Issues Of State Responsibility Research Articles

The Obligation of EIA in the International Jurisprudence and Its Impact on the BBNJ Negotiations

Environmental impact assessment (EIA) has been widely recognized as a crucial instrument for sound decision-making that will promote environmental conservation and sustainable development. International jurisprudence has clarified the obligation of EIA under customary international law, especially concerning its legal status, threshold standards, and procedural requirements, as well as the issue of State responsibility. As suggested by this article, international tribunals tend to adopt a procedural-oriented and State-based approach regarding the obligation of EIA, leaving more discretion to the States pursuing the proposed activities. This approach is insufficient to realize the role of EIA in fostering sound decision-making. As for the BBNJ negotiations, in light of the legal status of the Area in international law and the established rules governing the issues of EIA, especially the three Regulations and Recommendations adopted by ISA, the future implementation agreement should reinforce international regulations regarding the substance and implementation of EIA obligations.

The Responsibilities Between Providing Archipelagic Sea Lanes Passage and Protecting Marine Environment: A Case in Republic of Indonesia

State responsibility in international law is only charged to an independent state. Such responsibility can be created due to the rules of international law regarding the state responsibility and numerous important agreement signatories. Part XII of LOSC 1982 clearly states that “States have the obligation to protect and preserve the marine environment”. On the other hand, agreement might cause the issue of state responsibility, such as archipelagic sea-lanes in Indonesia. The obvious issue has raised serious problem, for instance, overlapping responsibility handled by the government of Indonesia under its implementation. On one side, Indonesia must preserve the marine environment by setting the marine protected areas (MPA). At the same time, Indonesia must ensure the existence of archipelagic sea lanes (ASLs), including its legality for international shipping. This make Indonesia face a dilemma, since its territorial seas also lies withincoral triangle. The recent solution undertaken by the government is prioritizing the existence of ASLs amongst with the rights of cross voyage, taking into account that ASLshave been set out prior to MPAs as well as the recognition of the sovereignty of archipelagic state created at the same time with the obligation of guaranteeing the right of crossing the ASLs. Thus, a plan for designating environmental protection area withASLs, the assignment should not interfere with it. Therefore, to accommodate both interests, The Indonesian government must immediately deliver to the International Maritime Organization (IMO) regarding the condition of marine environment in which ASLP is closely confronted with MPAs to regulate special arrangements when the ships cross the area

Non-state actors and self-defence: a relook at the UN Charter Article 51

The UN Charter Article 51 provides for the inherent right of self-defence against any use of force as an exception, which is otherwise prohibited under Article 2(4). Exercise of right of self-defence is however subject to customary law requirements of necessity and proportionality. It is considered operative only until and otherwise subject to any ‘action’ the UN Security Council is empowered to take in case of threats to peace, breach of the peace or act of aggression under Chapter VII of the Charter. The UN Charter of 1945 envisaged use of force only among States, but did not expressly limit its application only to such cases. Given this fact, considerable authority now exists to treat use of force by non-State actors as prohibited under Article 2(4) on par with the ‘armed attacks’ by regular armed forces giving rise to the right of self-defence in favor of the targeted States; provided that acts in question are not mere border incidents. This article deals with cases of the ICJ in the light of some contemporary proposals and principles identified as relevant. It also examines issues of State responsibility for wrongful acts of non-State actors operating from its territory, causing injury to third States.

The Decision Commentary of the European Court of Human Rights, Case O'Kefle Vs. Irland

In August 1949, in the framework of the prerogatives and its role, just three months after the establishment of the Council of Europe, its Assembly consultative session her first took on the task of drafting a document which would be guaranteed rights and fundamental freedoms of the individual. After depositing and ratification by ten states, the Convention entered into force on 3 September 1953. Now it has become almost a condition “sine qua non” for membership in the Council of Europe. European countries, members of the Council of Europe and signatory to the European Convention for the protection of Human Rights and Fundamental Freedoms and 11th protocols to the Convention are obliged to undertake all individuals under their jurisdiction to enable the effective enjoyment of their human rights and fundamental freedoms, at least to the minimum provided for in the Convention. They are also obliged to its citizens, non-governmental organizations, other groups and individuals as well as foreigners who stay in their territory to enable the application to the European Court of Human Rights in Strasbourg. In this perspective the purpose of this article is to comment the recent decision of the ECHR, taken on 28.01.2014, a decision in which the Court expressly recognized that we are dealing with a series of violations of the Convention and some of its articles specifically. The case dealt with the issue of State responsibility for sexual abuse of a 9-year-old schoolgirl, a teacher in a National School Ireland in 1973. The issue seemed very interesting, as cases of maltreatment and sexual violence against minors in Albania They were present. The case of Robin Arnold sentenced in 2010 by the Tirana Court and then the Court of Appeal to 15 years and 6 months mother on charges of sex with minors. Carl Stephan Kaminski, 70-year-old living in Durres, charged and later convicted. Fatbardh Cekrezi, Iris Misku are just some of the names of convicted by Albanian justice on charges of sexual relations or homosexual relations with minors. DOI: 10.5901/mjss.2016.v7n2s1p560

The Declaratory Judgment in Recent Jurisprudence of the ICJ: Conflicting Approaches to State Responsibility?

