ULUSLARARASI KAMU HUKUKU I - Deneme Sınavı - 20

The Draft establishes the following:

The Draft deals only with the responsibility of states for conduct that is internationally wrongful. It does not deal with the obligations of states arising out of acts that are not prohibited and that may have been expressly permitted under international law (such as compensation for property duly taken for a public purpose). The Draft also does not deal with the responsibility of international organizations or of other non-state entities, including individuals.

Apart from the 4 cases listed among the options, Spanish zone of Morocco claims (1931), Judge Huber decided that the responsibility of the incident falls on the state.

"In principle, the presence of Article 2 of the Draft will entail the international responsibility of a state. This has been affirmed by the Court in a number of cases. However, the respondent state may justify its action by claiming self-defense or force majeure for its non-performance."

The conduct of persons or groups is attributable to the state if the persons or groups have committed acts under the effective control of that state, even if particular instructions may have been ignored.

Breach of an international obligation, prima facie (at first sight), gives rise to state responsibility. However, before a state is held responsible, a number of other issues also arise such as causation (fault), injury, damage, and the time of its occurrence (for the purposes of non-retrospectivity).

The role of harm or damage in state responsibility is also a debatable subject. As evident from the Draft Articles, there is no general requirement of harm or damage before the State responsibility is actually laid down. In certain situations, mere breach of an obligation is enough to give rise to the responsibility of the state such as a minor infringement of the inviolability of an embassy or a consular mission. On the other hand, in trans-boundary environment pollution cases, such as river pollution, the actual damage needs to be established to fix the state responsibility.

The Draft Articles in Chapter V of Part One enlist these defenses under the heading of “circumstances precluding wrongfulness,” though they are not exclusive. It sets out six circumstances (defenses):

• Consent (Art. 20),

• Self-defense (Art. 21),

• Countermeasures (Art. 22),

• Force majeure (Art. 23),

• Distress (Art. 24),

• Necessity (Art. 25).

The responsible state is obliged to make full reparation for the consequences of its breach, especially where actual harm or damage has occurred, provided it is not too remote or indirect. Article 31 of the Draft Articles deals with reparation.

Art. 44(b) of the Draft Articles on State Responsibility provides that “the responsibility of a State may not be invoked if: the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.” It is an established rule of customary international law that before diplomatic protection is afforded or before recourse may be made to international arbitral or judicial processes, local remedies must be exhausted. The rationale behind the rule may be summarized as follows:

As a rule, every state exercises exclusive jurisdiction within its own territory. However, International law does not put any limitation on
the state’s power to exercise jurisdiction beyond its territorial limits. When a state exercises its jurisdiction beyond its territory, it is called extraterritorial jurisdiction.

Ultra vires is described as an act by a public authority, company, or other body that goes beyond the limits of the powers conferred on it. Ultra vires acts are invalid. The ultra vires doctrine applies to all powers, whether created by statute or by a private document or agreement.

The state practice discloses four general principles on  the basis of which states generally claim criminal jurisdiction. First, the territorial principle, that determines jurisdiction by reference to the place where the offence is committed. Second, the nationality principle, which determines jurisdiction by reference to the nationality either of the persons committing the offence even with respect to events occurring entirely abroad or with reference to the nationality of the person injure by the offence. Third, the protective principle that refers to jurisdiction according to the national interest of the state injured by the offence.
Fourth, the universality principle that provides jurisdiction by reference to the nature of the crime (for example, piracy). Ultra vires principle is not one of those.

The nationality principle, determines jurisdiction by reference to the nationality either of the persons committing the offence even withrespect to events occurring entirely abroad or with reference to the nationality of the person injured by the offence.

According to subjective territorial principle, a state has jurisdiction over a crime when it is commenced within the state but completed or consummated abroad.

Classical international law did not focus on international crimes, because individuals were considered as objects (rather than subjects) of international law. Individuals were not endowed with any rights or duties, with the exception of piracy, under international law that could be enforced by any state under its municipal law.

After the Second World War, revolutionary changes came in this area. The Allied powers set up two International Military Tribunals (Nuremberg Tribunal in 1945 and Tokyo Tribunal in 1946) to try the criminals who committed war crimes, crimes against humanity, crimes against peace, and conspiracy to commit these crimes.

Alien is defined as a person who, under the law of a particular state, is not a citizen of that state.

The Charter of Nuremberg and Tokyo tribunals had four counts of offenses:

• Crimes against peace, i.e., beginning a war of aggression by planning, preparation or initiation, or in violation of treaties, such as the Hague Conventions of 1899, 1907, the Treaty of Versailles, violation of Mutual Non-aggression Pact by Germany with France, Belgium and Poland, and the 1928 Kellogg-Briand Pact.

• War crimes, i.e., crimes under the laws of war, which included violation of customary and conventional rules and regulations relating to warfare.

• Crimes against humanity, i.e., inhuman treatment (murder or persecution) on racial or religious grounds during war and in occupied territories.

• Conspiracy to commit these crimes

juristic person (artificial person). An entity, such as a corporation, that is recognized as having legal personality, i.e. it is capable of enjoying and being subject to legal rights and duties. It is contrasted with a human being, who is referred to as a natural person.