The notion of responsibility
Responsibility is the duty to respond in case of violation of the law, each legal order has rules on what should happen in case the law is violated.
From this point of view, responsibility is a cardinal function of law, it is another way of determining the binding nature of a legal rule.
The Permanent Court of International Justice in the Chorzów case,
séria A number XVII page 29, stipulates that it is a principle of international law or even a general conception of law that any breach of an undertaking entails an obligation to make reparation.
The term "primary rule" refers to all the substantive rules of international law, all the rules that may be violated. In the event that one of these primary rules is violated, a system of secondary rules emerges that tells us what the consequences of this violation are.
In the perception of State responsibility, there is a mass of primary rules applicable at a given time between the subjects of international law and there is a secondary level applicable only if one of the primary rules is violated.
It is a relative rule, because there is a primary rule not to enter the territory of another State without its consent, at the secondary level there is a duty to repair the harm caused; if the State does not repair the harm caused, it violates the rule that it must repair the harm caused, then this rule becomes a primary rule so that at that time a secondary rule would again emerge.
What is a primary and secondary rule is a reason for perception, the primary rule has been violated, the secondary rule decides what should follow, the intermediate level is a relative level.
The second remark is that international responsibility is a modern branch, international law only fully developed it in the 20th century, formerly international law did not really need international responsibility because classical international law considered that any problem that might arise between States, or even other entities on compliance with these rules, should be liquidated either by a transaction, i. e. an agreement, or if an agreement is not possible by force or peace or possibly war.
In modern 20th century law, centred on peace and the regulation of legal systems, the branch of liability has been greatly developed.
This development took place through two belts: The first is that of international practice, where jurisprudence has played an important role, it was, first of all, a right of chancellery and the practice of jurisprudence; arbitrations since the end of the 19th century have very often had as their object the violation of the law.
There was a rich practice between the chancery and the jurisprudence that clarifies this right of liability.
There is another belt through which the rule has grown which is through a codification work passed through multiple hands of the International Law Commission.
In 1955 work on State Responsibility began in the period up to 2001; the result is recorded in the Articles on State Responsibility for Internationally Wrongful Acts adopted in 2001 by the International Law Commission and endorsed by the United Nations General Assembly in resolution 4659 of 2001.
This draft represents nothing more than a soft-law text, but the content of the articles does not fully reflect, but in part, articles of customary law, since the Commission wished to codify State practice and that arising from international jurisprudence. Another remark concerns the question of subjectivity, which is a subject of international responsibility?
Who is accountable for unlawful acts?
This rule only concerns States, but any other subject of international law is subject to responsibility since any subject to rights and obligations is therefore subject to international law and if he has obligations, he is likely to violate this or that obligation and must be held accountable for it.
The United Nations has always compensated people who have suffered damage from United Nations persons.
State responsibility is the most important in practice since international relations are inter-State relations.
When we talk about State responsibility, we are talking about civil liability, it is a harm caused to civilians, we are not in the field of criminal law, the State is not criminalized as such, international criminal law always concerns individuals.
What makes the State's responsibility arise? Are there circumstances that make wrongfulness disappear, what happens if a State is responsible?
There are two main types of consequences arising from liability:
- to repair the damage caused
- the power of the injured State in certain strictly defined circumstances to take countermeasures
On the one hand there is the consequence of a new obligation and on the other hand there is an ability to take material measures.
Article 1 of the International Law Commission's articles on the Responsibility of States for internationally wrongful acts is a provision of the highest quality in terms of its precision and litany, it provides for any internationally wrongful act of the State incurring its international responsibility.
This statement contains two cumulative conditions, but also two negative conditions, two elements that might have been expected to be found in Article 1, but which are not included in it.
The positively required elements are of two kinds:
- first of all, there must be an internationally wrongful act: violation of an international norm.
- the wrongful act must be committed by a State: any internationally wrongful act of a State entails its responsibility.
We must consider that any wrongful act is the act of a State through attribution rules; natural persons act on behalf of the State and we must determine when this is the case and then we talk about the attributions of acts from the person to the State.
As for the elements missing in Article 1:
- element of fault: is fault required with the intention of the State? negligence? Article 1, reflecting international custom, responds in the negative; it is not necessary to provide for negligence, intent or anything on the part of States, it is sufficient if there is a violation. States have an obligation to each other to respect the rules, not to commit wrongful acts and not to do so intentionally.
- Damage/prejudice: it is not necessary to prove a specific damage, it is not necessary to prove any specific damage, the violation of the rule is sufficient, depending on the type of damage the duty to compensate will be transferred to other modalities.
Elements generating liability
The internationally wrongful act
The first remark is that the breach of an international obligation is always manifested by the fact that the conduct that a State has engaged in is not in accordance with the conduct required by an international norm: a provision requires such and such conduct, the conduct that a State has in fact engaged in is not in accordance with the conduct that a State has engaged in under the law.
It is always the fact of an incongruity between what is due and what is done that manifests the unlawful act.
Very often, non-compliance will manifest itself in a deficit in the State's attitude, it does not do everything or as much as it should have done, it does less than it should have done; sometimes this non-compliance is due to the fact that the State does something else or exceeds what is allowed by the norm. The second remark is that the provision providing for the obligation must be in force for the State in question at the time of the fact of considering whether or not it is unlawful.
Article 13 of the articles on State responsibility expressly recalls this; it is therefore clear that a State is not responsible for having complied with a norm if that treaty is not yet in force.
For example, if it is signed and not ratified, or signed and not yet in force. The same applies if a treaty is suspended pursuant to a previous material breach to which the State concerned reacts in terms of suspension as provided for in article 60 of the Vienna Convention on Treaties. The fact may also be continuous, but at that time it must be noted that the standard was in force at that time and is respected within the period of time that the conduct was maintained.
The third remark is to know what the obligation of the norm is, this has emerged from the interpretation, the norm must be interpreted to determine what it imposes as an obligation; it is therefore obvious that there may be a dispute as to the meaning of a norm, to incur or not incur liability, and if there is a dispute it must be settled according to the modalities of dispute settlement. It is through interpretation that the extent or existence of compliance is determined.
The fourth remark is that the source of the obligation has no impact in public international law: it is sufficient and necessary that the norm has been or is a legally binding norm at the time of the commission of the wrongful act; but whether it is a treaty norm contained in a treaty, a general or local customary norm, a norm derived from a general principle of law, a norm of a derived nature such as, for example, a Security Council resolution, all this works in the same way.
This has been recalled in the case law as, for example, in the Rainbow Warrior case; in the 1999 arbitration at §75, the Tribunal recalls this principle.
In domestic law, this is not the case, the source has an impact on liability, there is a regime for contracts and another regime for torts that do not derive from a treaty norm being norms of general liability; in international law there is no distinction according to the source, only whether the norm has been legally binding, the responsibility of the legal norm is sought.
Not that there is no responsibility in this matter, but it is a political responsibility, it will have to be answered at the political level, from the legal point of view States do not ensure a legal duty to answer and a duty of reparation.
The fifth remark is that the standard of conduct required by a State depends on the primary norm: there is not much to say in the field of responsibility, in other words, the unlawful conduct of a State may consist of acts or omissions, depending on the wording of the primary norm.
When the norm prohibits certain activities, then it is not violated; if a norm does not allow entry into the territory of a State, the prohibition is violated by an act, but there are norms formulated in the opposite direction that require a State to do something, such as protecting embassies.
If the State refrains from doing so, so if it remains passive, if it can be blamed for an omission, there are violent demonstrations outside Embassy X in Bern, the Confederation does not send anyone, the crowd ransacks the archives and hurts a diplomat, there is an omission.
The primary norm may provide for other even more idiosyncratic standards of conduct, such as the norm prohibiting genocide, which further provides that an intention to destroy in whole or in part a group is required for the wrongful act to occur: a State commits genocide contrary to the prohibition in the Genocide Convention when the State does the necessary acts with the intention to destroy in whole or in part.
This is only an indication contained in the primary standard, to know if the primary standard is infringed, you have to look at all the elements of the primary standard. If a State does not assume an absolute obligation to protect an embassy, Switzerland's liability is only engaged if it has failed to exercise due diligence, being negligent.
The sixth remark is that the characterization of wrongfulness occurs only under international law and not under the domestic law of article 3 of the Convention on International Responsibility of States. - this particular vocabulary is a matter of clean language, something is illegal if it is against the law, just as in international law there is no law in the true sense of the term, that is why the term illegal is avoided and the term illegal is used; illegal is the term illegal, sometimes authors use illegal in international law, illegal is the illegality reporting a violation -.
The fact that wrongfulness is a matter of international law means that a violation of domestic law is not a matter of international law, if Switzerland violates its constitution, it cannot be concluded that the fact that Switzerland has violated its domestic law is an internationally wrongful act; the non-violation of domestic law does not mean that there is no violation of international law.
A State cannot claim that it is not violating its domestic law in order to argue that it is not violating international law.
Such a violation cannot be accepted because we have two different legal systems, if Switzerland violates a treaty that binds it to France, Switzerland will not be able to say that it has followed its constitution and that there is no international responsibility for the violation of the treaty, this is false, if only because France is not required to see the treaty violated and Switzerland takes refuge behind domestic law.
International law allows the existence of domestic law that is contrary to it; if the State enacted domestic law norms contrary to international standards that bind, a State may enact law on its territory that is contrary to its international obligations. A State may have law on its territory that is contrary to international law, that domestic law is not null and void; if so, if so, if the State is allowed to have law that is contrary to international law, and if domestic law could be used to dispose of its international obligations, then that would be the end of international law as a binding order.
The result is that domestic law can be enacted to the contrary, it can be applied on the territory, but the consequences must be borne internationally, and payment must be made.
