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Journal articles on the topic 'Draft Articles on Responsibility of States for Internationally Wrongful Acts'
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1
Abdullah, Dawan Mohammed Jaza. "The Nature of International Responsibility of States in the Contemporary World Arena." Journal of University of Human Development 5, no. 4 (October 17, 2019): 50. http://dx.doi.org/10.21928/juhd.v5n4y2019.pp50-59.
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The subject of state responsibility occupies a central place in international law. Its basic principle, now well established, provides that every internationally wrongful act entails the responsibility of the state. One of the most controversial problems regarding the international responsibility of the state for wrongful acts concerns the nature of such responsibility. The present paper examines the nature of state responsibility for international wrongful acts under existing international law. It takes the view that the International Law Commission (ILC), in its Draft Articles on State Responsibility can be applied in case of breach of any international obligations by states because there is no international convention regarding state responsibility on the international plane. Finally, the study concludes that the identification of the nature of the state responsibility seems to be much more complicated since ILC’s Articles do not explicitly address the issue of whether responsibility of state for wrongful act or omission is strict liability (objective theory) or there must be some fault (subjective theory) in the conduct of state in order to hold responsibility; customary international law to some extent does not help in filling the gap exists in ILC’s Draft Articles on state responsibility with regard to objective and subjective theories because it supports both theories.
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Hafner, Gerhard. "THE DRAFT ARTICLES ON THE RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS." Austrian Review of International and European Law Online 5, no. 1 (2002): 189–270. http://dx.doi.org/10.1163/157365100x00066.
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Reinisch, August. "Aid or Assistance and Direction and Control between states and International Organizations in the Commission of Internationally Wrongful Acts." International Organizations Law Review 7, no. 1 (2010): 63–77. http://dx.doi.org/10.1163/157237310x523821.
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AbstractQuestions concerning the international responsibility of international organizations and/or their member States for internationally wrongful acts primarily raise important issues of attribution. In addition, a concurrent responsibility may arise from situations where international organizations aid or assist or direct and control the acts of States or other international organizations. This contribution intends to highlight some problems that stem from the fact that the current formulations of Articles 13 and 14 of the ILC Draft Articles on responsibility of international organizations are largely based on the corresponding provisions of the 2001 ILC Articles on State responsibility.
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Bodansky, Daniel, and John R. Crook. "Introduction and Overview." American Journal of International Law 96, no. 4 (October 2002): 773–91. http://dx.doi.org/10.2307/3070677.
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In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission’s longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend [ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”
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Omerović, Enis. "Damage in International Law: Precondition For State and International Organization Responsibility?" Društvene i humanističke studije (Online) 6, no. 3(16) (July 27, 2021): 381–408. http://dx.doi.org/10.51558/2490-3647.2021.6.3.381.
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The first chapter of the paper elaborates the question of whether one of the constitutive elements of the internationally wrongful act and a precondition for responsibility could be embodied in an existence of damage that has to be inflicted upon participants with international legal personality. In this regards legal doctrine, the arbitral awards, international judgments as well as the works of the UN International Law Commission will be examined, particularly the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the Draft Articles on the Responsibility of International Organisations from 2001 and 2011, respectively. An interesting question could be raised concerning the terms used in Law on Responsibility and that is whether there is a difference between damage, injury, and unlawful consequence. Punitive or penal damage and its application in Law on Responsibility will be further assessed. The author will begin its research with the definition of punitive damage, and will further take into consideration international legal doctrine, international arbitral awards, judicial decisions of international courts, decisions of various claims commissions as well as norms of general international law in supporting his hypothesis that international law does not entail reparations for punitive damages. One of the aims of this paper is to indicate the question of whether the existence of punitive damages in international law, if any, be linked to a legal nature of State and international organization responsibility, in the sense that application of punitive damages in international law would support the thesis on the very existence of criminal responsibility of the named subjects of international law? It is interesting to note that the criminal responsibility of states has been abandoned by the removal of Article 19 in the final Draft Articles on Responsibility of States.
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Ryngaert, Cedric. "THE EUROPEAN COURT OF HUMAN RIGHTS’ APPROACH TO THE RESPONSIBILITY OF MEMBER STATES IN CONNECTION WITH ACTS OF INTERNATIONAL ORGANIZATIONS." International and Comparative Law Quarterly 60, no. 4 (October 2011): 997–1016. http://dx.doi.org/10.1017/s0020589311000467.
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It is generally considered that an international organization (‘IO’) has an international legal personality which is distinct from that of its Member States, as a result of which the IO itself, rather than the Member States, is to be held responsible for the IO's internationally wrongful acts.1 It appears to be an accepted principle that Member States cannot generally be held liable for the acts of IOs by virtue of their membership of an IO alone. This view can be found in a 1996 resolution of the Institut de Droit International, which provides that ‘there is no general rule of international law whereby States members are, due solely to their membership, liable, concurrently or subsidiarily, for the obligations of an international organization of which they are members.’2 This is echoed in the International Law Commission's (‘ILC’) Commentary to article 62 of the Draft Articles on the Responsibility of International Organizations (‘ILC DARIO’): ‘It is clear that … membership does not as such entail for member States international responsibility when the organization commits an internationally wrongful act’.3 The ILC holds the view that only in the case of an intervening act by a Member State that influences the commission of a wrongful act by the IO (aid and assistance, direction and control, coercion, avoidance of compliance, acceptance) could the Member State be held responsible.4
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Wittich, Stephan. "The International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading." Leiden Journal of International Law 15, no. 4 (December 2002): 891–919. http://dx.doi.org/10.1017/s0922156502000390.
