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Invoking State Responsibility in the Twenty-first Century

Published online by Cambridge University Press:  27 February 2017

Edith Brown Weiss
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At the beginning of the twenty-first century, the international community is globalizing, integrating, and fragmenting, all at the same time. States continue to be central, but many other actors have also become important: international organizations, nongovernmental organizations, corporations, ad hoc transnational groups both legitimate and illicit, and individuals. For the year 2000, the Yearbook of International Organizations reports that there were 922 international intergovernmental organizations and 9988 international nongovernmental organizations. If organizations associated with multilateral treaty agreements, bilateral government organizations, other international bodies (including religious and secular institutes) , and internationally oriented national organizations are included, the number of international organizations reaches nearly thirty thousand. Another twenty-four thousand are listed as inactive or unconfirmed. Corporations that produce globally are similarly numerous. As of September 27, 2002, an estimated 6,252,829,827 individuals lived on our planet. Some of these individuals and groups have made claims against states for breaching their obligations, particularly for human rights violations. In short, international law inhabits a much more complicated world than the one that existed fifty or even thirty years ago.

Type
Symposium: The ILC’s State Responsibility Articles
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 798 - 816
Copyright
Copyright © American Society of International Law 2002

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References

1 2001/2002 Y.B. Int’l Orgs. 15.

2 Id. The Yearbook’s data base codes international bodies according to fifteen types of organizations and then groups them into five clusters: international organizations; dependent bodies; organizational substitutes; national bodies; and dead, inactive, and unconfirmed bodies.

3 Id.

4 U.S. Bureau of the Census, Projections of the International Programs Center (May 10, 2000), at <http://www.census.gov/cgi-bin/ipc/popclockw>.

5 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc>, Reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which appear in the Commission’s Fifty-third Report and Crawford’s volume, supra, will be identified below by article and paragraph number.

6 García-Amador, F. V., State Responsibility, [1956] 2 Y.B. Int’l L. Comm’n 173, 176 Google Scholar, para. 10, UN Doc. A/CN.4/ SER.A/1956/ Add. 1.

7 GA Res. 799, UN GAOR, 8th Sess., Supp. No. 17, at 52, UN Doc. A/2630 (1953).

8 Art. 42.

9 Commentary to pt. 3, ch. I, para. 1.

10 Art. 33(2).

11 James Crawford, the last rapporteur, is certainly aware that the international community includes important actors other than states. In his excellent introduction to the articles and commentary, he notes that” [t] he international community includes entities in addition to States, for example, the United Nations, the European Communities, the International Committee of the Red Cross. Clearly there are other persons or entities besides States towards whom obligations may exist and who may invoke responsibility for breaches of those obligations.” Crawford, supra note 5, at 41.

12 Arts. 43-47, respectively.

13 Art. 45(b).

14 Commentaries, Art. 45, para. 7.

15 Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, 1992 ICJ Rep. 240 (June 26) [hereinafter Nauru].

16 LaGrand Case (Ger. v. U.S.), Merits (Int’l Ct. Justice June 27, 2001), 40 ILM 1069 (2001), available at <http://www.icj-cij.org>.

17 Commentaries, Art. 42, para. 2.

18 For excellent analysis of this issue, see, for example, Simma, Bruno, Bilateralism and Community Interest in the Law of State Responsibility, in International Law at a Time of Perplexity 821 (Dinstein, Yoram ed., 1989)CrossRefGoogle Scholar; Weil, Prosper, Towards Relative Normativity in International Law? 7 AJIL 413 (1983)Google Scholar (arguing against moving away from traditional bilateralism).

19 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331 (entered into force Jan. 27, 1980).

20 Treaty Banning Nuclear Testing in the Atmosphere, Oceans, and Outer Space, Aug. 5,1963, TIAS No. 5433, 480 UNTS 43 (entered into force Oct. 10, 1963) [hereinafter LTBT].

21 Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, 30 ILM 1455 (1991).

22 Vienna Convention on the Law of Treaties, supra note 19, Art. 60. 23 Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3,32, para. 33 (Feb. 5) [hereinafter Barcelona Traction].

24 South West Africa cases (Eth. v. S. Afr.; Liber, v. S. Air.), Second Phase, 1966 ICJ Rep. 6 (July 18) [hereinafter South West Africa]. In the earlier Judgment on the Preliminary Objections, the Court found that it had jurisdiction because both Ethiopia and Liberia were former members of the League of Nations and thus could bring a claim against South Africa to enforce the obligations of the mandate. South West Africa cases (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319 (Dec. 21). But at the merits phase, the Court found an insufficient legal interest.

25 Art. 48(1) (b).

26 Art. 42.

27 Commentaries, Art. 42, para. 4.

28 Vienna Convention on Diplomatic Relations, opened for signature Apr. 18, 1961, TIASNo. 7502, 500 UNTS 95 (entered into force Apr. 24, 1964).

29 Commentaries, Art. 42, para. 12.

30 Id., para. 13.

31 LTBT, supra note 20; Antarctic Treaty, Dec. 1, 1959, TIAS No. 4780, 402 UNTS 71 (entered into force June 23, 1961).

32 See Stern, Brigitte, Et si l’on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la CDI sur la responsabilité des Etats, 2001 Annuaire Français de Droit International 3 Google Scholar (arguing against a distinction between injured and noninjured states on the grounds that all states are in some sense injured).

33 James, R. Crawford, Responsibility to the International Community as a Whole, 8 Ind. J. Global Legal Stud. 303, 320 (2001)Google Scholar.

34 Art. 48(1).

35 Commentaries, Art. 48, para. 7.

36 S.S. “Wimbledon” (Ger. v. UK, Fr., Italy, Japan), 1923 PCIJ (ser. A) No. 1, at 15 (Aug. 17).

37 When Germany refused to permit a British vessel under charter to a French company to navigate in the Kiel Canal, Great Britain, France, Italy, and Japan raised a claim against Germany for a violation of the Treaty of Versailles. The PCIJ recognized standing for all four states on the grounds that the states had a legal interest, since they were all states parties to the multilateral treaty and had vessels that used the Kiel Canal, even though Italy and Japan had no monetary interest in the outcome of this particular dispute. The commentary to Article 48, in paragraph 7, note 765, refers to this case in support of the text in Article 48.

38 Barcelona Traction, supra note 23, 1970 ICJ Rep. at 32, para. 33.

39 South West Africa, supra note 24.

40 For analysis of compliance with and enforcement of these obligations, see Zemanek, Karl, New Trends in the Enforcement of> Erga Omnes Obligations, in 2000 Max Planck Y.B. UN L. 1 +Erga+Omnes+Obligations,+in+2000+Max+Planck+Y.B.+UN+L.+1>Google Scholar.

41 Barcelona Traction, supra note 23, 1970 ICJ Rep. at 32, para. 34.

42 Commentaries, Art. 48, para. 9.

43 East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, 102, para. 29 (June 30).

44 Under the London Convention of 1972, the dumping of high-level radioactive wastes into the oceans is prohibited and the dumping of any other radioactive wastes requires a special permit. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature Dec. 29, 1972, Art. IV & Annexes I, II, TIAS No. 8165, 1046 UNTS 120 [hereinafter 1972 London Convention]. Furthermore, Article XII calls for the parties to strive to protect the oceans from pollution from, inter alia, radioactive wastes. Id., Art XII(d). According to the International Maritime Organization (IMO), the parties to the 1972 London Convention placed a moratorium in 1983 on the dumping of low-level radioactive wastes and decided in 1993 to amend Annexes I and II to ban the dumping of all radioactive wastes. IMO, A Brief Description of the London Convention 1972 and the 1996 Protocol, at <http://www.londonconvention.org/London_Convention.htm> (last modified Mar. 25, 2001). This prohibition is embodied in the 1996 Protocol to the 1972 London Convention, which bans the dumping of any material that has a radioactive level above de minimis concentrations. London Protocol to the International Maritime Organization Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 7, 1996, Annex I, 36 ILM 1, 21 (1997). Further support for this obligation is found in the provision of the Antarctic Treaty that bans the disposal of all radioactive wastes in Antarctica, which encompasses portions of three oceans as defined by the Treaty. Antarctic Treaty, supra note 31, Art. 5.

45 Vienna Convention on the Law of Treaties, supra note 22, Art. 53.

46 Commentaries, Art. 25, para. 18.

47 For a discussion of the comment and amendment process, see James Crawford, Fourth Report on State Responsibility, UN Doc. A/CN.4/517 & Add.1 (2001), available at <http://www.un.org/law/ilc>.

48 Hutchinson, D. N., Solidarity and Breaches of Multilateral Treaties, 1988 Brit. Y.B. Int’l L. 152, 202 Google Scholar (quoting Bruno Simma for the term “a sort of international vigilantism,” Simma, Bruno, International Crimes: Inquiry and Countermeasures, in International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility 283, 299 (Joseph, H. Weiler, Cassese, Antonio, & Spinedi, Marina eds., 1989)Google Scholar).

49 Id.; see also Jonathan, I. Charney, Third State Remedies in International Law, 10 Mich. J. Int’l L. 57, 101 (1989)Google Scholar (noting that “a substantial expansion of international law remedies to give third states a significant role.... might erode, rather than enhance, obedience to the rule of law,” and suggesting that third-state remedies under customary international law “may be appropriate in the case of a few subjects of international law under limited circumstances”).

50 Art. 54.

51 Commentaries, Art. 54, para. 7. See David J. Bederman’s contribution to this symposium, Counterintuiting Countermeasures, 96 AJIL 817, 827-28 (2002).

52 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,1950, Art. 33,213 UNTS 221, as amended by Protocol No. 11, May 11, 1994, 33 ILM 960 (1994) (entered into force Nov. 1, 1998); see also Jochen, A. Frowein, The Contribution of the European Union to Public International Law, In The European Integration and International Co-ordination, Studies in Transnational Economic Law in Honour of Claus-Dieter Ehlermann 171, 175-77 Google Scholar (Armin von Bogdandy, Petros C Mavroidis, & Yves Meny eds., 2002) (discussing measures taken by the European Community in response to the Iran hostage crisis and to the human rights violations in Kosovo and noting at 176 that public international law permits actions by “not directly affected states to grave breaches of public international law”).

53 The Court has issued final decisions in the cases of Cyprus v. Turkey, App. No. 25781/94 (May 10, 2001); Denmark v. Turkey, App. No. 34382/97 (Apr. 5, 2000); and Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) (1978), all available at <http://www.echr.coe.int/Hudoc.htm>. The Court also declared admissible four applications against Greece in 1968; however, no further action was taken with respect to these applications. Denmark v. Greece; Norway v. Greece; Sweden v. Greece; Netherlands v. Greece, Hudoc Reference No. REF00002880 (1968), available at <http://www.echr.coe.int/Hudoc.htm>.

54 American Convention on Human Rights, Nov. 22, 1969, Art. 45, 1144 UNTS 123 (entered into force July 18, 1978).

55 African Charter on Human and Peoples’ Rights June 27, 1981, Art. 47, 21 ILM 58 (1982) (entered into force Oct. 21, 1986).

56 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Dec. 21, 1965, Art. 11, 660 UNTS 195 (entered into force Jan. 4, 1969).

57 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 41,999 UNTS 171 (entered into force Mar. 23, 1976).

58 Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, Art. 21, 1465 UNTS 85 (entered into force June 26, 1987).

59 Most complaints have been brought by individuals, see infra notes 79-90 and corresponding text.

60 For an excellent analysis of third-state remedies, see Charney, supra note 49.

61 Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. 92 (Sept. 13) [hereinafter Nicaragua Intervention].