The seventh remark is that modern international law distinguishes according to the gravity of the wrongful act, it is the former discussion on State crimes, the former article 19 of the draft article on State responsibility deleted by the last rapporteur James Crawford; the idea is to say that some wrongful acts are so serious that it is not sufficient to link such particularly serious wrongful acts with the same consequences as international law attaches to ordinary violations of international law.
For certain particularly serious acts, it would be necessary to have an aggravated liability regime.
Not much of this idea has remained under Roberto Ago's impetus from article 19, the remains can be found in articles 40 and 41; the regime is now articulated as follows:
- there is a basic premise that is the same for all unlawful acts: as soon as a State commits certain unlawful acts, there are invariably consequences that follow from them
- for particularly serious violations, there are two or even three additional consequences: particularly serious acts are internationally wrongful acts, but there are special conditions for particularly serious unlawful acts.
The first question is to know which are the particularly serious unlawful acts, but the International Commission did not feel able to list them. In article 40, it can be seen that the Commission has chosen an indirect way of determining or not determining the norm, the title is Serious breaches of obligations under peremptory norms of general international law. These are serious violations resulting from violations of jus cogens. The definition of standards is scalable and open.
What are the particular consequences when there is a serious violation?
There are three main ones:
- the first consequence is a duty of cooperation between States to put an end to the violation, it is an obligation of cooperation of States arising from article 41.1 States must cooperate to put an end, by binding means, to any serious violation within the meaning of article 40. it is an innovation that does not go very far, depending on the case, it will cooperate as when it was a question of putting an end to apartheid, at other times it will not do anything at all, because it is a political issue. The law gives the possibility to cooperate, States will or will not do.
- the second consequence is an obligation of recognition to acknowledge violations of jus cogens and the duty not to assist those who have violated the standards in maintaining the situation thus created. This obligation is well established, particularly in all situations where there is a violation of the integrity of a territory or a violation of the self-determination of peoples. This practice has been applied since the Stimson doctrine of 1931 when the Japanese entered Manchuria. Customary law does not impose an obligation of recognition for facts other than those mentioned, in other situations there could be a jus cogens standard, there is no practice of non-recognition there. The duty not to assist is a duty that is more easily understood. Not attending after the commission of the offence and until when, what acts should not be attended, these are questions that have not been clarified by the fact that State practice is almost totally absent in this matter.
- the third consequence is that States have a wider possibility to adopt countermeasures in the event of a serious breach of a jus cogens norm: the articles on the Commission's responsibility are less clear, namely article 54. Third States not directly injured could take countermeasures to put an end to the wrongful act by adopting countermeasures, normally only the State that suffers the violation of its own rights can adopt countermeasures, in the case of jus cogens standards, States have sometimes reacted with countermeasures after international acts of a certain gravity, as in the case of the Falkland and Anwina war or the case of the hostages in Tehran. States took economic countermeasures after the declaration of the state of emergency in Poland.
The first condition for a situation of responsibility to arise is that a State must have violated a norm, in addition to which it must be a State that has acted; the problem is when the State acts.
Whether or not an individual acts is at most a question of fact in order to establish who is behind it, but for the State the question is finer, because the State has no physical reality and cannot as such act.
Others must act in his name and on his behalf, and these human beings act sometimes for the State, sometimes for themselves.
It is therefore necessary to look much more precisely at the field of attribution of acts to the State, or sometimes also known as imputation; both are technically correct, the International Commission preferred attribution because the term imputation has a slightly criminal connotation, the aim here is to avoid.
When does a state act? Through whom does it act? Who and when is acting for the State?
If one wishes to define attribution in the sense of international responsibility, attribution is a figure through which acts or omissions of individuals, made in the name or on behalf of the State, are assimilated to the State as its own.
Some acts and omissions by some on behalf of the State are considered acts of the State itself: when this situation occurs, it will be said that the act of a particular individual is attributable to the State.
The key question is when such an allocation can take place: the general rule is quite simple, but a whole series of situations are complex.
Simple - the State acts through its organs and agents: when its organs and agents act in their functions, the acts or omissions they do are considered in law to be acts or omissions of the State; on the contrary, individuals who are not organs or agents of the State as private persons or private companies do not bind the State.
This simple rule becomes more articulated in a variety of situations.
We do not make a very clear distinction between organ and agent, it is a question of degrees:
- an organ is generally an agent or a set of agents provided by law as exercising public functions, this is often referred to as organic standards.
- an agent, on the other hand, is more often an individual person to whom the State grants certain specific functions, a public official is typically someone elected to attend such a conference.
How is attribution determined?
The first thing to emphasize is that attribution is done according to the rules of international law, it is international law that knows a whole series of rules on attribution, it is according to these rules that attribution is carried out. It is not according to domestic law that the question is decided, but according to international rules.
A person who is called an organ under domestic law may not be an organ or agent of the State under international law, but in the opposite situation someone considered an organ or agent may not be recognized as such under domestic law.
International law very often refers to domestic law, when there is such a reference from the international norm to domestic law, it is not a real exception to the principle, domestic law does not become relevant to decide on the attribution of its own force, but it becomes relevant because an international norm explicitly mentions it and refers it to it.
