1 1Mag.iur., Dr.iur. (Vienna), LL.M. (NYU), University Assistant, Department of Public International Law and International Relations, University of Vienna, Austria. The author wishes to express his gratitude to New York University's Public Interest Law Center for funding his internship at the United Nations International Law Commission in the course of which a first draft on the pertinent topic was produced. The author would like to thank Professors Benedict Kingsbury and August Reinisch as well as Dr. Stephan Wittich and David Turns for their valuable comments and constructive criticism.
1 Chamey and Prescott, "Resolving Cross-Strait Relations Between China and Taiwan", 94 AJIL 453, at 475 (2000).
2 See, e.g., Moore, "From Nation State to Failed State: International Protection from Human Rights Abuses by Non-state Agents", 31 Colorado Human Rights Review 82 ( 1999). 3 One author, for example, states euphorically that "human rights standards are now applied to insurgents and other nonstate actors in some circumstances" without speci- fying what circumstances he had in mind, W. O'Neill, A Humanitarian Practitioner's Guide to International Humanitarian Law (Occasional Paper No. 34, published by the Thomas J. Watson Jr., Institute for International Studies, Brown University), at 12 (1999), (emphasis added).
4 One might refer to the Code of Conduct for Humanitarian Assistance in Sierra Leone which contains certain guiding principles for States and non-State entities. The princi- ples state that while the primary responsibility for the protection and well-being of the civilian population and respect for their human rights rests with the government of the state or authorities in control of the territory, "insurgent groups and militia should be held to the same standard of responsibility as Governments". The Code of Conduct for Humanitarian Assistance in Sierra Leone is available as an annex to the United Nations Consolidated Inter-Agency Appeal for Sierra Leone (1999) at http://www.reliefweb.int/ library/appeals/sle99.pdf. See also UNCHR, Fundamental Standards of Humanity- Report of the Secretary-General Submitted Pursuant to Commission Resolution 2000/ 69, UNCHR Doc. E/CN.4/200I/91 (2001), at para. 45.
5 Cf A. Reinisch, International Organizations Before National Courts 53 (2000), (with further references). 6 The use of international organization as a "precedent" for evaluating the legal status of other non-State entities, such as de facto regimes, will of course be limited to general principles in view of the latter's peculiarities. Particularly the fact that international organizations are created by states intentionally calls for prudence. 7 Professor Malanzcuk has in this respect stated that legal personality "must be treated as a relative concept, not as an absolute concept." P Malanzcuk, Akehurst's Modern Intro- duction to International Law 92 et seq. (1997). 8 It is conceded that the concept of "personality'' used in this context is not unproblematic. Strictly speaking, one could distinguish between the abstract question of whether an entity principally is an international legal person ("yes or no" question) and the specific issue of its capacities, which might either be unlimited or limited according to its specific functions; see, e.g., H. Schermers and N. Blokker, International Institutional Law— Unity Within Diversity 981 (1995) ; see also A. Ross, Lehrbuch des Volkerrechts 101 et seq. (1951). The latter author has expressed his regrets as to the still prevailing termino- logical confusion in the following terms: "The prevailing academic view is [...] a botch, because it lacks any analytical understanding of three distinguishable forms of legal personality (capacity to become bound, capacity to act, legal capacity)", (author's trans- lation), id., at 108. 9 Cf Mosler, Subjects of International Law, 4 EPIL 710, at 713 (2000); D.Bowett, The Law of International Institutions 301 (1975); Mosler, "Die Erweiterung des Kreises der V61kerrechtssubjekte", 22 ZaoRV 1, at 37 et seq. (1962). 10 separation for Injuries Suffered in the Service of the United Nations, ICJ, Advisory Opinion of 20 July 1949, ICJ Rep. 174, at 178.
11 On both approaches, see, e.g., Schermers and Blokker, supra note 8, at 978 et seq.; Zemanek, "International Organizations, Treaty-Making Power", 2 EPIL 1343, at 1343 et seq. (1995); Reinisch, supra note 5, at 57 et seq. (with further references). 12 Schermers and Blokker, supra note 8, at 979. 13 See Reparation for Injuries Case, supra note 10, at 182; cf Schermers and Blokker, supra note 8, at 979 et seq. " Seyersted, "Objective International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend Upon the Conventions Establishing Them?" 34 NTIR 1, at 28 et seq. (1964). See also Seyersted, "International Personality of Intergovern- mental Organizations: Do their Capacity Really Depend upon their Constitutions?" 4 IJIL 1 (1964); F.Seyersted, Objective International Personality of Intergovernmental Organizations (1963). cm Reinisch, supra note 5, at 57 et seq.
16 Most notably, Professor Jochen Abraham Frowein has exhaustively addressed de facto regimes already in 1968, see J. Frowein, Das de facto-Regime im Volkerrecht-Eine Untersuchung zur Rechtsstellung "nichtanerkannter Staaten" und dhnlicher Gebilde ( 1968). " Mosler,, Subjects of International Law 442, at 453 (1984); Ross, supra note 8, at 99 et seq.; cf. Frowein, supra note 16, at 25 et seq. 18 The reasons for the "parent" State to lose control over territory governed by the de facto regime might be manifold, such as strong military opposition and/or the collapse of its own structures following a civil war. '9 Current examples of rather established de facto authorities can be found in various parts of the world, such as the Turkish Republic of Northern Cyprus, the "Republic of Somaliland" in the North of Somalia, South Sudan, or Abkhazia in Georgia.
20 The Arantzazu Mendi case, House of Lords, Judgment of 23 February 1939, L.R., [ 1939] A.C. 256 (House of Lords), reproduced in 1942 ILR 60, at 65 et seq. For a general discussion of the decision, see M.Shaw, International Law 321 ( 1997). I. Brownlie, Principles of Public International Law 77 ( 1998). 22 Frowein, supra note 16, at 7. Z3 K. Doehring, Volkerrecht-Ein Lehrbuch 403 et seq. ( 1999).
Mosler, supra note 17, at 453; Doehring, supra note 23, at 114. 25 in this respect, one might refer to the recent decision by the Canadian Supreme Court concerning secession of Quebec, which demonstrates that the international legal order is, as a matter of factual necessity, forced to take cognizance of de facto regimes and their transitional nature: "The Canadian Supreme Court's opinion addresses a transi- tional period during which part of the territory of a State obtains independence and moves toward establishing a new State. It necessarily recognizes the autonomy of that territory even though it may not be a State under international law during the transition period:' Professor Charney referring to Reference re Secession of Quebec, 1998 S.C.J. No. 61, see Charney, supra note 1, at 469 et seq. zb Mosler, supra note 17, at 453. 27 R. Jennings and A.Watts, Oppenheim's International Law 165 et seq. (1997); cf Ross, supra note 81, at 119 et seq. 28 Fitzmaurice, "The General Principles of International Law Considered from the Stand- point of the Rule of Law", 1957-II RdC 5, at 10 ( 1958).
z9 Blix, "Contemporary Aspects of Recognition", 130 RdC 588, at 618 (1970-11); A. Verdross and B. Simma, Universelles Völkerrecht 240 (1984); C. Okeke, Controversial Subjects of Contemporary International Law-An Examination of the New Entities of International Law and Their Treaty-Making Capacity 102 et seq. (1974). But see Hill- gruber, "The Admission of New States to the International Community", 9 EJIL 491, at 498 (1998). 'o Frowein, supra note 16, at 22. 31 Fitzmaurice, supra note 28, at 3 1, (emphasis added); Ross, supra note 8, at 110; Frowein, supra note 16, at 21; Okeke, supra note 29, at 19; K. Ipsen, Volkerrecht 89 et seq. (1999); Doehring, supra note 23, at 114 et seq. '2 In the words of the main proponent of the "objective" approach to international person- ality in the context of international organizations, Professor Seyersted, "the crucial fact, in [the international organization's] case as in that of states, the Holy See and other subjects of international law, is not how they have been established, but that they exist." Seyersted, "Objective International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend Upon the Conventions Establishing Them?" 34 NTIR 1, at 46 (1964), (emphasis added).
3j This rather abstract idea of "legitimate function" has to be distinguished from the real, mostly political and administrative functions such de facto regimes will usually as- sume. 'a Fitzmaurice, supra note 28, at 31, (emphasis added). As to the territorial integrity of de facto entities, it has been observed that "in instances where entities which claim to be States have succeeded in establishing effective governmental systems and proved to be of some stability, other States are normally found fully to respect their territorial integ- rity—air space, territorial waters, etc.-even when they refuse to extend recognition." Blix, supra note 29, at 627 et seq. See also Frowein, supra note 16, at 69. Frowein,, "De Facto Regime", 1 EPIL 966, at 966 (1992), (emphasis added); cf. Frowein, supra note 16, at 26 et seq.; E. Zivier, Die Nichtanerkennung im modernen Völker- recht 56 (1967); Heuser, "Zur Rechtsstellung des de facto-Regimes im V61keffecht: Die Kokaryo-Entscheidung des OLG Osaka", 49 ZaoRV 335, at 338 (1989); Verdross and Simma, supra note 29, at 241 et seq. 36 This is not to be confused with the "subjective" approach which presupposes interna- tional recognition.
37 In the latter respect, one may refer to human rights obligations incorporated in peace agreements concluded between the parties to a civil war, or human rights agreements as part of so-called Memoranda of Understanding between the international organizations and de facto regimes. 38 On the categories of non-international armed conflicts, see Schindler, "The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols", 1979- II RdC 121, at 145 et seq. (1979); L.C. Green, The Contemporary Law ofArmed Conflicts 56 et seq. and 303 et seq. (1993).