62 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.), Application to Intervene, 1999 ICJ Rep. 1029 (Oct. 21). In doing so, the Court quoted its opinion in Nicaragua Intervention: “So far as the object of [a state’s] intervention is ‘to inform the Court of the nature of the legal rights of [that state] which are in issue in the dispute’, it cannot be said that this object is not a proper one: it seems indeed to accord with the function of intervention.” Land and Maritime Boundary Between Cameroon and Nigeria, supra, para. 14 (quoting Nicaragua Intervention, supra note 61, at 130, para. 90).

63 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon. v. Malay.), Application to Intervene (Int’l Ct. Justice Oct. 23, 2001), available at <http://www.icj-cij.org>. North Borneo is the area formerly known as the British North Borneo Co. and is now generally acknowledged as Sabah, an independent state of Malaysia. The Philippines uses the term North Borneo (rather than Sabah) because its claim of sovereignty conflicts with that of Malaysia.

64 Id., para. 82. Before making this finding, the Court articulated several principles regarding intervention under Article 62 of the ICJ Statute. Specifically, the Court reiterated that claims for intervention do not require a jurisdictional link to the parties, id., para. 35, and furthermore, that the claim need not even concern the same subject matter as the principal case before the Court, id., paras. 48-55. All that is required for intervention is that a legal interest could be affected by the decision in the case, id., para. 56, and the Court broadened this category by allowing interests to relate not only to the dispositif of the case, but also to the reasons necessary to constitute the dispositif, id., para. 47. Judge Franck wrote separately to emphasize that had the Philippines met its burden in pleading the effect on its interest, he would still deny intervention, finding that its interest in sovereignty over North Borneo is contrary to the right of self-determination held and exercised by the people of that territory and is therefore barred by international law. Id., Separate Opinion of Judge ad hoc Franck, para. 15.

65 Status of Eastern Carelia, Advisory Opinion, 1923 PCIJ (ser. B) No. 5, at 6 (July 23). The contemporary spelling of the name of the territory is Karelia.

66 Monetary Gold Removed from Rome in 1943 (Italy v. Fr., UK, U.S.), 1954 ICJ Rep. 19 (June 15). 1, 7 Nauru, supra note 15.

68 Art. 47(1).

69 East Timor, supra note 43.

70 See, e.g., Sierra Club v. Morton, 405 U.S. 727 (1972) (dismissing an action due to lack of a recognized interest). 71 Compare Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (finding that indefinite plans to visit other countries cannot lay the basis for injury), with Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (finding that avoidance by local residents of a river that they would use but for fear of contamination is sufficient to establish an injury).

72 Resource Management Act, 1991, §§311(1), 316(1), 338 (4) (NZ). Each section provides for a different form of citizen enforcement, and all sections state that any person at any time may initiate these proceedings.

73 Id. §274(1) (as amended in 1996, allowing “any person Representing some relevant aspect of the public interest” to appear and call evidence before the court).

74 Id. §322.

75 Report of the Registrar of the Environment Court for the 12 Months Ended 30 June 2001, sec. 2.1 (June 22, 2002), available at <http://www.courts.govt.nz/environment/news.html>.

76 This language appears in both the Environmental Planning and Assessment Act, 1979, §123 (N.S.W.), and (in slightly abbreviated form) the Heritage Act, 1977, §153 (N.S.W.) (emphasis added).

77 Land and Environment Court of N.S.W., Annual Review 2001, at 17, available at <http://www.lawlink.nsw.gov.au/lec/lec.nsf/pages/courtperformance> (visited Aug. 12, 2002).

78 The suits that citizens can bring for breaches of the act lead to court orders, which are comparable to injunctions and restitution.

79 International Covenant on Civil and Political Rights, supra note 57, First Optional Protocol, Art. 1, 999 UNTS at 302.

80 Convention on the Elimination of Discrimination Against Women, opened for signature Mar. 1,1980,1249 UNTS 13, Optional Protocol, GA Res. 54/4, annex (Oct. 6,1999) (entered into force Dec. 22,2000) [hereinafter Optional Protocol to Discrimination Against Women Convention].

81 Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, supra note 58, Art. 22.

