International ObligationsInternational Obligations by International
Organizations in the Absence of State Control
Modern sovereignty is characterized by an increasing interdependence between states. In fact, states engage in highly complex exchanges and interconnected relations, not only in the most apparent domain of commercial transactions, but in almost all spheres of their daily activities. Noticeably, the international system has come to rely on the mutual fulfillment of international obligations by states. As the community of states becomes more and more interconnected, certain obligations must be performed to guarantee certainty and security in other states. This concerns both international and national obligations.
On one side, on the internal dimension, states actions are rarely confined to national borders: acts performed by one country -even if directed at managing purely internal affairs — have consequences for the affairs of other states. For example, a health policy decision that decreases the availability of vaccinations to a certain population in Country A may result in the increase of the disease in Country A’s neighbouring countries.
On the other side, focusing on the external dimensions, states need the execution of internal and external acts by other states to perform their functions, maintain safety and eventually even for their existence. This situation can again be exemplified with a health policy example. In fact, campaigns to eradicate certain diseases – like the recent campaign to eradicate polio — can be successful only if all countries implement common and coordinated policies directed at the eradication of the disease.
Similarly, regardless of their primary purpose, many internal acts also fulfill international obligations and are performed also for the benefit of other states and international organizations. They include, amongst others, guaranteeing international safety, the management of airspace and territorial waters, border patrolling, guaranteeing standards of human and animal health, ensuring minimum financial and banking standards.
The minimum performance of these functions for other members of the international community was in the past a matter of convenience and comity. It has now become critical and indispensable for other members of the international community. This situation cannot simply be seen as a matter of treaty violation, and the question therefore becomes what can be done to correct the situation when states cannot fulfill their obligations.
However, although the ability to fulfill international obligations is one of the constitutive requirements of a state,1 the question of what happens in the event of the inability of a state to discharge international obligations has not been explored by the international legal system. This situation is particularly apparent in the cases of failed states, but it is not limited to them. The UN
- JSD Student, Yale Law School. Associate, Lalive and Partners. This is a part of a work in progress.
1 The Montevideo Convention on the Rights and Duties of States defines states as entities possessing four sufficient and necessary characters. The principle states that “(t)he State as a person in international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; © Government; and (d) capacity to enter into relations with other States.” Montevideo Convention on the Rights and Duties of States of 26 December 1933,
LEAGUE OF NATIONS TREATY SERIES, Vol. 165, p.19.
Charter does not contain specific provisions on the matter, and there are no subsequent international agreements that properly address this subject.
So far, the international community has fulfilled external obligations in the absence of a national capacity to do so, taking control to varying degrees of several state functions. In the continuum, this is first confirmed by development and cooperation projects and then achieved through United Nations reconstruction activities. There are four possible mechanisms: full United Nations governance; humanitarian interventions; «common good» situations; and development projects. Each of these mechanisms has some interesting and specific features, but none of them is completely satisfactory.
The division of international obligations of States obligations of action or refraining from action essential to establish terms of their compliance or violations, and to establish the date of their violations, that is, to criminalize conduct by a state as lawful or unlawful. Thus, in General terms, a distinction can be drawn between international obligations that require a state to behave in a particular way (act or omission) and international obligations that require a state only to provide a certain position or outcome in any freely chosen or available way.2
In this presentation, I focus on these questions and briefly assess how the United Nations has addressed and resolved them.
Thus far, the international community has discharged external obligations in the absence of national ability to do so by taking control in various degrees of several state functions. In a continuum, this is first exemplified by development and cooperation projects, and then attained in the nation rebuilding exercises that the United Nations is implementing in East Timor and Kosovo. I have identified four possible mechanisms: full administration by the United Nations; humanitarian interventions; ‘common goods’ situations; and development projects. Each of these mechanisms presents some interesting and specific features, but none is entirely satisfactory.
Because of time constraints, I can only briefly mention some interesting examples and assess them. This is part of a work-in-progress, at the end of which I plan to develop a framework of legal criteria to create the possibility of intervention by the United Nations to fulfill necessary international obligations.
1. Humanitarian Interventions: The Case of the Airspace of Somalia
The international community, represented by the United Nations, has developed a framework to deal with some external and internal obligations that involve mainly failed states by using development and humanitarian projects.
Under the authority of a Chapter VII measure, United Nation humanitarian interventions become more and more comprehensive,3 and their mandate is approaching a government rebuilding exercise.4
Security Council resolution 814 of March 1993 contained language recognizing specific, albeit limited mandate to ‘assume responsibility for the consolidation, expansion and
2Getman-Pavlova I. V. International private law / I. V. Getman-Pavlova. — Moscow: Yurayt, 2015. — 960 р.