39 A, Cassese, International Law in a Divided World 281 (1988); see also A. Clapham, Human Rights in the Private Sphere 112-113 (1993). ao 1949 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31; 1949 Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85; 1949 Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135; 1949 Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287. [All four Conventions will hereinafter be referred to as Geneva Conven- tions]. ]. " Geneva Conventions, supra note 40, Article 3. 42 common Article 3 provides for the following obligations: "Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria." Certain acts are to this end absolutely prohibited: "(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking hostages; (c) outrages upon personal dignity, in particular humiliating and de- grading treatment; (d) the passing of sentences and the carrying out of executions with- out previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." See Geneva Conventions, supra note 40, Article 3; cf. J. Pictet, Commentary on the I Ge- neva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, at 37 (1952). a' 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II), 16 ILM
1442 (1977); cf. Schindler, supra note 38, at 146 et seq.; Lysaght, "The Scope of Proto- col II and Its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments", 33 No.1 AmULR 9 et seq. ( 1983); H. Haug, "Mensch- lichkeit fur alle—Die Weltbewegung des Roten Kreuzes und des Roten Halbmondes", at 588 et seq. (1993); Green, supra note 38, at 63-64 and 303 et seq. Abi-Saab, "Human Rights and Humanitarian Law in Internal Conflicts, in Human Rights and Humanitarian Law", in D. Warner (ed.), Human Rights and Humanitarian Law— The Quest for Universality 107, at 113 (1997). 45 protocol II, supra note 43, Article 1 para. 1, (emphasis added). Protocol II, supra note 43, Article 1 para. 2, (emphasis added). Given the rather re- stricted scope of application of Protocol II, it has been argued that cases of State col- lapse do not fall within its purview of extended protection: "[I]t must be pointed out, of course, that the extended protection offered by Additional Protocol II is of no practical consequence in failing or failed States. In such States, hostilities are not directed against the 'government armed forces referred to in the Protocol since, by definition, any such military power ceased to exist. Moreover, owing to the collapse of government author- ity the fighting is of an 'anarchic' character rather than being carried on in sustained and concerted manner by 'organized [...] groups [...] under responsible command' from a part of the State territory under their control. In this case, therefore, Protocol II can be of little service. Accordingly, when discussing the possible relevance of international humanitarian law to armed conflicts in 'failed States', we are thinking primarily of Article 3 common to the four Geneva Conventions of 1949." Thiirer, "The 'Failed State' and International Law", 81 No. 836 IRRC 731, at 743-744 (1999), (emphasis added).
4' Protocol II, supra note 43; cf. Y. Sandoz, C. Swiniarski and B. Zimmerman, Commen- tary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949, at 1339 (1987); A. Clapham, supra note 39, at 115-116. 48 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at 114; the Attorney General of the Government of Israel v. Eichmann, Israel Supreme Court Crimi- nal Appeal, Judgment of 29 May 1962, 36 ILR 5, at 34-35; Prosecutor v. Dusko Tadic al kla "Dule ", ICTY Appeals Chamber, IT 94-1-AR72, (Decree of Oct. 2, 1995), para. 83, reproduced in 35 ILM 32 (1996); Report of the Secretary General, UN Doc. S/ 25704, at paras 34-35, 32 ILM 1164, at 1170 ( 1993); UNCHR, supra note 4, at paras 11-12; T. Meron, Human Rights in Internal Strife: Their International Protection 6 (1987); cf. T. Meron, Human Rights and Humanitarian Law as Customary Law (1989). 49 Abi-Saab, supra note 44, at 121. sopictet, supra note 42, at 50. 51 Sandoz, Swiniarski and Zimmerman, supra note 47, at 1340. 52 Cf. Abi-Saab, supra note 44, at 107 et seq.; Meron, Human Rights in Internal Strife, supra note 48, at 3; Campbell, "Peace and the Laws of War: the Role of International Humanitarian Law in the Post-conflict Environment", 82 No. 832 IRRC 627, at 629 (2000); Hadden and Harvey, "The Law of Internal Crisis and Conflict", 81 No. 833 IRRC 119 (1999); Kalin, "Die Interdependenz von Menschenrechtsschutz und humani-
tarem V61kerrecht: Lehren aus der Kuwait-Krise", 1993 No. I SZIER 233 (1993); Doswald-Beck and Vite, "International Humanitarian Law and Human Rights Law", 33 No. 293 IRRC 94 (1993); Sepulveda, "Interrelationships in the Implementation and Enforcement of International Humanitarian Law and Human Rights Law", 33 No. 1 AmULR 117 ( 1983); Haug, supra note 43, at 651 et seq.; Eide, "The Laws of War and Human Rights—Differences and Convergences", in C.Swinarski (ed.), Etudes et es- says sur le droit international humanitaire et sur les principes de la Croix-Rouge en I'honneur de Jean Pictet, at 675 (1984); Robertson, "Humanitarian Law and Human Rights", in id., at 793. s3 Meron, Human Rights in Internal Strife, supra note 48, at 10; Eide, supra note 52, at 676 et seq. s4 Geneva Conventions, supra note 40, Article 3 paras I and 2, (emphasis added). ss Pictet, supra note 42, at 51.
sbpictet, supra note 42, at 51-52. 57 moron, Human Rights in Internal Strife, supra note 48, at 39. sa 1998 Rome Statute of the International Criminal Court, 37 ILM 999 (1998); cf. ILC Report of the International Law Commission on the Work of its Forty-Sixth Session (2 May-22 July 1994), 1994 YILC (Vol. II, Part Two) 18, at 26 et seq; UNCHR, supra note 4, at paras 33-34; Meron, "The Humanization of Humanitarian Law", 94 AJIL 239, at 262-263 (2000); see also Greenwood, "International Humanitarian Law and the Tadic Case", 7 EJIL 265, at 281 ( 1996). On the relationship between the individual and inter- national humanitarian law, see, e.g., Fleck, "The Role of Individuals in International Humanitarian Law and Challenges for states in Its Development", in Schmitt and Green (eds.), The Law of Armed Conflict into the Next Millenium, at 119 et seq. (1998); Graditzky, "Individual Criminal Responsibility for Violations of International Humani- tarian Law Committed in Non-international armed conflicts", 38 No.322 IRRC 29 ( 1998). 59 Rome Statute, supra note 58, Article 8 para. 2(c). 60 Ibid., Article 8 para. 2(e) lit. (i)-(xii). The ICC Statute in this respect adopts the wide approach offered in the Tadic Case, see Prosecutor v. Dusko Tadic alkla "Dule ", Deci- sion on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT 94-1, Appeals Chamber, 2 October 1995, at paras 79 et seq. See also Byron and Turns, "The Prepara- tory Commission for the International Criminal Court", 50 ICLQ 420, at 424 et seq. (2001 ).
Rome Statute, supra note 58, Article 8 para. f. bz It should be noted, that in line with a growing trend to regulate internal warfare, there are other treaties, which provide for rules of warfare applicable to all the parties of an internal armed conflict: 1981 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,191LM 1523 (1980)-1996 Protocol on Mines, Booby- Traps and Other Devices, 35 ILM 1206 (1996), Article 1 para 3; 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 36 ILM 1507 (1997); 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction, 1015 UNTS 163; 1993 Convention on the Prohibi- tion of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 32 ILM 800 (1993); 1954 Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 255, Article 19; 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cul- tural Property in the Event of Armed Conflict, 38 ILM 769 (1999), Article 22; cf. Meron, supra note 58, at 261-262s. 6 Cf. Geneva Conventions, supra note 40, Article 3; Protocol II, supra note 43, Article 4; Abi-Saab, supra note 44, at 108. The same mechanism, aiming at the creation of a specific regime applicable to non- state parties to the conflict within the framework of the Convention, is employed by the other treaty instruments referred to supra at note 62.
65 once author has in this respect noted that "[d]espite fairly concrete conditions suggested by the ICRC Commentary on the [1949 Geneva] Conventions there is no authoritative body which can affirm the applicability of Common Article 3, although Resolutions of the General Assembly and UN Commission on Human Rights may occasionally state that the humanitarian rules contained in Common Article 3 are to be respected by both sides in a particular conflict." Clapham, supra note 39, at 113, (footnotes omitted). As to the question of enforcement, the same author has observed that, "enforcement is left primarily in the hands of States who have little interest in declaring that the internal armed conflict has reached the intensity which triggers the applicable humanitarian law. Because this decision has to be a political one, international organizations are precluded from applying the standards of humanitarian law without implicitly passing judgment on the type of armed conflict concerned and conferring a sort of 'recognition' on the armed opposition group. We are left with the conclusion that international hu- manitarian law is theoretical rather than practical and that its application is riddled with pitfalls." Ibid., at 116. 66 The International Court of Justice coined the term "minimum yardstick", see Nicara- gua Case, supra note 48, at 114. 6' Cf. Thiirer, "Der Wegfall effektiver Staatsgewalt: 'The Failed state"', in D. Thurer, M. Herdegen and G. Hohloch (eds.), DerWegfall effektiver Staatsgewalt: "The Failed State " (The Breakdown of Effective Government), 9, at 26 et seq. (1996); Thiirer, supra note 46, at 742 et seq.; Thiirer, "Der 'zerfallene Staat' und das V61kerrecht", 73/3 Friedens- Warte 275, at 285 et seq. (1999). 68 Cf. Meron, "The Martens Clause, Principles of Humanity, and Dictates of Public Con- science", 94 AJIL 78 (2000); Meron, Human Rights and Humanitarian Law as Cus- tomary Law, supra note 48, at 46; Miyazaki, "The Martens Clause and International Humanitarian Law", in Swinarski, supra note 52, at 433.
s9 Protocol II, supra note 43, Preamble; cf. OCHA, An Easy Reference to International Humanitarian Law and Human Rights Law, at para. 54, taken from http://www.reliefweb. int/OCHA (visited October 2000); Meron, supra note 58, at 273. '° The distinction between "primary" and "secondary" rules of international law has been developed in the context of State responsibility to differentiate between ("primary") rules that place obligations on States and ("secondary") rules governing the conse- quences of their violation. See J.Crawford, First Report on State Responsibility, by James Crawford, Special Rapporteur on State Responsibility, UN Doc. A/CN.4/490 (24 April 1998), at paras 12 et seq.
71 Cassese, supra note 39, at 82, (emphasis added). 'z Ibid., at 83, (emphasis added). " Ibid., at 83-84. '4 Note of 26 November 1861 from the British Secretary of State for Foreign Affairs, Earl Russell, to US Ambassador Adams, referring to complaints by the United States con- cerning the relations Great Britain maintained with the Confederate insurgents against the Federal Government, Moore, Digest, Vol. 1, at 209; cf. Verdross and Simma, supra note 29, at 243. 'S For various (partly historic) examples and analysis thereof, see R. Ago, Fourth Report on State Responsibility, by Roberto Ago, Special Rapporteur on State Responsibility, UN Doc. A/CN.4/264, reproduced in 1972 YILC (Vol.11), at 139 et seq. See also Frowein, supra note 16, at 77 et seq. ; Cassese, supra note 39, at 83-84; W. Balekjian, Die Effektivitat und die Stellung nichtanerkannter Staaten im Volkerrecht, at 150 et seq. ( 1970).
'6 Jennings and Watts, supra note 27, at 167-168, (with further references); Balekjian, supra note 75, at 150 et seq. Cf. Ago, supra note 75, at 141 et seq. 77 In tine with doctrinal emphasis on issues concerning the responsibility of the "parent" State and general reluctance to touch upon the international personality of de facto regimes, it is not surprising that Special Rapporteur Roberto Ago does not further dwell on the very essential question itself, namely what kind of international obligations might he assumed by de facto regimes. Ago, supra note 75, at 129 (emphasis added).
