<<
>>

§ 2. Formation and development of institute of responsibility in international law

One of basic principles in modern international law is the principle of a sovereign equality of the states. Being guided by the given principle, the states participate in mutual relations and in multilateral international dialogue, possessing the sovereignty as the politiko-legal property expressing leadership of each of them in the country and its independence in foreign affairs? During too time the specified principle is not a sign of absence of interaction and interdependence of the states as any state cannot exist and develop in isolation from all world community. The given principle allows the state to carry out any actions which are not contradicting established principles and norms of international law. If the state does not carry out or breaks the obligations following from norms of international law, quite naturally there is a question on its responsibility before the separate states or the world community as a whole.

International legal responsibility — one of the oldest international law institutions, developed on the basis of usually-rules of law. But that institute — classical international law — is distinct from the institute generated in the modern world [40 [41]. In the past responsibility was mainly reduced to a state duty to indemnify a loss caused to the person or property of foreigners.

Application of norms of international legal responsibility leads to occurrence of new international legal relations which generates, on the one hand, a state-offender duty to cease wrongful acts, to restore the broken right of the suffered state, to indemnify the caused loss or to undergo to sanctions, and on the other hand — the right of the affected party to demand from the state-offender of performance of these duties and to receive corresponding compensation and satisfaction ’.

In the recent past the responsibility institute, along with custom, included also articles in separate contracts, but also, attempts to codify responsibility general provisions in international law were undertaken.

Process of codification of norms of responsibility has passed in modern international law a long hard way and now still nezavershen, first of all, it is connected with activity of the International Law Commission of the United Nations (further — the Commission). At the 1st session spent to 1949, the Commission has defined the list from fourteen questions, norms concerning to codification. Here for the first time the question on responsibility in international law has been included.

The commission, being engaged in preparation of the project of articles about responsibility of the state, in the report on work of its twenty fifth session (on May, 7th - on July, 13th, 1973), has come to conclusion about necessity to concentrate the efforts to research of norms which regulate responsibility and to spend thus accurate differentiation between this problem and a problem which consists in an establishment of the "primary" norms, duties assigning to the state and able to entail responsibility. The maintenance of obligations which are fixed in "primary" norms, should be taken into consideration at definition of the maintenance and an offence consequence.

In December, 1953 the General Assembly of the United Nations has accepted the Resolution 799 (VIII) in which it was said, that «for maintenance and development of peace relations between the states it is desirable to codify principles of international law by which responsibility of the states» is defined.

In the Commission resolution it was offered «to start, as soon as she will consider it expedient, to codification of principles of international law by which responsibility of the states» is defined.

In 1955 taking into account recommendations of the given Resolution of General Assembly the Commission has appointed the Special lecturer on this question. F.V.Garsija Amador became them. With 1956 on 1961 it has developed and has presented the Commissions of 6 reports of responsibility of the states. But during the specified period the Commission basically dealt with other problems, and only from time to time, in particular in 1956, 1957, 1959 and 1960, spent the general exchange of opinions on the given question. So, in 1956 at 8th session the Commission has considered the report and, not making of any decision on it, has asked to continue the lecturer work taking into account the opinions stated by members of the Commission. In 1957 at 9th session the Commission too has not accepted concrete decisions, having limited to the general consideration of second report Garsija Amadora. In 1959 On regular session of the Commission the questions connected with responsibility of the states, were discussed very short as time considerable quantity was required for discussion of remarks under the preliminary report made representatives of faculty of law of the Harward university, on the work spent by this faculty on the given question. At 12th session which have taken place in 1960, messages of the observer of the Interamerican legal committee and the representative of faculty of law of the Harward university have been heard. The given messages mentioned problems of responsibility of the states. Same year, in the Sixth committee of General Assembly the question on codification of norms on responsibility of the states has been brought up.