The second thing sets out the principle of the unity of the State in article 4 on the responsibility of the International Law Commission. Article 4 reminds us that the State seen from the outside is like a billiard ball, it cannot be split into pieces: the State can act at any level and by any organ or agent, it is always to this State that the action or responsibility will be reported; whether it is the Swiss Federal State, a canton, a State company, whoever acts.
The attribution is always to the State because only the State conducts a foreign policy that is under its responsibility, the interlocutor is always the State.
International law refers very broadly to domestic law in order to determine which organs of a State; the reason is that international law recognizes constitutional autonomy for States.
A State can organize itself as it wishes under international law, under classical international law a State can be a dictatorship, a democracy, it can organize itself as it wishes; the classical view of international law is that domestic regimes are an internal matter.
The corollary is that it is necessary to refer to the legislation of the States to organize the State regime. Once a State has decided which organs it has, international law takes it at its word.
Generally speaking, it can be said with great ease that the legislator is the judiciary in Article 4.1, each of these branches is an organ of the State.
Although justice may be independent of the executive and at some point of the legislator, it is quite obvious that a court is an organ of the State since it judges on behalf of Swiss law and Switzerland and thus engages the responsibility of that State.
Finally, the principle of return is not absolute since international law goes beyond domestic law in certain situations; international law itself directly defines that certain persons are agents of the State regardless of what may be said under the domestic law of the State concerned.
International law has certain rules specific to attribution that define itself and directly an attribution; this principle is the principle of effectiveness in attribution.
International law does not link them to domestic law, it is not in the de jure logic, but it is linked to a fact, namely the fact that certain persons have performed State functions whether called organs, agents or not.
A State may hire agents either to carry out terrorist acts or to have them abducted, such as Eichmann's abduction on Argentine territory.
These persons are hired under very discreet conditions and are not appointed as public officials or appointed as public bodies. It is on the basis of the principle of effectiveness that these acts are attached to a State, because they have been engaged to perform an assigned de facto function.
Other very singular situations alluded to in Article 9, it may happen that a State because of a major natural disaster is cut off, in an emergency it is necessary to organise on the spot with persons who are there the State functions, because the State is temporarily failing, certain private persons organise in an emergency alternative functions to the State; these persons commit the State because in an emergency they perform State functions. It is in order not to create a vacuum that these acts are directly attributed to the State.
The law attributes insurrectional acts to the State if insurrectional acts come to power, that is article 10.
It is necessary to mention one last case of the principle of effectiveness, which is ultra vires liability: in Article 7 of the articles on liability
Ultra vires behaviour is behaviour by a public official when he is in office, but which is contrary to his field of competence, a person does not perform correctly the tasks for which he is appointed, but he violates the limits of his competence or acts contrary to instructions.
The Yumans case of 1916 in the compendium of arbitral awards volume IV page 166, between the United States and Mexico, some United States nationals are in a small town in northern Mexico, as Americans are often not welcome, there are anti-American riots and lynchings, the Mexican sheriff sends mounted police officers to restore order.
The police must protect American nationals and restore order, but they are participating in the massacre with their service weapons, a situation that is contrary to their competence, and what is more, the instructions that had been given had been quite clear; what consequences for the responsibility of the State?
International law has an old rule based on effectiveness, international law itself determines certain situations giving rise to liability; the ultra vires action of a State official committed in office, in his capacity as agent, engages the responsibility of the State even when it is in excess of power.
In section 7, it is necessary to have acted in that capacity.
When the State grants certain persons dangerous instruments, the State should bear responsibility for them.
Article 11 is a novelty, there is no very clear customary law in this respect, following the case of the hostages in Tehran, the Court considered that Tehran had endorsed the students' act.
The act of endorsement is that an act not committed by agents of the State can be attributed to a State if a State adopts a clear and unequivocal attitude in this regard.
For the acts of private persons, private persons do not engage the responsibility of the State since they are neither organs nor agents, but the State may become responsible for the acts of private persons when in the context of its actions it fails to fulfil one of its international obligations.
The embassy, which is confronted with a hostile crowd and invaded by it: the State is not responsible for the actions of private persons because they are private persons and therefore there is no attribution in Article 4.
But the State has an obligation to protect the embassies recognized in the Vienna Convention on Diplomatic Relations; if it does nothing in connection with these hostile acts against the Embassy, it fails to fulfil its obligation to protect according to due diligence, in which case it will be said to have acted negligently or not at all, it is the fact of not having acted with its organs, or of not having acted sufficiently and therefore negligently, then in this case it is the State's action through its own organs.
When the State does not act or intervene properly in these contexts, it is liable for the inaction or negligence of its organs, but not on behalf of private persons.
In our world, but in reality already in yesterday's world, there have often been paramilitary or other armed groups that States have supported on a more or less massive scale.
The question arises as to the extent to which acts of such armed groups can be attributed to the State?