78 it should be noted, that even in the inter-State context it is still not entirely settled whether a state might bring an international law claim against another State for a breach of the latter State's international human rights obligations although the former state's own material interests had not been affected. But see Clapham, supra note 39, at 104 et seq.; see also Article 49 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts—Adopted by the International Law Commission at its Fifty-third Session, reproduced in ILC, Report on the work of its fifty-third session (23 April-1 June and 2 July-10 August 2001), UN GAOR Fifty-fifth Session Supplement No. 10 (A/56/10), 26, at 56. '9 Ago, supra note 75, at 132; Commentary to Article 10 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, supra note 78, 112, at paras 12 et seq. and 15. Cf. Brownlie, supra note 21, at 455-456; Frowein, supra note 16, at 71-72; see also Sambiaggio Case, Italian-Venzuelan Commission, Arbitration, 1903, 10 RIAA 499 et seq. As to the question whether States might be held liable for the conduct of non-state actors violating human rights within its (undisputed) territory in the context of "normal affairs"—that is to say outside the context of secession and insurgency, which will preclude the State from possibly preventing human rights viola- tions and thus any applicability of theories concerning the Drittwirkung of human rights—see Clapham, supra note 39, at 176 et seq. 80 Professor Meron is similarly skeptical by indicating that in the light of the rnle of non- attribution there is no mechanism to claim responsibility for violations of human rights: "The rule of non-attribution to the ['parent'] State of acts of an insurrectional move-
ment which continues to exist or has been brought down leaves, of course, a large gap in the law of State responsibility, which adversely affects the possibility of individuals obtaining remedy from insurrectional movements for breaches of human rights or hu- manitarian norms:' Meron, Human Rights and Humanitarian Law as Customary Law, supra note 48, at 162, (emphasis added). e' For example, it has been observed that "[t]he prevailing view among most international non-governmental organizations is that opposition forces can properly be held respon- sihle only for breaches of the law of conflict and that they cannot be accused of human rights violations." Hadden and Harvey, "The Law of Internal Crisis and Conflict", 81 No. 833 IRRC 119, at 130 (1999); cf. ALI, Restatement of the Law, Third, Foreign Relations Law of the United States, § 701, Comment c (1987); Thiirer, "Der Wegfall effektiver Staatsgewalt: 'The Failed state"', in D.Thurer, M.Herdegen and G.Hohloch, supra note 67, 9, at 26; Thiirer, supra note 46, at 741; Thiirer, supra note 67, at 291 et seq. 8z To my knowledge, third States have not (at least explicitly) referred to an "internal" violation of international human rights obligations committed by de facto regimes. 83 Note the context of "internal" human rights violations. Moreover, the commission of genocide as well as torture will trigger individual responsibility under international law. This individual responsibility is nevertheless not to be confused with responsibility of the de facto regime as such.
8' Brownlie, supra note 21, at 457; Frowein, supra note 16, at 85-86. 85 Art. 10 para. 2, ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, supra note 78, at 45. 86 The 1CJ has adopted the principle of effectiveness in the context of state responsibility in its Namibia Opinion: "Physical control of a territory, and not sovereignty or legiti- macy of title, is the basis of state liability for acts affecting other states." Legal Conse- quences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ, Advisory Opin- ion of 21 June 1971, 1971 ICJ Rep. 3, at para. 54. 87 The case concerned violations of human rights granted under the European Convention for the Protection of Human Rights and Fundamental Freedoms in the context of the Turkish occupation of northern Cyprus in 1974 and the subsequent establishment (in
1983) of a Turkish controlled Turkish Republic of Northern Cyprus which has not re- ceived international recognition; see Case of Loizidou v. Turkey, European Court of Human Rights, Judgment (Preliminary Objections) of 23 March 1995, 310 ECHR (Ser. A.), 1, and Case of Loizidou v. Turkey, European Court of Human Rights, Judgment (Merits) of 19 December 1996, 1996-VI ECHR, 2241, at 2215. For a general discus- sion of the decision, see, inter alia, Cohen-Jonathan, L'afJ`aire Loizidou devant la Cour Europeenne des Droits de L'Homme quelques observations, 102 RGDIP 123 (1998). It should be noted, that the Loizidou judgment under closer scrutiny does not quite fit into the scheme of "internal" human rights violations as it involved the violation of human rights of a Cypriot national by Turkey operating through a Turkish-Cypriot- though allegedly independent-de facto regime; however, the essential point to be made here, is that the principle of effectiveness assumes an expanding role in determining responsibility for human rights violations. $9 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 312 UNTS 221. Case of Ahmed v. Austria, European Court of Human Rights, Judgment (merits and just satisfaction) of 17 December 1996, 1996-VI ECHR, reproduced in 24 EurHRRep 278, at paras 10 et seq. and 47. Generally on the question of responsibility for violation of Article 3 of the 1950 European Human Rights Convention, see Case of Chanal v. The United Kingdom, European Court of Human Rights, Judgment (Merits and Just Satis- faction) of 15 November 1996, 1996-V ECHR, reproduced in 23 EurHRRep 413, at paras 79 et seq.
91 See Moore, supra note 2, at 92 et seq. 9z Roberto Ago has raised similar concerns in his Fourth Report: "We may add that, if the State which complains of injuries caused by wrongful acts of agents of an insurrectional movement does not recognize or intend to recognize the movement, with which it main- tains no relations, presenting a claim and making responsibility effective could entail further difficulties, either in fact or in law, since there is a risk that the presentation of a claim could imply recognition." Ago, supra note 75, at 130. 93 The Court notes "that Turkey's army exercised effective overall control over the part of the island" and that "such control, according to the relevant test and in the circum- stances of the case, entails her responsibility for the policies and actions of the `TRNC'." ." The Court, however, emphasizes that this finding applies only to the question of State responsibility under the Convention and does neither presuppose nor entail the recogni- tion of the TRNC as the government of an independent State. See Case of Loizidou (Merits), supra note 87, at 2235 et seq.
94 Once such a high degree of effective authority is established to the detriment of the "parent" State, it has been suggested, that they accordingly "might be granted recogni- tion as de facto governments in respect of that part of the national territory under its effective control". Jennings and Watts, supra note 27, at 165-166 (emphasis added).
9s For example, in Horn v. Lockhard the Supreme Court noted that "[t]he existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, mar- riages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No-one that we are aware of, seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government". Horn v. Lockhard, US Supreme Court, 1873, 17 Wallace 570, at 660.
96 For a general overview of UK and US jurisprudence on this matter, see, e.g., Shaw, supra note 20, at 318 et seq.; D. Greig, International Law 114 et seq. (1970); Verdross and Simma, supra note 29, at 242-243. See also Mann, "The Judicial Recognition of an Unrecognised State", 36 ICLQ 348 (1987); Nedjati, "Acts of Unrecognized Govern- ments", 301CLQ 388 (1981); Jennings and Watts, supra note 27, at 201ss (in particular note 28 etseq.); H. Briggs, The Law ofNations 133 et seq. (1952). 9' Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 2), House of Lords (England), Judg- ment of 18 May 1966, 43 ILR 23, at 66, (with further references). See also Oguebie and Another v. Odunwoke and Others, Nigerian Supreme Court, Judgment of 19 April 1979, 70 ILR 17, at 20 et seq.; Hesperides Hotels Ltd. and Another v. Aegean Turkish Holi- days Ltd. and Mufitzade, House of Lords (England), Judgment of 6 July 1978, Lord Denning M.R., Q.B. 205 (1978), reproduced in 73 ILR 9, at 15; Gur Corporation v. Trust Bank of Africa Ltd., High Court (England), Judgment of 9 April 1986, Judge Steyn J., reproduced in 75 ILR 675, at 680-681; Sokoloff v. National City Bank of New York, New York Supreme Court (US), Judgment of 25 November 1924, 239 NY 158 (1929), reproduced in 2 ILR 44—the latter case succinctly illustrates the traditional rationale behind endowing legal validity to acts of non-recognized de facto govern- ments (regimes): "Juridically, a government that is unrecognized may be viewed as no government at all, if the power withholding recognition chooses thus to view it. In practice, however, since juridical conceptions are seldom, if ever, carried to the limit of their logic, the equivalence is not absolute, but is subject to self-imposed limitations of common sense and fairness, as we learned in litigations following our Civil War [...] These analogies suggest the thought that, subject to like restrictions, effect may at time be due to the ordinances of foreign governments which, though formally unrecognized, have notoriously an existence as governments de facto:' Id., at 47. 98 E.g. Oguebie and Another v. Odunwoke and Others, supra note 97, at 20 et seq.
99pne author has in this respect observed that, "courts have applied laws of unrecognized governments when this was dictated by reason of public policy." Nedjati, supra note 96, at 413, (emphasis added). '°° Cf. Brown, "The Legal Effects of Recognition", 44 AJIL 617, at 627 et seq. ( 1950). 101 For an interesting discussion of such trends within International Private Law to focus on the factual effectiveness of the law (i.e. the local authority), rather than the presumed continuity of "State law", since it is this "local" law to which people living under the de facto regime will have to adhere to, see Hohloch, "The Failed State—Der Wegfall effektiver Staatsgewalt und das IPR", in D. Thiirer, M. Herdegen and G. Hohloch, su- pra note 67, 87, at 98 et seq. (in particular 100-101 ). 102 in the Oguebie Case, for example, the court summarizes the traditional legal content in the following fashion: "[...] the laws of a usurper, who is in firm de facto control are obeyed by those in the usurped State on the mandate from the lawful sovereign. The lawful sovereign would prefer the usurper's laws to be obeyed during occupation to save the exposure of the usurped State to anarchy and eventual chaos. The implied mandate is therefore an attempt by the lawful sovereign to preserve his realm." It moreo- ver states that, "[...] the doctrine, through essentially one of international law, has been extended to domestic rebellion." Oguebie and Another v. Odunwoke and Others, supra note 97, at 22. io3 Namibia Case, supra note 86, at 56 para. 125.
1°' Namibia Case, Sep. Op. Petren, supra note 86, at 134. ios Case of Loizidou (Merits), supra note 87, at 2231 para. 41; for a brief description of the facts, see supra note 87. 1°� Jennings and Watts, supra note 27, at 167-168, (with further references); cf ALI, supra note 81, para. 205, Reporters' Notes, at para. 3; Balekjian, supra note 75, at 112 et seq. and 120; Blix, supra note 29, at 617-618; Briggs, supra note 96, at 204 (1953); Chen, The International Law of Recognition-With Special Reference to Practice in Great Britain and the United States, at 331 (1951); Brown, supra note 100, at 628. 1°' Ago, supra note 75, at 142.