3See, L.W. Reed and C. Kaysen (eds.), Emerging Norms of Justified Intervention (1993)
4F.M. Deng, ‘State Collapse: The Humanitarian Challenge to the United Nations’, in Collapsed States, The Disintegration and restoration of legitimate authority, ( I. W. Zartman Ed., 1995),
maintenance of a secure environment’. For the international community, the implementation of such measures also comported the reassurance of safer borders, decreasing of refugees and displaced and the reduction of illegal trafficking.
With the end of the peacekeeping mission, the mandate was also revised, and still retained extensive powers. In resolution 954 of November 1994, the Security Council mandated UN agencies to ‘provide rehabilitation and reconstruction assistance, including assistance to police and judiciary to the extent that the situation in Somalia develops in such a way as to make that practical.’5 The international community is still very implicated in Somalia. Presently, it is involved in, among other things, ports and roads rehabilitation, judicial and legal restructuring, health service delivery and vaccination, and education — including choice of curriculum and of the language of instruction.6
The instance of Somalia’s airspace is of particular interest. The airspace is not limited to the space directly above the territory of the State of Somalia, but it covers an extensive zone above the sea and extends up to the territory of the Seychelles: many transatlantic flights cross it on their way to and from Europe, Asia and Africa.
In general, states have a mutual responsibility to guarantee the safety of their airspace. This obligation derives from the 1944 Chicago Convention on the International Civil Aviation and it is fundamental for the safety and reliability of civilian air traffic.7
During its 1992-1995 humanitarian intervention, the United Nations Operation in Somalia (UNOSOM) had taken over the management of the airports and the Somali airspace as Force Commander had interpreted UNSOM mandate as including the control of the airspace of Somalia.8 Such authority was derived from Res. 814 and 837 (1993), which mandated UNOSOM to secure all ports and airports for the delivery of humanitarian assistance.
To implement this mandate, in March 1993, UNOSOM concluded an agreement with the International Civil Aviation Authority Organization (ICAO) to provide civil aviation functions from a control tower located in Mogadishu. The operation was concluded in 1995 and UN/ICAO agreement expired at the end of the peacekeeping mission, but the situation in Somalia had not improved and there was no national authority that could take over and run the Aviation Authority. Therefore, the office of the United Nations Development Programme (UNDP) in Somalia took over the role of UNOSOM and agreed to implement a development project to be executed by the ICAO, on behalf of the Secretary General.
As the situation of Somalia does not ameliorate, there seems to be no plan to end the project in the near future. What is more, the UN Secretary General recently suggested the transposition of this arrangement to other similar situations to protect offshore natural resources.9 The necessity of such measures is unquestionable, their legality however remains ill-defined.
- S/RES/954 of 4 November 1994, extending the mission for a final period to 31 March 1995.
- In the absence of the required authority able to sign the project documents, the UNDP developed a special framework by which authority to implement a development project is given on a case-by-case level by the UNDP Administer.
- Convention on International Civil Aviation, Dep’t of State Publication 2816, Treaties and Other
International Acts Series 1591. Also available at www.yale.edu/lawweb/avalon/decade/decad048.htm
- The Trust Fund Agreement, which encapsulates the essential elements, reads “the force commander UNOSOM II is the airspace authority for Somalia airspace”.
- S/1999/882 of 16 August 1999, where the Secretary General considers ‘whether, in advance of political agreements on the formation of a national government, actions could be taken by the
This solution, however, is not unproblematic. First of all, where does the authority of the Secretary Although UNSOM was executed under Chapter VII of the United Nations Charter, 10 the Secretary General only has the powers that are delegated to him from the Security Council. It was rightly noted that in its intervention in Somalia the Security Council acted on ‘the basis of a robust and realistic appreciation of what might constitute a threat to the peace.’The mission had a limited mandate and did not include a general delegation to administer the territory. Moreover, the mission terminated in 1995. 11
Using the established freedom of affirmative action to achieve the desired result, the state may not achieve it by the chosen means, and the situation is final because it cannot be changed. In accordance with the Declaration on principles of international law of 1970, parties to a dispute that have not reached a solution by their chosen means are obliged to seek to settle it by other peaceful means agreed upon by them.
International obligations of the first type are usually called «obligations of conduct» or «obligations of means», the second type — «obligations of result».
However, it should be borne in mind that the difference between «obligations of conduct» and «obligation of result» is not that the former does not pursue a specific purpose or result.