For State responsibility, the criterion advanced by the International Court of Justice in the 1980 Tehran hostages case and in the 1986 Nicaragua case and subsequently adopted by the International Law Commission in the articles on responsibility and total dependence and effective control. The Court confirmed this approach in the 2007 Bosnia case:
- total dependence: attributed to the entity; such an armed group becomes a de facto organ of the State if it is totally dependent on a State. The state gives orders to the group and the group does what it does and does not do.
- effective control: it is substantially the same criterion, but applied to agents, i.e. specific individuals who are placed under the control of a State in such a way that they perform what the State requires them to perform and refrain from doing what the State does not want them to do. This is a remote control criterion; the general principle in international law is that everyone is responsible for their own actions and not for the actions of others.
It will never be possible for an armed group or agents to have been controlled by another state because states do not publicize; this jurisprudence has been criticized because it would not be practical in terms of evidence and would give armed groups a good game in a period marked by terrorism.
In order to determine whether an armed conflict is international or non-international in nature, the criterion of global control is used: if a foreign State controls an armed group, it is as if that armed group acted on behalf of the State acting in such a way that the armed conflict is an international armed conflict and the law of international armed conflict will be applied. If a government fights rebels, as long as the rebels are not generally controlled by a foreign state, then it is a non-international conflict and the law of non-international armed conflict will apply.
If the rebel group is globally controlled by a foreign government then it will be considered an international armed conflict, because it is as if a State A has fought against a foreign State through an armed group. If there is no remote control, the test is much weaker, it is only a question of objectively determining whether or not we are in an armed conflict, whereas in the previous area the State must respond.
Circumstances precluding wrongfulness
The operative events were the two main facts that engaged the responsibility of the State; these are called operative events, if these conditions are met there is the responsibility of the State in question.
It is necessary to address the circumstances precluding wrongfulness, a State may be justified in certain circumstances, they take place in such a way that in the circumstances of the case, there will no longer be wrongfulness of the act.
Since there will no longer be an internationally wrongful act, there will be no responsibility of the State in the circumstances of the case in question; these circumstances will therefore in a way reverse the presumptions that when there is a wrongful act and circumstances precluding wrongfulness occur, if they are invoked by a State, responsibility is erased since wrongfulness is excluded.
There are six circumstances precluding wrongfulness set out in articles 20 to 26:
1) Article 20 - consent There is no unlawful act when there is consent, there is a unlawful act only to the extent that there is no consent. A government may invite foreign troops to subdue an insurgency or maintain order. Consent may be given during or after the wrongful act in question:
- if consent is given after the fact has occurred, it excludes liability.
- if it is given in advance or during, it will rather be wrongfulness that is precluded.
However, the overall effect is the same: consent must be valid, consent extracted by coercion is null and void under the same conditions as a treaty would be null and void in articles 51 and 52 of the Vienna Convention on the Law of Treaties applied by analogy. These competent authorities are the same ones that have competence in treaty matters. Consent must be clearly established and expressed. We cannot consent to everything, there is a clear limit in jus cogens and in particular in the right of persons protected under the 1949 Geneva Convention in Article 7.
2) Article 21 - Self-defence Refers to Article 51 of the United Nations Charter. Self-defence is admissible when it responds to armed aggression, as long as there is self-defence under international law, it operates as precluding wrongfulness.
3) Article 22 - Countermeasures These are reprisals, if one has suffered a wrongful act and reacts by retaliation against the State that has violated international law against it, then one is justified and is not liable for the acts taken as countermeasures.
4) Article 23 - force majeure This is an irresistible force or an unforeseen external force beyond the control of a State making the performance of the obligation materially impossible. It's a compulsive aim, we can't do otherwise. Article 23.2 except in cases of force majeure where the State itself has caused what caused the case of force majeure, it cannot invoke it for its own benefit. This is the application of an old maxim of Roman law, no one can take advantage of his own wrong.
Often it is force majeure in the physical sense of the term, such as a ship or aircraft that becomes ungovernable and enters the airspace of a State without permission, it is a case of force majeure that excuses liability.
A diplomat not only has the inviolability of his person in the State that recognizes him, but in third States he does not possess it except when the diplomat is in transit between the accrediting State and the receiving State, these third States owe him immunity because he is in office and must transit. However, there are exceptions if he does private acts, so he will no longer be in transit. In Article 40.3 if a diplomat is on the territory of a third State by force majeure, immunity is due to him. We think of the case where a plane has a problem, or the diplomat has a health problem, at that moment immunity is due to him even if he is no longer in transit. In this case, the third State still owes him inviolability.
5) Article 24 - distress Unlike force majeure, it is not materially impossible to comply with the rule, but rather a matter of choice, even if this choice may not really exist. In the face of extreme danger to some persons in the custody of an author, the latter would rather violate a rule than endanger the integrity of these persons. An author is responsible for certain persons, the physical integrity of this person is in danger and he will give priority to this legal property that will be considered of much less importance. There is the exception that no one can invoke his own wrong.
The examples are examples of ships and aircraft, in which case they are not governable, but faced with very bad weather that puts this crew at risk and passengers, captain or pilot could enter the airspace without committing an illegal act, because the two legal assets are not on the same level.
