The Nature Of International Obligations

This dissertation seeks to clarify the different natures of international obligationsand different legal consequences brought by the breach of international obligations withdifferent natures. International obligations can be categorized into two levels: thoselegal norms regulating the state-state relationship stand in the lower level, and they willhave to be enslaved to the legal norms standing in the higher level, i.e., thoseembodying the interests of the international community as a whole. The recognition ofthe existence of different levels of legal norms by the international communityunderwent a process of gradual change, and it has been universally accepted by now.Breach of international obligations will arouse relevant legal consequences in aspects ofboth the law of treaty and the law of state responsibility. The legal consequencesaroused by ordinary breach and serious breach of international obligations are alsodifferent. After classifying the international obligations, this dissertation undergoes todiscuss the legal consequences of breach of these obligations.This dissertation is divided into 8 chapters.Chapter One discusses the emergence of international obligations and theirdifferent levels. International obligations refer to the legal obligations that internationalsubjects must follow in accordance with the provisions of various sources ofinternational law in the international contacts. Breach of international obligations meansthat the conduct that the state takes does not comply with the conduct that the state isrequired to take. Generally speaking, the source of international obligations does notinfluence the formation of state responsibility of the subject of the conduct. Whether theinternational obligation comes of the rules of international customs or comes of thetreaty provisions, the conduct constitutes international delict, and the subject of theconduct will have to bear the international responsibility.In contemporary international legal system, there exist two different levels of legalnorms. The legal principles that embody the interests of the international community asa whole, and therefore possess the characteristics of the "constitution" and the "publicorder" of the international community stand in the higher level in the legal order of theinternational community. They are absolutely binding on all the members of theinternational community. Whereas the legal norms that regulate the horizontalrelationship between the states are of the subordinate nature, and stand in the lowerlevel. International Court of Justice in its decision in Barcelona Traction case, as well asthe Vienna Convention on the Law of Treaties and Draft Articles on State Responsibilityall address and provide on these two different levels of international obligations.Chapter Two mainly discusses the change of the nature of international obligations.Traditional international law theories emphasize the sovereignty of the state. Theequality of state sovereignty precludes the invocation of one state of the responsibilityof another state because this state violates the right of the third state (or the wholeinternational community consisted of states). Breach of rules of international law willproduce the requirement of compensation, but not the right to make retaliation, orbecome the ground of allowing other states to intervene. During 1960s to 1970s,International Law Commission gradually abandoned this strict bilateral concept of legalrelationship engendered by the international wrongful act of one state. This changemanifests in two aspects: treaties that are in conflict with peremptory norms are void;one party to the multilateral treaties can terminate or suspend the performance of thetreaty even if it is not directly influenced by the breach. Wrongful acts at different levelswill lead to different responsibility systems, and the concept of the injured states hasbeen expanded beyond the injured states themselves.Chapter Three seeks to classify international obligations. International LawCommission as well as Vienna Convention on the Law of Treaties and Draft Articles onState Responsibility all classify the international obligations. International obligationscan be classified into two categories: bilateral obligations and multilateral obligations. Ifthe international obligations being breached are of different natures, then the legalconsequences engendered will also be different. First, if the bilateral treaty is beingbreached, both parties to the treaty can make inter se modification to the treatyprovisions. However, if the multilateral treaty is being breached, the specific nature ofthe multilateral treaty needs to be analyzed. Some obligations provided by somemultilateral treaties are bilateral obligation in essence, while some obligations providedby some multilateral treaties cannot be reduced to bilateral obligations. In principle, theinter se modification can be allowed only when the modification is in relevance withbilateral obligations. If the treaty rule is one of integral nature, inter se departure is notallowed. Second, if one party breaches bilateral international obligation, the other partycan suspend the performance of the international obligation provided by the bilateraltreaty. But if the international obligation involved is of collective nature or of integralnature, and one party violates the international obligation provided by the multilateraltreaty, other parties cannot suspend the performance of the integral obligation. Third,determination of whether the international obligation is of bilateral reciprocal nature orof multilateral collective nature also has certain impact on the right to invoke theresponsibility of state breaching the international obligation. In principle, the