Responsibility in International Law Dr Urfan Khaliq cardiff ac

Responsibility in International Law ©Dr. Urfan Khaliq@cardiff. ac. uk

Outline of Lectures 1. Introduction to the topic and the notion of responsibility in international law. 2. State responsibility – the classic authorities and the International Law Commission’s Articles on State Responsibility. 3. State responsibility and enforcement under specific treaty regimes. 4. Responsibility and non-State actors. – Individual responsibility under International Law. 5. Conclusions.

1. 1. Introduction. • Responsibility – whose? States, non- State actors, individuals. – • • Classically concerned with State as the only actors. Responsibility – what is it? – – – Action taken by one State regularly results in injury to, or outrage on, the dignity or prestige of another State. Responsibility is the necessary corollary of obligation – States primary subjects of international law. State Responsibility is the general set of rules governing the international legal consequences of violations, by States, of their international legal obligations.

1. 2. Introduction • ‘Responsibility is concerned with the incidence and consequences of illegal acts and. . the payment of compensation for loss caused. ’ – Brownlie, Principles of International Law. • This goes a little further than is often the case, compensation is sometimes of little use. • The concept though is clear. The rules determining the situation once States have been deemed liable for breaching the international legal obligations they owe.

1. 3. Where are the Rules on Responsibility Found? • To date no comprehensive treaty setting out the rules. – General rules to be found in custom and through decisions of Courts and Tribunals. – ILCASR, 2001. • Much of the ILCASR reflect custom. – Rules on when states can be held responsible are sometimes set out in specific treaties • Eg, ECHR, UNLCOS. – There is a clear distinction in the law between the rule and content of an obligation and the consequences of that violation.

2. 1. The Classic Authorities and the ILCASR. • The ILCASR 2001– – Begun by the ILC in 1949 as one of the most important topics for international law. Had already been discussed and left unfinished in a League of Nations Conference in 1930. – A succession of eminent international lawyers – Robert Ago; Willem Riphagen; Arangio-Ruiz and James Crawford drafted them before adoption in 2001. – The difficulty in negotiation reflects differing views and perspectives. – GA 6 th Committee in 2008 decided to put articles forward as a convention in 2011.

2. 1. 1. General Principles of State Responsibility. In principle an act or omission which produces a result which on its face is a breach of a legal obligation gives rise to responsibility – whether the source of the obligation is custom, treaty or another basis. Chorzow Factory (Jurisdiction) 1927 PCIJ Ser A no. 9 p. 21 – ‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensible complement of a failure to apply a convention and there is no necessity for this to be stated in the Convention itself. ’

2. 1. 2. General Principles of State Responsibility. • Corfu Channel Case- ICJ Reports (1949) 23. – ‘These grave omissions involve the international responsibility of Albania. The Court therefore reaches the conclusion that Albania is responsible under international law for the explosions which occurred…and for the damage and loss of human life which resulted from them, and that there is a duty to pay compensation to the United Kingdom. ’ This basic principle – ‘secondary’ rules of responsibility and reparation are triggered whenever a ‘primary’ international legal obligation of ANY sort is breached is accepted as custom and seen in Art 1 ILCASR.

2. 1. 3. General Principles of State Responsibility. • Art. 1 ILCASR – ‘Every internationally wrongful act of a State entails the international responsibility of that State. ’ • Few treaties are truly universal and thus each State has its own unique myriad of bilateral and multilateral (international) obligations. • Art. 2 ILCASR – ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission is: a) attributable to the State b) constitutes a breach of an international obligation. • Art. 55 ILCASR – Rule on lex specialis

2. 2. 1. Behaviour Attributable to the State. • Key issue here, is defining the actors for whose conduct the State is responsible. – Article 4 - ILCASR. • ‘whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organisation of the State…any person or entity which has that status in accordance with the internal law of the State. ’ – Sometimes very easy, • Cumarasamy Opinion - ICJ Reports, 1999, p. 62. – Sometimes less so….

2. 2. 2. Authorities on Attribution • Nicaragua case [1986] ICJ Rep. 14 (Merits). – The relationship between the contras and the US was examined – whether or not the relationship of the contras (to the US ) was so much one of dependence on the one side and control on the other that it would be right for legal purposes to equate the contras with an organ of the US government of acting on behalf of it. ’ – Here not a part of the State and US not responsible – were liable for much else but not this.

