The Status of State Apologies

I. Introduction

Within just the past few years there has been a spate of state apologies, as a number of governments have either acknowledged a previous wrong against some particular domestic group, or else the apology has been transnational in scope as one state has acknowledged doing wrong to another state, but really to the people of this other country. ¹ Of course, this apology phenomenon has not been restricted to states. ² Rather, a wide array of religious ³ and civic organizations, ⁴ and even business enterprises, ⁵ have started to issue their own apologies. In fact, so many apologies have been uttered by so many entities in the cause of so many things that political pundits and journalists have easily dismissed many of these efforts-- perhaps the whole lot of them--as nothing more than a cheap effort at assuaging lingering guilt concerning some misdeeds from the past and, at the same time, to make those issuing the apology feel morally superior to those who came before them. ⁶

On one level it is understandable why many apologies would engender this kind of cynicism. For one thing, given the enormity of some of the crimes for which state apologies (or near apologies) ⁷ have been given--slavery, ⁸ certain aspects of colonial rule, ⁹ and complicity in genocide, ¹⁰ for starters--any attempt "to come to terms" with such a past will not only seem lacking, but of necessity will be lacking.

More than that, however, the manner in which so many apologies have been given would easily lead to this jaundiced view. All too often, apologies have given every appearance of being an insincere affair. Which is to say, that a few soft and somber words have been uttered about how wrong and how misguided some previous policies or actions had been. But after going on record acknowledging some particular horror from the past, every effort is then made to get through the apology as quickly and as painlessly as possible.

Yet, neither the cacophony of proffered apologies nor the deficiencies to be found in so many, especially state apologies, should obscure their possible importance not only as political or moral statements, but in terms of human rights law as well. Perhaps this is easier to see with respect to apologies within the domestic realm, nearly all of which have been based on what are now fairly well established human rights principles although few, if any, have been framed in that fashion. Still, transnational state apologies could play a far more significant role in terms of developing new norms and standards, and that is our present inquiry.

Part II focuses on two nascent principles and the role that state apologies might play in their development as human rights standards. The first is the notion of transnational state responsibility for causal contribution to human rights violations in other states. International human rights law has tended to focus on the relationship between a state and those within the territorial jurisdiction of that state. In part because of this, transnational state responsibility generally has been ignored, and the law in this area remains uncertain. State apologies might play an important role simply by initiating a larger debate concerning the manner in which the actions carried out by one state may have some effect outside of their own jurisdiction. Beyond that, however, state apologies might play a more direct role in terms of the development of the law of state responsibility. Statements by high level officials--such as apologies--may under certain circumstances, constitute evidence of state practice and therefore 1) contribute to the formation of customary international law; 2) constitute a source of interpretation for the purpose of determining the content of obligations arising from treaty law; and 3) serve as a unilateral declaration that is at least binding on the state that issued the apology. ¹¹

The second principle involves the...