The Law of State Responsibility - Term Paper Example

The Law of State Responsibility The law of state responsibility is aimed at making a given state be responsible incase there is a breach of an internationally set obligation. The law also has principles stating and able to determine when an obligation has been interfered with and the possible legal implications. The principles under the law address basic issues of responsibility. States bound by the law of state responsibility should recognize that they are not required to break their internal laws as well as the international laws. Some of the violations of the law include the use of armed force and the breach of human rights (Crawford, p 283). The most important aspect of the law of state responsibility is to guarantee state responsibility on human security. This law sets out that when one state commits an internationally wrongful act, it interferes with the international responsibility of that state. The traditional law of state responsibility developed from the notion of right of diplomatic protection, where one state would potentially be required to make reparations to another state for damages to citizens or property of that other state. However, it must be stressed that this concept of diplomatic protection has always been considered a right not an obligation. A given state has the absolute power to choose whether or not to act in situations where their citizens were subject to injury or property loss in other nations (Waters, p 216). Countermeasures concern conduct justified by the law of state responsibility’s proportionality and its necessity, taken in the case whereby there is a derogation of the existing treaty obligations, in response to an internationally wrongful act of a state against which they are taken. By their nature, countermeasures are temporary measures, adopted to achieve a required effect that loses its justification once this effect is achieved. The view is manifested in the readings of the subject that the constraints and limitations imposed by the Vienna convention in Articles 60 and 42 (2) on suspension of treaties (Cannizaro, p 890). The suspension of the treaties renders countermeasures dead if suspension is treated as a remedy and if a state allows countermeasures for non material breaches. States should also observe as well that the treaty of the law of state responsibility can be suspended in whole or in part for material breach, but the adoption of countermeasures is governed by the principle of proportionality, not materiality (Crawford, p 283). The law of state responsibility accepts the existence of the primary rules, regardless of their source, and its purpose to find an answer to a question whether conduct inconsistent with the law of state responsibility rules can be excused and, if not, what are the consequences of such conduct. In addition, the laws of state, are not, therefore, conceptually concerned with the consequences of a breach for the continued validity or binding effect of the primary rule, such as the right of an injured state to terminate or suspend a treaty for material breach. The adoption of the final articles on the responsibility of states for internationally wrongful act in 2001 by the international law commission has far concluded the debate over the entitlement of non-injured states to resort to countermeasures. In particular, article 54; due to lack of sufficient state practice, limits the right of any state entitled to the law of state responsibility to invoke responsibility under article 48 only to lawful measures rather than countermeasures (Waters, p 216). The increasing significance of the notions of contradiction norms and obligations owed to the international community as a whole in contemporary international law, and the lack of effective and compulsory enforcement mechanisms in the international legal arena make the question of third state countermeasures even more compelling than ever before. In the absence of a structure same to that existing in domestic legal systems, with compulsory legislative, judicial and enforcement procedures, international law has often come under attack as not being real, but rather a system of moral values and principles which disappear whenever the geopolitical or other interests of the stronger components of the international community are at stake. This is evident in the manner in which, USA, being part of the law of state responsibility, goes on to attack Iraq and Afghanistan contrary to the United Nations wishes (Loibl, p 17). Lack of an automatic enforcement mechanism is the most striking feature of general international law. The legal loophole is not filled with the existence of the Security Council whose role is merely restricted to the safeguarding of international peace and security. The Security Council does not, at times coincide with the enforcement of international law. As a consequence, compliance with international law and with fundamental principles of the international community as a whole still, and to a great extent, relies on the good will of each state (Cannizaro, p 890). The idea of countermeasures finds justification in the need to restore the equality between sovereign states and to restore the balance that has been disturbed with the commission of the internationally wrongful act. Despite the fact that they are otherwise internationally wrongful acts themselves, countermeasures are justified, and thus the responsibility is precluded, by reasons of self protection and he need to induce the defaulting state to cease the wrongful act, to offer full reparation for the injury, material or moral, suffered by the aggrieved party, and to secure guarantees for