out (p.124) that contemporary international society is not quite ripe for such a development. Rather, if community interests are to be implemented, international law needs to preserve the repository of mechanisms in the bilateralist tool-box, so to speak, and among them chiefly the principle of reciprocity.44 To the realization of community interests on the basis of such a ‘bilateralist grounding’ we will now turn.

2. The bilateral and multilateral realization of community interests, in particular human rights

One of Simma's main contributions to the theory of international law is in the demonstration of the pervading effect of reciprocity in the international legal system—from the UN Charter via jus cogens and obligations erga omnes to the protection of human rights. There is no need to repeat that analysis here.45 Let me simply point to some recent developments in these fields. In the following section, we will then look to the traces of community interests in the recent case law of the ICJ.

First, a brief word on the term ‘community interests’. The present writer must confess that he was for a long time rather sceptical of the notion, because it connotes some ‘objective’ element in the designation of these interests.46 Historically, of course, the term stems from the ‘objective’ characteristics of human rights guarantees. Thus, in the Pfunders case, the European Commission on Human Rights insisted that the Convention was binding on Italy regardless of whether the other party to the case, Austria, had also been bound at the time in question, thus making an exception to the ordinary bilateral play of reciprocal rights and obligations between parties to a multilateral treaty.47 Echoes of the ‘objective’ theory of fundamental rights in the jurisprudence of the German Federal Constitutional Court may be visible there, too.48

However, is there something ‘structural’ to the notion of community interests, from which objective interests can be derived? Partly yes, one may say. Thus, the preservation of the environment is indeed an interest that is one of the community independent of any State involvement. The ‘tragedy of the commons’ problem known from the economic sphere comes to mind.49 And it is certainly in the objective interest of all States to have the environment protected, at least by the (p.125) others—free riding presupposes rather than contradicts the existence of a community interest.

However, with regard to human rights or self-determination, it is far less obvious that their protection is in the community interest—in particular if one limits this community to States, as Article 53 VCLT does.50 Why should a community of States be interested in allowing groups to secede—if only ‘remedially’ as exchange for the past and present violations of their rights?51 Why should it be in its interest to oblige its members to protect the human rights of its own inhabitants? While it is certainly possible to give reasons for an affirmative answer to these questions, this is by no means necessarily so. Fortunately, the answer that contemporary international law gives is decidedly positive: both the self-determination of peoples and fundamental human rights such as the prohibitions of torture and genocide are recognized as community interests.52

The present author suggested that one should thus rather speak of ‘community values’ that need to be determined by the community rather than derived from ‘objective’ notions. I was criticized, however, by my friend and colleague Ulrich Fastenrath for introducing some pre-ordained ‘values’ of an objective character into international law.53 Obviously, that is the opposite of what I intended to do. I would thus propose to stick with the notion of ‘community interests’ but to remain aware of the necessity of a normative decision by the ‘international community’ on which interests belong to that category.

Nevertheless, such interests have certain structural characteristics in common: (1) they do not (only) refer to individual interests or rights of certain States, but concern the community at large; and (2) they are of sufficient importance that it is not enough to leave it at the usual interplay between States to see to their implementation. Some, but not all, of those interests also fulfil a third criterion, namely they give rights to non-State actors that do not have the necessary international (p.126) standing to see to their enforcement themselves, such as the environment, the self-determination of peoples, or human rights. In fact, the only community interest generally recognized that does not meet this criterion is the prohibition on the use of force that protects individual States while at the same time being of interest to the whole community.

However, as the European Court of Human Rights itself has pointed out, just as for the domestic equivalent, the ‘objective’ dimension is not alternative but complementary in nature; in other words, while the community as a whole has an interest in the protection of those values and interests, they nevertheless are also in the interest of the States themselves.54 Thus, the realization of human rights may occasionally be against the immediate interest of the government of a State, but certainly continues to be at least in the long-term interest of the State and its inhabitants. Translated into international law, this subjective element implies that not only can the community of States demand respect for the prohibition on genocide, but a State can also bring a collective claim on behalf of its inhabitants, such as Bosnia-Herzegovina did against the former Yugoslavia before the ICJ.55 In State-to-State proceedings before the European Court of Human Rights, only a few States have invoked the rights of citizens within other States; rather, most State complaints invoked rights of their own citizens against another State party.56

Are ‘community interests’ by themselves not amenable to reciprocity? Simma has always resisted such a view.57 If, for instance, human rights are enshrined in a treaty, that treaty remains a reciprocal promise of the States parties that testifies to the interest each of them takes in the observance of minimum rules of human rights by all the States parties, or maybe by all States. Thus, there is no reason why community interests should not be protected by the traditional means of reciprocity. Thus, States may adopt countermeasures not only against States violating the rights of the citizens of the claimant State, but also against those violating the rights of their own citizens.

As is well known, the international community had some difficulty with agreeing to so-called ‘third party-countermeasures’ for the violation of community interests. While the ILC had suggested admitting them under narrow circumstances in 2000, they were dropped from the State responsibility draft in 2001 due to heavy State opposition,58 relating both to obligations in multilateral treaties towards all States parties (obligations erga omnes partes) and to those in customary law recognized as obligations towards the international community as a whole (obligations (p.127) erga omnes). Instead, while introducing stringent requirements for countermeasures of any sort, the Commission left the question explicitly open whether ‘third parties’ not directly injured by a violation of international law should be allowed to resort to them.59 It is highly understandable why weak States object to countermeasures because they will seldom be able to induce strong States to comply with their international obligations by violating their own obligations in response. Nevertheless, if permitted in the case of simple breach of a bilateral obligation, it is inconceivable to provide a lower threshold of protection to those obligations considered erga omnes or even jus cogens. Protections against vigilantism should rather be found in the general limitations to countermeasures as contained in Articles 49–53 Articles on State Responsibility.

The necessity of such reciprocal protection of community interests is underlined by the failure of the Commission to come up with a convincing regime for the serious violation of the most important rules of international law of the jus cogens variety. The ILC Articles provide for a rather minimal set of additional consequences of such heinous acts, relating to the duties of third State rather than additional consequences for the wrongdoing State. Thus, Article 41 asks other States to cooperate against such violations and not to recognize the consequences of such acts. The latter obligation can also be derived from the provisions of Article 16 on aid or assistance for the violation of any rule of international law, and even from the ICJ Namibia Opinion with regard to violations of the prohibition on the use of force.60 This is all that remains from the original proposition of ‘international crimes of State’ as contained in the first ILC draft on the matter in 1996.61

As a consequence, the ILC did not satisfactorily solve the riddle of how to protect community interests in the framework of the bilateralist regime of State responsibility. It even seemed to take back some of the original strength of the Barcelona Traction judgment. Whereas the ICJ had insisted that any State has a legal interest in the protection of obligations erga omnes and can thus arguably also demand implementation,62 the Law Commission now speaks of ‘[a]ny State other than an injured State’ that is exceptionally, in Article 48, entitled to invoke responsibility. Thus, the ILC does not recognize an injury, but exceptionally grants rights to (p.128) invoke the observance of those rights. It thus fails to take up the original idea that obligations erga omnes can be invoked by all States in their collective interest in the implementation of the minimum rules for civilized State conduct. What is less well known is that it was Simma who had proposed such a solution,63 but this option was not accepted by the Commission. Due to scarce practice, it is anybody's guess whether or not the exception carved out in Article 48 for obligations erga omnes has achieved the status of customary law.

The weak implementation of community interests also signifies something else: in the last resort, it is international institutions that have to take up collective concerns. ‘Systemic reciprocity’ of the kind envisaged in the ILC draft can only occasionally contribute to implementing obligations towards the community. Only the institutional pursuit of community interests will ultimately allow for a more regular response to violations of international law. Bilateralization of collective interests is inferior to institutionalization. This is the reason why the need for the bilateralization of community interests appears greatest in areas of international law that are not sufficiently institutionalized, such as environmental protection or human rights.

Where a comparably strong institution exists, such as the UN system for the maintenance of international peace and security or the World Trade Organization system in trade, the action will move to the institutional system. Certainly, such systems may have bilateral and reciprocal features,64 but they go structurally beyond the old bilateralism towards institutionalization. Thus, the recent interest in the constitutionalization of international law and relations may ultimately be the key towards a move from bilateralism to community interests—it is thus not by accident that Simma began his treatment of community interests with the UN system.65 But the reverse is also true—as long as the institutionalization or constitutionalization of the most important obligations that are so central to human survival remains shockingly incomplete, community interests will need the mechanism of reciprocity for their implementation.

3. Community interests at the International Court of Justice

How have community interests fared versus bilateralism in Simma's years on the bench so far? Obviously, many cases are simply neutral. But in the cases that mattered most, community interests have left a mark—at times in the judgment or opinion, at others only in Simma's quite numerous separate and dissenting opinions. While it is naturally quite difficult to identify Simma's impact on the judgments and opinions while in majority, the biggest trend in his separate and dissenting opinions is his insistence that the Court cannot and should not only find (p.129) the most minimalist solution to the case or problem at hand, but should be aware of its larger role in the UN system and the international community at large. This is the subtext of his opinions from his partial dissent in Oil Platforms briefly after the Iraq war66 to his declaration in the most recent Kosovo opinion.67

It is probably Simma's contextualism that distinguishes his hermeneutical approach from his brethren: he does not see cases in isolation, but as part of the broader social and political context, and he is of the strong belief that the Court, as principal judicial organ of the UN, needs to fulfil that role in this fashion. Here he is in Oil Platforms:

What the Court could have done…is to restate the backbone of the Charter law on use of force by way of strong, unequivocal obiter dicta. Everybody will be aware of the current crisis of the United Nations system of maintenance of peace and security… . In this debate, ‘supplied’ with a case allowing it to do so, the Court ought to take every opportunity to secure that the voice of the law of the Charter rise above the current cacophony.68

This characteristic passage at a fateful time for international law shows Simma as an advocate of the community interest in a court taking its mission seriously to uphold the law not only in the concrete case, but beyond, lifting its eyes from the case at hand to the world out there.

