different extents, relevant to the Palestinian context.182 In such cases, by
reason of the importance of the rights involved, all states can be held to
have a legal interest in their protection and are therefore entitled to invoke
responsibility of any state in breach.183
When a serious breach of an obligation under peremptory norms occurs,
international law imposes a primary two-pronged obligation upon all
states: they have a duty to cooperate to bring the serious breach to an
end, and a parallel duty of abstention in recognizing this situation as lawful
and in rendering assistance in maintaining that situation.184 As part of the
international community, third states can also invoke the responsibility of the
state which committed the serious breach and claim, inter alia, reparations
for the beneficiaries of the obligation that was breached.185
Duty of cooperation
The first obligation, as set out in Article 41(1) of the ILC Draft Articles, is that
of a positive duty on all states to cooperate in bringing any serious breach
to an end through lawful means, whether or not they are affected by the
breach itself. Cooperation is also mentioned in several preambles to human
rights treaties, such as the UDHR and ICCPR.186 All states, as members of the
international community, are hence required to make a “joint and coordinated
effort,”187 adopting appropriate measures in order to bring an end to Israel’s
practices of population transfers.
182 See, e.g., the withdrawn Report issued by UN Economic and Social Commission for Western
Asia, Israeli practices towards the Palestinian People and the Question of Apartheid, E/ESCWA/
ECRI/2017/1,15 March 2017, available at https://www.middleeastmonitor.com/wp-content/
uploads/downloads/201703_UN_ESCWA-israeli-practices-palestinian-people-apartheidoccupation-english.pdf
183 ILC, Draft Articles on Responsibility, supra note 34, art 48(1)(b). This principle was firstly underscored
by the ICJ in the Barcelona Traction case. See Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain), Judgment, 1970 ICJ 3, 5 February 1970, available at: http://www.icj-cij.org/files/
case-related/50/050-19700205-JUD-01-00-EN.pdf, para 32-33.
184 ILC, Draft Articles on Responsibility, supra note 34, art. 41.
185 ILC, Draft Articles on Responsibility, supra note 34, 1
27, para 12.
186 While normally preambles are not legally binding, they can be relevant for the interpretation of the
treaty concerned, as set out by Article 31(2) of the Vienna Convention on the Law of Treaties, supra
note 180. The preamble of UDHR affirms the pledge of UN member states “to achieve, in co-operation
with the United Nations, the promotion of universal respect for and observance or human rights
and fundamental freedoms”; while the ICCPR preamble highlights “the obligation of states under the
charter of the United Nations to promote universal respect for, and observance of, human rights and
freedoms”. The recalling of the role of the UN must be read in light of the general duty of cooperation
which stems from UN membership status.
187 ILC, Draft Articles on Responsibility, supra note 34, 114.
60
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents