ULUSLARARASI KAMU HUKUKU I

The Draft Articles deal only with the responsibility of states.

Since the end of the Second World War, international responsibility of individuals in the criminal field has witnessed remarkable development. The Nuremberg and Tokyo trials, the establishment of the International Criminal Tribunals for Yugoslavia (1993) and Rwanda (1994), the Special Court for Sierra Leone (2002), and the establishment of International Criminal Court (2002) have established the responsibility of individuals for their criminal acts. The Spanish Zone of Morocco Claims is not one of these factors.

Article 58 of the Draft Articles makes it clear that the “individual responsibility under international law of any person acting on behalf of a State” is distinct from the State responsibility.

The Gustave Caire v. United Mexican States case (Caire case, 1929) concerned the murder of a French national by two Mexican officers. The Claims Commission held that the ultra vires acts of officials were attributable to the state and stated that “the two officers, even if they are deemed to have acted outside their competence, acted under cover of their status as officers and used means placed at their disposal on account of that status.” They must have acted in all appearance as competent officials or organs, as they must have used powers or methods appropriate to their official capacity (5 UNRIAA 516).

In the Corfu Channel case (ICJ 1949), Albania was held liable for its failure to warn the United Kingdom of the presence of mines in Albanian waters which had been laid by a third state.

“There is a breach of an international obligation by a state when an act of that state is not in conformity with what is required by that obligation, regardless of its origin or character” (Article 12, Draft Articles).

Article 13 of the Draft Articles states the basic principle: “An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.” Hence, it is important to examine at what point an obligation entered into force for the state, when it ceased to bind the state, or when it was terminated.

Jurisdiction ratione temporis (temporal jurisdiction) refers to the jurisdiction of a court of law over a proposed action in relation to the passage of time (USLegal.com).

International law recognizes certain grounds justifying or excusing non-compliance by a state with its international obligations. These defenses preclude the responsibility of a state for its wrongful conduct. 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).

Cooperation is not among the defenses listed in The Draft Articles.

In the Gabcikovo-Nagymaros Project case, the ICJ accepted that countermeasures might justify otherwise unlawful conduct “taken in response to a previous international wrongful act of another State” (ICJ 1997, p. 55).

the Draft Articles are “secondary rules” that
address basic issues of responsibility and remedies
available for breach of primary (substantive) rules
of international law, such as with respect to the use
of armed force. The Draft establishes the following:
• conditions for an act to qualify as
internationally wrongful;
• circumstances under which actions of
officials, private individuals and other
entities may be attributed to the state,
• general defenses to liability,
• the consequences of liability, and
• admissibility of claims.

There are three important elements regarding
state responsibility: attribution (imputability),
breach (causation), and the absence of any valid
justification or legal excuse.

The respondent state may justify its action
by claiming self-defense or force majeure (superior
or irresistible force) for its non-performance.

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. In order for an act of the
state to be attributable, it must involve some action
or omission by its actor or actors. Then the question
remains as to which persons should be considered as
acting on behalf of the state. The official position of
a person is immaterial to creating responsibility for
the state.

In the Prosecutor v. Tadić
case, the Appeals Chamber of the International
Tribunal for the Former Yugoslavia (ICTY) stated
that the “degree of control may, however, vary
according to the factual circumstances of each
case” (Case IT-94-1: (1999), vol. 38, p. 1518).
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.

A State may be responsible for the conduct which
is clearly in excess of authority if the official has
used his/her official position. The Gustave Caire
v. United Mexican States case (Caire case, 1929)
concerned the murder of a French national by two
Mexican officers. The Claims Commission held that
the ultra vires acts of officials were attributable to the
state and stated that “the two officers, even if they
are deemed to have acted outside their competence,
acted under cover of their status as officers and used
means placed at their disposal on account of that
status.” They must have acted in all appearance as
competent officials or organs, as they must have
used powers or methods appropriate to their official
capacity

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.

In attributing responsibility to a state for the
breach of an international obligation, fault or culpa
is a debatable issue. According to the supporters of
‘objective responsibility’ doctrine, there should be
a casual connection between the act and the breach
by the state or by its organs.

The State is responsible for the acts of its officials
or organs, which may devolve upon it despite the
absence of any fault on its part.

Accordingly, there is no clear rule that
responsibility is always based on fault or that
responsibility is independent of fault. Hence
there is no clear presumption either way.

If the act is carried out
deliberately, consideration of fault has insignificant
role. Therefore, much depends on the context and
on the interpretation of the obligation breached.
The international law on state responsibility, as
stated in the Draft Articles (2-12), does not consider
fault as a prerequisite for an act or omission to be
characterized as an international wrong. However,
the case law points to the conclusion that fault is a
necessary condition for responsibility with regard
to the alleged conduct of the state

International law recognizes certain grounds
justifying or excusing non-compliance by a state
with its international obligations. These defenses
preclude the responsibility of a state for its
wrongful conduct. 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).

Force majeure as a defense is available only
where the following three elements are met:

• the act in question must be brought about
by an irresistible force or by an unforeseen
event,

• which is beyond the control of the State
concerned, and

• which makes it materially impossible in the
circumstances to perform the obligation

The core legal consequences for the responsible
state on the commission of an internationally
wrongful act are twofold: to cease the wrongful
conduct (Art. 30) and to make full reparation for
the injury caused by the internationally wrongful
act (Art. 31). Injury includes any damage, whether
material or moral, caused by the internationally
wrongful act of a state. 

These consist of cessation, non-repetition, restitution, compensation, and satisfaction.