And again, in his most recent declaration in the Kosovo case:

In this respect, in a contemporary international legal order which is strongly influenced by ideas of public law, the Court's reasoning on this point is obsolete.…First, by unduly limiting the scope of its analysis, the Court has not answered the question put before it in a satisfactory manner. To do so would require a fuller treatment of both prohibitive and permissive rules of international law as regards declarations of independence and attempted acts of secession…. Secondly, by upholding the Lotus principle, the Court fails to seize a chance to move beyond this anachronistic, extremely consensualist vision of international law.69

Again, in an advisory case, Simma sees the Court in a broader role rather than answering the question put to it in a minimalist fashion. One may only regret that, different from Oil Platforms, Simma declines to give his own response to questions of ‘remedial secession’ instead.70

In between, however, these two statements of principle gave way to a pragmatic extension of the role of community interests in the Court's case law, usually with Simma's assent. While the Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory has remained extremely controversial, few observers seem to have noted that the legal consequences spelt out there closely follow the (p.130) Articles on State Responsibility in calling for a collective reaction to the violation of erga omnes norms. Accordingly, first of all, Israel itself is obliged, according to the classical bilateral rules of State responsibility, to cease its illegal conduct and to provide reparation, for example, to re-establish the previous situation, that is to remove the wall, and to compensate for losses incurred.71 With reference to the erga omnes nature of the right to self-determination and of the bulk of international humanitarian law,72 the Court calls ‘third States’ to action:

Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction…In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation…to ensure compliance by Israel with international humanitarian law as embodied in that Convention.73

Without mentioning Article 41 Articles on State Responsibility, this passage reads as recognition of the particular consequences of a serious breach of jus cogens regulated therein, namely a duty of cooperation of all States to bring to an end through lawful means any serious breach and not to recognize as lawful a situation created by it. In addition, the Court also relies on common Article 1 of the Geneva Conventions and interprets the obligation of States parties ‘to respect and to ensure respect’ for international humanitarian law ‘in all circumstances’ as providing for an obligation erga omnes partes. With the explicit acceptance of the opinion by the General Assembly, and also the recognition by the Supreme Court of Israel that ICJ findings on the law are of a persuasive nature,74 the Court has thus adduced at least considerable opinio juris, if not also legal practice for a customary nature of this part of the Articles on State Responsibility. It does not matter that it uses the language of erga omnes rather than serious violations of jus cogens, because the late change of words in the ILC draft was purely terminological in nature.75 In another Separate Opinion, in the Congo case, Simma emphasized that the Wall Opinion implies standing for States both regarding obligations erga omnes (partes) as well as under common Article 1 of the 1949 Geneva Conventions.76 (p.131)

Finally, as a last example, let me mention the Joint Separate Opinion by Judges Higgins, Kooijmans, Elaraby, Owada, and Simma in the other Armed Activities case, namely the new application of 2002.77 In this opinion, the five judges suggest a reconsideration of the Court's interpretation of the 1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide 78 as permitting reservations to Article IX of the 1946 Genocide Convention providing for binding ICJ jurisdiction.79 In its 1951 Opinion, the Court had famously introduced the ‘object and purpose’ test for the permissibility of reservations that has now been codified in Article 19(c) VCLT.80 The five judges now conclude:

It is thus not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention and we believe that this is a matter that the Court should revisit for further consideration.81

By this separate opinion, the five judges take away an important argument for States now ratifying the Convention: if so many judges declare their readiness to reconsider, an argument to the effect that a reserving State could rely on the old case law will have much less weight. In 2006, less than five years ago, there was no majority for overturning the permissive attitude the Court has shown with regard to reservations. Judge Simma and the four brethren open up space on the way towards independent judicial control.82 Thereby, the public function of the Court would be considerably strengthened—and the possibility of reciprocally excluding the jurisdiction of the Court by way of reservations limited.

As we have seen, community interests continue to grow in importance in the Court docket. At times, it seems that Judge Simma wished the Court had more forcefully advanced its self-understanding as a guardian not only of legality, but also of community interest. Again, however, he will have understood that the ‘bilateralist grounding’ will accompany international law for quite some time. Reciprocity will thus remain Janus-faced: on the one hand, advancing the development of (p.132) international law; on the other, allowing States to avoid the strict application of the law in their mutual relations. It will remain the task of the Court to keep reciprocity in balance with community interests.

IV. Asymmetrical Armed Conflict and Reciprocity

Finally, let me add a few words on reciprocity in international humanitarian law. Reciprocity has played quite a role recently in arguments about the applicability of much of international law to the alleged ‘armed conflict’ between the United States and Al-Qaeda. Some voices, in particular in the US government, had argued that because of the lack of reciprocity between a democratic State bound by international humanitarian law, on the one hand, and a non-State grouping that does not intend to respect even a minimum of rights for civilians, on the other, international humanitarian law was not applicable at all, at least not as a matter of law. In his now infamous statement of 7 February 2002,83 US President Bush Jr had ordered the application of ‘the principles of Geneva’ to the Taleban, not Al-Qaeda, not as a matter of right, but of pure charity. Thus, the ‘laws of war’ would allow for the application of military law, but reciprocity would render the humanitarian part inapplicable. Terrorists, like pirates in Roman times,84 were considered ‘enemies of humankind’ enjoying no rights whatsoever.

