Third State Obligations: An Essential Discussion for International Law, a Response to Brilmayer & Tesfalidet by Chiara Giorgetti

[Chiara Giorgetti is an Adjunct Professor at Georgetown Law Center and a member of the International Arbitration Group at the Washington, D.C. office of White & Case.]

I am very pleased to join this discussion on Professor Lea Brilmayer and Isaias Yemane Tesfalidet’s upcoming article on third State obligations and the enforcement of international law.

In their article, Brilmayer and Tesfalidet argue that States have a positive obligation not to contribute to another State’s violation of a victim’s legal rights, and propose that liability is triggered only when a third State is already somehow involved in the dispute by supporting the violator rather than assisting the victim. In essence, in their proposal they suggest that third States do not frustrate international law and worsen an already alive – but legally clear – dispute.

The proposition that third States should not interfere with another State’s violation of a party’s established legal rights is intuitively correct and appealing.

It is quite surprising that international law has not produced more legal scholarship on the subject. The new article by Brilmayer and Tesfalidet fills this vacuum in a satisfying and well-reasoned manner. This is indeed a discussion that must be had.

When third States interfere in an international law conflict taking the side of the violator, they are undermining international peace and international comity, and in fact international law (see, for example, how art. 2(5) of the UN Charter requests Members to “refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action”).

Interestingly, when Tribunals consider requests for provisional measures they also often recommend that parties refrain from aggravating the disputes. An argument could be made that third State should be equally required to refrain from aggravating an international dispute.

Importantly, the authors assert that “the legal basis for imposing third State liability is that the third State is involved in the violation of the same substantive law as the primary violator.” Thus, the obligation to refrain from supporting an international law violator is a legal obligation and is grounded in international law.

I think that further support for this theory can also be given by general principles of international law, and especially those principles that require States to cooperate with one another.

An interesting question is whether a specific finding of a violation of international law is required to trigger a third State’s obligation, and what specifically would amount to a violation and what should be considered the normal performance of international relations.