Having started working out of the questions, concerning the international responsibility, the Commission has faced a number of problems. One of them consisted in how to spend codification: whether to begin it with the body of rules about responsibility of the states as general and independent theme, or from consideration of some certain questions of international law, for example positions of foreigners, trying simultaneously within the limits of the given program to codify norms because of which infringement there is an international responsibility, and norms about responsibility in the narrow sense of the word.

In January, 1963 at the session the Subcommittee of responsibility of the states, created in 1962 the International Law Commission and consisting of 10 members, has unanimously decided to recommend the Commissions that it with a view of codification of considered norms has given a priority to a problem of definition of general provisions about the international responsibility of the states. By the special lecturer on this theme professor Roberto Ago has been appointed.

In the resolution of General Assembly 2272 (XXII) from December, I, 1967 the International Law Commission recommendation to accelerate studying of a question on responsibility of the states has been stated. At XXIII session by General Assembly the resolution 2400 (XXIII) from December, 11th, 1968, in which International Law Commission has been approved

It was recommended to use reasonable efforts to begin at the following session work to the point about responsibility of the states, taking into consideration opinions and reasons in which it was specified in resolutions 1765 (XVII) and 1902 (XVIII) General Assemblies.

R.Ago's first report has made in 1969 at 21st session of the Commission. The report represented a historical sketch done before work on codification of norms in the field of the international responsibility of the states; for example, the codification which is carried out in a private order under the aegis of the regional organisations (the Interamerican, afro-Asian countries), Leagues of the Nations, the United Nations. In the appendix to the report the most important official and informal documents, such as were resulted: the Project of articles about the "diplomatic protection", prepared by the American international law institution in 1925, the project of the Code of norms of the international law, accepted Kokusajho Gakkvaj — the Japanese association of international law — in 1926, the project of the Convention on responsibility of the states for the international offences, prepared by professor Rotom in 1932, the Resolution «About international

Responsibility of the states », accepted at 7th Pan-American conference (Montevideo 1933), concerning responsibility of the states etc. Besides it the Commission has accepted the List of documents of the International Law Commission a number of basic decisions, in - the first to start first of all studying of a question on responsibility of the states for the international offences; secondly, to investigate a question on the responsibility following from some lawful acts, such as activity in a space and nuclear energy use; thirdly, to concentrate research on definition of the principles regulating responsibility of the states; fourthly, to study a question on the responsibility consisting from podvoprosov, first of which the second concerns a question on an origin of the international responsibility, and - a question on structure of this responsibility [42].

In 1970 at 22nd session of the Commission of R.Ago has presented the second report «Origin of the international responsibility» which has included articles about the international offence as a responsibility source, and also about conditions of presence of the international offence of ability to make the international offences. R.Ago has reminded, that in the end of discussion of its first report, the Commission has decided to limit studying of a question of international legal responsibility by questions of responsibility of the state so that for clearness responsibility of other international subjects to study после*. According to the general concept of the international offence which covers all complex of the legal relations, able to arise at fulfilment by any state of the international offence, the Commission has developed a method of research of the given problematics. However a number of members including the special lecturer, have supported that this aspect of a problem was studied separately, or after end of research of a question on responsibility for offences, or in parallel with it.

In 1971 the third report «the International offence of the state as has been presented. A source of the international responsibility» in which following questions were considered: a principle according to which any illegal international act of the state involves its international responsibility; conditions of presence of illegal act; the subjects, capable to make the given act; inapplicability of the domestic law at qualification of act as the illegal; and also the chapter devoted to "state action» according to international law. In the chapter containing the general principles, the lecturer pays attention to those international offences which do serious harm not only to one state, but also are dangerous to all international community as a whole.

Also R.Ago has noticed, that «the international responsibility» it is necessary to understand as the term «all forms of legal relations which can arise in international law in connection with an offence, the perfect state - it is a question or of the relations limited with relations between the state, made wrongful act, and the sustained state, or extending as well on other international subjects, or about relations which are reduced to circumstance of the guilty state to restore the right of the sustained state or other subjects to apply in relation to the guilty state the sanction supposed by international law» [43]. Research of the given questions has been continued and finished in the fourth report of the Special lecturer presented to 1972 at 24th session of the Commission. In particular, in the report the challenge of assignment to the state of action of its bodies in cases ultra vires, and also присвоешія to the state as to the international subject of act or omission of the separate persons acting in the quality or on behalf of national - emancipating movements was considered especially.

