Book Review: Inter-State Accountability for Violations of Human Rights
| DOI | 10.1177/016934419301100415 |
| Published date | 01 December 1993 |
| Date | 01 December 1993 |
| Subject Matter | Part D: DocumentationBook Review |
Part
D: Documentation
Book Review-
Menno T. Kamminga, Inter-State Accountability for Violations
of
Human Rights,
University
of
PennsylvaniaPress, Philadelphia 1992, 217 pages, ISBN 0-8122-3176-7,
$32,95
In his dissertation at the University
of
Leiden Menno T. Kamminga dealt with one of the
most difficult and controversial questions of human rights law: the antagonistic relationship
between the international protection
of
human rights and the principle of non-intervention
into internal affairs of sovereign States. Kamminga mastered this task in a very thorough,
methodologicallysound and convincingmanner. He successfully challenged
the
classicdogma
of international law that States are entitled to exercise diplomatic protection only on behalf
of their own nationals. After carefully analyzing State practice of formal diplomatic
intercessions at a bilateral level as well as accountability toward the United Nations and
otherintergovernmental organizations he arrives at the central conclusion that, undergeneral
international law, a State bound by certain international obligations in the field of human
rights is entitled to require another State bound by those obligations - both under treaty
based and customary international law - to performthem. Consequently, States are entitled
to exercise full diplomatic protection on behalf of all victims of breaches of international
human rights obligations, i.e. also on behalf of nationals of the offending State. In other
words: under present international law the domestic jurisdiction clause in Article 2(7) of
the UN Charter is no longer a valid ground for the offending State to object to bilateral
diplomatic action by an interceding State of to multilateral action by intergovernmental
bodies. This not only holds true for gross and systematic violations of human rights or those
amounting to a threat to international peace and security but to every alleged breach of
an international human rights obligation.
If
such obligation derives from treaty law, the
offending State is accountable to all other States parties,
if
it is based on customary
international law (e.g. the prohibition of genocide, slavery, arbitrary executions and
disappearances, torture, prolonged arbitrary detention, apartheid and other forms of
systematic racial discrimination as well as a consistent pattern of gross human rights
violations), the accountability applies to all other States. In this respect Kamminga follows
the opinion of the International Law Commission that erga omnes obligations in the field
of human rightsare not limited to rules ofjus
cogens
and to international crimes. Interceding
States, therefore, have
locus
standi, without having to demonstrate any special interest,
to lodge an inter-State application under a relevant treaty provision or to submit the case
to the International Court of Justice under any of the explicit provisions of human rights
treaties or, unless clearly prohibited by a treaty provision, under Article 36 (2) of its Statute.
Kamminga arrives at these conclusions by carefully analyzing and combining
contemporary theories of international law and the development of State practice. He begins
with the analysis of some historical and contemporary cases of bilateral diplomatic
intercessions on behalfof foreign nationals. This first part seems to be the least convincing
since the few contemporary cases selected
(Ali
Bhutto, Kim Dae-jung, Orton and Vera
Chirwa, AndreiSakharov) representdiplomatic action on humanitarian grounds rather than
intercessions aimed at holding an offending State accountable for human rights violations.
'" Manfred Nowak
521
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