International Responsibility Of States Research Articles

Human rights and corruption: Problems and potential of individualizing a systemic problem

Abstract This article examines the advantages and challenges of a deliberate legal-political strategy that addresses corruption at an individual, rather than systemic, level. Empirical research has highlighted the correlations between the extent and nature of corruption and the level of human rights enjoyment. In response to these observations, anti-corruption and human rights policy agendas have been converging at the international and regional levels. However, framing corruption as a human rights violation that incurs international state responsibility poses conceptual difficulties. Additionally, the risks and benefits of this convergence need to be assessed. This article concludes that the human rights approach provides significant added value, outweighing its limitations. Yet, it remains an open question whether human rights are the appropriate normative framework for denouncing and combating corruption. The article suggests that the human rights perspective, by opening up new avenues for monitoring and litigation, effectively supplements the criminal law approach. It argues for a more balanced integration of corruption concerns within human rights frameworks, with equal emphasis on human rights considerations in all anti-corruption monitoring schemes. Such integration would likely foster a positive feedback loop, where anti-corruption efforts enhance human rights conditions, while certain human rights facilitate the fight against corruption.

International legal aspects of regulation of forced migration

The article examines the peculiarities of the legal regulation of the international legal regulation of forced migration and the determination of prospects for its development. The opinion is expressed that the emergence of new technical means and methods of production, means of communication, changes in the social sphere of states, deformation of the geopolitical space and many other factors of a socio-economic and political nature caused the growth of migration flows in the world. It has been established that the state policy in the field of population migration is designed to ensure the regulation of population migration movements, overcoming their negative consequences both for the international community, each country in general, and each migrant in particular.
 It is noted that the Universal Mechanism for the Protection of the Rights of Forced Migrants is based on the Convention Relating to the Status of Refugees of 1951 and the Protocol Relating to the Status of Refugees of 1967. In addition, it is emphasized that an important role in ensuring the international protection of refugees and asylum seekers is also played by the Recommendations acts adopted within individual UN bodies, as well as other universal documents supplementing the specified legal array.
 Based on the analysis of scientific points of view and legislation, the author comes to the conclusion that the main norms of international and regional acts in the field of forced migration, which serve as guidelines for domestic systems of legislation and law enforcement, as well as for global tools for solving the problems of forced migration in general, are the principles non-discrimination, non-refoulement, family unity, interstate cooperation, international solidarity and observance of the best interests of the child. The need to create effective mechanisms for the implementation of international legal documents in the field of forced migration, to strengthen the international responsibility of states, and to determine the optimal methods of final or long-term solutions to the refugee problem was noted.

UN ANÁLISIS SOBRE LAS FUENTES DE LA RESPONSABILIDAD INTERNACIONAL DE LOS ESTADOS ANTE EL CAMBIO CLIMÁTICO: ¿UNA NORMA CONSUETUDINARIA EN FORMACIÓN?

This paper addresses some questions that climate change raises for international law. It focuses in particular on the request for an advisory opinion submitted by the United Nations General Assembly to the International Court of Justice (ICJ) on 29 March 2023. This request is analysed as a further manifestation of the international community’s concern to clarify the international responsibility of states to prevent, mitigate and remedy the damage caused by climate change. The study argues that the ICJ could clarify obligations under existing treaties. There may also be a particular opportunity for the Court to expand its jurisprudence on other sources of international law. In particular, it asks whether the ICJ could confirm the emergence of a specific customary rule on the issue.

The Similarity of Some Fundamental Rights with the Principle of the Right to Self-Determination

The right to self-determination, as a fundamental and inalienable right, allows individuals and nations to have a decisive influence on their political, social, and economic destiny, among others. In fact, the right to self-determination, as the foundation of other fundamental human rights, plays a significant role in their realization for the people, nation, or group as the primary holders of this right. In human societies, it can be assumed that if this fundamental right is not observed in a society, that society will not be committed to other fundamental rights or human principles either. The right to self-determination has a close relationship with the genuine will of the people, which must be freely expressed, and they must be able to exercise this right without any pressure. This principle also holds an important position in international law, as mentioned in Article 1(2) of the United Nations Charter, where it is referred to as a fundamental basis for peaceful relations between states and nations. Furthermore, this right is outlined in Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights as a general right that can encompass various aspects of political, social, economic, cultural, and other dimensions of a nation's life. The conceptual scope of this right, due to the growing attention to certain fundamental legal principles, has led to interactions with these principles and has expanded the meaning of jus cogens in contemporary international law. As a result, violations of many fundamental legal principles invoke the international responsibility of states concerning the right to self-determination.