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In 2001 the International Law Commission finally adopted on second reading the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the commentaries thereto, thereby successfully concluding almost half a century of work on the topic by the ILC. Subsequent to the adoption, the General Assembly welcomed the conclusion of the work of the ILC. This article highlights the main changes made during the second reading 1998–2001, among them the issue of international crimes, the concept of injured state and countermeasures. While the 59 articles are the result of compromise, they undoubtedly are a major achievement in one of the most important and most sensitive areas of international law. Ultimately they may be a useful tool to promote the enforcement of community interests in the international legal system.
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Капустин, Анатолий, and Anatoliy Kapustin. "CONTENT OF INTERNATIONAL LEGAL RESPONSIBILITY IN WTO LAW: THE GENERAL PRINCIPLES AND APPROACHES." Journal of Foreign Legislation and Comparative Law 1, no. 6 (February 7, 2016): 0. http://dx.doi.org/10.12737/17173.
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The present article discusses the main features of the content of international legal responsibility of the law of the World Trade Organization (WTO). Analysis of the concept of “content” of international legal responsibility is based on the Draft articles on responsibility of states for internationally wrongful acts, prepared by the UN International Law Commission in 2001, as well as the differences in the conceptual underpinnings of the responsibility, which is held on the various speakers’ issue. The author shares the view that the specificity of the institute of responsibility in WTO law in comparison with the general international law (Draft of UN International Law Commission), can be explained in terms of the fact that WTO law serves a lex specialis in relation to general international law. Review and comparison of the provisions of the Draft of UN International Law Commission and the Dispute Settlement Understanding of the WTO has allowed to conclude that the philosophy of the basic principles of the content of the international responsibility in these documents are very close to or even in the ground is the same. The article investigated the basic concept of a “violation of obligations” in WTO law and obligations of the members of the organization to terminate the offense. It is concluded that in spite of the individual features of the implementation requirements to provide “assurances and guarantees” prohibiting further violations of the WTO agreements, in general, WTO law ensures compliance with the obligation to cease the wrongful conduct.
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Keshner, M. V. "Development of the concept of state responsibility in succession situations in the light of draft articles of the UN international law commission." Moscow Journal of International Law, no. 4 (March 23, 2020): 114–32. http://dx.doi.org/10.24833/0869-0049-2019-4-114-132.
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INTRODUCTION. The article considers the concept of a succession of states with regard to the responsibility of states, which has become the subject of discussion by the UN International Law Commission and the preparation of the relevant draft articles. The author studies the methodology of considering the topic with a view to substantiating the idea of transferability of rights and obligations in the context of the responsibility of states, which is to a certain extent contradictory, due to the limited practice of states in this area. In this regard, questions are raised as to whether the new project can solve the problem of fill ing the gap between the regimes of state succession and state responsibility.MATERIALS AND METHODS. The author made a theoretical and empirical analysis of the main sources of international law, the materials of the work of the UN International Law Commission: reports of the special reporter on the succession of states regarding state responsibility, comments and observations of states, state practice, and the practice of international courts on the subject matter. Methodological foundation of research is composed by general scientific (analysis method, synthesis method, systems approach) and private-law methods of obtaining knowledge (formal legal, comparative legal).RESEARCH RESULTS. Based on the study, it is argued that the key ILC approach – the general rule of the lack of succession in respect of international responsibility is not absolute in nature, also contains potentially conflicting aspects. The author comes to the conclusion that the concept of transferability of rights and obligations in the context of state responsibility is to a certain extent contradictory, due to the limited practice of states in this area.DISCUSSION AND CONCLUSIONS. This article highlights a number of problematic aspects of the draft articles provisionally adopted by the Drafting Committee of the United Nations International Law Commission, as well as the proposed new draft articles in the regulation of specific categories of succession of States in respect of the obligations arising from responsibility. The author concludes that the norms formulated under the theme should take into account the complex legal regime of state responsibility for internationally wrongful acts, which differs from other regimes of succession.
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Sarvarian, Arman. "THE OSSIFIED DEBATE ON A UN CONVENTION ON STATE RESPONSIBILITY." International and Comparative Law Quarterly 70, no. 3 (June 30, 2021): 769–98. http://dx.doi.org/10.1017/s002058932100018x.
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AbstractThis article examines the developments on future action concerning the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) in the Sixth Committee of the UN General Assembly. It reviews the past 20 years, from the presentation of the final draft at the 56th session in 2001, to the most recent debate at the 74th session in 2019. In scrutinising the procedural actions taken over the relevant period, it argues that the ARSIWA have ossified in the Sixth Committee even as they have continued to gain authority through application in practice. This ossification is due not only to divisions amongst delegations on future action but also to disagreements on a select number of provisions. Whilst these substantive issues have narrowed, debate is made fruitless by entrenched positions that do not take account of the application of the ARSIWA in practice.
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Bakker, Christine. "DUAL ATTRIBUTION OF ACTS COMMITTED BY A UN PEACEKEEPING FORCE: AN EMERGING NORM OF CUSTOMARY INTERNATIONAL LAW? THE DUTCH SUPREME COURT’S JUDGMENTS IN NUHANOVIÇ AND MUSTAFIĆ." Italian Yearbook of International Law Online 23, no. 1 (November 17, 2014): 287–97. http://dx.doi.org/10.1163/22116133-90230048.
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In two cases lodged by victims (or their relatives) of the massacre in Srebrenica in 1995, the Supreme Court of the Netherlands has taken a progressive stance on the interpretation of international law on the responsibility of States and international organizations for wrongful acts. The Supreme Court upheld the earlier decisions of The Hague Court of Appeal, confirming that the Netherlands can be held responsible for the death and injuries of these victims, despite the fact that the Dutch troops employed to protect this enclave were part of a United Nations (UN) peacekeeping force. By accepting the possibility of dual attribution of an internationally wrongful act to both the UN and the troop-sending State, it has departed from the restrictive approach adopted in current judicial practice, in particular by the European Court of Human Rights. In this note, the Supreme Court’s judgments are discussed, focusing on (i) the question of dual attribution of an international wrongful act, and (ii) the extraterritorial application of human rights treaties. It concludes that, although the Supreme Court’s reliance on two sets of Draft Articles of the International Law Commission without referring to any State practice is surprising, these judgments should be welcomed as significant precedents, which may contribute to the development of a norm of customary international law. They also constitute an important step towards ensuring access to justice and reparation for the victims of gross human rights violations, such as those committed in Srebrenica.
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Ryngaert, Cedric. "Apportioning Responsibility between the UN and Member States in UN Peace-Support Operations: An Inquiry into the Application of the ‘Effective Control’ Standard after Behrami." Israel Law Review 45, no. 1 (March 2012): 151–78. http://dx.doi.org/10.1017/s0021223711000070.
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There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILC's Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.
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Pellet, Alain. "The new draft articles of the International Law Commission on the responsibility of states for international wrongful acts: A requiem for states' crime?" Netherlands Yearbook of International Law 32 (December 2001): 55. http://dx.doi.org/10.1017/s0167676800001161.
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Geraldi, Aldo Rico. "PERTANGGUNGJAWABAN PEMERINTAH INDIA TERKAIT TINDAKAN PELANGGARAN KEKEBALAN DAN KEISTIMEWAAN YANG DILAKUKAN TERHADAP PERWAKILAN DIPLOMATIK AMERIKA SERIKAT DITINJAU DARI KETENTUAN HUKUM INTERNASIONAL." Jurnal Komunikasi Hukum (JKH) 3, no. 1 (February 7, 2017): 1. http://dx.doi.org/10.23887/jkh.v3i1.9241.
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Pemerintah India melakukan tindakan pelanggaran terhadap kekebalan dan keistimewaan yang dimiliki oleh perwakilan diplomatik Amerika Serikat di India. Penelitian ini bertujuan untuk menganalisis kekebalan dan keistimewaan yang dimiliki oleh Perwakilan Diplomatik Amerika Serikat. Selain itu juga menganalisis mengenai keabsahan tindakan yang dilakukan, serta bentuk pertanggungjawaban Pemerintah India terhadap Perwakilan Diplomatik Amerika Serikat.Penelitian ini merupakan penelitian yang menggunakan penelitian hukum normatif dengan mengumpulkan data sekunder. Pengumpulan data dilakukan menggunakan metode studi kepustakaan dengan mengumpulkan bahan hukum dan informasi yang berupa bahan-bahan hukum primer, sekunder, maupun tersier. Dalam rangka mendapatkan pemaparan yang jelas, data tersebut kemudian disusun secara sistematis dan dianalisis dengan menggunakan metode deskriptif.Hasil penelitian ini menunjukkan bahwa perwakilan diplomatik Amerika Serikat yang ada di India memiliki kekebalan dan keistimewaan sebagaimana yang ditentukan dalam Konvensi Wina 1961 tentang Hubungan Diplomatik. Selanjutnya mengenai pertanggungjawaban atas tindakan Pemerintah India, Pemerintah Amerika Serikat berhak meminta pertanggungjawaban untuk menghentikan pelanggaran yang dilakukan terhadap perwakilan diplomatiknya sebagaimana yang diatur dalam Draft Articles on Responsibility of States for Internationally Wrongful Acts. Kata Kunci: Hubungan Diplomatik, Kekebalan dan Kestimewaan, Pertanggungjawaban.
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Toufayan, Mark. "A Return toCommunitarianism? Reacting to “Serious Breaches of Obligations Arising under Peremptory Norms of General International Law” under the Law of State Responsibility and United Nations Law." Canadian Yearbook of international Law/Annuaire canadien de droit international 42 (2005): 197–251. http://dx.doi.org/10.1017/s0069005800008523.
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SummaryDiscussion surrounding the prevention of genocide has focused to a large extent on the appropriate mode(s) of reaction to particularly serious breaches of human rights obligations. In particular, the question arose whether existing UN mechanisms aimed at preserving international peace and security should be regarded as a privileged — or even exclusive — means to enforce compliance by states with their obligations relating to genocide. Drawing extensively on the work of the International Law Commission on the codification of the law of state responsibility, the author argues that the new draft articles, with their emphasis on “serious breaches of obligations arising under peremptory norms of general international law” rather than obligations erga omnes, are ill-suited to provide for the taking of preventive measures by “not-directly affected” states. Paradoxically, the institutionalization of mechanisms for preventing gross human rights abuses has been reduced to a minimum in the new draft, with emphasis being laid on the vague requirement that states “cooperate” to bring “serious breaches” to an end. It is suggested, however, that ascribing a subsidiary role to UN organs and procedures is, despite criticisms made as to their adequacy, necessary to supplement state action. The UN has in fact a distinct legal interest that is clearly affected when breaches of obligations relating to genocide occur. More importantly, by acting on behalf of the “organized international community” in matters of international peace and security, the Security Council has itself assumed today a legally binding subsidiary obligation to prevent genocide. The article concludes that in the absence of ineffective decisional institutions for the prevention of genocide, the choice is not between the subjectivism of a decentralized response and the absence of any consequences for the most serious wrongful acts but rather to strengthen the UN’s institutional capacity to react.
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Anugerah, Julian Tommi. "Tanggung Jawab Negara pada Penggunaan Senjata Kimia Saat Perang (Tinjauan Kasus : Agent Orange 1954 – 1975)." Jurist-Diction 2, no. 2 (July 9, 2019): 521. http://dx.doi.org/10.20473/jd.v2i2.14233.
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Penggunaan senjata kimia dalam peperangan bukanlah hal yang baru,seperti yang dilakukan oleh Amerika Serikat pada perang Vietnam tahun 1955 - 1975. Amerika Serikat menggunakan senjata kimia yaitu Agent Orange untuk merontokkan dedaunan hutan di Vietnam,untuk mengetahui persembunyian tentara Vietnam dalam hutan. Efek dari Agent Orange rupanya merusak lingkungan yang ada di Vietnam, serta orang yang terkena Agent Orange membuat keturunannya menjadi cacat akibat zat yang terkandung di dalam Agent Orange yang mengendap di tubuh para korbannya. Aturan tentang penggunaan senjata kimia dalam perang sudah diatur mulai dari Konvensi Den Haag 1907 yang menjadai pioneer tentang aturan penegakan senjata kimia. Namun penegakan hukum lingkungan memang dirasa kurang tegas terhadap pelaku pencemaran atau perusakan lingkungan (negara).Bentuk tanggung jawab yang bisa dilakukan oleh suatu negara menurut Draft Article responsibility States of States for Internationally Wrongful Acts 2011 tentang tanggung jawab negera yang merugikan negara lain haruslah dilaksanakan. Dalam Hukum Lingkungan negara yang mencemari atau lingkungan haruslah melakukan pemulihan lingkungan secara menyeluruh dan juga ganti rugi secara materiil terhadap negara yang tercemari lingkungannya. Namun penegakan untuk tanggung jawab Amerika Serikat tidaklah sesuai dengan aturan yang sudah ditetapkan di undang – undang serta perjanjian internasional, mereka tidak melakukan pertanggungjawaban secara menyeluruh terhadap para korban serta pemulihan lingkungan Vietnam dari sisa Agent Orange. Tanggungjawab yang harus dilakukan Amerika termasuk Absolute Liability karena dampakyang akibatkan oleh penggunaan senjata kimia oleh Amerika Serikat. Bentuk tanggungjawab yang dapat dilakukan oleh Vietnam kepada Amerika Serikat adalah dengan prinsip Polluter Pays Principle untuk mengganti kerugian yang di derita masyarakat Vietnam.
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Bradley, Martha M., and Aniel de Beer. "The Collective Responsibility of Organised Armed Groups for Sexual and Gender-Based Violence during a Non-International Armed Conflict." Stellenbosch Law Review 32, no. 1 (2021): 129–54. http://dx.doi.org/10.47348/slr/v32/i1a6.
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This contribution considers a possible legal framework for holding organised armed groups (“OAGs”) collectively responsible for acts of sexual and gender-based violence (“SGBV”) during non-international armed conflicts. It argues that a framework providing for collective as opposed to individual criminal responsibility of OAGs is essential. Certain sections of the Articles on the Responsibility of States for Internationally Wrongful Acts (“Articles on State Responsibility” or “ASR”) are used as a blueprint for achieving such a framework. In this regard, the concepts of international legal responsibility of OAGs, internationally wrongful acts and attribution are analysed in the context of crimes committed by OAGs. In conclusion, the article proposes future research in order to advance the prospect of collective claims and collective compensation for victims of SGBV.
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Crawford, James. "The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect." American Journal of International Law 96, no. 4 (October 2002): 874–90. http://dx.doi.org/10.2307/3070683.
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The development of the articles on state responsibility of the International Law Commission (ILC) has been described elsewhere, in particular in the ILC’s Yearbook. The phases of development of the first (1955-1996) andsecond (1998-2001) readings are well enough known, and there is little point in repeating this material. Whatever the trials and longueurs of their production, the articles with their commentaries now exist and may be assessed as a whole.The first reading was the product of decades of work under successive special rapporteurs (Roberto Ago, Willem Riphagen, and Gaetano Arangio-Ruiz). The second readingwas equally a collective process and many members contributed to the final result. As I was formally responsible for shaping the work on second reading, I may not be the best person to comment on the outcome. Anything less than a full-scale defense of the text will be seen as an unauthorized retreat, and if the text cannot defend itself with the aid of the commentaries, it is too late for individuals to make up for any deficiencies.
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Pacht, Laurence T. "The Case for a Convention on State Responsibility." Nordic Journal of International Law 83, no. 4 (November 1, 2014): 439–75. http://dx.doi.org/10.1163/15718107-08304003.
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At the time of adopting the Articles on the Responsibility of States for Internationally Wrongful Acts, in 2001, the International Law Commission recommended, inter alia, that the General Assembly of the United Nations consider the possibility of negotiating a convention on the basis of the Articles. On four occasions, since 2001, the member states in the Sixth Committee of the General Assembly have been divided on whether to do so. Nonetheless, the most recent such debate, held in 2013, revealed a strong undercurrent of support among the states for convening a diplomatic conference to negotiate a treaty. However, this trend is not reflected in much of what has been written and argued in the public space, which has been almost entirely in opposition to a convention. The main argument for such opposition has been that a treaty negotiation would set back the development of the law either through the adoption of a flawed text or through failure to reach agreement. The present article seeks to scrutinise the viability of such a prognosis, by both responding to the arguments made against a treaty negotiation and by offering some reasons for supporting the negotiation of a convention on the responsibility of states for internationally wrongful acts.
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Paparinskis, Martins. "The Once and Future Law of State Responsibility." American Journal of International Law 114, no. 4 (October 2020): 618–26. http://dx.doi.org/10.1017/ajil.2020.60.
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AbstractThe current (once) international law of state responsibility is shaped by the International Law Commission's Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility. It outlines the contours of systemic grain of possible developments by reference to the tension between bilateralism and community interests in international law.
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Rim, Yejoon. "Reflection on the Normative Status of Articles on Responsibility of States for Internationally Wrongful Acts." KOREAN JOURNAL OF INTERNATIONAL LAW 65, no. 3 (September 30, 2020): 177–207. http://dx.doi.org/10.46406/kjil.2020.09.65.3.177.
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Crawford, James, and Simon Olleson. "The Continuing Debate on a un Convention on State Responsibility." International and Comparative Law Quarterly 54, no. 4 (October 2005): 959–71. http://dx.doi.org/10.1093/iclq/lei045.
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At its 59th session in 2004, the General Assembly revisited the question of what should be done with the Articles on Responsibility of States for Internationally Wrongful Acts (‘the Articles’), adopted by the International Law Commission (‘ILC’) in 2001. By Resolution 59/35, adopted by consensus on 2 December 2004 on the recommendation of the Sixth Committee, the General Assembly once again resolved to defer further consideration and any decision on the final form of the Articles, postponing the matter to its 62nd session in 2007. It also asked the Secretariat to prepare a compendium of jurisprudence and State practice to assist the Assembly in its consideration of the topic at that time.
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Crawford, J. "The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading." European Journal of International Law 12, no. 5 (December 1, 2001): 963–91. http://dx.doi.org/10.1093/ejil/12.5.963.
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Chimni, B. S. "The Articles on State Responsibility and the Guiding Principles of Shared Responsibility: A TWAIL Perspective." European Journal of International Law 31, no. 4 (November 1, 2020): 1211–21. http://dx.doi.org/10.1093/ejil/chab004.
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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.
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Boklan, Dar'ya, Olga Boklan, and Anait Smbatyan. "Relevance of articles on responsibility of states for internationally wrongful acts for legal defense in WTO dispute settlement mechanism." Meždunarodnoe pravosudie 4, no. 20 (2016): 99–113. http://dx.doi.org/10.21128/2226-2059-2016-4-99-113.
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Bederman, David J. "Counterintuiting Countermeasures." American Journal of International Law 96, no. 4 (October 2002): 817–32. http://dx.doi.org/10.2307/3070680.
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The adoption in August 2001 by the International Law Commission (ILC) of its articles on responsibility of states for internationally wrongful acts well and truly brings to a close the twentieth century’s engagement with international law as (in Martti Koskenniemi’s memorable refashioning of George Kennan’s savage critique) a “gentle civilizer of nations.” Including the entry into force of the Rome Statute of the International Criminal Court, the seven pillars of international legal codification have been completed with some form of assistance by the ILC: diplomatic immunities, the law of the sea, a comprehensive law of treaties, the Nuremberg Principles, andjurisdictional immunities of states. Indeed, the articles on state responsibility may represent an even greater methodological challenge for international law codification because they pose fundamental questions regarding the identity and nature of states. Like the Montevideo Convention on Rights and Duties of States and the ILC’s own somewhat obtuse efforts on the international law of state succession, the articles on state responsibility go to the intellectual core of public international law by delimiting the character of states and the nature of their obligations when they interact with other international actors. Perhaps, then, it is no surprise that the ILC’s journey into that doctrinal realm took over half a century, and consumed the attention of five special rapporteurs and countless Commission members.
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Urs, Priya. "Obligations erga omnes and the question of standing before the International Court of Justice." Leiden Journal of International Law 34, no. 2 (March 1, 2021): 505–25. http://dx.doi.org/10.1017/s0922156521000091.
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AbstractA number of states have in recent years sought to invoke the responsibility of other states for breaches of their international obligations erga omnes. Their contention is that these obligations are not owed to them bilaterally but in the collective interest, whether as states parties to multilateral treaties or as members of the international community as a whole. This growing interest in the invocation of responsibility for breaches of obligations erga omnes is discussed primarily in relation to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. The Articles being a statement of principle, and indeed, a progressive development of the law on the issue, attention must also be paid to the decisions and dicta of the International Court of Justice. Of particular interest, and the focus of this article, is the question of a state’s standing to institute proceedings before the Court to invoke responsibility for the breach of an obligation erga omnes even in the absence of any injury on its part. The most recent manifestation of this position is The Gambia’s institution in 2019 of proceedings against Myanmar, solely on the basis that all states parties to the Genocide Convention have a legal interest in compliance with the obligations therein. By scrutinizing the practice of the Court to date, the article examines the limits and consequences of an expansive right of standing for states seeking to enforce obligations erga omnes at the Court.
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Garciandia, Rosana. "State responsibility and positive obligations in the European Court of Human Rights: The contribution of the ICJ in advancing towards more judicial integration." Leiden Journal of International Law 33, no. 1 (November 18, 2019): 177–87. http://dx.doi.org/10.1017/s0922156519000591.