6) Article 25 - state of necessity This is the most controversial circumstance precluding wrongfulness, because it means in simple terms that when conduct is the only means for a State to safeguard an essential interest against a grave and imminent peril, that State may invoke the state of necessity to exempt itself from the state of necessity.
The Commission considered it more useful to codify the rule on necessity than to say that if nothing is said it will be worse, the case law has come to consider that Article 25 reflects customary law.
It must first be noted that the wording of the state of necessity in article 25 is negative, the State may not invoke the state of necessity as a ground for precluding the wrongfulness of an act not in conformity with one of its international obligations unless that act; that negative wording already gives the "la", that interpretation must be restrictive if not everything could be justified, each State considering that its interests are essential.
Then there are a whole series of conditions:
- 25.1.b the conduct of the State shall not prejudice an equally essential interest of one or all other States. The state of necessity must not justify the sacrifice of an equally important interest of another State, it is a question of balancing, we ask that there be at least a certain imbalance in the importance of the rights in question.
- It is understood in 25.2.a that the invocation of the State of necessity is excluded if the primary obligation excludes it. If the primary rule excludes the invocation of necessity then it cannot be invoked under Article 25. In an armed conflict one fights, it is a state of necessity, this right is thus made that it is intended to apply in a state of necessity being built on the fact that it imposes prohibitions, when it wants to allow a military necessity, in article 23.g one cannot destroy enemy property except for absolute prevention for military necessity. In all cases where the formula does not provide for this, then it must be verified that the primary rule allows it and if it excludes it, rule 25 cannot be invoked.
- 25.2.d the circumstance does not have the effect of erasing wrongfulness: the danger must be serious and imminent; certainties are not sufficient, the case law seeks to establish as objectively as possible the danger that must be imminent.
- the state of necessity must be the only means of safeguarding the essential interest, it is the ultima ratio: if other less costly means, less intrusive to the rights of others are available, then they must be followed. The measures taken as a necessity remain proportional in order to achieve the goal they are intended to achieve. Excessive measurement is no longer covered by necessity; necessity cannot be used to do things that go beyond what is reasonable and proportional.
- the action or conduct of the State in question cannot violate international law.
The conditions set out are so strict that it is difficult to find invocations of necessity; when invoked, the Court may have considered that the conditions were not met.
The most classic example is the bombing of the Torrey Canyon ship. It was an oil tanker that ran aground near the British coast and began to dump the crude oil. The conditions were such that nothing could be done to pump and remove the ship, so the option was taken by the British government to bomb the ship. In this case, if the consent of the flag State is not obtained, then the ship can be bombed, which was done in 1967.
In Article 27, in the invocation of necessity, any compensation must not disappear, States are encouraged to reach agreements by negotiating on this issue.
Consequences of an internationally wrongful act
As long as there is an unlawful act without circumstances invoking wrongfulness successfully attributable to the State and the responsibility of a State has been determined, what are the consequences?
There are two consequences:
- duty to make reparation
Before defining countermeasures, it is necessary to clarify terminology: the term countermeasures is a modern term for the older term of reprisals. The International Law Commission preferred the term countermeasure because the term reprisal is tainted by the old concept of reprisals, which were often coercive reprisals, as today the use of force by a State in the conduct of its foreign policy is prohibited in article 2.4 of the Charter.
Countermeasures and reprisals are in principle synonymous.
Traditionally, a distinction is made between countermeasures and retaliation; between the two there is a clear, clear and fundamental legal distinction:
- countermeasures are acts which are in themselves unlawful and justified in the present case only under certain conditions if they meet preconditions.
- retaliatory measures are unfriendly, but legally permissible.
So the legal regime of the two concepts is entirely different.
Countermeasures are subject to very strict conditions, retaliation is not regulated by law, because since they are lawful acts, they are part of a State's foreign policy.
A lawful act of retaliation is, for example, to recall an ambassador. If we interrupt diplomatic relations where diplomatic staff remind us, it is not a friendly act, but since it is always a lawful act, it will be a retaliation, but since it is lawful we can do it and not do it at our own discretion.
- How are countermeasures defined?
JUSTITIA ET PACE -
INTERNATIONAL LAW INSTITUTE - Paris Session - 1934; Regime of retaliation in peacetime
Reprisals are measures of coercion, derogating from the ordinary rules of the Law of Nations, taken by a State following unlawful acts committed to its detriment by another State and intended to impose on the latter, by means of damage, compliance with the law.
We have suffered a wrongful act of another State, we can respond by committing an act that is in itself wrongful, but justified by the fact that it is a response.
Retaliation and countermeasures are private justice: what is not permitted under domestic law and allowed under international law, international law would be primitive, because each subject himself ensures that his rights are respected by his own means.
Retaliation is ambiguous because it is necessary under international law, but harmful. They are necessary, because without countermeasures, the State's responsibility would dissolve in relatively little.
