State Responsibility International Responsibility l The UN International

State Responsibility

International Responsibility l The UN International Law Commission-----started to discuss on “state responsibility” in 1975 -----this took 26 years and in 2001 -----Draft Articles on State Responsibility were finally adopted----now it is waiting the accession of states to this convention. l l These Draft Articles includes-----both “codification” and “progressive development of int. law” Art. 1 of the ILC Convention-----“every international wrongful act of a state entails the international responsibility of that state”

Responsibility l l l Not only “states”---but also int. organizations---because they can conclude treaties----it goes without saying. Position of individuals + corporations and nongovernmental organization-------to the extent they act as subject of int. law. Individuals----int. responsibility only developed in criminal field----recently-----crimes against peace + humanity so on. ----Draft articles include all---but so far there has been no development in practice of civil responsibility of individuals and corporations for breaches of int. law.

Responsibility l International obligations of states vary from one state to the other-------because there are few treaties to which every state is a party. — like UN Charter. Even under customary int. law----different states may have different responsibilities----like “upstream states” “downstream states”. – National legal systems distinguish types or degrees of liability----according to the source of obligation breached---crime + contract + tort (haksız fiil)------BUT in int. law – there is no general distinction of this kind.

Elements of State Responsibility 1 - There has to be an act or omission violating a rule of international law-----unlawful act-----or we call it “internationally wrongful act” OR an act-omission consistent with the rules of international law-------in which a responsibility can be attributed to its consequences. 2 - This act must cause a damage or loss 3 - This act must be attributable or imputable to a person of international law. 4 - There should not be a reason terminating responsibility or deleting the consequences of that act. ----we call them as “circumstances precluding responsibility. ”

1 - An Unlawful Act or Omission--Internationally wrongful act l There are opposing approaches to the nature of this “act or omission”------– “Principle of objective responsibility” (the risk theory)----maintains that “once an unlawful act has taken place and has cause damage-----that state will be responsible irrespective of “good or bad faith”. This approach does not ask the existence of a “culpability---fault”. – “Subjective responsibility” (the fault theory)---element of “intentional” or “negligent” (ihmal) conduct is necessary for int. responsibility.

2 - The Issue of Injury or Damage l l In fact----there is debate in int. law about “the role of harm or damage”—in the law of state responsibility. Some claimed that----the state must have suffered some form of actual harm or damage before responsibility can be attributed. BUT---the ILC Draft-------there is no general requirement of harm or damage-----in some circumstances---mere breach of an obligation -----will be sufficient to give rise to responsibility. ---like minor infringement of the inviolability of an embassy or consular building. In such cases of breach----with no damage---the aim of asserting responsibility may be to avoid repetition of the problem rather than to obtain compensation.

Harm/Damage l There are some basic principles regarding damage: l l 1 - This harm must occur against a “protected right” instead of “a benefit”------EXP----termination of a foreigner’s privileged tax status in another country would not create international responsibility. 2 - There may be a distinction between “direct damage” and “indirect damage”-------direct damage means----“the unavoidable consequences of an internationally wrongful act”. ----but indirect one is “the damage that occurs as a result of a direct damage”. -------EXP: 19 th century-----UK’s selling of the armed ship “Alabama” to the South America (confederate--north--union)-----The Arbitration took into consideration the casualty created by this ship but not the “rise of ship insurance prices” and “rise in the prices of ship transportation”.

Harm/Damage 3 - Material Damage (Maddi zarar) + Mental sufferings (manevi zarar)-----since 1920’s not only the material one but also the “mental sufferings of relatives of the person killed are taken into consideration”. l 4 - Internationally wrongful act may damage the “international legal person” directly or through its citizens. -------like inhuman treatment to the diplomatic agent may be deemed as damage to state. ------the institution or the concept of “diplomatic protection” developed as a result of this connection.