82 International Convention on the Elimination of All Forms of Racial Discrimination, supra note 56, Art. 14.

83 Statistical Survey of Individual Complaints Dealt with by the Human Rights Committee Under the Optional Protocol to the International Covenant on Civil and Political Rights (Aug. 27, 2002), at <http://www.unhchr.ch/html/menu2/8/stat2.htm>.

84 Id.

85 Optional Protocol to Discrimination Against Women Convention, supra note 80, Art. 2.

86 Statistical Survey of Individual Complaints Dealt with by the Committee Against Torture Under the Procedure Governed by Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (May 30, 2002), at <http://www.unhchr.ch/html/menu2/8/stat3.htm>.

87 Statistical Survey of Individual Complaints Considered Under the Procedure Governed by Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination (June 25, 2002), available at <http://www.unhchr.ch/html/menu2/8/stat4.htm>.

88 Id.

89 European Court of Human Rights, APERÇU 2001, at 29, available at <http://www.echr.coe.int/Fr/InfoNotesAndSurveys.htm>

90 American Convention on Human Rights, supra note 54, Art. 44.

91 Both Tribunals were established by the Security Council under Chapter VII of the Charter of the United Nations. SC Res. 827, UN SCOR, 48th Sess., Res. & Dec, at 29, UN Doc. S/INF/49 (1993) (establishing the Tribunal for the Former Yugoslavia); SC Res. 955, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc S/INF/50 (1994) (establishing the Tribunal for Rwanda). The Statutes of the two Tribunals allow the prosecutor to initiate an indictment on his own, or on the basis of information received from any source (although the Statutes set a preference for information from states or formal organizations, individuals are not precluded from providing information in order to initiate an indictment). Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, Art. 18,32 ILM 1192(1993); Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994, Art. 17, annex to SC Res. 955, supra, Reprinted in 33 ILM 1602 (1994). For an overview of the Tribunal for the Former Yugoslavia, see Michael, P. Scharf, A Critique of the Yugoslavia War Crimes Tribunal, 25 Denv. J. Int’l L. & Pol’y 305 (1997)Google Scholar (indicating that the Tribunal is an improvement over the Nuremberg Tribunal, but that it is far from a perfect system).

92 Kadicv. Karadzic, 70 F.3d 232 (2dCir. 1995) (the court found subject matter jurisdiction under the Alien Tort Claims Act, 28 U.S.C. §1350 (1988)). The Alien Tort Claims Act gives U.S. federal courts original jurisdiction over tort claims made by aliens for torts committed in violation of the law of nations (or a treaty of the United States). The trial court had dismissed for lack of subject matter jurisdiction because it held that only state actions, and not individual actions, could violate the law of nations. The appellate court reversed, finding instead that certain individual actions, genocide, war crimes, and some crimes against humanity are violations of the law of nations. The court also suggested that Karadžić could be liable for other crimes as the president of the Republika Srpska because, although Srpska was never formally recognized as a state, it appeared to satisfy the criteria for being a state, including having sovereignty over land and people. Karadzic, 70 F.3d at 245; see also Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987) (concluding in suit brought by Argentine citizens in the United States against former Argentine general that claims of official torture, prolonged arbitrary detention, and summary execution all constituted “international tort” claims that could be adjudicated under the Alien Tort Statute).

93 Tachiona v. Mugabe, 169 F. Supp. 2d 259 (S.D.N.Y. 2001). The U.S. District Court for the Southern District of New York denied the U.S. government’s motion to reconsider the decision, 186 F. Supp. 2d 383 (S.D.N.Y. 2002).

94 The case addresses the issue of who can be sued, but it also demonstrates the court’s receptivity to letting individuals try to hold officials responsible for violations of international law, even if only in their simultaneous role as leaders of a nongovernmental organization.

95 North American Agreement on Environmental Cooperation, Sept. 8-14, 1993, U.S.-Can.-Mex., Art. 14, 32 ILM 1480 (1993) [hereinafter NAAEC]. Article 14 provides, in pertinent part:

1. The Secretariat may consider a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law, if the Secretariat finds that the submission:

(a) is in writing in a language designated by that Party in a notification to the Secretariat;

(b)clearly identifies the person or organization making the submission;

(c) provides sufficient information to allow the Secretariat to review the submission, including any documentary evidence on which the submission may be based;

(d) appears to be aimed at promoting enforcement rather than at harassing industry;

(e) indicates drat the matter has been communicated in writing to the relevant authorities of the Party and indicates the Party’s response, if any; and

(f) is filed by a person or organization residing or established in the territory of a Party.

Notice that nowhere in Article 14 is the person or organization making the submission required to demonstrate injury.

96 Methanex Submission, SEM-99-001 (Oct. 18, 1999), available at <http://www.cec.org/citizen/index.cfm?varlan=english>, in which Methanex Corp., incorporated under the laws of Alberta, Canada, alleged that California and/or the United States had failed to enforce environmental regulations. As of June 30, 2000, the secretariat determined it would not proceed with this submission because the dispute was also the subject of a NAFI’A Chapter 11 claim. Under Article 14.3 (a) of the NAAEC, the secretariat is not allowed to proceed with a submission if the party’s response indicates that the matter is the subject of a pending judicial or administrative proceeding.

97 NAAEC, supra note 95, Art. 15.

98 Citizen Submissions on Enforcement Matters, at <http://www.cec.org/citizen/index.cfm?varlan=english> (visited Oct. 8, 2002). For an informative analysis of the commission’s work on these submissions, see David, L. Markell, The Commission for Environmental Cooperation’s Citizen Submission Process, 12 Geo. Int’l Envtl. L. Rev. 545 (2000)Google Scholar.

99 Citizen Submissions on Enforcement Matters, supra note 98.

100 Permanent Court of Arbitration, Optional Rules for Arbitration of Disputes Relating to Natural Resources and the Environment (June 29, 2001), available at <http://www.pca-cpa.org/BD/>.

101 Bodansky, Daniel & John, R. Crook, Introduction and Overview, 96 AJIL 773 (2002)Google Scholar (introducing this symposium and providing details of historical development of the ILC’s work).

102 Andres Rigo, ICSID: An Overview, in Int’l Arb. Rep., Winter 2002 (Fulbright & Jaworski) (also available in mimeo from author). For the ICSID Convention, see Convention for the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, TIAS No. 6090, 575 UNTS 159.

103 Rigo, supra note 102. The four are the North American Free Trade Agreement, Dec. 8-17, 1992, Art. 1120, 32ILM 289 (1993); Energy Charter Treaty, opened for signature Dec. 17, 1994, Art. 26(4), 34 ILM 381 (1995); Protocolo de Colonia para la Promotión y Protectión Recíproca de Inversiones en el MERCOSUR, Jan. 17, 1994, Art. 9.4(a) (adopted by Mercosur\CMC\DecNo 11/93), available at http://www.sagpya.mecon.gov.ar/0-7/Mercosur/decisiones/1993/d9311.htm>; Treaty on Free Trade, June 13, 1994, Colom.-Venez.-Mex., Arts. 17-18, available at <http://www.sice.org/Trade/63_E/63E_TOC.asp>.

104 Rigo, supra note 102. The rate of submissions for arbitration has increased from an average of one per year to one per month.

105 U.S. Dep’t of State, List of U.S. Bilateral Investment Treaties Through December 2000 (Jan. 22, 2001), available at <http://www.state.gov/e/eb/ris/fs/1139.htm> (visited Sept. 27, 2002).

106 U.S. Dep’t of Commerce, Trade Compliance Center, at <http://www.export.gov/tcc> (visited Aug. 12, 2002).

107 Joined Cases C-6/90 & C-9/90, Francovich v. Italy, 1991 ECR1-5357.

108 Id., para. 40.

109 Joined Cases C-46/93 & C-48/93, Brasserie du Pêcheur SA v. Germany, & The Queen v. Secretary of State for Transport ex parte Factortame Ltd., 1996 ECR 1-1029, [1996] 1 C.M.L.R. 889 (1996) (both Germany and Britain had failed to Repeal economic regulations that conflicted with certain aspects of Community law).