Again, it is Simma who, in his Separate Opinion to the Congo case,85 has forcefully resisted such a ‘pick-and-choose’ approach to humanitarian rules, reminding us of their special status as rules in the community interest not subject to conditions of reciprocity. Again, he does not object to what the Court has said, but rather what it has failed to say, arguing that no group of people may ‘remain…unprotected by the legal shield’ of humanitarian and human rights law,86 explicitly in view of the background discussion of the ‘legal black hole’87 dug by the Bush Jr government in Guantánamo Bay.88 Judge Simma reminded us of the filling of eventual gaps in (p.133) the legal protection during armed conflict by Article 75 of Additional Protocol I that provides:

[P]ersons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment…shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided for by this article.89

Article 75 was meant to apply also to persons not counting as ‘protected persons’ under the Geneva regime,90 including Article 4 of Geneva Convention IV. In addition, as Simma did not fail to mention, even the United States once acknowledged the customary status of that article, as referenced in the Operational Law Handbook of the US army in 2002, that is during the Bush Jr era.91 In the meantime, in Hamdan, a plurality of the US Supreme Court has confirmed the customary nature of the core of Article 75 of Additional Protocol I.92 But it is to be regretted, to say the least, that the applicability of these rules embodying the heart of the human rights commitment, and which must be held to contain, in the language of the ICJ, ‘elementary considerations of humanity’,93 does not muster a clear majority, if not unanimity, in the Supreme Court of the leading Western nation. No other person than former Bush Jr Legal Advisor John Bellinger has recently deplored the failure of both the Bush and the Obama administrations to live up to the Article 75 standard.94

Thus, in international humanitarian law, reciprocity has its limits. This has been recognized not only in Article 60(5) VCLT excluding humanitarian law from reciprocal non-observance of its rules, but also by common Article 3 and Article 75 of Additional Protocol I containing minimum rules that are not subject to reciprocity, and that are increasingly regarded as absolute minimum standards for the treatment of all persons hors de combat. Widespread ratification has rendered the point of the customary character of common Article 3 largely moot, but arguably (p.134) customary law has broadened its scope of application. The war crime articles of the Rome Statute of the International Criminal Court, as well as the Statute of the International Criminal Tribunal for Rwanda, and the case law of the International Criminal Tribunal for the Former Yugoslavia have penalized its violation,95 and while the Rome Statute has not yet found universal acceptance, no one dares to question the definitions of criminal conduct in armed conflict contained therein that is not predicated on any condition of reciprocity. However, reciprocity still reigns with regard to the scope of application of the Rome Statute, as Article 12 attests.

However, historically, and regardless of the humanitarian impulse behind the beginning of modern humanitarian law, reciprocity used to be the basic condition set by States for the applicability of humanitarian law. Otherwise, States feared to be at a military disadvantage. After all, war is a situation where each party strives to win at almost all costs. Nevertheless, after the general participation clause of Article 2 of Hague Convention IV?96 including the Hague Regulations of 1899 and 1907 had prevented the de jure applicability of the Hague law to both World Wars, the Geneva Conventions substituted general reciprocity by dividing any conflict into bilateral conflicts between the States on each side and rendered the Convention applicable in the mutual relations between those States that were parties to it (common Article 2(3), Article 96(2) of Additional Protocol I). In addition, common Article 2(3) of the Geneva Conventions allows for an ad hoc acceptance of the Conventions by a non-party that is, different from States parties, subject to the actual application of its provisions by the non-party.

Some US voices complain that when the United States fights alongside its allies, it is practically obliged to observe the Additional Protocols it refused to ratify, because its allies otherwise cannot cooperate.97 Common Article 1 of the Geneva Conventions, which also applies to Additional Protocol I for the States party to it (Article 1(1) of Additional Protocol I), can indeed be read as an obligation to see to its observance by non-parties incumbent on States parties on their side of the conflict. However, neither is Al-Qaeda bound by the Geneva Conventions or the Additional Protocols, because it is anything but a State, nor could it make a declaration recognizing the Conventions or the Protocol (cf Articles 1(4), 96(3) of Additional Protocol I) because it does not meet the criteria for a liberation movement fighting against colonial domination and alien occupation or against racist regimes in the exercise of a right to self-determination. (p.135)

On the other hand, positive reciprocity also plays an important role. As is well known, the United States, in the Vietnam war, after some hesitation applied Geneva Convention III to the Vietcong prisoners regardless of the non-recognition of the inter-State character of the conflict,98 in the hope the Vietcong would reciprocate. Article 1 of Additional Protocol II99 tries to maintain factual reciprocity by requiring control of territory as a condition for its applicability in domestic conflicts; a condition, however, that was not repeated in Article 8(2)(f) of the Rome Statute.100

Thus, reciprocity was always an important part of international humanitarian law,101 in particular with regard to the reciprocity of the obligations involved. However, the applicability of international humanitarian law is not predicated on reciprocal application but only on reciprocal obligation.102 In addition, the rules on minimum treatment as contained in common Article 3 and Article 75 of Additional Protocol I are applicable regardless of reciprocity. While the provisions of Geneva Convention III on the personal scope of the Convention require membership of armed forces or at least of militias fulfilling a similar set of criteria,103 common Article 3 is unconditional and equally applicable to all parties alike.104 In the words of the Pictet Commentary: ‘What Government would dare to claim before the world, in a case of civil disturbances…, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages?’105 Alas, after the ‘torture papers’, we cannot be so sure.

Thus, reciprocity remains a central tenet of international humanitarian law, but there is still an overlay of non-reciprocal minimum rules. In the words of Adam Roberts:

There can be strong prudential considerations that militate in favour of observing legal standards…, including those embodied in the laws of war. These considerations include securing public and international support; ensuring that terrorists are not given the propaganda gift of atrocities or maltreatment by their adversaries; maintaining discipline and high professional standards in the counter-terrorist forces; and assisting reconciliation and future peace.…These considerations in favour of (p.136) observing the law may be important irrespective of whether there is reciprocity in such observance by all the parties to a particular war.106

While Roberts is also correct that ‘it is not realistic to expect that the result of the application of such rules will be a sanitized form of war in which civilian suffering and death is eliminated’,107 we may add, however, one important moral consideration. When international law is law at the vanishing point of law, and international humanitarian law is at the vanishing point of international law,108 then only those minimum rules separate the ‘laws of war’—and those obliged to apply them—from lawless barbarism.