legal rightto invoke the responsibility of breach of bilateral obligation is limited to the state in theother end of the bilateral relationship. In contrast, if the international obligation beingbreached is of integral nature, every party to the multilateral treaty can invoke theresponsibility.Chapter Four mainly discusses bilateral obligations. Bilateral obligations mainlyderive from bilateral treaties. In the course of contemporary international contacts andcooperation, states are increasingly making use of the legal form of treaties to establishtheir right-obligation relationship. Treaties are agreements with legal binding force.Each party to the treaty must follow the treaty provisions, and enjoy the provided rightsand assume the provided obligations. If party to the treaty violates the principle of pactasunt servanda, breaches the provided obligations, it will have to bear the relevant legalconsequences engendered in aspects of both law of treaties and law of stateresponsibility.Second, the unilateral act of one state to another state with binding force bringsabout bilateral international obligation. For example, the promise and admission madeby one state to another state will produce obligation to this other state. One importantdistinction between unilateral act and treaty act is that the former is based on anexpression of will the purpose of which is to establish a new legal relationship withanother state, or more other states or subjects of international law that do not involve inthe implementation of the act, while the latter is based on a common expression of will,and it involves two or more subjects of international law.Third, some multilateral treaties also produce bilateral obligations. Although thiskind of multilateral treaties are been placed in the multilateral frames, they can bereduced to bundle of bilateral obligations and they are governed by the reciprocalprinciples, and each of them detachable one from the other;for example, the ViennaConvention on Diplomatic Relations and WTO treaties will produce bilateralobligations.There are some other ways to produce bilateral obligations: treaties creating rights forthe third state produce bilateral obligations. When the party to a treaty intends to grant aright to the third state, and this third state agrees to accept or is presumed to accept theright, the party to the treaty assumes an obligation to this third state;generalinternational rules create bilateral obligations. For example, the rules concerning thenon-navigable use of international waters create the obligation of one riparian state toanother state;and finally, judicial judgments also create bilateral obligations. Forexample, International Court of Justice or international tribunals impose on one party tothe lawsuit the binding decision in favor of the other party, and violation of the decisionconstitutes breach of the obligation.Chapter Five mainly discusses multilateral obligations. Multilateral obligations arethose that are applied to more than two states. These obligations are not solelyperformed for one state, but are performed for a group of states or even the internationalcommunity as a whole. The dissertation divides the multilateral obligations into twocategories: obligation to the international community as a whole, and obligations to agroup of states. Compared with bilateral obligations, multilateral obligations are thosestanding in higher levels and are granted priority status. This chapter reviews thedecision of "Barcelona Traction case" by the International Court of Justice, whichtreated of the obligation erga omnes. This decision had great impact in many aspects.This chapter also discusses two problems relevant to the obligation to the internationalcommunity as a whole: international peremptory norms and international crimes. ViennaConvention on the Law of Treaties of 1969 expressly provides peremptory norms. Thishas attached great significance in both international theories and practices, and this is animportant contribution to the gradual development to the international law. Article 19 tothe Draft Articles of State Responsibility advances the concept of state crime. However,when it was being placed for discussion, this article aroused increasingly drastic debates.International Law Commission abandoned the use of this concept in the Draft Articleson Responsibility of States for Internationally Wrongful Acts in 2001, and focused on theconcept of "obligation to the international community as a whole" and the legalconsequences engendered by the breach of this obligation. The concept of stateassuming the legal obligation to the international community as a whole has alreadybeen applied to the international judicial and legislative practices. As an importantcomponent to the contemporary international legal system, this principle plays a veryimportant part in determining the standing of the state party to the international lawsuits, in distinguishing the international wrongful acts with different natures and theirrelevant consequences, in perfecting and developing the international responsibilitysystem in international law, and in guaranteeing more effectively the integral interests ofthe international community.Finally this chapter discusses the obligation to a group of states. The obligations inthis category are established for the protection of the collective interst of the group. Thiskind of obligation can be divided into two categories. The first category is the "integral"obligation or sacrosanct/intransgressible obligation (such as human right obligation orobligation of humanitarian character, as well as obligation concerning global warmingor biodiversity);the second category is the "interdependent" or "all or nothing"obligations (such as disarmament or nuclear free zone treaties).Chapter Six mainly discusses the legal consequences of breach of internationalobligations. Breach of international obligations will bring about certain legalconsequences in both law of treaties and law of state responsibility, and the conduct ofordinary breach of international obligations and the conduct of serious breach ofinternational obligation will produce different legal consequences.From the point of view of law of treaties, material breach will constitute the ground oftermination or suspension of the performance of the treaty. In case that one state seriouslybeaches one interdependent obligation, all states can suspend the performance of the treatyas against all parties. However, even in case of material breach, certain provisionsconcerning treaties of humanitarian character cannot be suspended. All the treaties that arein conflict with jus cogens are void.From the point of view of law of state responsibility, the core legal consequence ofthe international wrongful act is the obligation of the responsible state to stop thewrongful act and to provide sufficient compensation for the injuries caused by theinternational wrongful act. If the international wrongful act constitutes serious breach ofthe obligations concerning peremptory norms of general international law, this breachmay engender further consequences to both the responsible state and other states. Mostimportant of all, under this situation, all states have the obligation to cooperate to bringto an end any serious breach, not to recognize as lawful a situation created by a seriousbreach, not render aid or assistance in maintaining that situation. The author takes theview that although Article 40 of the Draft Articles of State Responsibility distinguishesserious breach of obligations under peremptory norms of general international law andordinary breach, at present, international law does not impose special obligations onconduct of serious breach of peremptory norms. The author takes the view that onlywhen such serious breach brings about special legal consequences that the ordinarybreach does not, will this distinction possess justification and rationality. Otherwise it isof no significance to make such distinction.This chapter also discusses the problem of invocation of responsibility of theresponsible state. As for the bilateral obligations, only the states on the other end of thebilateral relationships can invoke responsibility for breach. But as "injured states", theycan enjoy full rights. All the states of certain group of states bound by certainmultilateral treaties can invoke responsibility for breach in collective interests. However,they can only make limited claims with the exception of the "specially affected" statesby the breach, who, as injured states, can enjoy full rights. All states of the particulargroup of states bound by an interdependent obligation can invoke responsibility forbreach as 'injured states' thus enjoying full rights. Countermeasures are prohibitedunder obligations not to use or threaten to use force, fundamental human rights,humanitarian obligations and jus cogens. As for the obligation to the internationalcommunity as a whole, all states can invoke responsibility for breach. However, theycan only make limited claims.Chapter Seven is the concluding part of this dissertation.First of all, this chapter sums up the rules of international law that createinternational oblig1tations: one kind of the rules are not premised on the consent ofstates;another kind of rules must be consented expressly or impliedly by states. Therules of the former kind are applied integratively regardless of the will of the individualmember of the international community. The rules of this kind are the peremptorynorms of international law. The rules of the latter kind are mainly expressed throughinternational treaties and international customs.Secondly, this chapter sums up the characteristics of globalization of law: theamount of international treaties are increasing greatly, the restriction among the states isincreasing, and combination of international law and domestic laws are becomingincreasingly close;the establishment of jus cogens in international law causes states notto be able to preclude the application of peremptory norms of international law by theirinter se agreements.The discussion of the problem of responsibility for breach of internationalobligations will inevitably involve the problem of sovereignty. Under the background ofthe rapid development of modern economy, the traditional concept of sovereignty isbeing challenged. The implementation of sovereignty of state is under variousrestrictions because the sovereignty is not absolute. Therefore, it is inevitable forinternational intervention to be existent and occur constantly.Finally, this chapter once again discusses the "collective" concept in internationalobligations and the obligation to the international community as a whole. People arestill worrying that these concepts might be used as factors of "collective intervention","collective sanction" in the name of "collective interests", and which will in turn arouseserious problems affecting international peace and security. The debate over "obligationto the international community as a whole" is proceeding, but the concept of "obligationto the international community as a whole" has been greatly developed, and it has beenbroadly accepted. Therefore, one of the important ideas about international obligationsis that apart from great amount of bilateral obligations, at least some obligations areuniversal in respect of the scope of their application, and they cannot be divided up intobilateral, state-state relationships. This kind of obligations are those that are calledobligations to the "international community as a whole".