2. 2. 3. Authorities on Attribution. • Case Concerning Application of the Genocide Convention (Bosnia v Yugoslavia - Serbia & Montenegro) 2007. – ICJ reaffirmed Art 4 ILCASR as custom. – ICJ said much evidence of participation but whether FRY had a role – Bosnian Serbs not de jure organs under internal law. – Issue thus were they de facto organs? Referred back to Nicaragua case. • Exceptional but possible. Here not proved on facts.

2. 3. 1. Other Entities Attributable to the State. • Article 8 – ILCASR – Conduct directed or controlled by a State may be imputed to it also. • As a general rule conduct of private entities not attributable to the State. • A complex issue as to whether ‘under direction or control’.

2. 3. 2. Other Entities Whose Behaviour is Attributable to the State. • Nicaragua Case – Whether US responsible for attacks on ports and contras. • UCLAs carries out mining and bombing. • US army personnel not involved but CIA helped plan, direct, support and execute attacks – thus imputable to US. • Contras not part of US but US liable if ‘effective control’ over contras. • ‘Control that extends to the issuance of specific instructions concerning the activities of the individuals in question’ or ‘issuance of instructions for the specific acts contrary to international law. ’

2. 3. 3. Other Entities Whose Behaviour is Attributable to the State. • ICJ returned to this in Genocide Case – A key question was were the Bosnian Serbs acting under the ‘effective control’ of FRY. • Court asked to consider ‘overall control’ test adopted by the ICTY AC in Tadic case. • Court rejected ‘overall control’ test and reaffirmed ‘effective control’ test. • Here ICJ concluded that while having influence, FRY did not have effective control over Bosnian Serbs as far as massacres in Sebrenica were concerned. – Very difficult to prove in practice as each act has to be subject to specific instruction.

2. 3. 4. Other Entities Attributable to the State? • Terrorist organisations ‘harboured’ by pariah States. – The Genocide case is from 2007 yet after the attacks on NYC etc the UNSC , NATO & OAS all de facto equated the Taliban’s ‘harbouring’ of Al- Qaeda as equivalent to Afghani responsibility. – SC Resolution 1368 and 1378 • The Taliban regime is expressly condemned for ‘allowing Afghanistan to be used as a base for the export of terrorism by the Al-Qaida network and for providing a safe haven…’ • NATO & OAS similarly recognised ‘armed attacks’ and that Afghanistan ‘worked in concert with Al-Qaeda’ by providing protection. • What of Kashmiri separatists and India or Hamas and Israel?

2. 4. Retrospective State Liability for Non-State Conduct • Article 11 ILCASR – – States may not initially be responsible for acts but subsequent behaviour may lead to it acknowledging and adopting the behaviour in question. – Acknowledgement and adoption is a higher standard than support or endorsement. Requires States to see behaviour as their own. – Consular Staff in Tehran Case – ICJ [1980] Rep 3.

2. 5. 1. Is Fault Needed for States to Be Responsible Under International Law? • In principle an act or omission which produces a result which on its face is a breach of a legal obligation gives rise to responsibility. • Responsibility can be entailed with no intention. Dolus (intention) is important in some respects, however, especially proving Genocide under the 1948 Convention (Genocide Case – 2007) • Objective responsibility is widely seen as the key issue. Acts committed by officials and organs bound to perform them, despite the absence of fault on their part can lead to responsibility. – In international law primary rules determine a breach in circumstances varying from strict liability to due diligence.

2. 5. 2. Is Fault Needed for States to Be Responsible Under International Law? • Knowledge, and thus fault may, however, help establish responsibility in some specific cases. – Article 17 ILCASR - State directs and controls another in commission of an internationally wrongful act – here must know wrongful. – Article 18 ILCASR – as above where a State coerces another to commit a wrongful act.

2. 6. 1. Establishing the Breach of International Obligations. • Article 3 ILCASR – ‘The characterisation of an act of a State as internationally wrongful is governed by international law. Such characterisation is not affected by the characterisation of the same act as lawful by internal law. ’ • It is about international law. • It is no defence to say lawful under domestic law. States have unlimited (subject to jus cogens rules) prescriptive jurisdiction.