V. Conclusion: Reciprocity and Beyond

Thus, in a world in which only States are legitimate law-makers in the sense that they can make laws binding not only on themselves or on consenting third parties—as private parties can do, too—but also on others, individuals, and non-State actors, but in which the central functions of law-making, law-applying and law enforcement are not or not sufficiently centralized, reciprocity remains firmly in place—as an extra-legal reason for States to make and observe international law, as an intra-legal mechanism to induce compliance, to uphold the balance of rights and duties, and also to sanction non-compliance, even as leverage for implementing community interests by individual States acting for the international community. Thus, concepts such as jus cogens and obligations erga omnes, far from signalling an ‘end to reciprocity’,109 testify to its lasting relevance. For better or for worse, the news of the death of reciprocity is greatly exaggerated.

However, reciprocity is not everything. Certain considerations and values cannot be compromised by non-compliance by some. States are not only the makers and breakers, but also the guardians of international law, in particular where courts or tribunals lack jurisdiction and competence, not (only) for their own sake, but for the sake of all those who are protected by international legal rules but lack either the power or the legal standing to see for themselves. As international lawyers—and as lawyers tout court—we must uphold the minimum core of civilization as good in itself, as condition for survival, as obligation towards future generations. Reciprocity—as shown by Groucho Marx at the beginning of this article—cannot rule there. Or, in the words of the dedicatee of this volume:

If the international community allowed such [community] interest to erode in the face not only of violations of obligations erga omnes but of outright attempts to do (p.137) away with these fundamental duties, and in their place to open black holes in the law in which human beings may be ‘disappeared’ and deprived of any legal protection whatsoever for indefinite periods of time, then international law, for me, would become much less worthwhile.110

Let me express the hope that, in a circle of virtuous reciprocity, younger generations of international lawyers will heed Bruno Simma's call to uphold a worthwhile international law that provides a minimum standard of legal protection to all human beings everywhere.

Notes:

(1) B Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts (Wilhelm Fink, 1970); B Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (Duncker & Humblot, 1972); B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l'Académie de Droit International 217, 232 et passim; B Simma, ‘Reciprocity’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press, online edn) 〈http://www.mpepil.com〉 accessed 26 July 2010.

(2) Simma, ‘Reciprocity’ (n 1) para 1.

(3) See, in particular, M Barkun, Law Without Sanctions (Yale University Press, 1968) 16 et seq, 34; R Falk, ‘International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order’ (1959) 32 Temple LQ 295; Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (n 1) 19–20 with further references; see also HJ Morgenthau, Politics Among Nations: The Struggle for Power and Peace (5th edn, Knopf, 1972) 281.

(4) Simma, ‘From Bilateralism to Community Interest’ (n 1) 248–9, para 16.

(5) A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot, 1984) VII–VIII; see also the more extensive analysis in Simma, ‘From Bilateralism to Community Interest’ (n 1) 258–83, paras 24–43.

(6) B Simma, ‘Comments on Global Governance, the United Nations, and the Place of Law’ (1998) 9 Finnish Ybk Intl L 61, 65.

(7) ILC Articles on Responsibility of States for internationally wrongful acts, taken note of by UNGA Res 56/83 (12 December 2001) UN Doc A/RES/56/83, Annex, Part Three, ch II, Art 49. See also J Crawford (ed), The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries (Cambridge University Press, 2002).

(8) The question is now left open, see ibid. For a previous draft that included them, see ILC Draft Articles provisionally adopted by the Drafting Committee on second reading, UN Doc A/CN.4/L.600, 11 August 2000, 14, Art 54.

(9) B Simma, ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and Its Background in General International Law’ (1970) 20 Österreichische Zeitschrift für Öffentliches Recht 5.

(10) Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts (n 1).

(11) Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (n 1).

(12) Simma, ‘From Bilateralism to Community Interest’ (n 1); B Simma, ‘International Human Rights and General International Law: A Comparative Analysis’ (1995) IV Collected Courses of the Academy of Eur L 153.

(13) E Decaux, La Réciprocité en Droit International (Librairie generale de droit et de jurisprudence, 1980) 224; M Osiel, The End of Reciprocity. Terror, Torture and the Law of War (Cambridge University Press, 2009) 79–80, references omitted; but see ibid, 88, coming to the conclusion that common Art 3 of the Geneva Conventions does not require reciprocity.

(14) For recent contributions to the constitutionalization debate see JL Dunoff and JP Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009); J Klabbers, A Peters, and G Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009); B Fassbender, The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff, 2009), each with further references.

(15) Simma, ‘Reciprocity’ (n 1) para 1.

(16) Ibid, para 2; see also Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts (n 1) 46; Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (n 1) 46.

(17) See, eg, Osiel, The End of Reciprocity (n 13) 2. The whole book mainly deals with reprisals in an untechnical sense, including self-defence, targeting terrorists, and reprisals against civilians in armed conflict.