It should of course be borne in mind that, with respect to an international legal norm or set of norms, the social objective pursued can be achieved by both an obligation of conduct and an obligation of result. But the discretion of the state in these cases is significantly different.
Naturally, the establishment of obligations on the result is predetermined by the conditions of their expediency. Thus, in principle, it can be considered that international obligations are much more appropriate when it comes to positive actions of the state in the sphere of its internal order. This, however, does not mean that obligations of result are impractical in inter-state relations, although it is clear enough that obligations of conduct or means prevail here.
Thus, the obligation of the result is a General principle-a principle requiring the settlement of inter-state disputes exclusively by peaceful means freely agreed by the parties to the dispute. For example, the 1961 Vienna Convention on diplomatic relations obliges its parties to «take all necessary measures» to prevent attacks on the freedom and dignity of a diplomatic agent. The choice of such measures by the subject of the state obviously depends on the internal situation at a given moment.12
2. Solutions for Obligations to Deliver ‘Common Goods’
A further instance in which international actors addressed a state’s incapability to discharge its international obligations by performing the required obligation referred to ‘international goods’. This situation is atypical because it is directed at protecting the general community, and not one specific country. This is also the most apparent example of the United Nations performing international obligations.
international community to assist Somalia to recover its sovereignty in certain limited fields, for example the protection of offshore natural resources’, para. 71.
- In the instant case, the legal authority to act can derive from a reading of articles 39 and 41 of the UN Charter. Article 39 authorizes the Security Council to determine whether a “threat to the peace, breach of the peace, or act of aggression” exists and art.
- Michael J. Matheson, ‘United Nations Governance of Postconflict Society’, 95 AJIL 76 (2016), at 83
- International private law / Under the editorship of G. V. Petrova. — Moscow: Yurayt, 2015. — 768 р.
authorities, international organizations, donors, and, often, of civil society. For such an initiative to work ‘(i)t is crucial that [UNICEF] immunize(s) every last child, because the polio virus can spread rapidly across regions and borders. As long as any child is infected, all are at risk.’13 In some situations where national authorities are not able to assist in the initiative the intervention can be difficult. UNICEF identified some priority countries14 were the polio virus is still present and where, therefore, the situation needs urgent attention. Five of these countries are affected by conflict and ‘implementation of vaccination and surveillance activities is particularly challenging.’ 15 These are Afghanistan, Angola, the Democratic Republic of Congo (DRC), Somalia and Sudan. In these cases the international community adopted ad hoc responses: national authorities were ostensibly bypassed and negotiations for access occurred at the sub-national levels. In DRC until 1999, for example, UNICEF organized Sub-National Immunization Days (SNIDs) in five of the eleven provinces, and negotiated access directly with local leaders. Since 1999, the international community has participated in the negotiation of ceasefires named ‘Days of Tranquility’, during which NIDs could be implemented.16 Similarly, in Somalia, UNICEF organized National Immunization Days (NIDs) with the assistance of local communities.
Paradoxically, it is interesting to compare this practice with the recent difficulties of implementing vaccination programmes in Nigeria, which show the limitations still faced by international organization in relation to fully sovereign states. In fact, as a result of concerns by traditional and religious leaders over the safety of the oral polio vaccine, Kano, a province of Nigeria, suspended vaccination for a year. This resulted in a five-fold increase of polio cases in 2004 over the same period in 2003 in Sub-Saharan Africa, including in previously polio-free regions.17 It is estimated that the entire eradication programme has been delayed by at least a couple of years, with ensuing human sufferings.
In the case of ‘common goods’ the solution is provided by a general, often worldwide, intervention and guidelines implemented by one of the UN agencies. However, this is an ad hoc solution that cannot always be implemented. This in fact highlights the need to find a general common policy to consistently address this problem.
- Five are poliovirus reservoirs where transmission is particularly intense. They are Bangladesh, Ethiopia, India, Nigeria and Pakistan. The other five are countries affected by conflict where implementation of vaccination and surveillance activities is particularly challenging. They are Afghanistan, Angola, the Democratic Republic of Congo, Somalia and Sudan. In
- UNICEF, Communication for Routine Immunizations and Polio Eradication: A Synopsis of
five sub-Saharan Country Case Studies, June 2000, p. 5. www.unicef.org/programme/gpp/docu/polio.PDF
- Statement by the Global Polio Eradication Initiative/4, of 3 August 2004, in www.polioeradication.org/content/pressrelease/20040803_pressp
Most of the solutions so far implemented by the United Nations target failed or failing states. Alternatively, UN agencies have implemented development projects that also have had the effect of indirectly fostering the implementation of international obligations.
