Wrongfulness of State Conduct - Essay Example

?What circumstances can a invoke to exclude the wrongfulness of its conduct? Discuss, with reference to relevant case law Introduction All s and political entities have a responsibility to fulfil in relation to the international mandates and domestic laws. These mandates are in place in order to ensure orderly political relations among nations and political entities. Where these mandates are violated, the appropriate sanctions are often imposed. There are however circumstances which the state can cite in order to exclude the wrongfulness of its conduct. This paper shall discuss such circumstances. Relevant case law shall be used in order to support this discussion. The first part of this paper shall discuss the circumstances by which a state can be excluded from responsibility for its wrong actions. Next, a specific discussion on each of the circumstances shall be carried out with supporting case studies for each circumstance. Lastly, concluding remarks shall end this discussion, summarizing the cases and establishing a clear and comprehensive answer to the issue raised. This paper is being carried out in order to assist politicians and academicians in establishing a better understanding of state actions, state responsibility, and exceptions to such responsibility. Body The International Law Commission established circumstances by which wrongful acts can be excluded from state responsibility. These circumstances include: consent, self-defence, counter-measures, force majeure, and state of necessity1. Article 26 of the UN Charter nevertheless, supports a rule which does not allow the use of the circumstances indicated above in instances where international legal norms are violated. The commission is however also firm in declaring that the above causes may only be used if the state contradicts international law, regardless of the obligation violated, which may involve international laws, treaties, and unilateral acts2. Defending these circumstances does not seek to eliminate the obligation of states to comply with the provisions of international law; nevertheless, these circumstances provide an excuse and a justification for wrongful acts3. It is also important to consider the distinction which must be established between the impact of the circumstances which do not include the wrongful act and the fulfilment of the obligations undertaken. The first circumstance which can justify wrongful acts of states is consent. International law specialists declare that if a state consents to another state acting in a certain way which is actually against their legal obligations to the former, the consent would establish an agreement which supports the elimination of the effects of the obligations between the parties4. The crucial element in this circumstance is on the existence of an obligation, and such obligation is on an international scale5. In instances where one state would ask the existing obligation to be disregarded, it is clear that a valid consent has been issued6. Whether or not the act is valid is based on state institutions and internal legal provisions. The consent must also be given freely before the act is carried out, moreover, the act must be protected by the limitations indicated in the consent agreement. Tacit and express consent can cover such act, however, presumed consent is not included in the purview of the discussion7. Article 20 of the draft articles on state responsibility for internationally wrongful act indicates that valid consent indicated by the invoking state regarding a certain act eliminates the wrongful quality of the act committed for as long as the act remains within the limitations imposed by the consent8. Aside from consent, self-defence is also another means of justifying a wrongful act by a state. Based on Article 2 of the UN Charter, relations among states must be founded on the commitment not to use force or threat of force against any other state9. Nevertheless, Article 51 indicates that all states have the inherent right to self-defence during armed attacks until such time when the Security Council can take over matters of international peace and security. The defensive acts must however be directed only to the state which is carrying out the armed attacks10. In the Nicaragua v. United States case, the International Court of Justice ruled in favour of Nicaragua, imposing compensatory liabilities on the part of the United States11. The ICJ declared that the US violated international laws by entering their support of Contras in the rebellion against the ruling Nicaraguan government. Although the US claimed a right to self-defence, the ICJ declared that the circumstances which supported the declaration of such right do not exist12. Moreover, the right of states to collective self-defence is part of the justification for wrongful acts13. There must be an actual armed attack for the right of self-defence to apply; furthermore, using self-defence as a preventive measure is not included in the protection given by the right to self-defence14. The armed attack need not actually occur, but the indirect use of force which has the same effect as an aggressive attack can justify self-defence15. In addition, the defensive acts must also be necessary, immediate, and in direct proportion to the actual aggression. In general therefore, the right to self-defence is an inherent right of all sovereign states. It can be rightly invoked and it must comply with the following