Rules Of State Responsibility Research Articles

International Law of State Responsibility and COVID-19: An Ideology Critique

Abstract Despite minimal prospects of success, international lawyers spent the first few months of the global pandemic discussing whether the rules of state responsibility could be invoked against states, especially China, for their acts and omissions regarding COVID-19. In this piece, we take these debates seriously, if not necessarily literally. We argue that the unrealistic nature of these debates does not make them irrelevant. Rather, we propose an ideology critique of state responsibility as a legal field. Our approach is two-fold. First, we argue these debates need to be situated within the rise of geopolitical competition between the US and its allies on the one hand and China on the other. In this context, state responsibility is always laid at the feet of one’s opponents. Secondly, we posit that my emphasising the role of states, recourse to state responsibility renders invisible the role of transnational processes of capitalist production and exchange that have profound effects on nature and set the stage for the emergence and spread of infectious diseases. Drawing from the work of the geographer Neil Smith, we argue against the ‘naturalisation’ of disasters performed much of the international legal discourse about COVID-19.

From Kyoto to Paris: Problematic route of state responsibility for climate change

Anthropogenic climate change is one of the effects of carbon dioxide emissions from the use of fossil fuels. The Climate Change International Legal Regime consisting of primary rules set out in international treaties has been established to reduce greenhouse gas emissions. Due to the lack of special secondary rules in this regime, a violation of its primary rules leads to applying the general rules of state responsibility in DARSIWA. The question is whether these general rules are compelling enough. The article shows that the attribution of GHG emissions to states is complex due to the lack of a specific causal relationship and diversity of GHG emitters. In addition, there is no absolute and comprehensive obligation for GHG emission under the climate change legal regime, which could hold the emitting state responsible. In addition, assuming the compensation as an inherent consequence of responsibility, state accountability rules cannot effectively deal with climate change because of the cumulative nature of damages and the discarding of compensation from the relevant treaties, particularly from the Paris Agreement. Therefore, in addition to the legal liability of states, other dimension of their responsibility including ethical responsibility should also be considered as much as possible.

Latvian Tradition in State Responsibility

This Chapter examines the role of the law of state responsibility in the practice of the Latvian State. The author elaborates on Latvian state creation and practice in the 1920s and 1930s which present a solid ground for the newly founded State’s participation in the legal affairs of the international community. Latvian state practice contributes to the law of state responsibility by elaborating on the concepts of rule of law, international wrongful acts and the necessity to comply with Latvia’s internationally binding legal obligations. Special attention is devoted to the concept of State continuity, and the author claims that in Latvian history the rules of state responsibility predetermined enforcement of the primary rules of state continuity. The author also examines the Latvian state practice since 1990 by examples, which show the application of international law and thus its normative effect as well as arguably refer to a violation of international law, thereby elaborating on the crucial functions of the rule of law.

Latvian Tradition in State Responsibility

This Chapter examines the role of the law of state responsibility in the practice of the Latvian State. The author elaborates on Latvian state creation and practice in the 1920s and 1930s which present a solid ground for the newly founded State’s participation in the legal affairs of the international community. Latvian state practice contributes to the law of state responsibility by elaborating on the concepts of rule of law, international wrongful acts and the necessity to comply with Latvia’s internationally binding legal obligations. Special attention is devoted to the concept of State continuity, and the author claims that in Latvian history the rules of state responsibility predetermined enforcement of the primary rules of state continuity. The author also examines the Latvian state practice since 1990 by examples, which show the application of international law and thus its normative effect as well as arguably refer to a violation of international law, thereby elaborating on the crucial functions of the rule of law.

Humanitarian Intervention and the Law of State Responsibility

Abstract The primary rules of international law do not permit states to resort to force for humanitarian purposes. Some scholars have thus attempted to rely on the secondary rules of state responsibility to find a legal basis for forcible humanitarian intervention. In particular, three claims can be identified: that humanitarian intervention is justified; that the state intervening for humanitarian purposes is excused; and that the consequences arising from the intervention for the state acting for humanitarian purposes ought to be mitigated. All three arguments rely either on the defence of necessity, cast as a justification or as an excuse, or on necessity-like reasoning, as the basis for mitigation. This article takes these three claims and draws out the implications of each both within and beyond the law of responsibility. In so doing, this article shows how each of the three arguments is more problematic and less straightforward than it appears at first and that, ultimately, none can provide an adequate legal basis for humanitarian intervention. The legality of humanitarian intervention must be found in the primary rules regulating the use of force in international relations and not in the secondary rules of state responsibility.

State Consent to the Provision of Humanitarian Assistance in Non-International Armed Conflicts

In light of repeated denials and obstruction of relief efforts by belligerent states, particularly when directed towards non-state armed groups designated as terrorist groups or justified as a legitimate response to the COVID-19 pandemic, this article provides a comprehensive analysis of the international legal position regarding the provision of humanitarian assistance in non-international armed conflicts. The article argues that although a general right of access has not crystalised, relief operations into territory under the effective control of a non-state armed group without state consent may be permissible with Security Council authorisation or otherwise, in appropriate circumstances, under the rules of state responsibility. More broadly, belligerent parties must abide by their legal obligations to ensure that the needs of civilians are met.

The Articles on State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective

Abstract This article argues, from the perspective of third-world approaches to international law (TWAIL), that the limitations of the Guiding Principles on Shared Responsibility (hereinafter ‘Guiding Principles’) stem from the very fact that their drafters did not contest the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Therefore, before advancing a critique of the Guiding Principles, this article questions certain aspects of ARSIWA. It argues that ARSIWA tends to overlook the distinction between primary and secondary rules; does not take into account the thick and structured relations between corporations and the state in formulating the rule on attribution; completely neglects the principle of special and differential treatment (SDT) in framing secondary rules of state responsibility; and gives a negative connotation to the erga omnes principle. As a result, ARSIWA cannot do justice to weak states. Since the Guiding Principles merely seek to supplement ARSIWA, they fail to address key issues, including the shared responsibility of state and non-state actors, such as multinational corporations, for the violation of human rights and environmental norms and the application of SDT principles in determining shared responsibility.

Taking One for the Team: Legal Consequences of Misconduct by Partners

As Nordic states and their allies embark on ever more challenging military operations abroad, the complexity of the applicable rules – and legal consequences they may have – is growing rapidly. In addition to the specific terms of the mandate and the underlying principles of the UN Charter, there are two regimes that govern the conduct of military and other security forces across the war-peace spectrum: the law of armed conflict (LOAC) and international human rights law (IHRL). The exact application of these regimes and their interaction remain matters of debate. Yet, the most vexing question is: what happens when it is not one state’s own forces, but those of a partner that run afoul the LOAC and IHRL standards? This article maps and disentangles the relevant international rules and regimes under which responsibility may arise for states due to abuse committed by their partners in military operations abroad. It considers the general rules of state responsibility – in particular, the rule on state complicity – and the relevant substantive rules under the LOAC and IHRL as well as the Arms Trade Treaty and the UN Human Rights Due Diligence Policy. By and large, states have to abstain from any form of assistance that could contribute to the commission of IHRL and LOAC violations by their partners. Under certain circumstances, they even have to actively and continuously assess the risk of such misconduct occurring and take mitigating measures. Nevertheless, these obligations do not necessarily translate into an effective system of accountability.

State Acquiescence or Connivance in the Wrongful Conduct of Third Parties in the Jurisprudence of the European Court of Human Rights

This article examines the jurisprudence of the European Court of Human Rights with regard to the acquiescence or connivance of states parties to the European Convention on Human Rights (ECHR) in the wrongful conduct of third states (which themselves may or may not be parties to the ECHR) or non-state actors. It discusses the origins of the acquiescence or connivance test in the Court’s case law, which is idiosyncratic and does not stem from general international law. The article also discusses the test’s legal nature, arguing that its conceptual basis remains unclear, and that the current state of the case law could support two theories. First, that acquiescence or connivance, as applied in the Court’s most recent cases, is an ECHR-specific rule of attribution of conduct, which deviates from the general rules of attribution in international law, as codified by the International Law Commission in its Articles on State Responsibility. The Articles themselves do allow for the possibility of sector-specific rules of state responsibility; Article 55 ASR, entitled lex specialis, thus provides that the Articles ‘do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.’ One view of the Court’s acquiescence or connivance test is thus that it provides us with an example of a lex specialis rule of attribution of conduct in the sense of Article 55 ASR. The alternative view, however, is that the Court’s acquiescence or connivance jurisprudence would best be conceptually framed as an ECHR-specific theory of state complicity. Under such a framing, the state acquiescing or conniving in the wrongful conduct of a third party is being held responsible for the assistance it provides to that third party, rather than for the third party’s own conduct – in other words, the complicity rule is not necessarily an attributive one. While such a rule would arguably differ from the ILC’s general approach to wrongful state aiding and assisting in Article 16 ASR, it would not be an ECHR-specific rule of attribution, or at least it would not always operate with an attributive effect. I argue that such a conceptual framing would best accommodate human rights-specific needs while maintaining coherence with general international law. Even under such a framing, however, there are many aspects of the acquiescence or connivance test that require further clarification by the Court.

May the Force Be with You: The Legal Classification of Intervention by Invitation

It is a truth universally acknowledged that states can consent to the military presence of other states on their territory. This is better known as intervention by invitation. Yet many issues surrounding this concept remain unclear or are too easily accepted, e.g. its name and its place within the rules of jus ad bellum. This article seeks to clarify and resolve these issues. First, an analysis is conducted into what the two terms intervention and invitation actually entail. The term intervention is contrasted with the use of force and the entire concept of intervention by invitation is differentiated from collective self-defence. It is concluded that the threshold of force has been met and thus the focus should be placed on the rules regulating this field of law, rather than the rules of non-intervention. The concept would be more aptly labelled as the use of force by invitation. Second, this article examines where intervention by invitation finds its place in relation to the prohibition of the use of force. Alternative perspectives are investigated encompassing the scope of Article 2(4) UN Charter and the circumstances precluding wrongfulness under the rules of state responsibility, of which consent is of particular relevance here. This article concludes that intervention by invitation falls outside the scope of Article 2(4) as the force is not used within international relations. The prohibition of the use of force therefore does not apply to intervention by invitation. Consequently, an action of intervention by invitation is legal.

ВІДПОВІДАЛЬНІСТЬ ЗА ЕКОЛОГІЧНУ ШКОДУ, СПРИЧИНЕНУ ПІД ЧАС ЗБРОЙНОГО КОНФЛІКТУ МІЖ УКРАЇНОЮ ТА РОСІЙСЬКОЮ ФЕДЕРАЦІЄЮ: МОЖЛИВОСТІ В АЛГОРИТМІ ЗАХИСТУ НАЦІОНАЛЬНИХ ІНТЕРЕСІВ

The article considers international customs, treaties and case-law dealing with responsibility for wartime environmental damage and protection of the environment before, during and after armed conflict. The authors provide the analysis of the rules of state responsibility, international humanitarian, criminal, environmental, human rights law, law of the sea, applicable in this field. The article examines the regime of international legal protection of the environment in relation to Ukraine-Russia armed conflict (in Crimea and eastern Ukraine) and analyzes the possibility of invoking responsibility of Russia as a state and imposing individual criminal responsibility for the damage caused to the environment in the course of this conflict. With this view the authors provide the overview of current Actual problems of international relations. Release 139. 2019 58 proceedings against Russia in international courts and the scope of environmental harm caused as a result of the Russian aggression against Ukraine.

Criminal Liability of States for Environmental Harm: The Perspective of International Law

International law has been a driving force of change and progress in the protection of the environment, ever since it started producing results in the early 1970s through the proliferation of international environmental law in the early 1990s. Besides setting the standard of conduct for states, international law also grapples with the standard of their responsibility once they breach their international obligations. The rules of state responsibility were codified by the International Law Commission of the United Nations (ILC) in 2001 in a set of articles that, by and large, reflect customary international law, entitled ‘Articles on the Responsibility of States for Internationally Wrongful Acts’ (ARSIWA). It is in the context of the codification of the ARSIWA that the ILC discussed extensively the possibility of developing a specialized regime for the crimes of states. The goal of this paper is to question whether there is room for developing environmental crimes of states.

Excusing Unlawful Use of Force Under the Law of State Responsibility

No justification for the use of force exists under international law, other than Security Council authorisation and self-defence. Creative readings of the UN Charter’s provisions on the use of force are problematic from the aspect of legal doctrine and potentially dangerous in (state) practice. However, same practice exists where states and UN organs have accepted certain consequences of an illegal use of force on humanitarian grounds. Breaching the underlying prohibition was seen as the choice of a ‘lesser evil’. Governments and scholars have commonly categorised such instances as sui generis and carved the phrase ‘illegal but legitimate’. This article captures such sui generis ‘illegal but legitimate’ practice within the conceptual framework of international law. It proposes that a distinction between justifications and excuses should be introduced to international law, whereas justifications preclude wrongfulness of an act, while excuses merely mitigate against responsibility for wrongfulness. In the context of the use of force, Security Council’s authorisation and self-defence are justifications under primary norms. When requirements for lawful use of force are not met, the unlawfulness could be excused (but not justified) under the secondary rules of state responsibility. This solution preserves the strength of the primary prohibition of the use of force, and accommodates humanitarian intervention without the Security Council’s authorisation within the law of state responsibility. Such a conceptualisation, however, also requires critical engagement with the ILC Articles on State Responsibility.

Domestic Courts and the Content and Implementation of State Responsibility

AbstractThis article examines the role of domestic courts in addressing questions of international law concerning the content and implementation of state responsibility. Practice shows that domestic courts only play a limited role in developing the international law of state responsibility. This is partly due to the limited number of cases decided by domestic courts. Furthermore, the practice of domestic courts is quite disparate, reducing their value in generating consistent practice. There is also a general inclination of domestic courts to apply remedies under municipal rather than international law, which reduces their significance as agents of international law. It is only in exceptional cases that domestic courts may contribute to clarifying controversial norms and support the further development of international law. Domestic courts may furthermore take on the task of fine-tuning international norms on state responsibility. Probably the most important role domestic courts may play in applying secondary rules of state responsibility is that of strengthening the effectiveness of the international legal system and its individual rules.

Has International Law Outgrown Trail Smelter?

INTRODUCTION The Trail Smelter arbitration occupies a strange place in international environmental law. It forms part of the canon of the discipline – indeed, it is generally regarded as a foundational case – and reference to it is ubiquitous. Yet there is little agreement on how its holding should be interpreted and applied, and its persuasive value is often called into question. Trail Smelter cannot be reconciled with international rules of state responsibility, and the principle for which it appears to stand, namely, that states can be liable for transboundary environmental damage in the absence of a breach of an international obligation, holds very dubious status in international law. International environmental disputes are very rarely litigated; instead, states have invested their efforts in the creation of often very elaborate legal and policy regimes, many of which contain their own internal mechanisms for implementation, compliance, and enforcement. These considerations tend to lead one to the conclusion that international environmental law has moved beyond the Trail Smelter arbitration. Regardless of these difficulties, the influence of the case on subsequent developments in international environmental law is not far to seek. Principle 21 of the Stockholm Declaration, which has itself taken on almost mythical proportions, is generally regarded as a reflection or restatement of the Trail Smelter holding, and the case has been relied on heavily in the work of the International Law Commission (ILC) concerning liability for harm caused by acts not prohibited by international law.