3 - The Question of Imputability (attribution) l Another important point-------EVEN if any organ or official of a state acts “ultra vires” (acts beyond their legal capacity---excess of authority----contravening instructions)------ acts or omissions of that organ may be attributable to the state. l l In 1920’s a French national was shot and killed by the members of the Mexican Army without any official instruction to them to do so. ----BUT the tribunal held Mexico responsible for these “ultra vires” acts and attributable to the state of Mexico. Organs, officials or agents of states-----when they act in their capacity as organs of the state---their acts and omissions shall be regarded as those of the state---even when they contravene the internal law or directives------therefore one must pay attention to the employment of agents carefully.

3 - The Question of Imputability (attribution) l Normally-----a state is not responsible for the acts of mass or of private individuals----their conduct will only be attributable to the state-----l a- if they were in fact acting “under the authority or control of” the state. -----l l l Exp: During the case of Nicaragua----the ICJ searched “effective control” of the USA over the conducts of the contra rebels---in order to attribute the responsibility to the USA. Please also remember the Case of Loizidou. Under the ILC’s Draft Articles----special concepts were used----“if the persons or group of persons is in fact acting on the instructions of + or under the direction of + or under the control of-----that state in carrying out of that conduct…

3 - The Question of Imputability (attribution l b- or if the state adopts their acts as its own. ---l Exp: in the Tehran Hostages Case---the ICJ hold that “although initially the students who took the control of the US embassy in Tehran were not acting as agents of Iran----BUT a subsequent decree of Ayatollah Khomeini endorsing this occupation “translated these acts into acts of Iran””.

3 - The Question of Imputability (attribution) l l l c- or if they “empowered to exercise elements of governmental authority”. l Exp: Acts of “private security firms authorized to act as prison guards. -------or when privatized or state-owned airlines exercise certain immigration controls. d- or if the state failed to prevent the conduct Exp: Special duty to protect embassy or consulate buildings. -----In the Tehran Case the ICJ held Iran responsible for not to protect the Embassy of USA

3 - The Question of Imputability (attribution) l Another point is related with the “time factor” l l Basic principle----A state can only be responsible for breach of an obligation----if the obligation is in force for that state----at the time of the alleged breach + violation. This principle is also reflected in the ILC’s Draft Articles--An act of a state does not constitute a breach of an int. obligation----unless the state is bound by the obligation in question at the time of the violation.

3 - The Question of Imputability (attribution) l Certain wrongful acts may be “instantaneous”--while some of them can continue over a period of time. l Exp: convention “entered into force for that state” is an important point-----in the Loizidou Case---the ECHR said---continuing exclusion of Mrs. Loizidou from access to her property in TRNC---continued after the 1974 military operation of Turkey

4 - “Circumstances Precluding Responsibility-Wrongfulness” l l l These are the excuses------which transform a wrongful act that would otherwise constitute an unlawful act. But please note that-----under the ILC’s Draft Articles------non of these circumstances can operate to excuse a conduct which violates a peremptory norm of international law. Exp: for the preclusion of responsibility about “torture” + “crimes against humanity”.

4 - “Circumstances Precluding Responsibility-Wrongfulness” l l Consent A valid consent may preclude the wrongfulness of that action l l l Exp: a state may consent to military action on its territory---which would otherwise be unlawful under the UN Charter. ---take “Treaty of Guarantee”-------prior consent. Again----a state may consent to foreign agents to arrest of suspects on its territory. -----Exp----There was a treaty between Turkey and Iraq on trans-boundary military operations in case of terrorist or rebel fighting. BUT----A state cannot consent to legitimize “genocide”.

4 - “Circumstances Precluding Responsibility-Wrongfulness” l l l Self-defence it is so clear----take Art. 51 of the UN Charter---“armed attack”. Force Majeure (Zorlayıcı Neden)---Mücbir Sebep – – If non-performance of an obligation-----is due to the circumstances outside the control of the state---and if the reason was an unexpected + unforeseen + irresistible event “beyond the control of the state”----there shall be no responsibility. BUT---this force majeure will not apply----if the situation is “due to the conduct of the state invoking it”.