2. 6. 2. Establishing the Breach of International Obligations. • Article 12 ILCASR – ‘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 of it by that obligation regardless of its origin or character. ’ • Seen as a private bilateral dispute. Between injured State and responsible State- illegal expropriation of alien property, for example.

2. 6. 3. Standing to Claim Injury. • In theory any legal person has standing to bring a claim for injury and to hold another accountable. – Reparations Opinion – ICJ 1949. – ILCASR –deal only with States and not other legal persons. – Law on non-State actors hugely complex- come back to this issue.

2. 6. 4. Standing to Claim Injury • Art 42 ILCASR – A state is entitled as an injured State to invoke responsibility of another if the obligation is owed to it: – a) individually – b) a group of States including that State, or the international community as a whole and the obligation affects: • i) specifically that State • ii) is of such a character as to radically change the position of all other States to which the obligation is owed

2. 6. 5. Standing to Claim Injury • Article 48 ILCASR 1. Non-injured States can invoke responsibility if: a) Obligation breached is owed to a group of States and established for the protection of a collective interest b) Obligation breached is owed to the international community. (obligations erga omnes) 2. Any state…may claim from the responsible State: a) Cessation of the internationally wrongful act and assurances…of non-repetition. b) Performance of the obligation…

2. 7. Circumstances Precluding Wrongfulness. • In the ILCASR six circumstances ‘preclude wrongfulness’: – Necessity - right to compensation remains – Force majeure - right to compensation remains – Consent - right to compensation remains – Self defence – no right to compensation remains. – Distress - right to compensation remains – Countermeasures - no right to compensation remains.

2. 8. Countermeasures. • In a decentralised system – the classic remedy for a ‘wronged State’. • Sometimes still referred to as ‘non-forcible reprisals’. – Dealt with extensively in Art 49 -53 ILCASR. • Countermeasures may only be taken to induce compliance. • Countermeasures must not affect obligations dealing with human rights, the prohibition on the use of force or the peremptory norms of international law. • All counter measures taken must be proportionate. • Countermeasures must stop when the internationally wrongful act ceases. – Countermeasures adopted by non-injured States. • Permissible but law very uncertain.

2. 9. Remedies. • Generally when a State has committed an international wrong it is obliged to cease doing so and refrain from doing so again in future. • States are also obliged to make full reparation for the injury caused – Chorzow Factory (Jurisdiction) 1927 PCIJ Ser A no. 9 p. 21 • ‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. . ’

2. 9. 1. Forms of Reparation. • Art. 34 ILCASR – Reparation for injury caused shall take the forms of • Restitution; • Compensation; and • Satisfaction – These are either singularly or in combination.

3. Specific Treaty Regimes, Responsibility and Enforcement. Or how the rules sometimes apply (or don’t) in practice.

3. 1. Some General Legal Methods for Dealing With Non-Compliance. • States may through a variety of international organisations or unilaterally take action to try and ‘persuade’ third State to comply with their legal obligations – UN action - against Libya after Lockerbie – Regional action – EU and Uzbekistan – Unilateral action – US and Burma – Key question is what legal obligation has been breached?

3. 2. Some Treaty Based Approaches for Dealing With Non-Compliance. • No specific method / mechanism established: – Geneva Convention on Refugees 1951. • Optional dispute resolution mechanism: – UNCLOS 1982. • Optional and not strictly legally binding – OP 1 – International Covenant on Civil & Political Rights, 1966. • Compulsory and legally binding judgments: – European Convention on Human Rights 1950, • Subject to some limits – eg Art. 34 ECHR on admissibility.

3. 3. The NPT, Iran and Responsibility. • Nuclear Non-Proliferation Treaty 1968 - Iran is party. – Objectives of treaty • Only 5 declared nuclear states retain nuclear weapons- Article 1 NPT • All other states only pursue nuclear technology for peaceful purposes – Article 2 NPT • NPT enforced through IAEA - Article 3 NPT; reporting and visits – Safeguards Agreements 1974 – basis for dispute since 2003.

3. 4. The NPT and Iran. • Methods of enforcement: – Reporting and visits under NPT. – Third states may take unilateral action – eg breaking diplomatic relations, reducing trade etc- counter measures or retorsion. – Collective action through the UN or regional bodies.