TRANSBOUNDARY ENVIRONMENTAL POLLUTION: UNDERSTANDING THE INTRICACIES OF INTERNATIONAL LAW

Faced with the enormity and urgency of international environmental problems the world has experienced a political awakening. Although environmental issues are not new for international relations, world leaders have increasingly brought environmental issues from the sidelines to the centre of their negotiation agendas. International conferences and treaties regarding global warming and ozone depletion are but few signs that the world has entered a new age of environmental diplomacy in which environmental issues will share centre-stage with more traditional economic and military concerns. In response to this concern governments, legislatures, and the courts have produced a labyrinth of draft bills, amendments to existing legislation, regulations, drafts of international treaties, and judicial decisions, all creating legal controls of pollution. In order to ascertain scientific information and technological data royal commissions, presidential enquiries, governmental departments, and international agencies have undertaken extensive research programs. Paralleling these developments, international environmental law has started to become a new and an emerging academic discipline. A growing number of commentators, diplomats, and practitioners are concentrating on transboundary and global environmental issues. There has also been a significant increase in the number of law schools all over the world that have started focussing towards this subject. The regime of international environmental law is mainly composed of treaties, customs; general principles of international law and opinio juris. In an attempt to use customary international law to protect the environment, commentators have spent the last two decades in elaborating the rules of state responsibility and liability specifically to address the issues related to transboundary pollution. States have begun to build on this liability regime towards the development of international agreements designed to prevent harmful environmental activity.

Pre-Emptive Self-Defence Against States Harbouring Terrorists

This Paper analyses the legality of pre‐emptive self‐defence against states harbouring terrorists and elaborates the following aspect: Whether harbouring terrorists entails state responsibility. Therefore, it discusses secondary norms such as attribution rules. This leads to the main question of the Paper, use of pre‐emptive self‐defence against such states, and the legality of it, is looked at through attribution rules and breach of the due diligence obligation. Pre‐emptive self‐defence has enjoyed a new wave of discussion after adoption of US National Security Strategy in 2002. This doctrine has become well-known as “The Bush Doctrine”. The core aspect of this doctrine is: pre‐emptive attack in self‐defence against states harbouring terrorists. Thus, the primary rules of the use of force and the secondary rules of state responsibility stand together. Moreover the correlation of these two sources of law is evident in this regard.

Armless Giants: Cooperation, State Responsibility and Suggestions for the ICC Review Conference

AbstractInternational criminal courts and tribunals regularly face difficulties in obtaining cooperation from States, a stumbling block that hinders the process of bringing criminals to justice and trying them before a court of law. In doing so, States can be held accountable under the rules of state responsibility. This possibility was raised in key decisions and scholarly texts on the issue. This paper seeks to expand the discussion on the matter and analyze the responsibility of States for their failure to cooperate with international courts. Additionally, this paper suggests amendments to the ICC Rome Statute to strengthen the judicial assistance regime, considering that this court is designed to become the permanent court dealing with war crimes and crimes against humanity and that a review of the Statute is to take place in May or June 2010.

Tal Becker, Terrorism and the State: Rethinking the Rules of State Responsibility

Tal Becker, Terrorism and the State: Rethinking the Rules of State Responsibility

Crime Without Punishment or Mission Completed? (Crime sans Châtiment pu Mission Accomplie?)

On 26 February 2007, the International Court of Justice delivered a judgment without any precedent. For the first time in the history of international adjudication, a sovereign State was condemned on the basis of the 1948 Genocide Convention. The debatable analysis and qualification of the pertinent facts as they were led by the Court in this case are to be seen in connection with applicable rules of State responsibility, these governing the identification of its origin as well as these dealing with the attribution of wrongful acts to the State. Satisfaction is confirmed to be the appropriate mode of reparation in such a type of cases.