A Response to Lea Brilmayer & Isaias Yemane Tesfalidet by Marko Milanovic

[Marko Milanovic is a Lecturer in Law at the University of Nottingham School of Law.]

In their timely article Brilmayer and Tesfalidet address an important issue of general international law – when should states bear obligations to either put an end to or not contribute to violations of international law by other states, even when the obligation in question is not owed to them specifically. They challenge the orthodox view that by and large it is not any one state’s business whether third states comply with their obligations towards others, so long as the obligation concerned is not erga omnes in character. They similarly challenge the state bystander responsibility model offered by Monica Hakimi in an article published last year in the EJIL. They offer instead a third state obligation model, under which states would be under a general obligation not to contribute to another state’s violation of international law. This model can, in their view, contribute greatly to an atmosphere of obedience to international law, and to the greater coherence of international law as a legal system. In effect, it could serve as a substitute for the (general) lack of an institutional mechanism of law enforcement by the international community.

Having read this very interesting paper, I must confess to some doubts as to the cogency of its main argument. First, it is at times unclear – or at least it was not clear to me – what the argument actually is. This lack of clarity affects both the paper’s claims with regard to the law as its stands and as to relevant policy considerations. Second, I am not convinced that the paper’s portrayal of its approach’s appeal as compared to its competitors is persuasive.

To start with my second doubt, the paper does strongly argue that it would be quite impracticable to impose Hakimi’s state bystander model to all international obligations. In other words, it would not only be unsupported by current practice but also be unwise as a matter of policy to say that all states have the positive obligation to take all reasonable measures to put an end to all violations of international law by third states, regardless of the substance or character of the obligation in question. Even the far more limited obligation for states to cooperate to put an end to breaches of jus cogens in Art. 41 of the ILC Articles on State Responsibility was subject to much debate. As Brilmayer and Tesfalidet persuasively argue, it would be unrealistic, to say the least, to apply a version of that obligation to all breaches of international law, i.e. to expect of states to actively police the compliance by all other states with the totality of international law.

I am not sure, however, that even Monica would argue differently – but I would of course leave this to her. I am also not sure that Brilmayer’s and Tesfalidet’s proposed solution is any more realistic. As I read it, they would create a negative obligation of states not to contribute to violations of international law by third states, much akin to the complicity provision in Art. 16 ILC ASR. So far so good. What they would in fact do, however, goes beyond Art. 16. In effect, they would dispense with the Art. 16(b) requirement that prohibits complicity only when the ‘accessory’ state and the ‘principal’ state are bound by the same obligation. But not only is this proposal not necessarily any less utopian than the one requiring positive action – all states would still in principle be policing every other state in the relationships with third parties – but the exact specifics of this proposal remain unclear. For instance, Brilmayer and Tesfalidet try to reduce the scope this broad prohibition on complicity by limiting it to states that are somehow ‘involved’ in the dispute, but the whole point of complicity obligations is precisely to prohibit some level of involvement. In other words, the conduct being prohibited cannot serve as a threshold for the application of the prohibition itself. The argument would, in my view, have been conceptually clearer had it taken Art. 16 ASR as a baseline and provided a more substantial critique of some of its features or requirements. Similarly, most examples of third state obligations that they offer arise in contexts such as human rights or self-determination which may already be covered by primary positive obligations to prevent certain acts, or negative obligations to refrain from certain acts or not recognize their validity. That makes the comparative advantages of their proposal harder to weigh against existing international law – I would hence have liked to see their model applied to a number of real world examples that they felt were inadequately dealt with under existing law. That said, while I may not agree with every claim in the paper, I certainly enjoyed reading it.