(18) Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

(19) For a fuller elaboration of this argument using the example of the Treaty between the Russian Federation and the United States of America on Strategic Offensive Reductions (SORT) (adopted 24 May 2002, entered into force 1 June 2003) 2350 UNTS 415, 41 ILM 799, that was apparently concluded as a substitute for meaningful arms control; see A Paulus and J Müller, ‘Survival Through Law. Is There a Law Against Nuclear Proliferation?’ (2007) 18 Finnish Ybk Intl L 83, 97.

(20) B Simma, ‘Reservations to Human Rights Treaties—Some Recent Developments’ in G Hafner (ed), Liber Amicorum Professor Seidl-Hohenveldern—in Honour of his 80th Birthday (Kluwer Law International, 1998) 659.

(21) For an in-depth treatment, see, in particular, Simma, ‘Reflections on Article 60 VCLT’ (n 9).

(22) See Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, 65, para 104, reserving the clause to ‘exceptional cases’; see also ibid, 68, para 114, rejecting reciprocal non-compliance. But see Dissenting Opinion of Judge Herczegh [1997] ICJ Rep 176, invoking the fundamental changes in the attitude to the protection of the environment since the conclusion of the treaty.

(23) On the rejection of the theory of unequal treaties in international law, see Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (n 1) paras 2, 34, 39, with further references; Verdross and Simma, Universelles Völkerrecht (n 5), para 753. Such considerations might put into danger the stability of international law because they might be levelled against most peace treaties.

(24) Presidential Proclamation No 2667 and Executive Order No 9633, in Laws and Regulations on the Regime of the High Seas (1951) 1 UN Legislative Series, ST/LEG/SER. B/1, 39, 41. Cf Verdross and Simma, Universelles Völkerrecht (n 5) 715, para 1114; Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts (n 1) 56–9.

(25) According to Art 12, ‘[t]here is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation’.

(26) See Art 42 Articles on State Responsibility, see also in ibid (n 7) 69, 245, commentary, para (1).

(27) See Section III below.

(28) See the references in n 13 above. For a more sceptical view see Simma, ‘Reflections on Article 60 VCLT’ (n 9) 19–22; similarly the ILC in Crawford (ed), The International Law Commission's Articles on State Responsibility (n 7) 282, paras 4 and 5.

(29) In addition, the ICJ explicitly excludes the termination or suspension of a treaty as such by countermeasures: see Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, 65, para 106.

(30) Crawford (ed), The International Law Commission's Articles on State Responsibility (n 7) 281, para 2, 283, para 6.

(31) Ibid, 282, para 5, but see Air Services Agreement of 27 March 1946 between the USA and France, Decision of 9 December 1978, (1979) 18 Rep of International Arbitral Awards 415, 443, para 83 for the proposition that countermeasures ‘must…have some degree of equivalence with the alleged breach’. However, the arbitral award does not clarify whether it simply refers to the proportionality principle in general or whether it demands an additional connection between breach and countermeasure, ibid, para 82.

(32) D Bell, ‘The World and the United States in 2013’ (1987) 116 Daedalus 1, 14.

(33) See, in particular, Simma ‘From Bilateralism to Community Interest’ (n 1); Simma, ‘International Human Rights and General International Law’ (n 12).

(34) For a more complete treatment, see A Paulus, ‘The International Legal System as a Constitution’ in JL Dunoff and JP Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009) 69, 75–81.

(35) Simma, ‘From Bilateralism to Community Interest’ (n 1) 230–1, para 2, preferring ‘bilateralism’ to Verdross’ use of ‘relativity’: Verdross and Simma, Universelles Völkerrecht (n 5) para 49 et seq.

(36) W Riphagen, ‘Third Report on State Responsibility’ (1982) 2(1) ILC Ybk 36, 38; S Rosenne, ‘Bilateralism and Community Interest in the Codified Law of Treaties’ in W Friedmann (ed), Transnational Law in a Changing Society: Essays in Honor of Philip C Jessup (Columbia University Press, 1972) 202 et seq.

(37) Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 181–2.

(38) On the difficulties of dealing with general principles as codified in Art 38 of the ICJ Statute, see the seminal article by B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1992) 12 Australian Ybk Intl L 82.

(39) P Allott, Eunomia. New Order for a New World (Oxford University Press, 1990) 248, approvingly cited in Simma, ‘From Bilateralism to Community Interest’ (n 1) para 1.

(40) UN General Assembly ‘2005 World Summit Outcome’ Res A/60/1 (24 October 2005) UN Doc A/RES/60/1, para 139; see also UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674, para 4 (‘reaffirms’), UNSC Res 1706 (31 August 2006) UN Doc S/Res/1706; Report of the Secretary General, ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677, para 3; C Stahn, ‘Responsibility to Protect’ (2007) 101 American J Intl L 99.

(41) Allott, Eunomia (n 39) 248.

(42) According to para 139 of the 2005 World Summit Outcome (n 40), UN member States, ‘are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. This falls short of a legal obligation and only relates to the most heinous crimes, but is at least a beginning.

(43) See, eg, G Abi-Saab, ‘Whither the International Community?’ (1998) 9 Eur J Intl L 248–65; and, recently, Klabbers, Peters, and Ulfstein, The Constitutionalization of International Law (n 14).

(44) Simma, ‘From Bilateralism to Community Interest’ (n 1) 248–9, para 16, 285, para 45.

(45) Ibid. For a more extensive treatment by the present author, see AL Paulus, ‘Jus Cogens in a Time of Hegemony and Fragmentation’ (2005) 74 Nordic J Intl L 297, with further references.