Provisional Adoption of Draft Article 7 of the International Law Commission Articles on Immunity for Foreign Officials and Its Implications

Abstract This article analyses the consequences of the International Law Commission (ILC) adopting Draft Article 7, about exceptions to immunity ratione materiae of foreign criminal prosecution, in a seemingly rushed way, without solving the sometimes antagonistic views of its members and of the international community. To this end, the generally accepted rules of immunity were reviewed, followed by taking a closer look at the discussions within the ILC. It seems that the reasoning of the Special Rapporteur on the topic has failed to provide enough proof of state practice and opinio juris to affirm the customary status of an exception to immunity ratione materiae for international crimes. Had the commission tried to resolve the disagreement among its members, the provisional adoption of Draft Article 7 would not bring much criticism. As a result of the lack of clarity, however, national courts are applying said exceptions, which action is believed to be contrary to international law as it currently stands. This is one of the consequences of the provisional adoption, the other being the international responsibility of states which disregard the immunity of a foreign official, not to mention the deterioration of the friendly relationship between the forum State and the State of nationality of the official.

International responsibility of states (theoretical and legal view)

Introduction. This article examines the theoretical and legal possibility of bringing legal relations of a public nature to the international legal responsibility of the participating state, in order to determine the actual mechanisms for the implementation of influence measures and the types of legal consequences that apply to the guarantor state of international legal norms, by analyzing the views of scientists on the issue responsibility of states, their types, the legal framework of an international nature, which regulates the issue of the mechanism and means of influence on the state. Summary of the main research results. First, the quintessence of the axiology of responsibility as a legal phenomenon and its place in international legal relations is emphasized. Also, on the basis of the study of the views of scientists, the differentiation of international responsibility was determined. Several of its types have been identified. The first type of responsibility, which occurs in cases of illegal actions in the form of violation of contractual obligations, the second type of compliance, which occurs for the commission of international crimes. Emphasis is placed on the legal regulation of responsibility for illegal acts in the field of legal obligations. The main international normative acts regulating the procedure of bringing to responsibility, ensuring peace and security in the foreign space have been analyzed. The international practice that reveals the cases of bringing to international responsibility on the example of states that participated in legal relations in violation of international legal norms is given. Conclusions. According to the results of the study, the duality of approaches to the responsibility of states was established. Conclusions were made regarding the prospects and realities of bringing the state to international legal responsibility.

ZLOČIN GENOCIDA U PRAVU O ODGOVORNOSTI / THE CRIME OF GENOCIDE IN LAW OF RESPONSIBILITY

The paper deals with the issue of the responsibility of the main subjects of international law for grave breaches of obligations arising from the imperative norms of general international law in relation to the commission of the crime of genocide. The focus of this paper is in certain aspects of the relationship between individual criminal responsibility and the international responsibility of States and international organizations, which should be interpreted as two separate systems of responsibility in international law. Each system has its own special fundaments, features and characteristics. Consequently, the starting point is that the responsibility of States for genocide does not depend on the responsibility of individuals for the crime, although the International Court of Justice has made extensive use of the conclusions of the chambers of the International Criminal Tribunal for the former Yugoslavia. (Judgment from 2007). The paper therefore analyzes the question of the existence of a theoretical legal possibility for the so-called indirectly proving the responsibility of States (and international organizations) for genocide through a prior examination of the criminal responsibility of leaders, but also through proving a joint criminal enterprise for the purposes of committing the crime, or do these conceptions represent a starting point for the responsibility of the main subjects of international law or they are simply "proof" of the attribution of the act to a State? In this paper, we examine whether a joint criminal enterprise could be a reflection of a State plan and/or policy for committing the crime of genocide and how a collective plan or policy for committing that crime could be interpreted. After all, are they actually a dolus specialis of this crime, that is, whether a genocidal intent is manifested in a State precisely in a plan or policy?

Multilateral Debt Relief for Clean Ocean Energy

As states bring more and more offshore wind online and build renewable energy capacity, the promise of large-scale ocean renewables such as offshore wind is not shared equally across all coastal states. This paper examines the situation of coastal states identified by the World Bank as Heavily Indebted Poor Countries (HIPCs) in the context of the boom in offshore wind investment. Specifically, the paper looks at the limited access to renewable energy production exacerbated by ongoing public debt loads, and the almost complete lack of access to clean ocean energy development for the poorest coastal states. Using statistics from the International Renewable Energy Agency and datasets from the Our World in Data project, this paper highlights that the most indebted coastal states only have access to 0.69% of the available renewable energy even though these states represent 4.6% of the global population. In the context of state responsibility for failing to meet climate obligations under the UNFCCC, this paper argues that a sovereign debt relief package offers an equitable remedy to HIPC coastal states, many of whom owe a substantial portion of their GDP as external public debt. The debt service payments would be invested in the upfront capital costs of ocean-based clean energy. These types of debt relief arrangements address international state responsibility and offer the dual co-benefits of long-term economic development and low-carbon sustainability.