elements: an aggressive action; a direct, immediate, and unjust attack directed against the state, its sovereignty, as well as its legitimate interests; the attack must cause grave danger; and the defensive act is proportionate to the armed attack and the circumstances leading to the attack16. The Caroline case also indicates that “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation” is needed in order to justify wrongful retaliatory actions17. Countermeasures also justify state actions which are labelled as wrongful18. These countermeasures are often made in response to another state’s unlawful act. The unlawful act is a prerequisite to any countermeasure19. Victim states can also use countermeasures in order to force the other state to comply with its responsibilities and to put a stop to the wrongful acts of the aggressor state20. The countermeasures must be within the relationship of the victim state and the guilty state21. Other states may be affected, and the basis of countermeasures is founded on its direct impact on the victim state. Even as countermeasures are often based on violations of single obligations, the same act, in some cases, may also affect various obligations22. Countermeasures are incentives if they are based on a means to influence guilty states into complying with their obligations and into ceasing with their wrongful acts and providing compensation for their wrongful acts23. These countermeasures can also only be applicable for the time period where the obligation is being violated. The main goal of the countermeasure is to stop the wrongful act and to ensure that compensation for damages is delivered24. The countermeasures must be appropriately chosen in order to prevent the effect from being reversed25. In using countermeasures, proportionality must also be observed and protected at all times in order to prevent any excessive use of force or aggression from the victim state26. The ICJ also decided in the Gabcikovo – Nagymaros Dams case that the injured state must have already informed the aggressor state to cease its wrongful acts and to compensate the injured state for such wrongful acts27. Force majeure also justifies the commission of wrongful acts28. The UN General Assembly explains that the wrongful act which is not compliant with obligations in the international level can be allowed if there is force majeure, or in instances where there is an irresistible force or unpredictable incident beyond the state’s control leading to the impossibility of complying with the obligations29. Force majeure can be used in cases within the defence pleas of the states involved, however, if the impossibility is only momentary, force majeure can be used as a means of suspending the imposition of the treaty30. Force majeure can therefore only be used after a critical analysis of the circumstance seeking to establish the existence of an act which would justify force majeure31. Such force majeure cannot be used as a defence if the state itself has caused the problem32. In effect, in order to justifiably use force majeure as a cause for the commission of a wrongful act, the act must be unpredictable or is outside the control of the victim state33. The state’s compliance with its obligation must also be impossible, or the state is in a material impossibility to realize that its action do not comply the obligation; finally, the state must not have contributed in any way to the unfortunate circumstance34. The state of necessity is also another means by which a wrongful act would be justified. This state of necessity indicates an interest which must be protected against a serious and imminent threat35. The interest is also significant and highly crucial according to the existing circumstances. Moreover, such interest is also important to the state invoking it for the benefit of its citizens and for international interests in general36. The Continental Casualty Company v Argentine Republic discusses that for the state of necessity to be invoked, the state claiming such right must not in any way be responsible or must not have contributed to the state of necessity and the that the actions taken by the invoking state were means of preventing any grave danger from befalling them37. Regardless of the nature of the interest, the threat must also be real or very much a possibility38. The existence of a possible danger cannot be considered an adequate reason to declare a state of necessity, especially as the danger can be based in various fields of expertise39. Moreover, acting in a wrongful manner must be the only possible way of protecting state interests40. Unilateral actions must not be the only consideration for the concerned states because collective actions can also establish better goals41. The right of the state invoking the state of necessity, as well as the state to which the obligation is being imposed must also be carefully assessed in order to establish whether or not the illegal act actually merits a state of necessity42. Moreover, there may also be international laws which may expressly or impliedly apply to the situation, which may, in the end, reduce the need to invoke a state of necessity. Therefore, conventions under international humanitarian laws which apply to armed conflicts often do not include the need to resort to military necessity43. The state which is claiming the state of necessity must not have contributed to the other aggressor state’s actions44. A state of necessity exists firstly where a treaty