3. 5. Collective Action Through the UN So Far. 1. UN Charter, Chapter VII – Article 39 – 51. – Threats to Peace, Breach of Peace and Acts of Aggression. 2. Chapter VII deals with full ambit of methods including sanctions and use of force and are legally binding on all States – Article 25. 3. Chapter VII decisions are taken by the Security Council only – has exclusive right to define ‘threats to peace’ 4. Chapter VII non-forcible measures include: – Article 40 provisional measures – Article 41 – economic and other sanctions

3. 6. Collective Action vis-à-vis Iranian Responsibility. • Iran’s uranium enrichment programme deemed a threat to peace and security. – Legal analysis of NPT or political decision as to wrongful act? – Who is injured? • Security Council has adopted provisional measures under Ch VII – Article 40: Security Council Resolution 1696 (2006) • ‘Demands … that Iran suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA’ • General obligation to cease wrongful act – Art. 30 ILCASR

3. 7. Collective Action Against Iran So Far. • Security Council has adopted measures not involving use of force (sanctions) under Ch VII –Article 41: – Security Council Resolution 1737 (2007) • All goods related to programme cannot be sold to Iran. – Security Council Resolution 1747 (2007) • All States stop transit of goods related to programme • No new loans from IMF etc • Impact / utility of ‘smart’ sanctions – – Cf. Iraq and Libya.

4. Responsibility and Non-State Actors.

4. 1. Responsibility and Non-State Actors in International Law. • Non-State Actors in international law– The ‘not a cat’ syndrome. • UN, EU, Human Rights Watch, Shell all seen as ‘non. State ‘actors. – No set of comprehensive rules or clear custom on all non-State actors. • ILC now trying to draft articles for international organisations. • Custom is much clearer on responsibility for individuals than for the various other types of non-state actor.

4. 2. 1. Individual and State Responsibility under International Law. • State responsibility can only go so far in holding them (States) accountable – States are (obviously) abstract legal entities. • Individual responsibility in international law acts as a deterrent and also ensures the actual perpetrators of some internationally wrongful acts are held accountable. • Both the State and the individual in some cases can be held liable for the same wrongful act. • State responsibility is concerned with secondary rules, individual responsibility is concerned with primary rules of international law.

4. 2. 3. Individual Responsibility under International Law • Individual responsibility under international law is only for international criminal acts or ‘international crimes’. – Cf – deletion of reference to international crimes in Art. 19 ILCASR. • A distinction should be drawn between where States can exercise jurisdiction and where the crime is an ‘international’ one. – Eg people trafficking, money laundering, piracy and slavery – are not usually considered ‘international crimes’ even if universal jurisdiction may exist for some. – Here it is to do with ensuring law is enforced even if crime has a transnational dimension to it.

4. 2. 4. The Notion of International Crimes. • Cassese argues: 1. They consist of violations of customary norms – whether formulated in treaties or not. 2. Such rules are intended to protect values considered important by the international community. 3. There exists a universal interest in repressing these crimes – universal jurisdiction thus always exists. 4. If perpetrator acted in an official capacity, de jure or de facto – then cannot claim immunity.

4. 2. 5. The Elements of International Crimes. 1. Perpetrators are either State officials or private individuals and conduct is either: – linked to internal or international armed conflict or – in absence of conflict has a political dimension somehow linked to behaviour of State 2. They are double-layered. Acts on their own also prohibited in domestic criminal law and also infringe international values.

4. 2. 6. Which Acts, Therefore, Amount to International Crimes. • • • War crimes Crimes against humanity Torture (as distinct from one of categories of both of above) Genocide Aggression – Not include: apartheid - not (yet) regarded as an international wrong by the State which ALSO entails criminal liability of individuals. • Cf. Art 7 ICC – covering apartheid – What of terrorism ?

5. Conclusions. • State responsibility is first and foremost concerned with the secondary, not primary, rules of international law. • International courts and tribunals rarely make specific findings or rulings on the issue. • The ILCASR are the nearest we have to a comprehensive, coherent set of rules; much of the content reflects custom. • The rules on individual responsibility complement the rules on State responsibility but are much more limited in scope and ambit. • Individual responsibility concerns international crimes a categorisation removed from the ILCASR. • Objective and subjective elements are essential for individual responsibility, the former primarily only for State responsibility. • There is little to guide us on the responsibility of other ‘non -State’ actors.