The author starts by observing that discussions about the foundations and the limits of the powers of international courts, including those of the European Court of Human Rights (hereafter ECtHR), turn around the aims of achieving legal certainty, ensuring legitimacy and justice, and avoiding conflicting obligations which may emanate from different regimes of international law. The chapter reflects on these aims from the perspective of consent as the common basis of the main sources of international law, as listed in Article 38 of the Statute of the International Court of Justice. Proceeding from the case law of the ECtHR, the chapter explores how the recent work of the International Law Commission conceives the role of consent in respect of the main sources of international law, and whether the jurisprudence of the ECtHR remains within the framework of general international law so enunciated.

Until rather recently, ‘complicity’ was a marginal concept and a neglected issue in international law. The long gestation of Article 16 of the International Law Commission’s Articles on State Responsibility of 2001 did not attract much attention. According to this provision, ‘A State which aids or assists another State in the commission of an internationally wrongful act by the latter, is internationally responsible.’ However, after the terrorist attacks on 11 September 2001 and in connection with the invasion of Iraq in 2003, certain cooperative behaviour by States raised the general awareness of the possible responsibility of States for providing ‘aid and assistance’. This awareness, in turn, shed more light on other areas in which States cooperated in a way which raised questions about their implication in the internationally wrongful acts of other States. Today, barely ten years later, the possible responsibility for complicity is one of the most important and difficult issues which arise in the daily work of government legal departments.

This state of affairs alone would justify the timely publication of a monograph which carefully researches and analyses the relevant issues and practice. But the present book is much more than a solid synthesis of practice and the interpretation of an increasingly relevant rule of international law. Helmut Aust also situates this rule within the larger context of international law. He shows that the general prohibition of aid and assistance, as it is laid down in Article 16, is merely one element within a web of more specific primary rules. He also argues persuasively that this prohibition is an expression of a more general legal principle which would guide the interpretation of Article 16. Finally, he demonstrates that the position which international law adopts with respect to ‘aid and assistance’ is a highly significant symptom of its own state of development, perhaps as important as the concept of peremptory norms.

Introduction

Secession attempts sometimes provoke external interventions. Such interventions can take various forms. They can take place by armed force, by economic coercion, or by political means, such as by means of recognition. Interventions can also originate from different actors. They can be undertaken by the United Nations, by another international organization, by a State or a group of States, or by Non-State actors. This article does not cover all possible forms of external intervention within secession processes, rather it concentrates on describing some general rules of international law that are applicable in such situations and on providing a few pertinent examples from international practice. The focus will be on the role of the United Nations (section II) and on armed intervention by third States, both at the invitation of the government concerned and without (section III).

Secession, as a legal term, means the – not necessarily forceful – breaking away of an integral part of the territory of a State and its subsequent establishment as a new State. This chapter, however, only deals with the rules that apply to a narrower concept of secession. Thus, we are not concerned with conflicts about internationally disputed territories, e.g. the cases of the Baltic States, Kashmir, Palestine, East-Timor, or the divided States such as China, Germany, Korea, Yemen. Cases of domestic conflict which merely contain a remote possibility that they will turn into a serious secession attempt such as the Basque country, Corsica and Scotland are also beyond the scope of the present work.

Until the end of the Cold War comparative constitutional lawyers and political scientists tended to emphasise the common ground within the North Atlantic region. Today, some even speak of a ‘European-Atlantic constitutional state’. This view was and is perfectly legitimate. It was not only the radically different socialist understanding of law which made western constitutional theories and practices appear to be so similar. This similarity is also firmly grounded in the cross-fertilising constitutional developments between Western Europe and North America which have taken place before and since the eighteenth century.

The end of the socialist systems in Eastern Europe and increasing ‘globalisation’, however, may bring about a change of emphasis from the similarities to the differences between the constitutionalisms in the United States and Europe. Over the past few years issues have emerged which seem to indicate that European constitutional theory and practice is becoming aware that it has developed certain rules and possesses certain properties which are characteristically different from US constitutionalism and vice versa. This new perspective, or rather such a change in emphasis, is likely to be reinforced by political developments which expose discrepancies in the evaluation of fundamental questions between the majority of Europeans on the one hand and the majority of Americans on the other.

This book was conceived before the drama of the latest Iraq crisis unfolded. That crisis has had profound repercussions on transatlantic and intra-European political relationships. It has obviously gone beyond disputes about international law.