108 Case of Loizidou (Merits), Diss. Op. Judge Baka, supra note 87, at 2244. 109 With respect to a general discussion of this limitation (especially in the context of usur- pation, but applicable to insurgent regimes by way of analogy), see Oguebie and An- other v. Odunwoke and Others, supra note 97, at 22 et seq.
llo H. Hausmaninger and W. Selb, Romisches Privatrecht 210 (1991).
'" See Bleckmann, "Zur Verbindlichkeit des allgemeinen Volkerrechts fur internationale Organisationen", 37 ZaoRV 106, at 119 (1977); Schreuer, "Die Bindung Internationaler Organisationen an volkerrechtliche Vertrage ihrer Mitgliedsstaaten", in K. Ginther et al. (eds.), Volkerrecht zwischen normativem Anspruch und politischer Realitat- Festschriftfiir Karl Zemanek zum 65. Geburtstag, 223, at 249 (1994); Reinisch, "Se- curing the Accountability of International Organizations", 7/2 Global Governance A Review of Multilateralism and International Organizations 131, at 137-138 (2001), (with further references). For a recently suggested functional concept of membership and succession to membership in international organizations, see K. Buhler, State Suc- cession and Membership in International Organizations-Legal Theories versus Politi- cal Pragmatism, at 309 et seq. (2001). 112 Professor Bleckmann has concisely described such a mechanism with respect to inter- national organizations in the following passage: "International organizations mostly
assume functions, which previously fell within the competency of state parties. Al- though one may not assume, that the substantive provisions of customary international law would not address States as their addressees, but attach their rights and obligations to functions, so that the rules of customary international law would automatically direct themselves to international organizations with the transition of functions. The idea of functional devolution nevertheless remains important in this context. Provisions of cus- tomary international law address States. However, they refer to certain state functions which have now devolved to international organizations. The necessary adaption to this evolution consists in the expansion of customary international law to these new ad- dressees." Bleckmann, supra note 111, at 119. "3 A similar line of reasoning has been suggested by Baxter with respect to the application of common Article 3 of the Geneva Conventions: "How then can the insurgents as a 'party to the conflict' be bound to carry out duties under an instrument that they have not accepted? [...] A second basis for asserting that Article 3 is binding on the insur- gents is that insurgents must be bound by the obligations of the state to the extent they purport to be the effective government of that state." Baxter, "Jus in Bello Interno: The Present and Future Law", in J. Moore (ed.), Law and Civil War in the Modern World, 518, at 527-528 (1974); cf. Meron, Human Rights in Internal Strife, supra note 48, at 38 et seq.; see also Schindler, supra note 38, at 151-152.
"' In this context, it is important to note the difference between de facto regimes and de facto governments, which purport to take over power in an already existing State. With respect to the latter and its obligations, cf. S. Talmon, Recognition of Governments in International Law: With ParticularReference to Governments in Exile (1998); B. Roth, Governmental Illegitimacy in International Law (1999).
115 Reinisch, supra note 111, at 135; Schermers and Blokker, supra note 8, at 982 et seq.; Schreuer, supra note 111, at 226; Schreuer, "Die Internationalen Organisationen", in H. Neuhold, W. Hummer and C. Schreuer (eds.), Osterreichisches Handbuch des Volker- rechts 165, at 175 (1997). 116 Reinisch, supra note 111, at 135. 1 Seyersted, "Objective International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend Upon the Conventions Establishing Them?" 34 NTIR 1, at 56-57 (1964), (emphasis added). "8 On the jurisprndence of the ECJ and its general principles approach, see, inter alia, Schreuer, supra note 111, at 230-231; Reinisch, supra note 111, at 135; Schermers and Blokker, supra note 8, at 982 et seq.
"9 Reinisch, "Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions", 95 AJIL 851, at 854 et seq. (2001); Reinisch, supra note 111, at 135; cf. Y Dinstein, War, Aggression and Self Defence, at 146-147 (2001 It should however be emphasized that sucb an application of humanitarian law raises problematic issues in view of the peculiar circumstances of "peace-enforcement": if one were to apply the rules of war to such missions undertaken by the United Nations, one would have to acknowledge that other warring factions migbt legitimately fight UN troops as combatants; the laws of war do after all not pro- hibit warfare—they only provide for specific obligations as to means of warfare and minimum humanitarian standards with respect to non-combatants.
note, however, that Seyersted himself envisaged the possibility of extending his objec- tive approach to other non-State actors such as insurgents: "[T]he great difference which exists between States and intergovernmental organizations is one of fact rather than of law. The different extent to which they perform international acts and exercise interna- tional rights and duties depends upon their factual opportunities and not upon any basic difference in their legal capacities. A closer examination of the practice of other "sover- eign", or self-governing, communities may well prove that this basic legal similarity (and the factual differences) extends also to these, whether they are territorial units, like insurgents, or non-territorial units, like the Holy See." Moreover, he states that "[p]ractice in respect of sovereign communities other than States and intergovernmental organiza- tions may well lend support to a general proposition that all sovereign legal communi- ties are general, and even objective, subjects of international law, and that partly sovereign communities [such as insurgents] are such subjects as far as their sovereignty goes." Seyersted, "Objective International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend Upon the Conventions Establishing Them?" 34 NTIR 1, at 90-91 (1964). 121 Bleckmann, supra note 111,at I 13 et seq.