The question of external fulfillment of national international obligations has to be addressed together with the question of consent of the state whose obligations need to be fulfilled, and to the duty of non-intervention in internal affairs.18
There is a potential tension between the duty of non intervention identified in Art. 2 of the UN Charter,19 and the necessity to fulfill international obligations. This potential tension, however, does not need to surface if the meaning of intervention is rightly considered.
The prohibition of intervention in internal affairs of a state ex art. 2 of the Charter is a corollary to the principle of sovereignty and of the independence of nations. Article 3 of the Draft Declaration on Rights and Duties of States of the International Law Commission restated this principle and provides that ‘every State has the duty to refrain from intervention in the internal or external affairs of any other State.’20 This obligation, however, needs to be qualified: as stated in Oppenheim’s International Law ‘(a)lthough states often use the term “intervention” loosely to concern such matters as criticism of another state’s conduct, in international law it has a stricter meaning, according to which intervention is forcible or dictatorial interference by a state in the affairs of another state, calculated to impose certain conduct or consequences on that other state.’21
Interference that is sufficiently coercive to become an unlawful intervention can take several different forms: it may include the use of armed forces or support given to opposition activities in another state. The key to distinguish intervention from other circumstances is its coercive character, thus some other economic and political actions could also be deemed to be interference in internal affairs if perpetuated contrary to the will of a national government.22 Along this line, the International Court of Justice found in the Military and Paramilitary Activities Case that the United States violated the principle of non-intervention by supporting opposition groups in Nicaragua.23
However, a distinction should be drawn for collective intervention in the general interest of the international community. In fact, the notion and the prohibition of intervention cannot accurately extend to collective action undertaken in the general interest of states or for the collective enforcement of international law. This means that while prohibition of intervention is a limitation upon states acting in their individual capacity, it does not properly apply to remedial or preventive action undertaken by or on behalf of the organs of international society.24
- Christine Chinkin, Third Parties in International Law, 1993
- Which states that “nothing in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.”
- YBILC (1949), p. 286, reported in Oppenheim’s International Law, p. 429
- Ibid. 430
- Ibid. p. 434.
- Military and Paramilitary Activities Case, Judgment of 27 June 1986, ICJ Report 1986.
- Ibid. p. 447
Interventions to fulfill international obligations of third states must be included in this exception. Traditionally, states have consented to varying degrees of interference by other states and the international community in general.25 International community actors participated in fulfilling
obligations relating to internal affairs of states in several different ways. For example, in many cases where a state is not fully capable of providing for the essential rights and needs of its people, many states have established development assistance programmes. In these situations, international organizations and foreign states often provide substantial budgetary and technical support to essential governmental activities.
In fact, the definition of what are matters that are essentially domestic has changed so that interventions in support of certain serious conditions of the internal population have become accepted practice.26 Levitt notes that there has been a progressive shift “from traditional prohibition against forcible intervention in the internal affairs of states, towards the recognition of a right to humanitarian intervention by groups of states and regional actors in internal conflict.”27 This has led to a developing practice of intervention of external actors to defend and uphold human rights.28 As Kirgs acknowledges ‘(u)nquestionably, a great many governmental policies and courses of conduct that were widely thought to be within the “domestic jurisdiction” of states in 1945 are no longer so regarded. The primary examples are found in the category of human rights.’29
I would like to conclude by emphasizing that the fulfillment of international obligations complements, rather than undermines, sovereignty, as it strengthens the rule of law and world order, and enhances the duty of cooperation among states.
- See M. Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’, 84 A.J.I.L. 866, 869
- See for example, A. Tanca, Foreign Armed Intervention in Internal Conflict (1993)
- Jeremy Levitt, Humanitarian intervention by regional actors in internal conflicts: and the cases of ECOWAS in Liberia and Sierra Leone, in 12 Temp. Int’l & Comp. L.J. 333, 333
- Professor Reisman notes that “(t)he United Nations Charter, replicated the “domestic jurisdiction-international concern” dichotomy, but no serious scholar still supports the contention that internal human rights are “essentially within the domestic jurisdiction of any state” and hence insulated from international law”. See M. Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 A.J.I.L. 866, 869
- Frederic L. Kirgis, Editorial Comment, Security Council Governance of Post-conflict societies: a Plea for Good Faith and Informed Decision Making, 95 ASIL 579 (2015), at 579
- Автор: Евгений Кудрявцев, опубликовано 09 декабря 2019