AbstractAs the list of contentious cases concerning issues of state responsibility brought before the International Court of Justice (the Court) continues to grow, a closer consideration is demanded of the most common remedy granted by the Court – the declaratory judgment. In particular, while the Court continues to issue declarations intended to constitute ‘appropriate satisfaction’, it also appears that the Court is – or is attempting – to use declarations more creatively in certain circumstances. This immediately provokes a question as to not only the proper role of declaratory judgments, but also whether and to what extent variations in the nature of the obligations owed by states, or the nature of their internationally wrongful acts, gives rise to a coherent differentiation in the remedies granted by the Court.

The status of Western Sahara as occupied territory under international humanitarian law and the exploitation of natural resources

Much of the international legal analysis of dealings in natural resources in Western Sahara has focused on its status as a Non-Self-Governing Territory, as well as the right of self-determination of the Sahrawi people. Surprisingly overlooked in the legal debates is a close examination of the application of the international law of occupation under international humanitarian law (IHL). This article considers whether and why Western Sahara is ‘occupied territory' under IHL, discussing some of the unique peculiarities that complicate the legal answer. It then considers issues of state responsibility and individual criminal liability under international law for unlawful dealings with natural resources in Western Sahara by Moroccan and foreign companies.

Russian

Russian

Addressing State Responsibility for the Crime of Military Sexual Slavery during the Second World War: Further Attempts for Justice for the “Comfort Women”

Abstract Between 1932 and the end of the Second World War, the Japanese Government and the Japanese Imperial Army forced over 200,000 women into sexual slavery in rape centres throughout Asia. The majority of the victims were from Korea, but many were also taken from China, Indonesia, the Philippines and other Asian countries under Japanese control. There has been no real redress for these injustices: no prosecutions of guilty perpetrators, no acceptance of full legal responsibility by the Government of Japan, and no compensation paid to the surviving victims. The present paper focuses primarily on the issue of state responsibility and the situation of the Korean survivors. The study concludes that Japan has a continuing legal liability for grave violations of human rights and humanitarian law, violations that amount in their totality to crimes against humanity. The study establishes, contrary to Japanese Government arguments, that (a) the crime of slavery accurately describes the system established by the rape centres and that the prohibition against slavery clearly existed as a customary norm under international law at the time of the Second World War; (b) that acts of rape in armed conflict were clearly prohibited by the Regulations annexed to the Hague Convention No. IV of 1907 and by customary norms of international law in force at the time of the Second World War; (c) that the laws of war applied to conduct committed by the Japanese military against nationals of an occupied state, Korea; and (d) that because these are crimes against humanity, no statute of limitations would limit current-day civil or criminal cases concerning the Second World War rape centres. The paper also refutes the argument that any individual claims that these women may have had for compensation were fully satisfied by peace treaties and international agreements between Japan and other Asian States following the end of the Second World War.

State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

By studying the continuity between the Ottoman Empire and its succeeding Turkish Republic, this article aims to address one crucial aspect of the denial of the Armenian genocide by the Turkish state, namely the issue of state responsibility. There are psychological barriers in Turkey which have largely suppressed the memories of possible wrongdoings during World War I and the ensuing ‘Independence War’. However, the barrier that is created by the issue of state responsibility is identified here as the fundamental obstacle for genocide recognition by the Turkish state. This article aims to apply some of the existing legal principles and theories of international law in order to test their applicability to the two Turkish states and the issue of internationally wrongful acts committed during World War I and the ensuing years. In addition to the Turkish Republic bearing the identity of the Ottoman Empire, this article suggests that the Republic not only failed to stop doing the wrongful acts of its predecessor, but it also continued the very internationally wrongful acts committed by the Young Turk government. Thus, the insurgent National Movement, which later became the Republic, made itself responsible for not only its own wrongful acts but also those of its predecessor, including the act of genocide committed in 1915–1916. The issue of possible liability has ever since the creation of the Republic formed the denialist policy which is Turkey’s to this day. (Less)

Foreword

The judgment the International Court of Justice (ICJ) delivered on 26 February 2007 in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), albeit primarily dealing with the issue of state responsibility under international law, also has a bearing on criminal law notions and, more generally, on the question of individual criminal responsibility and its relationship with state responsibility. The ICJ had to pronounce upon the alleged responsibility under the Genocide Convention of then Federal Republic of Yugoslavia (FRY) with regard to the massacres that the Bosnian Serbs committed against ‘non-Serbian groups’ during the armed conflict in Bosnia and Herzegovina in 1992–1995. The Court found, by twelve votes to three, that the Respondent state could not be held responsible for genocide or for complicity in genocide; it had, however, violated its obligation to prevent and punish genocide...