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AbstractThe European Court of Human Rights (ECtHR) follows its own rules regarding the responsibility of states, although the international law of state responsibility enshrined in the International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) remains, as general international law, relevant to its decisions. However, case law of the ECtHR shows that the Court is departing from certain ARSIWA principles as it adopts a broad interpretation of rights contained in the European Convention on Human Rights (ECHR) giving rise to positive obligations.1Exploring those trends in the state responsibility regime of the ECHR, this article argues that, by clarifying certain ARSIWA provisions, the International Court of Justice (ICJ) can play an important role by contributing to a higher degree of judicial integration on the law of state responsibility. It is desirable that the ICJ takes any upcoming opportunity to provide greater clarity on the challenges and nuances of the applicability of the law of state responsibility, in particular as it relates to positive obligations. That would contribute to a more systematic use of those rules by regional courts such as the ECtHR, and ultimately to guaranteeing a greater protection of human rights.
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Masa'i, Frijan, Afrizal Vatikawa, and Annisa Novia Indra Putri. "TANGGUNG JAWAB NEGARA TERHADAP SAMPAH RUANG ANGKASA MENURUT HUKUM INTERNASIONAL." JIHK 5, no. 2 (June 17, 2020): 59–67. http://dx.doi.org/10.46924/jihk.v5i2.5.
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Akibat banyak sampah, peristiwa kecelakaan benda langit menabrak satelit bukan lagi hal yang biasa. Bahkan pada tanggal 12 maret 2017 lalu Stasiun Ruang Angkasa Internasional-ISS nyaris ditabrak sebuah pecahan benda langit yang diameternya hanya 0,8 sentimeter tapi memiliki kecepatan 30.000 km per jam. Tujuan penelitian ini adalah untuk menjelaksan soal tanggung jawab suatu negara dalam jatuhnya sampah ruang angkasa ke negara lain menurut hukum internasional. Pendekatan penulisan ini menggunakan yuridis normative. Adapun hasil penelitian ini dapat diketahui bahwa dampak pada pemanfaatan tersebut dapat mengganggu kedaulatan wilayah negara di bawahnya, sehingga International Law Commission (ILC) yang merupakan sebuah badan PBB yang bertugas mengurusi dan membahas draft tentang ketentuan tanggung jawab negara mengeluarkan instrumen hukum internasional mengenai pertanggungjawaban negara (state responsibility) dan instrumen ini hanya terkait dengan prinsip-prinsip umum yang mereka sebut sebagai Responsibility of States for Internationally Wrongful Acts (ILC ASR). Apabila sampah ruang angkasa jatuh ke bumi dan memasuki wilayah negara lain, maka dapat kita simpulkan bahwa negara pemilik sampah ruang angkasa tersebut harus bertanggung jawab terhadap negara yang kejatuhan sampah ruang angkasa tersebut walaupun bukan kesalahan dari operator atau negara pemilik satelit.
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Heffes, Ezequiel. "The Responsibility of armed opposition groups for Violations of International Humanitarian Law: Challenging the State-Centric System of International Law." Journal of International Humanitarian Legal Studies 4, no. 1 (September 24, 2013): 81–107. http://dx.doi.org/10.1163/18781527-00401003.
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Most of the present rules of international law regulate the behavior of States. Within States, however, there are other entities such as corporations, non–governmental organizations, individuals, international governmental organizations and armed opposition groups that are regulated by different national and international regimes. In this regard, non–State armed opposition groups present particular challenges to international law due to their dominant presence and participation in armed conflicts. Armed opposition groups are one of the most important actors in international humanitarian law today. Yet, taking into consideration that they a priori have certain international humanitarian obligations to fulfill, it remains unclear what the implications are when they, as a group, commit violations. Among these uncertainties, is that there is no formally recognized mechanism to attribute such breaches to the relevant non – state armed opposition group as such. In fact, unlike States, they have no organs. Similarly, there is also no consensus on circumstance that could preclude the wrongfulness of these breaches for armed opposition groups. By challenging the State–centric system of public international law, this article analyses the possible application of certain rules contained in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (2001) to violations of international humanitarian law by armed opposition groups.
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Salerno, Francesco. "Gli effetti della sentenza internazionale nell'ordinamento italiano: il caso Germania c. Italia." DIRITTI UMANI E DIRITTO INTERNAZIONALE, no. 2 (July 2012): 350–70. http://dx.doi.org/10.3280/dudi2012-002007.
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Article 10, para. 1, of the Italian Constitution ensures respect, within the Italian legal order, of the Judgment rendered by the ICJ on the 3rd of February 2012, in the Germany v. Italy case. By condemning Italy, the ICJ prevented those damaged by the wrongful acts perpetrated by Germany during World War II to claim compensation before the Italian courts. According to the ICJ, States can rely on immunity even for acts jure imperii in violation of jus cogens rules on armed conflict. Although this conclusion seems at variance with Articles 40-41 of the ILC Draft Articles on State Responsibility, national judges are bound by it. This obligation arises both from the primary rule Italy has violated, and from the obligation of reparation the ICJ placed upon Italy, calling on it to deprive of any legal effect all national judgments delivered so far against Germany. The Italian Constitution - under Article 10, para. 1, - allows for derogations on the constitutionally protected right of access to justice (Article 24) only insofar as equivalent remedies exist. Since there is no judicial alternative readily available to private individuals damaged by Germany during World War II, such individuals have a constitutionally protected right to call on Italy to exercise its diplomatic protection against Germany.