non-repetition in the future. For counter measures to be legitimate they must not be aimed at revenge and they must have temporary effect. However, whilst the right to resort to countermeasures by an injured state is undisputed, the same does not apply with the right of third states to respond with countermeasures or, as otherwise known, solidarity measures, whenever the fundamental interests of the international community as a whole are endangered. In some cases of gross violations of international law, there is no injured state but injured people, nationals of the same state committing the violation such as in the case of genocide, apartheid and torture. It is not god to make impossible the possibility of peaceful and coercive action by independent actions of the international community. This means; denying those most in need the hope of justice. Although the aggression of human rights has for long been considered as the most serious offence of international law threatening peace and security, now other violations such as the ones mentioned above are of equal attention (Loibl, p 17). While third states are entitled to countermeasures and to resort to the use of force on the basis of collective self-defense in response to armed attack, the current international legal order seems to prohibit third states from resorting to milder means, such as countermeasures, in reaction to serious infringements of specific international rules, including aggression. The concept of third state countermeasures is closely associated with the early realization in international legal arena that not all internationally wrongful acts were of the same legal weight, significance and effect. There is necessity for a distinction in the international legal order between wrongs that affected only the parties directly involved in the dispute and wrongs which inflicted injury to every nation. It was until the Second World War that areal current opinion emerged according to which general international law provided for two different regimes of responsibility: one that would apply as a result of the breach of obligations of great significance to the international community as a whole, and another that would apply to breaches concerning obligations of lesser importance (Brownlie , Guy and Talmon, p 405). International law has been enriched with new principles, new rules and new concepts. In a highly interdependent world, community values have surfaced formulating a distinction between wrongful acts and legal consequence, whilst widening the spectrum of actors which have a legal interest to invoke the responsibility of the wrong doing state. In this manner, current international law consists of more than just reciprocal obligations between two states: the recognition of interests and values placed to serve collective interests and the international community is now undisputed. Further, the international law is now moving towards adopting new mechanisms for its enforcement in an attempt to escape from the legal stagnation imposed by its own lack of compulsory jurisdiction over the worst violations of international law: thus, international law is not merely drafted to protect sovereign states, but also individuals and peoples. It is important to note that as long as the issue of third state countermeasures remains unresolved, the dangers arising from the use of such measures, even in violation of international law, are not eliminated. It therefore seems that only two alternatives exist: either that third state countermeasures are prohibited, in which case however there exists no guarantees that the stronger components of the international community will respect their international obligations arising from such kind of prohibition, especially in view of the absence of any enforcement mechanism against them (Brownlie , Guy and Talmon, p 405). There is also the need to make the international legal order to mitigate the fears of many states regarding authorization of countermeasures by states other than the injured one, it is necessary to reduce the risk of abuse by those states that are favored in terms of military and economic strength. The principle of proportionality serves to restrict the intensity and nature of unilateral power that legitimizes what in other circumstances would be illegitimate and therefore safeguarding the own rights of the defaulting state. At the same time, it aims to bring legal certainty and predictability in international relations by setting the conditions with which excessiveness of a certain action can be measured (Koskenniemi, p 338). According to Cannizzaro (2001, p 890), countermeasures must be viewed as exceptional measures against a state that has committed an internationally wrongful act and the scope of which is restricted to the cessation of the internationally wrongful act, safeguards for non-repetition, and reparation. In addition, it is also widely accepted in international law that countermeasures, whenever allowed, must be proportionate. The main issue is proportionality with respect to what countermeasures must be proportionate. The principle of proportionality in the law of countermeasures has a fundamental role in the safeguarding of international legitimacy and restraint; it remains a principle the exact context of which even today has not been entirely unveiled. People often view proportionality in the light of the injury suffered; others on the basis of significance and nature of he infringed rule whilst there are also those who support that proportionality must be addressed in the context of the seriousness of the breach (Koskenniemi, p 338). Among the issues one needs to address regarding the proportionality of countermeasures is