Week 8 Responsibility of States and Sanctions PDF

[ICC] RESTRICTED Dra. Claudia Jiménez  [ICC] RESTRICTED GENERAL SCHEME PRIMARY RULE: an international obligation that will be violated by a subject of IL bound by it *...

[ICC] RESTRICTED Dra. Claudia Jiménez  [ICC] RESTRICTED GENERAL SCHEME PRIMARY RULE: an international obligation that will be violated by a subject of IL bound by it * Wrongfulness IT 1st Juridical Custom Relation GPL 2nd Juridical Relation Res. Right Obligation -Subject IL - Subject IL INTERNATIONAL UA -Humanity RESPONSIBILITY ( The 1st one persist ) New New Rights Obligations  [ICC] RESTRICTED Main features Is secondary (depends on a primary obligation, art.1) 1. Attribution to an international subject Requires (art.2): 2. A conduct (action or omission) that implies a breach, (not a damage) Domestic law is NOT relevant (art.3, 32) Has a special regulation for ius cogens norms (arts 40, 41) and erga omnes obligations (art.48)  [ICC] RESTRICTED How to determine Responsibility Subjective Element CIRCUMSTANCES Wrongful PRECLUDING act WRONGFULNESS (6) Objective Element INTERNATIONAL RESPONSIBILITY (with its own consequences)  [ICC] RESTRICTED SUBJECTIVE ELEMENT: ATRIBUTION a) Organs of the State (in accordance with the domestic law, art 4) Whatever legislative, executive, judicial or other functions * Whatever position or character in the state organization * Even if it’s ultra vires (art.7)* b) Persons or entities exercising elements of government. Authority (art. 5, 9) Not an organ of the State but empowered by the state to exercise it* Not an organ but in fact it exercise it because of absence of of. authority c) Organs placed at the disposal of a State by another State (art. 6) Temporal situation when an organ placed at disposal of a state acts in the exercise of elements of the governmental authority * d) Insurrectional movements (art.10) For their actions as insureectionals if they reach the power* e) Conduct controlled or adopted by a state as its own (arts. 8, 11) If the action is under instructions or direction of the state* If the state acknowledged and adopted its own* 5  [ICC] RESTRICTED How to determine Responsibility CIRCUMSTANCES Wrongful PRECLUDING act WRONGFULNESS (6) INTERNATIONAL RESPONSIBILITY (with its own consequences)  [ICC] RESTRICTED OBJETIVE ELEMENT: THE BREACH ✓ The State must be bound by the obligation at the moment of the breach ✓ To establish a breach, not minimum level of gravity is required (…BUT it does affect the consequences that arise from it)* ✓ The breach may be a consequence of: ✓ Actions (Nuclear Tests, New Zeland v. France, 1974) ✓ Omissions (Gabcikovo-Nagimaros Project, Hungary v. Slovakia, 1997) ✓ Not Prevention (due diligence) (Application of the Genocide Conv, Bosnia- Herzegovina v. Serbia and Montenegro, 2007) ✓ Endorsment (US Diplomatic and Consular staff in Teheran, US v. Iran 1980) 7  [ICC] RESTRICTED How to determine Responsibility CIRCUMSTANCES Wrongful PRECLUDING act WRONGFULNESS (6) INTERNATIONAL RESPONSIBILITY (with its own consequences)  [ICC] RESTRICTED CIRCUMSTANCES PRECLUDING WRONGFULNESS Annulment of the classification of wrongdoing (not applicable for ius cogens) = Eliminates the wrongful nature but NOT the obligation to compensate for the damages caused (art. 27) * Consent* Art.20 * * Countermeasures* Self Defence* Art.22 + 49-54 Art.21 * Distress* Necessity* * Art.24 Art.25 * * Force Majeure Art.23  [ICC] RESTRICTED How to determine Responsibility CIRCUMSTANCES Wrongful PRECLUDING act WRONGFULNESS (6) INTERNATIONAL RESPONSIBILITY (with its own consequences)  [ICC] RESTRICTED CONSEQUENCES: A NEW JURIDICAL RELATION (1st juridical relation still exist) BREACH OF SINGULAR / COLLECTIVE BREACH OF ERGA OMNES OBLIGATIONS* - Non recognition OBLIGATIONS - Non asistance OBLIGATIONS - Coop to end the breach by lawful measures* - Cease the act (art.30.a) - Guarantees of Non Repetition (art.30.b) - Reparation (art.31) INVOCATION 1 Restitution (art.35) 2 Compensation (art.36) 3 Satisfaction (art.37)*  [ICC] RESTRICTED Measures to pressure for compliance with the new obligations Decentralized: Institutionalized: Countermeasures Sanctions * (arts. 49-54) (art. 55-56 ?)* * By injured state (arts.49-53)* Needs a “structure” (IO) and a provision within By other state when erga * omnes obligation – art.48 (art. Only for its members (art.34 54)* VCLT) … And what about SC chapter VII ?  [ICC] RESTRICTED UN Charter Article 41 Article 42 The Security Council may decide Should the Security Council what measures not involving the consider that measures provided use of armed force are to be for in Article 41 would be employed to give effect to its inadequate or have proved to be decisions, and it may call upon the inadequate, it may take such action Members of the United Nations to by air, sea, or land forces as may be apply such measures necessary to maintain or restore international peace and security. These may include complete or partial interruption of economic Such action may include relations and of rail, sea, air, demonstrations, blockade, and postal, telegraphic, radio, and other operations by air, sea, or land other means of communication, forces of Members of the United To who? and the severance of diplomatic Nations. relations.  [ICC] RESTRICTED Thank you  [ICC] RESTRICTED Deployment of troops abroad*  [ICC] RESTRICTED States with complex structure *  [ICC] RESTRICTED * 31/10/23 In the case of Bild GmbH & Co. KG v. Germany, the Court held that there had been a violation of the freedom of expression. The case concerned a court ruling ordering bild.de, a major news website, to take down CCTV footage of a police arrest at a nightclub in Bremen unless it blurred the face of one of the police officers involved. The Court found that the reasoning of the German courts as regards the use of the footage had been insufficient, and that the reasoning could lead to an unacceptable ban on any future publication, without the consent of the individuals concerned, of unedited images of police officers performing their duties.  [ICC] RESTRICTED POWELL & RAYNER v. UNITED KINGDOM* Art 13 ECHR (Annoyance caused by aircraft noise. Interference in property rights) Judgment of February 21, 1990  [ICC] RESTRICTED Sbrenica as a UN protected zone* In 1993, Philippe Morillon, then UNPROFOR commander, unilaterally promised protect the people in Srebrenica. As a consequence, an alarmed international community declared the area a UN protected zone  [ICC] RESTRICTED Sanitary services offered to another State*  [ICC] RESTRICTED Insurreccionales que alcanzan el poder*  [ICC] RESTRICTED Ex: escuadrones de la muerte*  [ICC] RESTRICTED ICJ Cases* Nicaragua v. USA (1986) Armed activities on the territory of the Congo (2005) Genocide in Srebrenica by serbo-bosnian militias (2007)  [ICC] RESTRICTED Examples* Irán: Ayatollah Yomeini / US Embassy ocupation in Iran France: secret agents / Sinkin of the Raimbow Warrior (Greenpeace)*  [ICC] RESTRICTED Types of international obligations* : Erga singulum: reciprocal obligations between two Erga omnes states partes: Obligations in relation to a group of States Erga omnes: Obligaciones towards the international community** 25  [ICC] RESTRICTED Validly lent and within limits Armed intervention: External aid to the legal Government, Consent* not to the belligerents Art.20 Cases where it has been analyzed by the ICJ: – Corfu Chanel 1948 – Nicaragua v. USA 1986  [ICC] RESTRICTED Exception to the prohibition of the Self use of force provided for in the Charter (UN art. 51) * Defence** Prerequisite: previous armed atack Art.21 (no “preventive self defense”) Conditions: – Necessity, – immediacy – proporcionality Self Defence? *  [ICC] RESTRICTED Self-protection measures of the injured State (Retaliation and reprisal) Countermeasures* Art.22 After a previous wrongful act from the other State and within limits and condiitons (art. 49 y 53)  [ICC] RESTRICTED Force Majeure* Art.23 Unlawful action caused by an irresistible force or unforeseen event beyond its control Conditions – the conduct of the state has not caused or helped cause the situation – The State has not assumed a risk Example: catastrophes, wars, revolutions, etc.  [ICC] RESTRICTED Distress Art. 24* The autor of the act has no other reasonable way in that situation of saving his/her (and others under his/her care) lives Conditions His/Her conduct has not caused or helped cause the situation The act won’t create a comparable or grater peril Example: aircraft commander  [ICC] RESTRICTED Necessity* Art.25 Choice between committing a wrongful act or sacrificing an essential interest of the State Deliberate and conscious action (difference from force majeure) Conditions: Is “the only way” to safeguard that essential interest Doesn’t seriously affect an essential interest of the one who suffer the harm The state did not contribute to the situation The obligation do not exclude this option  [ICC] RESTRICTED INJURED STATE (art.42)* Individual State that The one that suffer the owns the harm obligation State specially affected by the breach Erga or omnes The breach is such that obligations radically change the position of all the others for further perfomance of the obligation)  [ICC] RESTRICTED Countermeasures (art.49-54)* AIM art.49 To Induce the responsible state to comply with its obligations (art. 49) = not punitive CHARACTERISTICS Temporary: while the objective is not achieved = must be "reversible" (art. 49.2 + 53). Commensurate to the injury suffered (severity of the act and rights affected). (Art. 51) LIMITS art.50: They CANNOT affect a. The prohibition of the use of force (art.2.4 UN) b. Obligations for the protection of human rights c. Obligations of humanitarian characters d. Peremptory norms 33 2. Dispute settlement / Diplomatic inviolability  [ICC] RESTRICTED As a consequence of the various breaches founds : “[…] declares that it cannot accept the requests of New Zealand for a declaration and an order that Major Mafart and Captain Prieur return The Raimbow to the island of Hao; Warrior case* Declares that the condemnation of the French Republic for its breaches of its treaty obligations to New Zealand, made public by the decision of the Tribunal, constitutes in the circumstances appropriate satisfaction Arbitral Tribunal, 1990 for the legal and moral damage caused to New Zealand; In the light of the above decisions, recommends that the Governments of the French Republic and of New Zealand set up a fund to promote close and friendly relations between the citizens of the two countries, and that the Government of the French Republic make an initial contribution equivalent to $US 2 million to that fund.”  [ICC] RESTRICTED Article 54* measures taken by States other than an injured State This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.  [ICC] RESTRICTED Article 48* Invocation of responsibility by a State other than an injured State 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.  [ICC] RESTRICTED Articles 55 & 56* (General Provisions) Art. 55 Lex specialis Article 56 Questions not regulated by the Draft These articles do not apply where The applicable rules of and to the extent that the international law continue to conditions for the existence of an govern questions concerning internationally wrongful act or the the responsibility of a State for content or implementation of the an internationally wrongful act international responsibility of a to the extent that they are not State are governed by special regulated by these articles. rules of international law.  *labeling [ICC] RESTRICTED  [ICC] RESTRICTED Article 51 UN Charter* Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self- defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.