(46) AL Paulus, Die Internationale Gemeinschaft im Völkerrecht (Münchener Universitätsschriften Reihe der Juristischen Fakultät; Bd 159, CH Beck, 2001) 251–2.

(47) Austria v Italy (Pfunders Case) (1961) 4 Ybk 116 (EComHR). On the significance of the case, see Simma, ‘From Bilateralism to Community Interest’ 366–75, paras 115–20.

(48) See the famous Lüth case that pioneered the ‘objective dimension’ of fundamental rights in the German Grundgesetz, Lüth, Judgment of the Federal Constitutional Court (15 January 1958) 7 Entscheidungen des Bundesverfassungsgerichts 198, 204 et seq. See also E Klein, ‘Denunciation of Human Rights Treaties and the Principle of Reciprocity’ in this volume, p 477.

(49) G Hardin, ‘The Tragedy of the Commons’ (1968) 163 Science 1243.

(50) Interestingly enough, however, the ILC did not replicate this definition in the Articles on State Responsibility verbatim, speaking in its Art 48(1)(b) of the ‘international community as a whole’ rather than the ‘international community of States as a whole’. Rumour has it that this decision was made in committee by one single vote—hardly the broad-based legitimacy that such a move would require to be universally accepted.

(51) To the chagrin of some, including Bruno Simma, the ICJ has avoided the issue in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), 22 July 2010, 〈http://www.icj-cij.org/docket/files/141/15987.pdf〉 accessed 26 July 2010, paras 82–3; cf Declaration of Judge Simma, 〈http://www.icj-cij.org/docket/files/141/15993.pdf〉 accessed 26 July 2010, para 6.

(52) See, eg, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 199, paras 155, 157; I Brownlie, Principles of International Law (7th edn, Oxford University Press, 2008) 511; Verdross and Simma, Universelles Völkerrecht (n 5) para 527; American Law Institute (ed), Restatement of the Law. The Foreign Relations Law of the United States (3rd edn, American Law Institute Publisher, 1987) para 102, Reporter's note 6.

(53) U Fastenrath, ‘Subsidiarität im Völkerrecht’ (2002) 20 Rechtstheorie Beiheft 475, 488, n 88; for my response, see Paulus, ‘Jus Cogens’ (n 45) 308–9, n 40. For an interchangeable use of the terms see L Henkin, International Law: Politics and Values (Kluwer Law International, 1995) 97–108.

(54) Ireland v United Kingdom (App no 5310/71) (1978) Series A no 25, 90. On this point, see Simma, ‘From Bilateralism to Community Interest’ (n 1) 358–75, paras 109–20.

(55) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections (Judgment) [1996] ICJ Rep 595, 623, para 47 (affirming its jurisdiction).

(56) For a recent example, see Georgia v Russia (App no 13255/07) (2009) Admissibility decision.

(57) Simma, ‘From Bilateralism to Community Interest’ (n 1) 370–5, paras 117–20.

(58) For the official explanation see Crawford (ed), The International Law Commission's Articles on State Responsibility (n 7) 305 para 6.

(59) Art 54 Articles on State Responsibility only contains a ‘no-prejudice clause’. See generally C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005); D Alland, ‘Countermeasures of a General Interest?’ (2002) 13 Eur J Intl L 1221; M Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ (2001) 72 British Ybk Intl L 337, 355–6 (against legal regulation of unilateral measures of this kind).

(60) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971)] ICJ Rep 16, 54, paras 117, 119 (based on a binding determination of the Security Council).

(61) Crawford (ed), The International Law Commission's Articles on State Responsibility (n 7) 348, 352, 361–2.

(62) ‘In view of the importance of the rights involved, all States can be held to have a legal interest in their protection’: Barcelona Traction, Light and Power Company, Limited, Second Phase (Judgment) [1970] ICJ Rep 32, para 33.

(63) B Simma, ‘Staatenverantwortlichkeit und Menschenrechte im ILC-Entwurf 2001’ in JA Frowein et al (eds), Verhandeln für den Frieden Liber Amicorum Tono Eitel (Springer, 2003) 423.

(64) See, eg, PT Stoll, ‘The World Trade Organization as a Club: Rethinking Reciprocity and Common Interest’, in this volume, at p 172.

(65) Simma, ‘From Bilateralism to Community Interest’ (n 1) 258 et seq.

(66) Oil Platforms (Iran v United States) (Separate Opinion of Judge Simma) [2003] ICJ Rep 324.

(67) Kosovo Opinion (Declaration of Judge Simma) (n 51).

(68) Oil Platforms (Separate Opinion of Judge Simma) (n 66) 327–8, para 6.

(69) Kosovo Opinion (Declaration of Judge Simma) (n 51) para 3.

(71) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 197–8, paras 149–53.

(72) Ibid, 199, paras 155–7.

(73) Ibid, 200, para 159.

(74) See UNGA Res ES-10/15 (2004) UN Doc A/RES/ES-10/15; Mara'abe v Prime Minister of Israel, HCJ 7957/04, 15 September 2005, 47, para 74 (Sup Ct Isr 2005).

(75) See Crawford (ed), The International Law Commission's Articles on State Responsibility (n 7), ‘Introduction’, 36–7. For justified critique, see Koskenniemi, ‘Solidarity Measures’ (n 59) 355.

