inter state relations

Question 1

Responsibility – general

Answer 1

• legal subject = holder of rights and obligations
•  violation of obligations  responsibility
  = must bear responsibility for violations
  = legal consequences
  – “sanctions” (punishment)
  – duty to make reparation
  – other duties (e.g. public services, obligation to abstain
  from certain actions)
• responsibility = central concept of every legal order
• test of efficiency of the legal system
  – enforcement
  –  effect
  – requires centralised organ of enforcement
  – only very basic approaches in international law

Question 2

Differentiation in international law

Answer 2

Responsibility:
Bearing consequences for
damages resulting from
unlawful actions

Liability:
Bearing consequences for
damages resulting from
lawful actions

• different forms of responsibility depend on the legal subject:
  – state responsibility
  – responsibility of IOs
  – individual criminal responsibility
• liability:
  – civil consequences
  – absolute liability (Liability Convention, in space law)
  – particularly dangerous activities
  – liable party:
• individual
• state

Question 3

State responsibility – concept

Answer 3

• violation of international law obligations
• intergovernmental responsibility
• relationship between the injuring and the injured state
• nature of state responsibility:
  – not criminal, rather civil
  –  purely compensatory (compensation for damages)
  –  particularly indemnity
  –  civilian – bilateral
  – enforcement primarily through the injured state
  – few aspects of public law
  – no differentiation between contractual – tortious
  –  regardless of the nature of the violated norm
• contractual obligation
• obligation under customary international law

Question 4

Sources of state responsibility

Answer 4

• International customary law,
• developed over decades from general principles in
  international jurisprudence
• codification by the International Law Commission of the UN:
  – Articles on the Responsibility of States for Internationally
  Wrongful Acts (2001)
  – not formally a treaty, rather annexed to a GA-Resolution
  – text not binding
  – but: extensive codification (specification in writing) of existing
  international custom
  –  “authoritative” rules, which in practice are often applied as
  binding

Question 5

State responsibility – structure

Answer 5

• 3 main parts
  – emergence of responsibility: When/how does it occur?
  (attribution, potentially preclusion of wrongfulness)
  – content of the responsibility: What are the consequences
  for the injuring state? (compensation)
  – enforcement: How may responsibility be implemented and
  enforced?
• prerequisites for the commencement of state
  responsibility
  – existence of a breach of an international obligation
• act or omission
• which is not compatable with its international law
  obligations
  – and injury may be attributed to a state
  – there are no circumstances precluding wrongfulness
  – fault + damage, not generally required

Question 6

Attribution

Answer 6

• act is attributable to a state
• state is only responsible for its own actions
•  attribution of actions of a state’s own organs
  – regardless of branch of government (which “authority”)
• legislature
• judiciary
• executive
  – regardless of position within a state’s organisational structure
  – state organ = organ in a
• structural sense: “formal” state organ
• functional sense: person/institution, empowered to excerise
  sovereign tasks and does so in a specific case
•  delegation of sovereign function  attribution of the
  outsourced institution
• e.g.: the State authorizes a private company to run a prison

Question 7

Preclusion of wrongfulness

Answer 7

• injury and attribution, but justified
• reasons
  – consent
• voluntary, without coercion
• the injured norm permits it (comp. prohibition of the use of force)
  – self-defence
• Art 51 UN Charter
• individual – collective
  – countermeasures (see slide 11)
  – force majeure
• wrongfulness results from irresistible force,
• materially impossible to perform the obligation
• e.g. fighter jet enters the airspace of another country due to
  atmospheric disturbances
  – necessity (Gabčíkovo-Nagymaros case/Hungary-Slovakia)
• only way for the state to safeguard an essential interest
• against a grave and imminent peril

Question 8

State responsibility – consequences

Answer 8

Immediate consequences of injury reparation
* Immediate consequences of injury
– cessation, if ongoing
– non-repetition, in case repetition is to be feared
* (full) reparation
– re-establish the situation which existed before the wrongful act
was committed (restitutio in integrum)
– compensation, if restitutio not possible
* objective value according to the market value (for material
damages)
* damnum emergens/direct damage + loss of profits/lucrum cessans
* interest rate
– satisfaction
* for immaterial damages (e.g. mere violation of territorial integrity)
* forms, e.g.:
– formal apology
– admission of wrongfulness

