State Accountability under International Law: Holding States Accountable for a Breach of Jus Cogens Norms

199 Pages·2011·0.86 MB·English

by  Lisa Yarwood

State Accountability under
International Law
This book considers the extent to which states are held accountable for breaches
of jus cogens norms under international law. The concept of state accountability
is distinguished from the doctrine of state responsibility and refers to an ad hoc
practice in international relations that seeks to ensure that states do not escape
with impunity when they violate norms that are considered fundamental to the
interests of the international community as a whole.
State Accountability under International Law sets forth a defi nition of state account-
ability and establishes a threshold against which the existence, or not, of state
accountability can be determined. Using a Foucauldian infl uenced interpretive
methodology, this book adopts a novel construction of state accountability as
having legal, political and even moral characteristics. It argues that the interna-
tional community seeks to hold states accountable utilising a variety of traditional
and non-traditional responses that cumulatively recognise that the institutions
that comprise and legitimise the state were instrumental in the particular breach.
Using case studies taken from state practice from throughout the 20th century
and covering a range of geographic contexts, the conclusion is that there is evi-
dence that state accountability, as it is conceptualised here, is evolving into a legal
principle.
The book draws together the many academic theories relating to accountability
that have arisen in various areas of international law including environmental law,
human rights and trade law, before going on to examine an emerging practice of
state accountability. A variety of ad hoc attempts and informal mechanisms are
assessed against the threshold of state accountability established, with emphasis
being given to practical examples ranging from the accountability of Germany
and Japan after the Second World War to the current attempts to seek account-
ability from Russia for former crimes of the USSR.
Lisa Yarwood is a lecturer in law at the University of Exeter.
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State Accountability under
International Law
Holding states accountable for
a breach of jus cogens norms
Lisa Yarwood
First published 2011
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
270 Madison Avenue, New York, NY 10016
Routledge is an imprint of the Taylor & Francis Group, an informa business
This edition published in the Taylor & Francis e-Library, 2011.
To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.
© 2011 Lisa Yarwood
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Yarwood, Lisa.
State accountability under international law: holding states accountable
for a breach of jus cogens norms / Lisa Yarwood.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-415-57783-0 (hbk) – ISBN 978-0-203-83752-8 (ebk)
1. Jus cogens (International law) I. Title.
KZ1261.Y37 2011
341’.1–dc22
2010021659
ISBN 0-203-83752-5 Master e-book ISBN
ISBN 13: 978-0-415-57783-0 (hbk)
)
ISBN 13: 978-0-203-83752-8 (ebk
To Judy, who fought with me to be the best apple I could
be, to Bruce, who loved me when I tried to be an orange,
and to Sally, who daily inspires me in never pretending
to be anything other than herself.

Contents
Acknowledgements xiii
Preface xv
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 state 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