the application of such an analogy is, of course, not unproblematic and could easily form the subject of another paper. For purposes of the present paper, it should suffice to indicate that one would have to establish first that a lacuna exists within international law, which needs to be filled. This in itself could be difficult in view of the long-term existence of the phenomenon which suggests that international law has so far not been ready to impose human rights obligations upon them. This in turn would mean that the lacuna has been intentional and thus is not to be filled by way of analogy. For a compre- hensive analysis of lacunae within international law, see U. Fastenrath, Lucken im Völkerrecht ( 1990). �z3 Mosler, Die Erweiterung des Kreises der Volkerrechtssubjekte, supra note 9, at 17 et seq.; Bleckmann, supra note 111, at 116 et seq. 124 Bleckmann, supra note 111, at 118-119; Mosler, Die Erweiterung des Kreises der Volkerrechtssubjekte, supra note 9, at 6-7.
`2s This construction has the merit of avoiding circular reasoning: de facto regimes exist as a matter of fact; moreover, their personality is corroborated to the extent they are directly addressed by international law (obligations such as stemming from the hu- manitarian law); in so far as they assume further functions (devolving from the implied mandate and by way of functional succession) they are bound to correlative inter- national obligations. l26 Most notably, one may refer to the case of the self-declared, but not recognized, "Re- public of Somaliland" which has been existing as a de facto regime in the North of Somalia since 1991.
127 Professor Daniel Thiirer has summarized the rather pessimistic legal situation: "Alto- gether it has become evident that general human rights, as far as they are applicable to the exceptional situation of a 'Failed State' at all, primarily oblige the State as such and thus presuppose its functioning. Within the vacuum of a failed political system, where such a socket of administrative infrastructure is missing, they are as a rule only capable of becoming effective peripherically and deny protection otherwise." Thiirer, "Der Wegfall effektiver Staatsgewalt: 'The Failed state"', in D. Thiirer, M. Herdegen and G. Hohloch, supra note 67, at 26, (translation by the author).
128 This has recently been demonstrated by the European Union with respect to the seced- ing "Republics" of the FormerYugoslavia. See e.g. K.Weschke, Internationale Instru- mente zur Durchsetzung der Menschenrechte, at 187 et seq. (2001 In this respect, one could go as far as to argue that recognition could assume an instrumental function as a fulcrum for the protection of human rights: recognition as the carrot, human rights adherence as the stick for acceptance by the international community. 'Z9 This has led one scholar to conclude, that "[t]he inability of the political and legal order of the modern international system to relate to sub-State actors due to the absence of rules and institutions that fit such situations is largely behind the tendency to resort to the imagery of 'anarchy' and 'chaos'." A. Yannis, State Collapse and the International System-Implosion of Government and the International Legal Order from the French Revolution to the Disintegration of Somalia (Institut Universitaire de Haute Etudes Internationales, Geneva), at 128 (2000).
�30 In the context of the European Convention on Human Rights, Professor Andrew Clap- ham is similarly arguing for a "privatization" of human rights and more emphasis on the harm to the victim ( "victim concern "), see Clapham, supra note 39, at 94 et seq, and 352 et seq.
131 Joseph, "Taming the Leviathans: Multinational Enterprises and Human Rights", 46 NILR 171, at 181 et seq. (1999). Cf. UNCHR—Subcommission on the Promotion and Protection of Human Rights, Principles Relating to the Human Rights Conduct of Com- panies: Working Paper Prepared by Mr. David Weissbrodt, UNCHR Doc. E/CN.4/Sub.2/ 2000/WG.2/WP.1 (2000), at paras 7 et seq.; see also Verdross and Simma, supra note 29, at 269-271; McCarthy, "Transnational Corporations and Human Rights", in A. Cassese (ed.), UN LawlFundamental Rights-Two Topics in International Law 175 (1979). Most recently, the Organization for Economic Development and Co-operation (OECD) has issued a set of guidelines for multinational enterprises, which however do not directly address multinational enterprises as bearer of human rights obligations, but merely contain an indirect commitment to any human rights obligations undertaken by the host state: it urges enterprises to "[r]espect the human rights of those affected by their activities consistent with the host government's international obligations and com- mitments." Section 11, para. 2 of the OECD Guidelines for Multinational Enterprises, 40 ILM 237, at 240 (2000).
'3z C f UNCHR, supra note 4, at paras 5 et seq. ; Meron, supra note 58, at 274-275; Campbell, supra note 52, at 646; Petrasek, "Moving Forward on the Development of Minimum Humanitarian Standards", 92 AJIL 557 (1998); Gasser, "Humanitarian Standards for Internal Strife—A Brief Review of New Developments", 33 No. 294 IRRC 221 ( 1993); Gasser, "A Measure of Humanity in Internal Disturbances and Tensions: Proposal for a Code of Conduct", 28 No. 262 IRRC 38 (1988); Meron and Rosas, "A Declaration of Minimum Humanitarian Standards", 85 AJIL 375 (1991); Momtaz, "The Minimum Humanitarian Rules Applicable in Periods of Internal Tension and Strife", 38 No. 324 IRRC 455, at 461 ( 1998).