Question 9

State responsibility – invocation

Answer 9

• Wo may invoke responsibility for a breach of international law?
• the (directly) injured state, e.g.
  – bilateral treaty
  – violation of territorial integrity
• for obligations, which protect collective interests (erga omnes
  obligations)
  – every other state, to which the obligation is owed
  – e.g. human rights (ECHR – state complaints)
• enforcement
  – decentralised  unilateral  countermeasures
• violation of the injuring state’s rights by the injured state
• proportional to the original injury
• not affect fundamental human rights, ius cogens, diplomatic
  immunities and privileges, norms of dispute settlement
• no violation of the rights of third parties
• notification + termination, as soon as violation ends
  – if competent: adjudicatory proceedings/dispute settlement

Question 10

Responsibility of IOs

Answer 10

• IOs are subjects of international law
•  responsibility for internationally wrongful acts
• problem: who is responsible?
  – IO themselves or
  – member states?
• e.g. mandate of the UN-Security Council for peacekeeping
  troops in Kosovo
• troops of the contributing state commit human rights
  violations
•  who is responsible? UN oder contributing state?
• important e.g. for individual complaints in the European
  human rights system
• European Court of Human Rights:
• the effective control (command and control) over the
  relevant troops is decisive

Question 11

International Criminal Responsibility

Answer 11

• certain serious crimes are prohibited under international law
• if committed criminal responsibility +
• criminal prosecution before international courts
• crimes:
  – genocide
  – crimes against humanity
  – war crimes
  – aggression
• development: – military tribunals of Nuremberg and Tokio
  – against the main war criminals of the axis powers of WWII
• international criminal courts and tribunals
  – ad hoc-tribunals, which were established on a temporary basis
• e.g. International Criminal Tribunal for the former Yugoslavia 1993-2017
• e.g. International Criminal Tribunal for Rwanda 1994-2018
  – International Criminal Court (permanent criminal court)
• conference in Rome 1998
• in force since 2002
  – hybrid courts, e.g. for Sierra Leone, Lebanon

Question 12

International Crimes

Answer 12

• genocide:
  – certain acts (e.g. killing, torture)
  – with intent to
  – destroy
  – a national, ethnical, racial or religious group
• crimes against humanity
  – certain acts (e.g. murder, enslavement, torture, deportation)
  – as part of a widespread or systematic attack
  – against the civilian population
  – pursuant to a State or organizational policy
• both genocide and crimes against humanity may be commited
  during peace!
• war crimes
  – grave breaches of international humanitarian law, e.g.
• wilful killing of civilians
• killing or torture of prisoners of war
• attacks on civilians and civilian buildings
• use of certain particularly cruel weapons (e.g. chemical
  weapons)
• pillaging towns
• command responsibility:
  – immediate superiors (e.g. commanding officer) are responsible
  for crimes of their subordinates
  – possible in both a military and civil context!
• following orders of a superior does not exempt from criminal
  responsibility

Question 13

International Criminal Court

Answer 13

basis: Rome Statute 1998, in force since 2002, seat in Den
Haag
* jurisdiction over crimes committed
– on the territory of a state party to the statute (territoriality) or
– by a national of a state party (nationality, personality)
* or referral of a situation directly by the Security Council
* complimentarity jurisdiction
– ICC may only act if the state with jurisdiction
* cannot or
* is not willing to (e.g. to protect its own citizens)
* conduct criminal proceedings
* member states have a duty to cooperate
* execution of decisions in the member states

Question 14

Liability in international law

Answer 14

• liability = bearing responsibility for (material) damage,
  which result from otherwise lawful acts under
  international law
  – particularly risky/dangerous activities with high damage
  potential (e.g. operation of nuclear power plants)
  – particularly dangerous goods (e.g. transport of highly
  toxic waste)
  – but no violation of international law!
• effect: with the occurance of the damage the private
  operator is obligated to pay financial compensation (civil
  claim)
• compensation of the damage caused through a monetary
  payment
• only on the basis of treaty law
• not customary international law!
• provisions in practice: – liability insurance is a prerequisite to carrying out the
  activities
  – obligation to establish and endow a national cover
  fund
  – Payments are made from a special fund under private
  law, into which all operators muss contribute
  – State is a guarantor for the damage (true liability
  under international law) – comp. Art II Liability
  Convention (international space law):
  “A launching State shall be absolutely liable to pay
  compensation for damage caused by its space
  object on the surface of the earth or to aircraft in
  flight.”