Reprisal is necessary for the law, because it makes it possible to be respected, not only do we have rights, but we can also take measures of material constraint; reprisal makes it possible to rebalance the relationship in favour of the injured State.
On the other hand, countermeasures are harmful for the same reasons as in domestic law, because they are based on a purely subjective assessment, it is not known whether an unlawful act has been committed, the victim claims, there is no finding.
Therefore, the retaliation mechanism is rather anarchic, in addition it is obvious that countermeasures are based on power, a relatively weak small state will not have the means to take significant countermeasures. Retaliation also leads to escalation, because since it is never determined who started it, everyone will always say that the illegal act is the other's and will take countermeasures.
These are necessary, but very imperfect means that do not ensure either peace or justice; this is why, in defence, the International Law Commission has codified countermeasures; the Commission has simply tried to put limits on them, but they are less strict.
These limits have been codified in Articles 49 et seq:
- countermeasures using force are prohibited: this is a consequence of section 2.4 of the Charter
- countermeasures must be aimed at bringing the other State back to legality: countermeasures have a curative purpose in order to apply the rule again normally; in particular reprisals cannot be adopted for a punitive purpose, one State cannot be the judge of another, sovereignty is equal; it is a purely defensive measure.
- countermeasures should be reversible measures: measures that create a definitive fait accompli should be avoided, as this is incompatible with the very purpose of Article 49.3
- countermeasures must be proportional to the harm suffered: this is problematic not because the rule would not be well established, but simply because it is relatively complicated to know what is proportionate in this matter. The damage caused must not be exceeded. In the present case, this is difficult to determine, should the concrete effect of countermeasures on the State violating the law be taken into account or should these concrete effects not be taken into consideration when an act is carried out, we have a reasonable time horizon that this may have on the ordinary course of life.
- the summons: it was necessary except in cases of extreme urgency, otherwise the violating State must be given the right to return to respect for the law by summonsing it. The purpose of the summons is to avoid countermeasures and the negative effects of countermeasures.
- countermeasures must not affect absolute obligations, particularly in the field of humanitarian law, human rights or jus cogens.
- countermeasures must be completed as soon as the unlawful act ceases or at the latest at the time of reparation: countermeasures are measures of self-protection to the unlawful act suffered.
The implementation of international responsibility
Liability means an obligation to make reparation for the harm caused, the Permanent Court of International Justice defined harm and reparation in the case of Chorzów série In number 17 on page 47, reparation must, as far as possible, erase all the consequences of the unlawful act and restore the State that would probably have existed if the act had not been committed.
The hypothesis is reasonable, it goes beyond the end of the sentence to restore the State that would probably have existed if that act had not been committed.
One would not know what has happened if the harmful act is not committed; the idea is that the injured person should as far as possible be placed in the situation where the act would not have been committed.
Under the duty of reparation there are two consequences which are:
- oriented towards the future: we seek to protect ourselves against the repetition of such acts.
- three aspects turned towards the past: on the occasion of a reparable wrongful act, may request things sometimes concerning the future, and then request the liquidation of the damage suffered.
The forward-looking consequences of this draft article of the Commission are to be found in article 30, first of all cessation and non-repetition.
Cessation is an automatic consequence, i.e. the injured State must not request it, the primary norm violated continues to be in force, when the violation is continuous over time, this norm binding on the State indicates that it must cease the conduct contrary to the norm.
- How long is the standard still in force or applicable?
In the Rainbow Warrior case, the arbitral tribunal played on this in order to determine whether it should return repatriated nationals to the island of Hao.
Guarantees of non-repetition also in Article 30, on the other hand, are only granted by a Court of Justice upon request, a request from the injured State being required, which may take different forms such as the assurance that the State no longer engages in such situations.
What is most important in reparation is the liquidation of the harm caused: the principle here is the one that institutes Article 31, full reparation.
The aim is that of a proportional balance, in the end no one must win, no one must lose, reparation is not criminal, it is a question of restoring the disturbed balance, the victim must be restored to more or less the same conditions as before; reparation takes three forms under international law:
- restitution - article 35
- compensation - article 36
- satisfaction - article 37
These three modalities can be cumulative.
The restitution in article 35 is the first and fundamental modality of reparation; if possible, it must be restored. It is a modality that according to the dictum of the Court and allows according to the doctrine is a priority, if there is something that can be restored it must be restored.
States may modify this rule by agreement, States waiving a restitution because it is not applicable, States liquidate by agreements under which a State pays sums against the will of a restitution.
The restitution can be accompanied by the two other modalities, one can cumulate, resituate and compensate or even satisfy.
If, on the other hand, restitution is no longer physically possible, then all that remains is compensation, which will replace restitution, it will obviously be necessary to measure compensation.
The International Law Commission has added a rule to article 35.b that does not arise from customary law; it is a rule under which, if the State insisting on restitution causes wholly disproportionate damage to the author, then such restitution cannot be required; this rule continues to be debated and challenged.
Compensation is Article 36 on material damage: in all that is quantifiable in money, if such damage has been incurred, then compensation can be claimed, it should not be claimed, the creditor of the damage can always waive it. If it is claimed then there is the possibility of claiming compensation under the guise of compensation.
Compensation is the general category and compensation is the amount due.
There is a problem of causality, we cause something then the acts committed run over time producing certain results, we only respond for the causes that are foreseeable and close to our actions.
The principle is that the compensation is composed of both the losses incurred and also the gain or lost profits. Unlawful expropriation, for example, does not only cause direct damage, but also loss of earnings.
Matters of default interest, which are interest due when there are delays in the payment of compensation amounts due at market value when States agree in this sense or when a court fixes such interest in a dispute.
Satisfaction in the context of internal responsibility plays only an entirely secondary role while in international affairs is of importance is provided for in article 37 of the articles on responsibility.
This is the basic modality for repairing moral damage that cannot be quantified in material terms. Most often in direct relations, these will be acknowledgements in the violation and expressions of degree and apology where appropriate accompanied by administrative or other sanctions taken against the offending agents and officials.
At the level of international courts, the typical form is the finding of the violation that is supposed to satisfy the injured State. Already in the Corfu Channel case in 1949, the violation of Albanian sovereignty by the United Kingdom, the Court considers that the finding is sufficient to satisfy. There is also the salute to the flag or the fact of attending religious expiatory ceremonies that make it possible to liquidate the pecuniary damage.
Article 37(3) recalls the principle of proportionality and emphasizes that satisfaction must not take a humiliating form for the responsible State.
Contrary to popular belief, satisfaction is an extremely popular form of reparation, States do not care about receiving money, for States counts much more for the prestige, honour and reputation it can enjoy. The excuse has a value that clearly prevails over what can be financially repaired.
In the Rainbow Warrior case, New Zealand's sovereignty was violated and cannot be quantified. For the non-pecuniary aspects, the Court gave New Zealand a whole series of satisfactions by finding that France had violated the law, but also by financing a friendly fund for France.
It is the possibility that a State may take over the case file of one of its nationals who has suffered an internationally wrongful act from another State on the territory of that other State; the State of nationality may request explanations from the offending State and seek compensation for its national who has suffered an internationally wrongful act.
Diplomatic protection is distinguished from consular protection, which is protection given on the spot by consular authorities to nationals of the State of origin who are in difficulty in the territorial State; it is practical assistance.
It is on the basis of a judgment of the Permanent Court of International Justice that this principle was enshrined in the case of the Mavrommatis concessions in Palestine 24, Series II p. 12: "It is a basic principle of international law that a State may protect its injured nationals from acts contrary to international law committed by another State from which they have been unable to obtain satisfaction through ordinary channels. By taking up the cause of one of its own, by setting in motion diplomatic action or international judicial action in its favour, this State is, quite frankly, asserting its own right, its right to have its nationals respect international law in the person of its nationals".
- What are the conditions under which diplomatic protection may be exercised?
The first condition for diplomatic protection is that the State of the injured national claims that there has been a violation of international law: the State must claim a violation of international law, it must not prove a violation of international law, but must claim a violation of international law, otherwise we are not in the context of the violation of diplomatic rights.
The State asserting this protection must establish the link of nationality: the injured person must have the nationality of the State seeking to protect him. More recent diplomatic practice has assimilated stateless persons who are permanently domiciled in a State to nationals.
The nationality link must have been continuous throughout the period to prevent some from acquiring the nationality of powerful States in order to benefit from a better condition.
Domestic remedies must be exhausted: first, local authorities must be approached in order to try to redress the harm. The rule makes it possible to rule out harm according to the principle of subsidiarity.
There are a whole series of exceptions to this rule, such as the waiver of the requirement that domestic remedies be exhausted, acceptance of diplomatic or customary law protection, and the recognition that illusory remedies should not be exercised when it is known that redress of harm cannot be obtained.
It is a complicated rule to exhaust domestic remedies because it may apply and not apply to certain claims in the same case. When a State suffers the violation of its own law, it cannot submit to another State. A distinction must be made between claims for diplomatic protection and State violations.
From the international point of view, the practice of diplomatic protection is discretionary, whether physical or moral, and the State can choose whether it wishes to do so. This discretionary nature is reflected in customary law and has been recognized by the International Court of Justice.
- Why this rule?
Exercising diplomatic protection is more or less a challenge to relations between States, financial and human resources must be put in place and another State must be accused; on the diplomatic scene, the State may decide to do so or not to do so in order not to contradict the need for its foreign policy.
- Pellet, Alain. "Les Articles De La CDI Sur La Responsabilité De L'État Pour Fait Internationalement Illicite. Suite - Et Fin?" Annuaire Français De Droit International 48.1 (2002): 1-23. Web. <http://www.persee.fr/web/revues/home/prescript/article/afdi_0066-3085_2002_num_48_1_3689>.
- Projet d’articles sur la responsabilite de l’état pour fait internationalement illicite et commentaires y relatifs
- « Affaire Usine de Chorzow », 1928 : entre le gouvernement d'Allemagne et le gouvernement de Pologne