INSTITUTE OF EXPROPRIATION OF FOREIGN PROPERTY: DE FACTO & DE JURE

Not only Russian, but also foreign modern legal science bypasses the issue of the legal nature of the state’s right to expropriate private property. Its limits and limitations are unclear, as are the guarantees of the right to private property. In most cases, the right to expropriate is perceived as a given and the prerogative of the state. However, it is quite obvious that the principle of the certainty of law presupposes the normative clarity of the regimes and types of expropriation, the conditions for its implementation in relation to other restrictions and methods for the forced termination of the right to private property. In conditions of high turbulence in international relations, the question of the correlation between the norms of international, private international and national (domestic) law in determining the mechanism and legal regime of expropriation is especially relevant. Discussions on the relationship between the legal mechanisms of expropriation and nationalization, on the denition of criteria and the very legal nature of the compensation due to a private owner during expropriation do not leave the agenda. Particularly acute is the question of the grounds and forms of international responsibility of states exercising the right to expropriation, both in violation of the general norms and principles of international law, and special in relation to expropriation in relation to the interests and rights of private owners. The attention of the author is focused on this issue in connection with the emerging negative trends in the development of lawmaking in this area, not only at the national, but also at the international level.

인공지능의 국제법상 책임추궁에 관한 소고

This article examines the invocation of international responsibility arising from activities of the Artificial Intelligence(AI). The AI has capabilities to recognize the circumstances and determine beyond instruction or control of humans, and as a result it has become important how to regulate international responsibility involving the AI activities. This article examines the question whether it is possible and appropriate to apply the Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission to international wrongful acts through the AI.
 The AI is characterized as an autonomous entity, in that it performs certain activities without human involvement in its perception and judgment. However, the AI is not currently recognized as an international person by the international community. In this regard, this article classifies types of internationally wrongful acts through the AI, then explores pathways to invoke state responsibility in light of each type of acts. First of all, the rules of attribution shall be streamlined to international activities involving the AI. In particular, the effective control test which has been utilized as a standard for attributing activities of a person or the group of persons to a state is not appropriate in attributing the activities of the AI to relevant state entities. Secondly, this article submits that state responsibility involving the AI activities may be invoked based on due diligence obligation of states. In conclusion, it is not appropriate to apply the current jurisprudence of state responsibility to activities involving the AI, and accordingly it is necessary to consider due diligence obligation in invoking international responsibility of states in utilizing the AI.

International State Responsibility and Internal Law in Investment Arbitration: A Hierarchy of Sorts

International State Responsibility and Internal Law in Investment Arbitration: A Hierarchy of Sorts

Методологічне підґрунтя дослідження відповідальності держав за міжнародним правом

The complexity of modern political and legal relations that arise with the onset of international responsibility significantly increases the importance of developing a methodological basis for the concept of state responsibility under international law. The article highlights the methodological basis of the study of the sphere of international responsibility of states. The article reveals the content of civilizational, axiological, historical-legal and conceptual-comparative approaches, which contributes to a deeper understanding of the nature of international law and the essence of international responsibility, the patterns of functioning and the development of norms on the international responsibility of states. It has been established that the main principles of the civilizational approach contribute to considering the peculiarities of understanding and applying the main categories of international responsibility through the prism of the interaction of civilizations and their dialogue. From the standpoint of the axiological approach, the value of a number of categories significant for the sphere of international legal responsibility is revealed, in particular, the term "responsibility" itself, as well as such political and legal values as freedom, equality, justice, solidarity, tolerance, respect for all human rights. The application of the historical-legal approach allows, among others, to investigate of the development of international legal opinion regarding the concept of "responsibility" in international law from the earliest times; to analyze the stages of the UN International Law Commission's work on the codification of norms on the international responsibility of states; to trace the evolution of the concept of an internationally wrongful act of the state and highlight the issue of its normative consolidation, to investigate the development of the concept of the responsibility of states for lawful activity. The toolkit of the conceptual-comparative approach with its methods of macro- and micro-comparison, synchronic and diachronic, normative, textual, and doctrinal comparisons is helpful in comparing the studied phenomena. The application of the approaches analyzed in the article allows for a comprehensive study of the issues of state responsibility, to develop an international legal concept of state responsibility in international law, to consider the specifics of state responsibility for the illegal conduct of state and non-state actors in conditions of modern political and legal processes.

