Complicity and the Law of State Responsibility

by Aust, Helmut Philipp

• ISBN13: 9781107010727
• ISBN10: 1107010721
• Format: Hardcover
• Copyright: 2011-10-31
• Publisher: Cambridge Univ Pr

Summary

This systematic analysis of State complicity in international law focuses on the rules of State responsibility. Combining a theoretical perspective on complicity based on the concept of the international rule of law with a thorough analysis of international practice, Helmut Philip Aust establishes what forms of support for wrongful conduct entail responsibility of complicit States and sheds light on the consequences of complicity in terms of reparation and implementation. Furthermore, he highlights how international law provides for varying degrees of responsibility in cases of complicity, depending on whether peremptory norms have been violated or special subject areas such as the law of collective security are involved. The book shows that the concept of State complicity is firmly grounded in international law, and that the international rule of law may serve as a conceptual paradigm for today's international legal order.

Author Biography

Dr. Helmut Philipp Aust is a Senior Research fellow at the Humboldt-University, Berlin. His key research interests lie in the fields of international responsibility. UN law human rights law and the interaction between international and domestic law.

Table of Contents

Foreword	p. ix
Preface	p. xi
Table of cases	p. xiii
List of abbreviations	p. xxiii
Introduction	p. 1
The growing role of complicity in international law	p. 1
The approach of this book	p. 4
Clarifications	p. 9
Complicity between bilateralism and community interest	p. 11
Complicity and the traditional bilateralism of international law	p. 12
Traditional bilateralism	p. 13
Third States and the law of neutrality	p. 15
Complicity and the move beyond bilateralism	p. 23
Collective security	p. 26
Public interest norms	p. 35
Conclusion	p. 47
Complicity and the international rule of law	p. 50
The international rule of law	p. 53
Preliminary issues	p. 53
Individualism or dédoublement fonctionnel?	p. 59
The material completeness of the international legal order	p. 62
The 'climatic' function of the rule of law	p. 65
The principle of abuse of rights	p. 69
General meaning of the concept	p. 70
Abuse of rights as a general principle of international law	p. 71
Abuse of rights and the international rule of law	p. 77
Arbitrariness, the rule of law and the ICJ	p. 81
Abuse of rights and complicity	p. 81
State responsibility and the rule of law	p. 83
Complicity and the international rule of law	p. 89
Conclusion	p. 95
Complicity in customary international law	p. 97
The evolution of the Article on complicity in the ILC	p. 100
Preliminary remarks on customary international law	p. 103
International practice on complicity	p. 107
Assistance in the unlawful use of force	p. 108
The 2003 Iraq war	p. 115
Rendition and detention	p. 120
Provision of shelter and safe haven	p. 128
Military support and violations of international law	p. 129
Foreign aid and violations of international law	p. 145
Economic cooperation	p. 147
Cooperation as consolidation of unlawful events	p. 152
UN resolutions and non-assistance	p. 158
UN Security Council practice: exonerating practice	p. 162
Extradition	p. 164
Legal assistance and cooperation	p. 165
Other cases: unspecified support	p. 168
Governmental statements	p. 169
Objection	p. 170
Constructive criticism	p. 172
Support	p. 173
Evaluation	p. 174
Standards for establishing customary international law	p. 174
Representativeness of the practice	p. 177
Consistency and compliance	p. 179
Opinio juris	p. 181
Remaining uncertainties	p. 186
Conclusion	p. 191
The concept of complicity in Article 16 ASR	p. 192
Significant, yet incidental?: the scope of 'aid or assistance'	p. 195
The discussion in the ILC	p. 195
Interpretation of the provision	p. 197
The subjective element	p. 230
Preliminary remarks	p. 231
The discussion in the ILC	p. 232
Interpretation of the provision	p. 235
Conclusion	p. 249
Complicity and the pacta tertiis rule: Article 16(b) ASR	p. 249
Complicity and the pacta tertiis rule	p. 250
Difficult cases	p. 255
Concluding observations on Article 16(b) ASR	p. 265
Conclusion	p. 266
The consequences of complicity	p. 269
The content and implementation of responsibility for complicity	p. 269
Content of responsibility for complicity	p. 271
Reparation	p. 274
Implementation of responsibility	p. 286
Policy considerations for a prospective regime	p. 295
Complicit States before international courts and tribunals	p. 296
The indispensable third party	p. 297
The case law of the ICJ	p. 298
Complicity and the indispensable third party	p. 305
Essential parties before other courts and tribunals	p. 311
Complicity and aggravated responsibility	p. 319
Introductory remarks	p. 319
The community interest in the law of State responsibility	p. 320
Complicity and serious breaches of peremptory norms	p. 325
Non-recognition and non-assistance	p. 326
The concept of complicity in Articles 16 and 41(2) ASR	p. 338
Further distinctions	p. 345
Complicity and obligations of cooperation	p. 352
The obligation of cooperation in the ASR	p. 352
The Genocide Convention case	p. 358
Interim conclusions	p. 364
Complicity and countermeasures in the collective interest	p. 365
Countermeasures in the collective interest	p. 367
Complicity and countermeasures in the collective interest	p. 371
Conclusion	p. 373
A network of rules on complicity	p. 376
Shortcomings of the general and secondary rules on complicity	p. 377
Inherent normative weaknesses	p. 377
Structural obstacles to holding complicit states responsible	p. 378
Special rules and alternative mechanisms	p. 379
The use of force and collective security	p. 380
International humanitarian law	p. 385
Human rights law	p. 390
Conclusion	p. 415
General conclusions	p. 419
Summary of the main findings	p. 419
Complicity and the international rule of law	p. 423
Bibliography	p. 429
Index	p. 475
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