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Hamid, Abdul Ghafur. "THE ROHINGYA GENOCIDE CASE (THE GAMBIA V MYANMAR): BREACH OF OBLIGATIONS ERGA OMNES PARTES AND THE ISSUE OF STANDING." IIUM Law Journal 29, no. 1 (June 30, 2021): 29–54. http://dx.doi.org/10.31436/iiumlj.v29i1.630.
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On 23rd January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligations erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a trending topic for legal discourse. This article, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law and whether such an obligation may arise from any type of multilateral treaty and any provision in a multilateral treaty. To this end, the article analyses the jurisprudence of the International Court of Justice (ICJ), the case law of international human rights courts and the work and the valuable commentary of the International Law Commission on Article 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The article concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty.
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de Wet, Erika. "The invocation of the right to self-defence in response to armed attacks conducted by armed groups: Implications for attribution." Leiden Journal of International Law 32, no. 01 (November 14, 2018): 91–110. http://dx.doi.org/10.1017/s0922156518000560.
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AbstractThe right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within thejus ad bellumparadigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986Nicaraguadecision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.
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Krasikov, Dmitry V., and Nadezhda N. Lipkina. "The “International Community’S Interests” Element of the State of Necessity Test: Does It Make the Jus Cogens Limitation on Necessity Superfluous?" Journal of Politics and Law 12, no. 4 (November 28, 2019): 44. http://dx.doi.org/10.5539/jpl.v12n4p44.
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According to Article 25 par. 1 (b) and Article 26 of the 2001 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, the concept of general international law peremptory norms and that of interests of “the international community as a whole” play an important role in shaping the state of necessity as one of the circumstances that preclude wrongfulness of States’ conduct under general international law. The limitation on the necessity defense, placed by the international community’s interest condition contained in Article 25 par. 1 (b) of the ILC Articles, serves as a safeguard for the interests protected by the erga omnes international obligations. The concepts of erga omnes and of general international law peremptory norms differ significantly and while all the norms of the latter type give rise to obligations erga omnes, not every such obligation arises out of peremptory norms. This evidences of an autonomous role of the relevant provision of Article 25 par. 1 (b) but not of the jus cogens limitation under Article 26 in the context of the necessity defense. The present article argues that the jus cogens limitation under Article 26 plays a role largely independent from that of Article 25 par. 1 (b) since it is incorrect to see the latter as an absolute guarantee of obligations erga omnes. The present article is a part of a larger project “Circumstances precluding wrongfulness of conduct: the analysis of functional role and applicability parameters in the framework of International Human Rights Law” supported by the Russian Foundation for Basic Research (RFBR Grant No. 18-011-00660).
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Mackenzie-Gray Scott, Richard. "Due diligence as a secondary rule of general international law." Leiden Journal of International Law 34, no. 2 (February 16, 2021): 343–72. http://dx.doi.org/10.1017/s0922156521000030.
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AbstractThe conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.
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"Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens." Nordic Journal of International Law 71, no. 4 (2002): 523–43. http://dx.doi.org/10.1163/157181002100376134.
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AbstractAs the twentieth century was drawing to a close, intervention for humanitarian purposes involving the use of force became a political reality and so a popular subject of study in international law. This article is yet another contribution. It draws on, and uses by way of illustration, two recent contributions featured in this journal. On the basis of a critical analysis of the draft articles on Responsibility of States for internationally wrongful acts as adopted by the International Law Commission in 2001, it is asked whether humanitarian intervention may be justified in international law as an act of necessity despite the prohibition of the use of force. The century-old doctrine of necessity has always provoked unease among international lawyers. A contemporary way to cloak this unease has been the idea expressed in the International Law Commission's draft articles that necessity cannot preclude the wrongfulness of an act not in conformity with an obligation arising under a peremptory rule. And so the doctrine of necessity brings one to consider the use or threat of jus cogens outside the law of treaties. This is particularly apposite to the prohibition of the use of force because it is the least controversial example of a rule of jus cogens. It is concluded that under extraordinary circumstances necessity may justify a humanitarian intervention or other uses of force.
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Mal’ko, Aleksandr V., and Veronika S. Khizhniak. "Prohibitions in the Social and Legal Regulation: an International Aspect." Journal of Siberian Federal University. Humanities & Social Sciences, December 2019, 2230–40. http://dx.doi.org/10.17516/1997-1370-0532.
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This work is focused on the problems arising in imposing prohibitions in international relations; the authors identify the main legal and social aspects hindering creation of effective mechanism for implementing prohibitions in international relations and enlist possible ways of eliminating the possible problems. The analysis of the international legal norms of institutionalizing prohibitions and practices of their implementation revealed that an effective implementation of prohibitions is often associated with the need to amend national legislation, as well as with the presence of Russia’s own legal norms that make it possible to apply the norms of international law in the state directly, or to apply them jointly with the norms of the national law. The absence of a universal international instrument governing the responsibility of states for breaching legal prohibitions makes it difficult to implement these prohibitions and comply with them, although states may follow the rules of the “Draft Articles on Responsibility of States for Internationally Wrongful Acts” as a document stating moral (political) prescriptions. The main problems cumbering the development of an effective mechanism for implementation of prohibitions are the following: the absence of agreed international and domestic legal mechanisms for implementation of prohibitions; the reluctance of states to bear responsibilities; the attempts to mitigate the prosecution of citizens, especially officials; and failures to take adequate legal measures for resolving the problem. The authors necessitate adoption of documents that could regulate the issues of international legal responsibility, though in a unipolar world it is very problematic and can even aggravate the situation. The mechanism developed under such conditions can reflect the position of only one state and therefore can result in consolidating an undesirable hierarchy of states in international relations. An effective legal mechanism of responsibility for the violation of prohibitions in international relations can arise only in a multipolar world. It is also necessary to abide the basic principles of international law, to strengthen international cooperation and improve the mechanisms of international legal regulation. These efforts also call forth the establishment of a multipolar world
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Téllez Núñez, Andres. "Aproximación multidimensional al régimen de responsabilidad internacional y al principio de no intervención. El problema hermenéutico." ACDI - Anuario Colombiano de Derecho Internacional 13 (February 4, 2020). http://dx.doi.org/10.12804/revistas.urosario.edu.co/acdi/a.7492.