110 Joined Cases C-l 78/94, C-l 79/94, C-188/94, C-189/94, & C-190/94, Dillenkofer v. Germany, 1996 ECR 1-4845, [1996] 3 C.M.L.R. 469 (1996).

111 Case T-l 77/01, Jégo-Quéré & Cie SA v. Commission (May 3,2002), available at <http://curia.eu.int/common/recdoc/indexaz/en/t2.htm> (French fishing company challenge to European Community regulation prohibiting use of certain type of fishing net, when regulation did not apply solely to that company and caused no unique damage).

112 Vienna Convention on Consular Relations, Apr. 24, 1963, TIAS No. 6820,596 UNTS 261 (entered into force Mar. 19, 1967).

113 LaGrand, supra note 16, para. 77.

114 Id., para. 78.

115 See William J. Aceves, Case Report: LaGrand (Germany v. United States), 96 AJIL 210 (2002).

116 Valdez v. Oklahoma, 46 P.3d 703 (Okla. Crim. App. 2002). The court relied on Breard v. Greene, 523 U.S. 371 (1998), to conclude that the procedural requirements of the state statute barred the petitioner’s claim, and it rejected petitioner’s argument that relief was unavailable at the first application because the LaGrand case had not yet been decided.

117 GA Res. 957, UN GAOR, 10th Sess., Supp. No. 19, at 30, UN Doc. A/3116 (1955).

118 See Edith, Brown Weiss, Introduction to Part III Google Scholar, in Paul, C. Szasz, Selected Essays on Understanding International Institutions and the Legislative Process 239 (Edith, Brown Weiss ed., 2001)Google Scholar. Since the procedure was abolished, individual UN staff members no longer have this “indirect” access to the Court.

119 In a related development, nongovernmental organizations and individuals have the right to complain to the World Bank Inspection Panel that the World Bank, an intergovernmental organization, has failed to follow its procedures in its project financing and that this failure has directly harmed them or their interests. See 2 World Bank, Operation Manual, OP 17.55, Annexes A, B, C, available at <http://wbln0018.worldbank.org/institutional/manuals/opmanual.nsf> (visited Aug. 12, 2002). As of June 2002, the panel had received twenty-six requests, twelve of which led to panel investigations. See World Bank, Summary of Requests for Inspection, available at <http://wbln0018.worldbank.org/ipn/ipnweb.nsf/Wrequest> (visited Aug. 12, 2002). The Office of the Compliance Advisor/Ombudsman (CAO) for the International Finance Corporation (IFC) and Mutual Investment Guarantee Agency (MIGA), created in 1998, receives complaints from individuals and communities adversely affected by IFC- and MIGA supported projects. See Compliance Advisor Ombudsman, Introduction, at <http://www.cao-ombudsman.org> (visited Aug. 22, 2002); Center for International Environmental Law, The Compliance Advisor/Ombudsman (CAO), available at <http://www.ciel.org/Ifi/ifcdes.html> (visited Sept. 27, 2002). Other multilateral development banks also have review mechanisms, although none as formal and independent as the Bank’s Inspection Panel. Asian Development Bank, Office of the General Auditor, at <http://www.adb.org/OGA/default.asp> (visited Aug. 12, 2002); Asian Development Bank, Operations Evaluation Department, at <http://www.adb.org/OED/default.asp> (visited Aug. 12, 2002); Inter-American Development Bank, Office of Evaluation and Oversight, at <http://www.iadb.org/cont/evo/about.htm> (visited Aug. 12, 2002). The World Bank Inspection Panel and similar undertakings indicate growing efforts to provide means to civil society to hold international intergovernmental organizations accountable for their actions.

120 Art. 33(2) (emphasis added).

121 Commentaries, Art. 33, para. 4.

122 Id

123 Art. 55.

124 Commentaries, Art. 55, para. 2.

125 Allott, Philip, State Responsibility and the Unmaking of International Law, 29 Harv. Int’l L.J. 1, 1 (1988)Google Scholar.