Law at the bifurcation point: discussion of the conceptual study military problems of International Law (Discussion in the format of the “Round Table” based on the materials of Chapter 6 “Military problems of International Law” Volume III of the monograph “Military Law”)

The year 2022 was marked by the publication of a number of interesting conceptual scientific publications in the most popular publishing houses of the country, research institutions and leading universities. One of such scientific works is Volume III of the monograph “Military Law”, published under the auspices of the Institute of State and Law of the Russian Academy of Sciences, under the general editorship of the Director of the Institute of State and Law of the Russian Academy of Sciences, Corresponding Member of the Russian Academy of Sciences, Doctor of Law, Professor A.N. Savenkov and Doctor of Law, Professor A.V. Kudashkin (I and II volumes published in 2021). The monograph under discussion bursts into the reader’s consciousness with a wide palette of issues under consideration, the theoretical breadth and methodological elaboration of which does not leave him indifferent. The subject of the theoretical discussion is Chapter 6 “Military problems of International Law” of Volume III “Main problems and promising areas of military legal research”, which contains six paragraphs in which current trends in the development of international military and military-technical cooperation, military problems of International and International Humanitarian Law, as well as international State responsibility are consistently studied and other questions. As a result of the discussion, it is noted that the scientific work under consideration is by its nature a conceptual knowledge of military problems of International Law, which accumulates in a systematic form the existing knowledge in the field of military aspects of International Law, opening up broad prospects for its study while studying at universities and conducting further research in this area of military legal knowledge.

Теоретико-правовая характеристика современных глобальных вызовов и угроз в сфере здравоохранения

The purpose of the study is to identify and substantiate the international legal characterization of modern challenges and threats in the field of public health. The relevance of the study lies in the fact that the international situation as a whole cannot be characterized as favorable. Demographic problems are growing in the world, poverty, hunger, lack of drinking water are becoming more and more widespread. The question of the emergence of new and the return of already seemingly conquered diseases is acute. Epidemics and pandemics have a complex of causes, conditions and consequences of a political, medical, technological, psychological, economic, social and organizational nature. It is substantiated that one of the real trends in social practice is the problem of the spread of epidemics, pandemics and mass diseases as a possible basis for the international responsibility of states and international organizations. An important legal aspect is the use of the actions of individual states and international organizations. One of the ways out of the crisis is seen in the constant and timely strengthening of national health systems, on the basis of which it was concluded that this will ensure early forecasting of emerging threats, the development of appropriate measures and their localization.

INTERNATIONAL CRIMES AND OBLIGATIONS ERGA OMNES IN THE CONTEXT OF ENVIRONMENTAL PROTECTION UNDER INTERNATIONAL LAW

In the article an attempt has been made to analyze the peculiarities of the application of the categories of “international crimes” and “obligations erga omnes” in the context of environmental protection by the means of international law. The interrelation between these categories is investigated and their connection is demonstrated analyzing the work of the International Law Commission of the United Nations on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts. The tendency towards the formation in international law of a new type of obligations erga omnes aimed at environmental protection is analyzed. It is emphasized that environmental protection can be carried out both in the context of enforcement of obligations erga omnes and international responsibility of states, and in the context of prosecuting individuals for committing international war crimes against the environment. It is worth noting that at the moment the mentioned protection is fragmented and does not cover all elements of the environment. For example, the provisions of the Rome Statute about war crimes against environment relate to international armed conflicts and protect the natural environment only. At the same time the harm to the environment in armed conflicts not of an international character can be equally widespread, long-term and severe. In this regard, special attention is paid to the concept of “environment” as an object of protection under international law. Its complex nature manifested through a significant number of components, including natural resources and artificial elements, as well as the interaction between them, is shown. Thus, it seems necessary to develop such an international legal regulation that could ensure environmental protection, which would cover all elements of the environment and take into account their peculiarities

R. LEMKIN'S CONTRIBUTION TO THE DEVELOPMENT OF MODERN INTERNATIONAL LAW AND INTERNATIONAL CRIMINAL LAW

This article presents the significance and impact of Lemkin's concept of genocide on the development of international law. We will randomly present the jurisprudence of international courts such as the ICJ, the ICC, the ICTY and the ICTR, which analyzed the concepts of genocide, including cultural heritage crimes. Residual functions of the ICTY, including oversight of sentences and consideration of any appeal proceedings initiated since 1 July 2013, are under the jurisdiction of a successor body, the International Residual Mechanism for Criminal Tribunals (IRMCT). The article also invites attention to the impact on R2P and the human rights, as well as international state responsibility and the individual responsibility.

