Question Of State Responsibility Research Articles

Russian Approaches to Regulating Use of Force in Cyberspace

Discussion in the United Nations on how international law applies to cyberspace has lasted more than two decades. Initially, the issue was raised by Russia and gained little attention by Western States; today, however, the question of state responsibility, applicability of humanitarian law and thresholds of intervention, use of force or armed attack have become a high priority for all digitalised States. Debate on the matter has, in many aspects, polarised and one of the divides occurs between Russia and Western States. This Chapter analyses the Russian approach to the applicability of international law to state behaviour in cyberspace from the perspective of Russian approaches to international law in general. In doing so, the Chapter aims to explain the sometimes-controversial positions taken by a State that is at once a world power, one of the most active cyber-actors and often in an adversarial position. Special focus is put on the Russian approach to use of force in the ICT environment.

Why Are Wrongful Acts Committed by Rebels during a Civil War Attributable to the State When They Are Successful? – A Critical Analysis of Theory and Practice

Based on an analysis of State practice and case law, this article examines the theoretical justifications which have been put forward by scholars, the ILC and international tribunals to explain why, under Article 10 of the ILC Articles on State responsibility, the wrongful acts committed by rebels during an insurrection or a civil war are attributable to the State once they are victorious and have replaced the government. It will show that while the ILC ultimately relied on the existence of a ‘continuity’ between the insurgents and the new government, the vast majority of awards have referred instead to a number of other (less convincing) justifications, such as the fact that insurgents were during the rebellion exercising their authority as a ‘de facto government’ or that their victory represented the ‘national will’ of the people. The theoretical rationale behind the well-established principle under Article 10 is therefore not as solid as one would have thought. These findings are relevant to investment tribunals having to address in an increasing number of cases questions of State responsibility and attribution arising from rebels’ conduct in situations of civil wars.

Makuchyan and Minasyan v Azerbaijan and Hungary: Novel Questions of State Responsibility, Presidential Pardon, and Due Diligence of Sentencing Transfer Meet in a Rare Case of the Right to Life

Judgment: European Court of Human Rights, Makuchyan and Minasyan v Azerbaijan and Hungary 17247/13 (ECtHR, 26 May 2020) Judgment (Merits and Just Satisfaction). Section of the Court: Chamber (Fourth Section). Applicable Convention Rights: Article 2 echr – violation of procedural obligations by Azerbaijan, no violation of substantive obligations by Azerbaijan, and no violation of procedural obligations by Hungary. Article 14 echr and Article 2 echr – violation by Azerbaijan. Article 38 – no violation by Azerbaijan or Hungary. Primary Legal Issues: Did Azerbaijan acknowledge and adopt the conduct of R.S. in question as its own, and does that violate substantive obligations under Article 2 echr; Did Azerbaijan violate the procedural limb of Article 2 by pardoning and releasing R.S. following his transfer from Hungary to Azerbaijan to serve the prison sentence; Did Hungary violate the procedural limb of Article 2 because of failing to secure specific diplomatic assurances that Azerbaijan will not release R.S. upon his transfer. Link to Case: <http://hudoc.echr.coe.int/eng?i=001-202524>.

World Health Organization’s dispute settlement in the light of the COVID-19 pandemic: problems and perspectives

In the light of Coronavirus disease pandemic, the question of state responsibility in global health has become actual as never before. Rarely mentioned in the scientific literature, but at the same time, an important problem is the lack of an appropriate dispute settlement body which is competent to consider cases of violation of the World Health Organization’s instructions. The goal of the article is to research different bodies which are potentially competent to resolve disputes regarding violations in the scope of healthcare and to determine the most appropriate one in the light of responsibility of states over the COVID-19 pandemic. The paper analyzes the possibility of resolving a dispute regarding the new pandemic in the International Court of Justice, through arbitration, through negotiations, within an advisory body, and through the World Health Assembly. The article also considers the prospects of other organs of the World Health Organization to perform judicial functions. The paper relies on the analysis of treaty regulations regarding functioning of presented bodies, as well as on enforcement practice of these bodies. Additionally, the authors take into account an attitude of members of the World Health Organization to named bodies. The article shows the advantages and disadvantages of each dispute settlement mechanism. It also develops ways of reforming named bodies to expand their competence to hold states responsible for violations during outbreaks of infectious diseases. The paper concludes that the only body, which is currently able to assign the responsibility of states, is the main organ of the World Health Organization – the World Health Assembly. The absence of an effective way of holding states responsible for violations leads to systematic breaches of their obligations. Today responses of the World Health Organization have become a subject of significant criticism. Furthermore, the World Health Organization’s authority in the international community has been greatly shaken. Thus, effective dispute settlement in the field can solve the burning issue of seeking fairness within violations in the area of global health and also improve the effectiveness of the World Health Organization as a whole.

Historical memory in the management of cultural security system of Russian society

PurposeThe purpose of this paper is to develop a model of management of cultural security of Russian society.Design/methodology/approachThe methodological foundation of this research consists in comprehensive approach and activity approach, which make it possible to comprehend specific aspects of cultural security management as an element of the national security system. The research uses a riskologic approach, which reveals the nature of modern risks and threats to cultural security in the information society. A constructivist approach is used, from the perspective of which the interaction between cultural identity and historical memory of society is analyzed.FindingsIt has been found that historical memory is one of the factors that are able to ensure cultural security of society in the context of threats associated with the processes of cultural intervention, current geopolitical confrontation, during which information and psychological methods of destructive influence on the cultural identity of peoples are abundantly used. Therefore, in the system for managing cultural security of society, one should use a historical memory resource aimed at preserving the cultural identity of the people and transmitting it to the coming generations.Originality/valueIt has been substantiated that the growing geopolitical confrontation in the world and the crisis state of the spiritual realm of Russian society bring up the question of state responsibility for the cultural situation and the need to implement an effective national cultural policy. It has been established that only through the reliance on the cultural factor, crisis phenomena can be overcome and social stability and civil society consolidation can be achieved. The role of historical memory in the preservation of cultural identity of the people and ensuring cultural security of Russian society in the context of external and internal threats has been identified. In order to preserve and transmit historical memory, one should use all the structures responsible for the process of socialization of an individual: family, educational system, mass media, cultural establishments and leisure industry.

Victims of Terrorism and the Right to Redress

The U.N. Global Counterterrorism Strategy (A/RES/60/288) recognizes that the war on terror can only be won by protecting the rights of its victims. However, almost a decade since its adoption, the application of a human rights framework to the protection of the rights of victims of terrorism has been largely neglected. A 2012 report by U.N. Special Rapporteur Ben Emmerson sought to address this inattention, recommending that member states provide reparations to victims of terrorism regardless of the question of State responsibility. While this application of a human rights framework to the discourse on terrorism victims’ rights has been a breakthrough, the recommendations of the Emmerson report imply several thorny issues and fail to confront several key concepts embedded in its assumptions. Analyzing the international norms surrounding victims’ rights vis-à-vis reparations and state responsibility, we posit that all member states indeed have the obligation to protect the rights of victims as human rights and provide avenues for redress. However, we argue that the narrow definition of terrorism in the Emmerson report that fails to include institutional or state terrorism leads to legal and normative questions about who its rightful victims are, who should be held responsible, and what the role of the state and international community is with regard to restitution. Such unresolved questions in international law could ultimately be detrimental to the recognition and protection of the rights of victims of terrorism within a human rights framework.

Assistance, direction and control: Untangling international judicial opinion on individual and State responsibility for war crimes by non-State actors

AbstractDespite the general consistency in the treatment of international humanitarian law by international courts and tribunals, recent decisions have seen significant disagreement regarding the scope of indirect responsibility for individuals and States for the provision of aid or assistance to non-State actors that perpetrate war crimes. The divisions at the international criminal tribunals with regard to the “specific direction” element of aiding and abetting are reminiscent of the divergence between the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia on the question of State responsibility for supporting or assisting non-State actors that engage in violations of international law. This article analyzes this jurisprudence on individual and State responsibility for the provision of support to non-State actors that breach international humanitarian law, and considers the interaction and interrelationship between these related but distinct forms of responsibility.

Climate Change and the International Court of Justice

This Report focuses on the international campaign, initiated by the Republic of Palau, to secure an advisory legal opinion from the International Court of Justice (ICJ) on climate change. Palau, with a growing coalition of nations, requests that the United Nations General Assembly seek an ICJ opinion on the question of state responsibility for transboundary harm caused by greenhouse gas emissions. The urgency of climate change, coupled with widespread frustration at the lack of binding international commitments secured through the United Nations Framework Convention on Climate Change process, inspired the multistate coalition.The Report is the product of a course taught in Fall 2012 at Yale Law School in New Haven, Connecticut, by Ambassador Stuart Beck of the Permanent Mission of Palau to the United Nations; Aaron Korman, Palau’s Legal Adviser; and Douglas Kysar, Joseph M. Field '55 Professor of Law at Yale Law School. Eighteen graduate students enrolled at Yale Law School, the Yale School of Forestry and Environmental Studies, and Yale University contributed to the final Report, which was compiled and edited by Halley Epstein, Yale Law School '14. The Report aims to outline the legal, political, and scientific justifications for the coalition’s request and why the ICJ should issue an opinion on the matter.Part I, The Brief, presents the advocacy components of a request for an advisory opinion from the ICJ. Drawing from Intergovernmental Panel on Climate Change reports and other sources, the Brief outlines the scientific evidence of climate change and its transboundary effects, with attention to the effects of a warming world on some of the most vulnerable nations — Palau included. After explaining how to frame the legal question presented to the ICJ, the Brief evaluates the proposed question in the context of prior ICJ advisory opinion requests and responses. Finally, the most authoritative sources of law are analyzed for their value as advocacy tools in this process.Part II, Background, offers an array of contextual and supporting materials. It introduces the Justices serving on the ICJ and provides insight into their international law experience, prior judicial decisions, and scholarship that might inform their approach to the climate change responsibility question. Next, the Report traces the principle of transboundary harm generally, in U.S. and European courts and across international agreements and conventions. Its analysis suggests that legal authorities support the application of the well-established principle of transboundary harm to the climate change context. The final Background section focuses on policy arguments likely to be persuasive to one of the campaign’s most strident opponents as a way of illustrating why all nations would stand to benefit from application of the rule of law to the climate change context.

