Co-authors Respond to Comments by Marko Milanovic and Chiara Giorgetti

[Lea Brilmayer is the Howard M. Holtzmann Professor of International Law at Yale Law School. Isaias Yemane Tesfalidet (LL.M. ’10, J.S.D. Candidate, Yale Law School) is a fellow with the Forum for International Criminal and Humanitarian Law. They are the authors of “Third State Obligations and the Enforcement of International Law“, 44 N.Y.U. J. Int’l L. & Pol. 1 (2011).]

We would like to start by thanking the NYU Journal of International Law and Politics and Opinio Juris for arranging this opportunity to discuss our article. We would also like to thank Marko Milanovic and Chiara Giorgetti for providing their reactions.

Our proposed model of third State obligations in enforcing international law rests on the premise that if “first party States” are obligated to observe international law, why shouldn’t third States be obligated, also. As we note in our article, “third State obligations … are a function of the type of involvement that the third State has with the dispute in question.” In other words, as Professor Milanovic correctly recognizes, we argue that:

The third State obligations with which we are concerned prohibit one State from contributing to another State’s violation. A State may take the side of the innocent party, or may remain completely on the sidelines, but is not entitled to facilitate, support, or encourage the violation of international law. Third State obligations require that if a State does get involved, it should be on the side of the victim.” (Section III).

Admittedly, our proposal has serious and far-reaching implications for international law and international relations. As Milanovic points out, our proposal would impose no less burden than the State bystander model in that “… all states would still in principle be policing every other state in the relationships with third parties ….” However, we do not require third States to undertake additional efforts to “collect a new body of evidence” because they should already have been in possession of the relevant information when they decided to get involved in the first place. Third States would make the decision when they routinely formulate their foreign policy.

We share the concern with the practicability of third State obligations but we think that part of the concern and reluctance to recognize third State obligations emanates from “a mistaken idea of what they would have to look like ….” We also address the ambivalence of Article 16 of the ILC Articles on State Responsibility and think that this ambivalence is in part attributable to “… the long shadow cast by the universal extension of affirmative responsibilities, with its extreme impracticability.”

Professor Giorgetti raises two important questions. First, is “a specific finding of a violation of international law […] required to trigger a third State’s obligation?” We think that a finding of violation of international law by an independent body (for example, an international fact finding commission or arbitral tribunal) is not necessarily required. Slightly different sets of issues are raised where there is a prior finding of violation. In fact, whether third States should assist in the enforcement of judgments and awards of properly constituted international tribunals is the subject of Tesfalidet’s doctoral dissertation. The second question that Giorgetti poses is “what amounts to a violation and what is just in international relations”?

At the risk of attributing to Giorgetti what may not be her position, the question reveals the desire to keep international law separate from international politics. As we note in our article, the victim of a violation of international law and the third State are speaking different languages – the former, the language of law and the latter the language of power politics. Our third State model in part seeks to bring this into the open. Importantly, this question also touches on how far can or should international law restrict the range of choices that States have in their international relations. While we think that our proposed model does not unduly restrict third States lawful choices, that, obviously, is too extended a topic to deal with in this response.