Amerika Birleşik Devletleri’nin YPG’ye Desteğinin Uluslararası Sorumluluk Hukuku Açısından Değerlendirilmesi

2015 yılı sonbaharında Irak-Şam İslam Devleti (IŞİD) adlı terör örgütünün Suriye’de endişe verici yayılması ve terör örgütü PKK’nın Suriye kolu YPG’nin elinde bulunan Ayn-El Arap kasabasını kuşatmasıyla yükselen uluslararası duyarlılık neticesinde Amerika Birleşik Devletleri (ABD)’nin, Ayn-El Arap kasabasındaki YPG’li teröristleri silahlandırarak IŞİD’e karşı savaşmalarına yardım etmeye başlamıştır. İşte bu aşamada, devlet dışı silahlı bir aktör olan YPG’li militanların eylemlerinden kendileri kadar destekçilerin sorumluluğu da gündeme gelecektir. İşbu makalede Amerika Birleşik Devletleri’nin YPG’nin işlediği eylemlerden sorumluluğu incelenmiştir. Yugoslavya’nın parçalanması sürecindeki silahlı çatışmalar ile Latin Amerika’daki vekalet savaşlarına dair yürütülen uluslararası yargılamalarda ortaya konan hukuki yaklaşımlar ve yorumlar bu çalışmaya ışık tutmuştur. Doktrinde etkin kontrol teorileri üzerine devam eden tartışmalar henüz bağlayıcı hukuk kuralları meydana getirmemiş olsa da Amerika Birleşik Devletleri’nin YPG’ye verdiği desteğin ulaştığı boyuta dair kamuoyuna yansıyan bilgiler ve sahadaki gerçeklikler beraberce değerlendirildiğinde Amerika Birleşik Devletleri’nin YPG’nin işlediği insan hakları ihlallerinden hukuki sorumluluğu ileri sürülebilecektir.

Covid 19 in the face of Contemporary International Law

The outbreak of Covid-19 is an international crisis that has been unprecedented for the past hundred years. The virus was first reported in Wuhan, China, in late 2019 and gradually spread worldwide. In such circumstances, the effectiveness of international law in protecting human lives and promoting the right to health has been severely tested. More importantly, in the words of Michel Bachelet (A UN official), the Covid-19 has become a benchmark for the international community. This article will analyze how international law deals with the Covid-19 crisis in several areas: First, the World Health Organization’s role as the main body responsible for protecting human healthcare in the face of the Covid-19 outbreak will be analyzed. Second, the international responsibility of States in guaranteeing the right to health will be assessed to determine the effectiveness of international law. Third, the suspension of human rights abuses due to the Covid-19 outbreak emergency will be tested in the international human rights system. Finally, the performance of the UN Security Council in dealing with this pandemic is examined. In each area, the question is to what extent the current structure of international law effectively deals with international crises and preserves human dignity.

Fragmentation of Attribution in International Law

This chapter examines the practice of international courts and tribunals and contends that adjudicators, consciously or unconsciously, use the notion of attribution in a narrow and in a broad sense, without however properly distinguishing between nuanced attribution standards. Attribution tests in the narrow sense are drawn from ARSIWA and are applied in the context of establishing the international responsibility of states. Whereas broad sense attribution concepts serve a variety of other legal purposes. This phenomenon will be termed as the fragmentation of attribution. The chapter will map various attribution concepts used in the field of jus ad bellum, jus in bello, and international investment law. It concludes by raising awareness about the doctrinal inconsistencies that arise from the judicial use of different attribution tests in an interchangeable way and about a corresponding need for doctrinal scrutiny and methodological consistency in dealing with secondary rules of international law.

EL COMBATE DE FACTO CONTRA LA TRATA DE PERSONAS EN ESPAÑA Y LA RESPONSABILIDAD INTERNACIONAL DEL ESTADO

For two decades, there has been a strong agreement in the international legal system on what is meant by the crime of trafficking in persons and how its human rights perspective should be addressed. However, such standards are not fully taken on board by the Spanish anti-trafficking strategy. While the Spanish legal system outlaws trafficking in line with the international consensus, its de facto fight seems to be guided by an outdated conception of the crime that hardly satisfies the international obligations assumed by the State. The analysis of such a disparity is necessary since the failure to act with due diligence to prevent such a human rights violation is likely to generate international state responsibility.