Finding the Third State: International Human Rights Law and State Responsibility for Iraqi Refugees

This paper explores the relative silence of international law scholarship on the question of state responsibility for Iraqis displaced since the invasion of 2003. I argue that that the scope of application provisions of international and regional human rights instruments makes it difficult to ascribe state responsibility to transnational acts that generate refugee flows. Specifically, the establishment by human rights bodies of an “effective control” threshold to determine the extraterritorial obligations of states has created a responsibility gap in relation to refugees produced by international uses of force. As a result, international human rights law effectively imposes liability on the domestic refugee-producing acts of states while immunizing similar refugee-producing acts perpetrated beyond state boundaries.

Fighting Maritime Piracy under the European Convention on Human Rights

On the basis of real examples of anti-piracy operations conducted in the Indian Ocean by European navies, the article examines the legal implications of such military actions and their judicial medium- and long-term consequences in the framework of the European Convention on Human Rights. The only existing authority directly addressing maritime piracy, although from the sole perspective of state jurisdiction, is the recent Grand Chamber judgment in Medvedyev and Others v. France. The Court�s approach and conclusions in Medvedyev will be analysed in section 2. Section 3 will explore other important issues likely to be raised under the Convention by anti-piracy operations. Section 4 will consider the question of state responsibility, i.e., jurisdiction and attribution, in the context of anti-piracy operations carried out on the high seas or on the territory of third states.

Human rights in selected daily newspaper in Serbia: A content analysis

The paper presents the results of quantitative and qualitative content analysis of the six most influential daily newspapers in Serbia with a focus on writing about topics that are directly and indirectly related to human rights. It was noted that the selected media content was presented as internal - political thing especially when the question of State responsibility and the measures that have been undertaken by the State were raised, or when the subject of activity of state institutions was questioned. Most often quoted were representatives of the government as centers of political power, though members of marginalized groups were also not absent. The journalists showed sensitivity to marginalized actors of social practice.

Evidentiary Issues in the ICJ's Genocide Judgment

Despite the commitment by the International Court of Justice (ICJ or the Court) in clarifying underlying methods and guidelines of its approach to fact-finding and evidence, it can be doubted whether the judgment delivered in the Bosnia and Herzegovina v. Serbia case genuinely marked a decisive step towards a more transparent and reliable methodology for evidentiary matters. Behind the formula of ‘fully conclusive evidence’, when dealing with Articles II and III of the Genocide Convention the Court adopted for all practical purposes a typical criminal law ‘beyond any reasonable doubt’ standard of proof. By this choice the Court upheld in substance the argument put forward by Serbia that even if the questions of state responsibility for acts of genocide are not excluded by the scope of the Convention, they must nevertheless be judged by the same parameters of individual criminal responsibility. In reaching its conclusions the Court relied heavily on the jurisprudence of the ICTY, both as regards the ascertainment of facts and their legal qualification. It remains to be seen whether in future cases the Court will be able to adopt a similar criminal court posture, and whether it will be similarly prepared to rely on the findings of other international tribunals such as the International Criminal Court, which is not established by the Security Council.

Voluntary Eco-Labelling Programmes and Questions of State Responsibility in the WTO/GATT Legal System

Voluntary Eco-Labelling Programmes and Questions of State Responsibility in the WTO/GATT Legal System

Literary Piblishing in Australia: Questions of Patronage

This paper addresses the structure of the Australian book publishing industry in both an international and local context, and in both economic and cultural terms, looking at questions of what counts as 'literature' and how various understandings of 'the literary' are constructed. It looks at questions of state responsibility to patronise literature, drawing attention to differences between the role of the Literature Board and that of other publishers, who may be seen as necessarily concerned with books as saleable commodities. While the Australian book industry may appear to be dominated by international conglomerates, the small indigenous publishers who flourish (or at least survive) perhaps demonstrate that a definable 'Australian' literary culture is not moribund, nor always at the mercy of multinational publishers, nor solely dependent on the Literature Board for survival.