whether or not this is identical to the proportionality that applies for the limitation of forcible action. In resorting to counter measures, states do not pursue one and the same purpose. As a consequence of countermeasures, one should also think in terms of proportionality. Therefore, countermeasures should not be conceived as a fixed notion, unchangeable and inflexible, applicable to all situations no matter how different they are Customary international law entitles a state that has been the victim of a breach of an obligation owed to it to suspend the performance of certain obligations, in order to induce the wrong doing state to resume compliance or provide redress. The legality of these measures is clearly circumscribed by law, and as a general rule, the state adopting these measures must demonstrate that they were both necessary and proportionate to the harm. Substantial differences of opinion remain as to the content and form of countermeasures (Weiler, p 125). In particular, are countermeasures strictly speaking unilateral remedies, or are there circumstances when the character of the obligations breached entitles third states to respond to the breach? Does international law restrict their content? In other words, are there certain actions which are unacceptable even as countermeasure? What procedural prerequisites should accompany their application? In general, the extent to which countermeasures can be regarded as illegitimate remains controversial and a recent decision of international tribunals needs to be taken into account; at the same time, the issues raise many questions that cannot be satisfactorily dealt with in a brief survey. In the air services agreement case, the French/united states Arbitral tribunal was called upon to assess the legitimacy of certain measures adopted by the United States by way of response to an alleged breach by France of a bilateral treaty regulating air services between the two states. In confirming that the United States was entitled to adopt counter-measures by way of response to the alleged breaches by France, the tribunal noted that: each state should establish its legal situation in relation with the other states. Further, the tribunal observes that it is for each state to decide in any given state if its subjective rights have been infringed. This raises the question of what the legal position will be, if it subsequently turns out that a state was mistaken or had formed an erroneous opinion that it was the victim of a breach. As long as the erroneous belief was made in god faith, the state adopting countermeasures should not incur any international responsibility. On the other hand, the language of the court, rests on the premise that only a state that been the victim of an objectively verifiable breach has the right to adopt countermeasures. For countermeasures to be legitimate, it must be taken in response to a previous international wrongful act of another and must be directed against that state. An important condition for the legality of countermeasures should be stressed. Such measures must only be directed at the wrong doing state. It follows that counter-measures which directly or indirectly breach obligations owed to third states are clearly impermissible, and in any case would not satisfy the proportionality requirement. On this reasoning, it is arguable that obligations which have non pleasing character cannot be suspended, even in response to a prior breach. This should exclude many obligations in the field of human rights, humanitarian law and the protection of the environment. A further condition is that countermeasures should be aimed at inducing the state in breach to resume compliance, they must be reversible. In most cases, the performance of the obligation suspended could easily be resumed. A practical application of this condition in the context of treaty obligations must surely mean that although the performance of such obligations may be suspended, the breach cannot be relied on as a basis for termination (Weiler, p 125). Conclusion In the international community where everything develops around the state and its interests, the need to have specific enforcement mechanisms is essential if international law is not to become uncertain in its effectiveness. For this reason, it is better to have some forms of remedies, even of a unilateral but non-forcible nature, rather than not, especially for the protection of supreme values and principles of humanity. By genuinely securing a just and peaceful international community, the world must ensure that the most stringent conditions for third state countermeasures apply, and explore the exact content of the principle of proportionality as a means of legal restraint. Works cited Brownlie Ian, Guy Goodwin and Talmon Stefan. The reality of international Law: essays in honour of Ian Brownlie. London, Oxford University press, 1999. Pp 404-406. Cannizaro Robert. The role of proportionality in the law of international countermeasures. EJIL, 2001. P 890. Elagab Crawford, The international Law commission’s Articles on State Responsibility: Introduction, Text and Commentaries, New York, McGraw-Hill 2003. P 283. Koskenniemi, ‘Solidarity Measures: State responsibility as a new international Order?’BYIL, 2001. Pp 337-339. Loibl Gerhard. Austrian Review of International and European Law 2001, volume 6; Martinus Nijhoff Publishers, 2003. Pp 16-19. Waters Michael. British and Canadian perspectives on international law, martinus Nijhoff Publishers, 2006. Pp 213-220 Weiler Joseph. International crimes of state: a critical analysis of the ILC’s draft article 19 on state responsibility, Walter de Gruyter Publishers, 1989. Pp 122. 126. Read More