ULUSLARARASI KAMU HUKUKU I

Responsibility under international law arises  from the breach of a duty or non-performance of an international obligation by a state, even though the facts bring into question the rights and duties under municipal law between the citizens of the claimant state and the state alleged to be responsible.

NOT: Soruyu hazırlayan öğretim üyesi soruyu "What means the principle enshrined in Article 1" şeklinde sormuştur. Bu soru ifadesinden öğrenciden ne istenildiği (tam olarak ne sorulduğu) anlaşılamamaktadır. Dolayısıyla bu sorunun tamamen iptal edilmesi uygun olacaktır.

The Draft Articles deal only with the responsibility of states.

As for the criminal responsibility of States under international law, it has not been clearly established or accepted, even though the act is criminal in nature such as genocide or war crimes.

Conduct attributable to the state may consist of actions or omissions. For a particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the state to create its responsibility either generally or specifically in certain circumstances.

Diplomatic protection is the procedure employed by the State of nationality of the injured person to secure protection of that person, and to obtain reparation for the internationally wrongful act inflicted. Such protection extends to both natural and legal persons.

Valid consent by a State ...may be vitiated by error, fraud, corruption, or coercion.

Self-defense precludes the wrongfulness of the conduct taken within the limits laid down by international law. Article 21 of the Draft Articles states: “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations.” Under Article 51 of the UN Charter, a state has an inherent right of self-defense in the face of an armed attack.

Restitution involves the re-establishment of the situation, as far as possible, which had existed prior to the commission of the internationally wrongful act. The PCIJ in the Chorzow Factory case confirmed the primacy of restitution

The treatment of aliens (foreign nationals) has been a controversial subject under international law. There are two principal approaches in this respect:

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: