STATE ACCOUNTABILITY UNDER INTERNATIONAL LAW HOLDING STATES ACCOUNTABLE FOR A BREACH OF JUS COGENS NPDF电子书下载

Introduction 1

1. The interpretive framework 2

2. The substantive concept 4

1 Breaking state accountability down to its conceptual parts 9

1.1 ‘Accountability’ 9

1.1.1 Linguistic interpretation 11

1.1.1.1 The difference between accountability and responsibility 13

1.1.1.2 The relationship between accountability and impunity 14

1.1.2 A trend toward bottom-up accountability? 18

1.1.3 Interpreting accountability in the context of human rights 20

1.1.4 Is there a legal obligation to ensure accountability? 26

1.1.5 A working understanding of accountability 28

1.2 The‘state’ 28

1.3 Conclusion 32

2 State accountability as a conceptual whole 34

2.1 The scope of the ad hoc accountability practice for analysis 35

2.2 A tentative set of acountability criteria 41

2.2.1 Is state accountability associated with criminal accountability? 42

2.2.2 Is slate accountability associated with state responsibility? 50

2.2.3 Is state accountability associated with the particular law breached? 52

2.2.4 Is state accountability solely associated with legal accountability? 55

2.2.5 Is state accountability associated with political or moral accountability? 57

2.3 Conclusion 59

3 The relationship between state accountability and jus cogens norms 61

3.1 Jus cogens as the link between conceptual state accountability and established international law 61

3.2 The debate and attempting to define jus cogens 62

3.2.1 Distinguishing jus cogens norms from standard norms 63

3.2.2 The source and substance of jus cogens 65

3.2.3 Are states under a positive duty to comply and ensure compliance with jus cogens norms? 67

3.2.4 Which norms are jus cogens norms? 68

3.3 A working definition of jus cogens 70

3.4 Conclusion 73

4 The relationship between conceptual state accountability and doctrinal state responsibility 74

4.1 An introduction to the doctrine of state responsibility 74

4.2 State responsibility under the ILC'S Draft Articles 78

4.2.1 Can the international community as a whole invoke state responsibility? 79

4.2.2 Is state responsibility for violating an erga omnes obligation effectual in terms of holding states accountable for breaching the underlying jus cogens norm? 82

4.2.3 How effective is reparation under the Draft Articles in holding states accountable? 84

4.3 Juridical support for state accountability in the context of the state responsibility doctrine 89

4.4 Conclusion 93

5 State accountability in state practice 94

5.1 Setting the scene to analyse state accountability in practice 94

5.1.1 Who determines whether a state breached international law? 95

5.1.2 What forms of redress ensure the breaching state is held accountable? 99

5.1.3 Is state accountability solely a state prerogative? 100

5.2 Case studies 100

5.2.1 Armenian massacre 1915 100

5.2.2 Crimes against humanity by the USSR - Holdomor famine 1933 and the Katyn Forest massacre 1940 110

5.2.3 Apartheid in South Africa 120

5.2.4 Comparing responses to state aggresion in the 20th century 129

5.2.4.1 Invasion of the Republic of Korea 1950 130

5.2.4.2 Bombing of the Osiraq Nuclear Reactor 1981 133

5.2.4.3 Invasion of Kuwait 1990 135

5.2.4.4 Conclusions on the responses to state aggression 140

5.2.5 Australia’s ‘stolen generation’ 142

5.3 Conclusion 152

Conclusion: An accountability epoch? 155

1 State accountability has no normative standing 158

2 State practice is indicative rather than determinative of state accountability 158

3 State accountability is a legal， political and moral concept 159

4 State accountability represents a continuum of answerability 160

5 State accountability is sought on the basis of a norm’s substance，not its jus cogens status 161

6 Characteristics of state accountability 162

6.1 A mix of motivations 162

6.2 A mix of accountability seekers 163

6.3 A mix of responses 163

7 Moving from lex feranda to lex lata? 164

Bibliography 166

Index 181