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En el contexto de la relación entre los Draft Articles on Responsibility of States for International Wrongful Acts(DAR) y los criterios de la denominada Responsibility to protect (R2P),este artículo de investigación describe un problema hermenéutico que consiste en la dificultad de determinar el significado no solo de esos textos, sino también de las conductas de los Estados. Para solucionar dicho problema hermenéutico, el artículo utiliza un método multidimensional que evidencia la tensión aparente entre el principio de no intervención y los elementos de la responsabilidad internacional, y que recurre a herramientas de law and economics, algunos elementos de intersección entre la teoría del derecho internacional público y las relaciones internacionales y otros de psicología del poder. El artículo propone como hipótesis de trabajo que, en últimas, la adscripción de significado, que el autor denomina filling, obedecerá a dinámicas políticas y concluye afirmando la coincidencia entre el mundo del derecho y el mundo de la política.
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"The Duty of Third States to Implement and Enforce International Humanitarian Law." Nordic Journal of International Law 66, no. 1 (1997): 55–75. http://dx.doi.org/10.1163/15718109720295111.
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AbstractThe debate surrounding peacekeeping missions and humanitarian intervention has become particularly poignant with the conflagration of violent conflict and incidents of genocide, presenting States with a moral and legal dilemma. While not addressing the issue of humanitarian intervention, this study argues that the international legal order imposes upon States not only a right but a duty to see to it that other States party to conflict abide by their legal and humanitarian obligations as members of the international community. The duty, argues the study, is imposed by several factors. Article~1 common to the Geneva Conventions and additional Protocol I imposes upon signatories the duty to ``respect and ensure respect for the Convention[s] ...'' The universal acceptance of the Conventions as well as the customary law nature and objective character of several of the Conventions' provisions and general principles of international law further make for an erga omnes responsibility, not only a contractual one between States, thus not subject to the principle of reciprocity. The paper shows that this obligation to act to ensure compliance with humanitarian law further arises from the United Nations Charter as well. The study goes on to discuss the scope of the duty to act, arguing that the Draft Articles on State Responsibility and a number of decisions by the International Court of Justice have gone beyond defining a State's right to act and beyond the duty not to assist the commission of violations, the omission of which constitute wrongful acts by States. It is further shown that the aforementioned is an obligation of result; States must continue to take measures to bring parties to a conflict to compliance with international humanitarian commitments until the desired result is achieved. Finally, the study concludes that the lack of enforcement of humanitarian law is a result of States' unwillingness to subject themselves to judicial machinery, which ``while cognizant of the hornets' nests of political entanglements, have the potential to struggle free of them.''
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Dastyari, Azadeh, and Asher Hirsch. "The Ring of Steel: Extraterritorial Migration Controls in Indonesia and Libya and the Complicity of Australia and Italy." Human Rights Law Review, November 15, 2019. http://dx.doi.org/10.1093/hrlr/ngz024.
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Abstract This article provides an analysis of cooperative non-entrée policies in Australia and Italy. Through their funding, training and interception activities, Australia and Italy have aided and assisted Indonesia and Libya, respectively, in the commission of a number of internationally wrongful acts against refugees and migrants. These wrongful acts include refoulement; arbitrary detention; violations of the right to life; cruel, inhuman and degrading treatment or punishment; and violations of the right to leave. These human rights violations benefit Australia and Italy by preventing refugees and migrants from entering Australian and Italian territory. They are extensively reported and widely known. Neither Australia nor Italy can claim ignorance of the circumstances of these acts. In the light of this analysis, it is argued that, under Article 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts, Australia and Italy are therefore responsible for their complicity in human rights violations in Indonesia and Libya, respectively.
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HRABOVYCH, T. A. "ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS (2001): THE FRAMEWORK FOR A CONTEMPORARY LAW OF INTERNATIONAL RESPONSIBILITY." Scientific Journal of Public and Private Law, no. 4 (2020). http://dx.doi.org/10.32844/2618-1258.2020.4.41.
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Stryjkowska, Sylwia. "The International Legal Issue of Attribution of Conduct to a State – The Case Law of the International Courts and Tribunals." Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza 8 (December 15, 2018). http://dx.doi.org/10.14746/ppuam.2018.8.10.
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The article aims to broaden the subject of the attribution of conduct to a State by pre-senting different grounds for attributing State responsibility. It surveys main the prin-ciples of attribution, which were affirmed in international judicial decisions and specifies circumstances which extend beyond the general rule under which States incur responsi-bility only for the conduct of its organs. The provisions of the Articles on the Responsi-bility of States for Internationally Wrongful Acts constitute a primary point of reference of the research and are followed by examples of their practical application.