The Nicaragua and Tadic Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia

In its recent Genocide judgment, the International Court of Justice discussed the question of whether the acts of genocide carried out at Srebrenica by Bosnian Serb armed forces must be attributed to the Federal Republic of Yugoslavia (FRY), as claimed by Bosnia. It applied the ' effective control ' test set out in Nicaragua , reaching a negative conclusion. The Court also held that the broader ' overall control ' test enunciated by the International Criminal Court for the former Yugoslavia (ICTY) in Tadi c did not apply, on two grounds. First, the test had been suggested by the ICTY with respect to the question of determining whether an armed confl ict was international and not with regard to the different issue of state responsibility; secondly, in any case the test would have overly broadened the scope of state responsibility. The author argues that the ICTY admittedly had to establish in Tadi c whether the armed confl ict in Bosnia was internal or international. However, as no rules of international humanitarian law were of assistance for such determination, the Tribunal explicitly decided to rely upon international rules on state responsibility. The ICTY thus advanced the ' overall control ' test as a criterion generally valid for imputation of conduct of organized armed groups to a particular state. The test was based on judicial precedents and state practice. In addition, the ICTY did not exclude the applicability of the ' effective control ' standard, stating however that it only applied for the attribution to a state of conduct by single private individuals. Judicial decisions, even subse- quent to Tadi c , support the view that whenever conduct of organized armed groups or military units is at stake it suffi ces to show that the state to which they may be linked exercises ' overall control ' over them, in order for the conduct of those groups or units to be legally attributed to the state. Hence, any sound critique of Tadi c should not suggest that it dealt with a matter dif- ferent from state responsibility. It should instead be capable of showing that state and judicial practice do not corroborate that test.

A WRONG TURNING: ARTICLE 3 ECHR AND PROPORTIONALITY

THE right not to be subjected to torture or to inhuman or degrading treatment or punishment is guaranteed in absolute terms in Article 3 of the ECHR. This article imposes on a State both a negative and a positive obligation. In recent months, the House of Lords has considered cases raising both obligations pursuant to Article 3. This paper will examine first the nature of Article 3 and these obligations, second the jurisprudence of the European Court of Human Rights on the issue of State responsibility, and finally the recent decisions of the House of Lords in R. (on the application of Adam, Limbuela and Tesema) v. Secretary of State for the Home Department

Issues of State Responsibility Before International Judicial Institutions. Edited by Malgosia Fitzmaurice and Dan Sarooshi. Oxford: Hart, 2004. vii + 236 pp 40

Issues of State Responsibility Before International Judicial Institutions. Edited by Malgosia Fitzmaurice and Dan Sarooshi. Oxford: Hart, 2004. vii + 236 pp 40

U.S. Bilateral Non-Surrender Agreements and Article 98 of the Statute of the International Criminal Court: An Exercise in the Law of Treaties

This contribution offers a legal analysis of the bilateral non-surrender agreements concluded by the United States in the light of the ICC Statute and general international law. In a first step, the author examines the compatibility of the agreements with the Rome Statute, in particular Article 98(2), concluding that they do not fall under the provision as their scope of application ratione personae is too broad and an interpretation of the norm according to its object and purpose reveals that only pre-existing agreements are covered. In a second stage, the validity of the agreements is examined against the backdrop of the law concerning conflicting treaties. Article 30 of the Vienna Convention of the Law of Treaties (1969) not being applicable to obligations erga omnes partes and thus to the Rome Statute, an analysis under customary international law reveals that obligations of States Parties to the Rome Statute under non-surrender agreements are valid regardless of their conflict with the Statute. As a consequence, these States Parties will be obliged ( vis-a-vis the United States) not to follow a request for surrender by the ICC and, at the same time, to comply with the request ( vis-a-vis the ICC and other States Parties). The article concludes with issues of state responsibility.

Security Council Enforcement Action And Issues of State Responsibility

Security Council Enforcement Action And Issues of State Responsibility