(76) Armed Activities on the Territory of the Congo (Separate Opinion of Judge Simma) [2005] ICJ Rep 346–8, paras 33–5; Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31, 85, 135, 287, respectively.

(77) Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) (Joint Separate Opinion) [2006] ICJ Rep 65.

(78) Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [1951] ICJ Rep 16.

(79) See, inter alia, Legality of Use of Force (Yugoslavia v Spain) (Provisional Measures) (Order, 2 June 1999) [1999] ICJ Rep 761, 772, paras 32–3; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 32–3, paras 67–8.

(80) Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [1951] ICJ Rep 24.

(81) Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) (Joint Separate Opinion) [2006] ICJ Rep 72.

(82) See also his argument in favour of ‘calling a spade a spade’ with regard to the armed attack by Uganda against the Democratic Republic of Congo, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Separate Opinion of Judge Simma) [2005] ICJ Rep 334–5.

(83) GW Bush, ‘Humane Treatment of Taliban and Al Qaeda Detainees’ in KJ Greenberg and JL Dratel (eds), The Torture Papers. The Road to Abu Ghraib (Cambridge University Press, 2005) 134–5. Cf A Roberts, ‘The Laws of War in the War on Terror’ (2002) 32 Israel Ybk on Human Rights 192, 234; A Paulus and M Vashakmadze, ‘Asymmetrical War and the Notion of Armed Conflict—A Tentative Conceptualization’ (2009) 91 Intl Rev of the Red Cross 95, 109, with further references.

(84) See the adage by Cicero designating pirates as communis hostis omnium (‘common enemy of all’), De officiis III, 29.

(85) Armed Activities on the Territory of the Congo (Separate Opinion of Judge Simma) [2005] ICJ Rep 334.

(86) Ibid, 339, para 17.

(87) The use of the term for Guantánamo stems from J Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 Intl & Comparative LQ 1.

(88) Armed Activities on the Territory of the Congo (Separate Opinion of Judge Simma) [2005] ICJ Rep 340, para 19.

(89) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3.

(90) Armed Activities on the Territory of the Congo (Separate Opinion of Judge Simma) [2005] ICJ Rep 343, para 26. See also Y Sandoz, C Swinarski, and B Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Nijhoff, 1987) 869; European Commission for Democracy through Law (Venice Commission), Opinion on the possible need for further development of the Geneva Conventions (adopted 12–13 December 2003) (No 245/2003, doc no CDL-AD (2003) 018) para 71, 85, cited therein. See also Art 45 AP I, ensuring that Art 75 applies to persons having taken part in hostilities but not entitled to prisoner-of-war status.

(91) US Army, Operational Law Handbook (2002), 15 June 2001, ch 2, p 5; Roberts, ‘The Laws of War in the War on Terror’ (n 83) 230–1.

(92) Hamdan v Rumsfeld, 548 US 557, 633–34 (2006) (Stevens J, Plurality Opinion); relying also on the US Legal Adviser, WH Taft IV, ‘The Law of Armed Conflict After 9/11: Some Salient Features’ (2003) 28 Yale J Intl L 319, 322.

(93) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 114, para 218; Corfu Channel (Merits) [1949] ICJ Rep 22.

(94) J Bellinger, For Obama, Vexing Detainee Decisions Loom (Council on Foreign Relations, 2010), 14 April 2010, 〈http://www.cfr.org〉 accessed 3 August 2010.

(95) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Art 8(2)c); Statute of the International Criminal Tribunal for Rwanda, Art 4; UNSC Res 955 (1994) UN Doc S/Res/955, Annex; Prosecutor v Tadić, Interlocutory Appeal on Jurisdiction, IT_91-1-AR72, 2 October 1995, para 134.

(96) Hague Convention IV Respecting the Laws and Customs of War on Land, 18 October 1907 (1862–1910) 3 Martens NRG, 3éme sér 461 (French, German); (1907) 205 CTS 277; (1908) 2 American J Intl L Suppl 90.

(97) Osiel, The End of Reciprocity (n 13) 342 with further references.

(98) Roberts, ‘The Laws of War in the War on Terror’ (n 83) 104.

(99) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609.

(100) For an attempt to deduce from this wording a lessening of the requirements of Art 1 AP II, see Paulus and Vashakmadze, ‘Asymmetrical War and the Notion of Armed Conflict’ (n 83) 103–6 with further references to the conflicting case law of the ICTY and ICC.

(101) J de Preux, ‘The Geneva Conventions and Reciprocity’ (1985) 244 Intl Rev of the Red Cross 25.

(102) D Jinks, ‘The Applicability of the Geneva Conventions to the “Global War on Terrorism”?’ (2005) 46 Virginia J Intl L 165, 193.

(103) Art 4 A II Geneva Convention II.

(104) A clause requiring reciprocity was explicitly dropped in the course of the negotiations: see JS Pictet (ed), The Geneva Conventions of 12 August 1949. Commentary (International Committee of the Red Cross, 1952–58) 37.

(106) Roberts, ‘The Laws of War in the War on Terror’ (n 83) 206.

(108) Cf H Lauterpacht, ‘The Problem of Revision of the Law of War’ (1952) 29 British Ybk Intl L 360, 382.

(109) Cf Osiel, The End of Reciprocity (n 13). But see S Watts, ‘Reciprocity and the Law of War’ (2009) 50 Harvard Intl LJ 365, 431.

(110) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Separate Opinion of Judge Simma) [2005] ICJ Rep 350, para 41.