is involved and it does not exclude the possibility to invoke necessity. Secondly, a state of necessity is also apparent where a state takes part in the creation of a state of necessity, and thirdly, if any important norms in international laws are violated45. Conclusion Based on the above discussion, there are various circumstances by which a state can justify wrongful actions. These circumstances apply where there is consent from the state to which the wrongful act has been carried out. Secondly, self-defence can also merit the use of a wrongful act because it allows states to defend themselves against unjustified aggression from other states. Thirdly, the right to enforce countermeasures also applies to the unjustified aggression, seeking to stop the aggression and to ensure compensation for aggression. Force majeure also supports the application of wrongful acts because it ensures that states comply with their obligations. Finally, the state of necessity exists where treaties exist and these do not indicate the possibility to invoke the state of necessity, and if other international laws and norms are violated. These incidents imply exemptions to the doctrine of international law which imposes responsibility for wrongful acts of states. It allows states to defend their wrongful actions, which in the end are based on their right to defend themselves and to protect the basic foundations of international laws and peaceful relations. References R. Ago, ‘The Internationally Wrongful Act of the State, Source of International Responsibility’, Eighth Report on State Responsibility, Addendum (1980) ILC, 32nd sess., UN Doc. A/CN.4/318/Add.5, 8. P. Allott, ‘State Responsibility and the Unmaking of International Law’, (1988) 29 Harvard Int’l L. J. 1-26 R. Besteliu, ‘Countermeasures in Contemporary International Law, in the Romanian International Law Magazine,’ (2003) A.D.I.R.I., 1-1/X-XII/, p.42. R. Boed, ‘State of Necessity as Justification for Internationally Wrongful Conduct’, (2001) 3 Yale Hum. Rts & Development L. J., 1-43 I. Brownlie, ‘International Law and the Use of Force by States’ (Oxford University Press, 1963), 376 C. Brunner, ‘Force Majeure and Hardship Under General Contract Principles: Exemption for Non-Performance in International Arbitration,’ (Netherlands: Kluwer Law International, 2009), p. 23 J. Cavallaro, ‘The demise of the political necessity defense: indirect civil disobedience and United States v. Schoon,’ (California: University of California Press, 1987). P. Christie, ‘The Defense of Necessity Considered from the Legal and Moral Points of View,’ (1999) 48 Duke Law Journal, 975 J. Crawford, ‘The International Law Commission’s Articles on State Responsibility – Introduction, Text and Commentaries,’ (Cambridge: Cambridge University Press, 2002), 178 J. Crawford & S. Olleson, ‘The Nature and Forms of International Responsibility’, in M. D. Evans, International Law (London: Oxford University Press, 2003), 446-70. Continental Casualty Company v Argentine Republic, ICSID Case No. ARB/03/9 I. Diaconu, ‘Public International Law Treaty,’ (Bucharest: Lumina Lex Publishing House, 2002-2005), p.288. H. Furst, ‘The Hungarian-Slovakian Conflict over the Gabcikovo-Nagymaros Dams: An Analysis.’ Institute for Peace Research and Security Policy (2008) http://ece.columbia.edu/research/intermarium/vol6no2/furst3.pdf (27 June 2012). P. Gaeta, ‘May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?’ (2004) 2 J. Int’l Crim’l Justice, 785-794 O. Gross & F. Ni Aolain, ‘Emergency, War and International Law – Another Perspective’, (2001) 70 Nordic J. Int’l L. 29-63. E. Jimenez de Arechaga, ‘International Responsibility’, in M. Sorensen (ed.), Manual of Public International Law, (London: Macmillan, 1968) 531-603. R. Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL, 82–99. I. Johnstone, ‘The Plea of Necessity in International Legal Discourse: Humanitarian Intervention and Counter-Terrorism’, (2005) 43 Columbia J. Transnational L. 337-88. F. Maxim, ‘Circumstances which exclude the wrongful nature of the international act.’ (2009) (accessed 01 July 2012). M. Molea, ‘State Responsibility in Contemporary International Law,’ (Craiova: Scrisul Romanesc Publishing House, 1978), p.56. F. Morrison, ‘Legal Issues in The Nicaragua Opinion. (1987) 81 American Journal of International Law 1, 160–166 J. O’Brien, ‘International Law,’ (London: Cavendish Publishing Limited, 2001), p.382. P. Okowa, ‘Defences in the Jurisprudence of International Tribunals’, in G. S. Goodwin-Gill and S. Talmon, The Reality of International Law; Essays in Honour of Ian Brownlie (London: Oxford University Press, 1999) 389-411 D. Popescu, ‘Public International Law for Distance Learning and Reduced Frequency,’ (Bucharest: Publishing House of the Titu Maiorescu University, 2005) p. 279. M. Popiel, ‘Redrafting the right to self-defense in response to international terrorism,’ (2009) (accessed 01 July 2012). M. Ragazzi, ‘The Concept of International Obligations Erga Omnes’ (London: Clarendon, 1997), 74. P. Sevastik, ‘The Binding Force of Treaties Under International Law – Handbook for Government Lawyers and Human Rights Advocates’ (London: Iustus, 1997), 76. O. Schachter, ‘International Law in Theory and Practice’ (London: Martinus Nijhoff Publishers/Kluwer, 1991), 166. M. Shaw, ‘Public International Law,’ (Cambridge: Cambridge, University Press, 1999), p.560. United Nations, ‘Fourth Report on the Law of Treaties,’ (1959) 2 Yearbook of International Law Commission, p. 41. Read More