The fifth and sixth reports discussed in 1976 and 1977 also have been devoted they to "infringements of the international obligation», and contained following questions: the validity of the international obligation; sources of the broken international obligation; the maintenance of the broken international obligation; infringements of the international obligation according to which from the state particularly certain behaviour is required; infringement of the international obligation according to which from the state result execution is required; exhaustion of internal protection frames.

The seventh report made in 1978, has finished work on consideration of the head about infringement of the international obligation. In the given report the attention to the questions concerning infringement of the international obligations on prevention of event, time of infringement of the international obligation, participation of one state in illegal act of other state was paid. In eighth report Ago the circumstances excluding illegality have been stated.

In 1975 27 session of the Commission on which to consideration the project of articles on a theme «Responsibility of the states» has been approved has taken place. The project structure looked as follows. A part the first - an origin of the international responsibility of the state, definition of on what basis of data and under what circumstances it is possible to establish concerning any state presence of the international offence as a source of the international responsibility. In this part of the project the bases and conditions according to which acts of the states admit illegal from the point of view of international law are considered. Also it is spoken about necessity to develop the questions appearing, in connection with possibility of assignment of any certain behaviour (certain act or omission) to the state — to the international subject; the general basic principles; Conditions at which the behaviour, "appropriated" to the state, is regarded as infringement of the international obligations, i.e. as the international illegal. Including have been considered: questions of participation of the several states in one illegal situation, the conditions excluding illegal character of behaviour of the state, softening or aggravating such behaviour.

Part the second - the maintenance, forms and volume of the international responsibility. It is necessary to define conditions leaders to occurrence of obligations on compensation of the put damage by the state which has made illegal act and when the given state admits object of application of sanctions. The aspects connected with distinctions between offences of the state to which the direct damage has been caused, with the state-originator and legal relations of the last in the given occasion with other states or the international community as a whole, also have been investigated. Necessary it is represented to take up the questions, concerning concrete kinds of responsibility, criteria of definition of a reparation, types and forms of sanctions.

In 1980 at 32nd session the Commission in a preliminary order has accepted the Part the first the project of Articles «About an origin of the international responsibility». The given part consisted of 5 heads (the general principles; «state act» according to international law; infringement of the international obligation; participation of one state in illegal act of other state; the circumstances excluding illegality) and 35 articles.

At 31st session in 1979 the special lecturer on this theme had been appointed Willem Rifagen. By it it has been made seven reports during the period with 1980 for 1986 which have been devoted the maintenance, to forms and volume of the international responsibility (ч.2 and 3 projects of Articles about responsibility of the states).

In 1987 the Special lecturer became Gaetano Arandzhio - Ruis which with 1988 on 1996 has made eight reports.

And, at last, having collected together all turned out material, at 48th session on July, 12th, 1996 the Commission has approved the text of the project of Articles about responsibility of the states in the first reading.

It is necessary to pay attention that the named project of Articles concerns responsibility only the states and only for the international offences. Important and that the specified project establishes the norms regulating responsibility, does not mention the norms assigning to the states of the obligation which infringement involves responsibility. The object in view to codify the norms regulating responsibility of the states not for concrete categories of acts, and responsibility of the states for was the given project illegal act as a whole is international-.

Proceeding, from this it is possible to tell, that the given project of Articles concerning general provisions of the international responsibility of the states for international-illegal act, regulate all set of the new legal relations, able to result mezhdunarodnoyoprotivopravnogo from state act, irrespective of concrete sphere which the norm broken by such act concerns.

In December, 1996 the Secretary general of the United Nations according to the resolution 51/160 General Assemblies has transferred to the governments of the states of the international community the request for representation of the opinions and remarks under the given project of Articles about responsibility.

On July, 3rd, 1997 the Commission appoints new Special lecturer Dzh. Crawford who in 1998 — has given 2000 three reports, the governments prepared taking into account remarks.

So, the present project consists of four basic parts: the Part the first — international-illegal act of the state; the Part the second — the maintenance of international legal responsibility; the Part the third — implementatsija the international responsibility of the state; the Part the fourth — general provisions.

Already in item 1 the main principle of the project of Articles about the responsibility, saying is considered: « Each international-illegal act of the state involves the international responsibility of this state ». The formulation of article does not discriminate danger degree. The basic idea of first article of the project is finding of fact at which any state which has made action, qualified as the international offence, bears the international responsibility. In quality made the international-illegal act involving responsibility, there can be any state which acts or omissions are appropriated to the state and represent infringement of the international legal obligation (item 2). Given article is directed on the prevention of possibility of evasion of the state from execution of the international responsibility, referring to norms according to which its behaviour should be considered as an offence, are not applicable to it. However to international law any subjective circumstances which could justify a similar sort of the reference ’ are not known. The given aspect has found the reflexion in the Comment to this article. In last article of the head (item 3) is said that at qualification of act as international-illegal the international law is applied only and positions in the internal law on the given question are not considered.

In item 4 such elements have been defined infringement by the state of the international obligation is international - illegal act, as behaviour the states (act or omission) which is appropriated to the state on the basis of international law, and. In the international law theory obshchepriznanno, that as a part of the international offence objective and subjective elements discriminate. Among the conditions necessary for a substantiation of presence of the international offence, in item 3 two following elements are named: «) an element usually qualified by a subjective element, representing behaviour which can be appropriated not to the separate persons or a group of persons, whose behaviour it actually was, and to the state as to the international subject; an element, usually

1 In the same place. With. 40.

Qualified by an objective element and providing, that the state to which the given behaviour is appropriated, as a result of the last has broken the international obligation taken by it up ». [44]

Even at discussion of the third report of R.Ago members of the commission have expressed the consent to that an objective element of an offence is breach of law, and subjective — the unlawful conduct of the state expressed in operation or inactivity. In the theory of international law cases of approach of the international responsibility as a result of state inactivity are more numerous, than cases of international legal responsibility which is based on state wrongful act.

Rather a vital issue considered by the Commission, the question on is, whether suffices presence of subjective and objective elements of an offence to establish infringement by the state of the international obligation. From this point of view the Commission had been considered a question on necessity of introduction of the third condition — approach as a result of behaviour of the state of certain external event. However the Commission has come to conclusion, that until as a result of behaviour of the state there was no infringement of its international obligation it is available there is no international offence, in other words, approach of external event can be one of conditions of infringement of the international obligation, but not a new element which is necessary in addition to this infringement so that wrongful act [45] was available. Also the Commission has paid attention to a question of an establishment of presence in each concrete case of the third element — a damage which as a result of certain behaviour of the state has been put the sustained international subject.

The chapter II opens concept «state act» from the point of view of international law, and it begins with articles, saying that state act its behaviour legislative admits, executive, the courts of justice having the corresponding status under the internal law, irrespective of the international or internal character of functions of such bodies (item 4-5). Besides it as state act are considered:

• behaviour of bodies of administrative-territorial divisions of the state, the bodies which are not belonging to official structure of the state or bodies specified above, but according to the domestic law authorised to carry out certain prerogatives of the government; the similar behaviour in that case when the mentioned bodies have exceeded the powers established for them by the domestic law, or was broken by the instructions, concerning their activity;

• behaviour of the person or a group of persons, actually operating on behalf of the state or actually carrying out certain prerogatives of the government;

• behaviour of body of other state or the international organisation, carrying out certain prerogatives of the government of the state in which territory is.

The behaviour of bodies of the state or the international organisation, operating in territory of other state, is not considered act of this other state.

The behaviour of bodies of the insurgent movement which have affirmed in territory of the given state (item 10) falls under the specified rule also. In a case when insurgent movement becomes the new government of the state, or as a result of its activity there is a new state regarding territory existing before the state, its behaviour should be considered as act of this new state (item 10-11).

If a regulation subject gl. II is such element of international-illegal act, as behaviour of the state and (or) its bodies, gl. III it is devoted infringement of the international legal obligation. Items 12 and 13 establish, that infringement of the international obligation is the act of the state mismatching demanded from it by the international obligation behaviour, and irrespective of the obligation nature (usual or contractual). The Same nature of the international obligation does not influence the international responsibility of the state following from its illegal act.

The basic condition of the validity of the international obligation for the state is position according to which state act breaks the international obligation only in the event that «it has been made during the moment when this obligation was in force concerning the given state».

The international crime admits mezhdunarodnoyoprotivopravnoe act of the state which follows from infringement of the international obligation by it and which is regarded by all international community as a crime. The international obligations representing especially great value for maintenance of the vital interests of all international community in this case mean. According to item 19 them concern: the obligation forbidding aggression; the obligation forbidding an establishment or preservation by force of colonial domination; the obligation forbidding slavery, a genocide, aparteid; the obligation forbidding mass pollution of atmosphere and the seas. And accordingly infringement of the listed obligations is considered the international crime. Any other international-illegal act is the international offence.

The chapter IV mentions a problem of responsibility of one state in connection with act of other state. Article 16 provides, that in case of rendering assistance or assistance to one state to another with a view of fulfilment of international-illegal act by the last, actions of the first state are regarded as international-illegal act if the given state does it meaningly and also if act is international-illegal in case of its fulfilment by the given state.

Article 17 is devoted responsibility of the state for management and control realisation in fulfilment of international-illegal act. According to given article the state which supervises over other state, bears responsibility for mezhdunarodnoyoprotivopravnoe act of this state if the given state does it, knowing about circumstances of international-illegal act and if act is international-illegal in case of its fulfilment by the given state.

In the chapter of V part of the first the circumstances excluding illegality are considered. First such circumstance is "consent" (item 20). So, if one state has given in the lawful image the consent to other state on fulfilment of certain act mismatching the obligation concerning itself illegality of similar act is excluded. But the given rule is not accepted, if the obligation follows from the international law mandatory provision. Illegality of act is excluded also, if such act represents a lawful, reciprocal measure of self-defence (within the limits of international law) concerning other state which have made international-illegal act (item 21); if perfect illegal act is a counter-measure accepted against the state-aggressor (item 22); if international-illegal act is caused by force-majeur, i.e. Display of force majeure or the unforeseen event, not giving in to the control of the state (item 23); in a situation of disaster (item 24); in a condition of necessity (item 25).

And to degree of the international responsibility the part the second the project of Articles is devoted the maintenance, forms. In the given part legal consequences of internationally wrongful acts of the states (item 28) are established. However, if legal consequences are provided by other international certificates, directly concerning the certain act, the given positions will not be applied. All those consequences of international-illegal acts which are absent in this Part, are regulated by norms of usual international law.

In the chapter of II Part of the second the rights of the sustained state (as it understands any state, it was right which is broken by international-illegal act of other state) and obligations of the states which have made international-illegal act are defined.

According to the project of Articles the sustained state has the right to receive from the state which have made international-illegal act: the restitution (item 35), indemnification (item 36), a satisfaction (item 37).

The sustained state has the right also to reception of assurances and guarantees of bar of claim by lapse of time of illegal acts concerning itself.

Besides, sustained state can not observe the obligations, concerning the state which has made concerning the first international-illegal act until the last will not execute listed above obligations. These are so-called counter-measures to which the chapter of II part of the third project is devoted. Threat of force or its application can be considered as nanosecond counter-measures; the political or economic compulsion menacing to territorial integrity or independence of the state which have made international-illegal act; infringement of inviolability diplomatic or consular agents, archives, documents; infringement of fundamental laws of the person; infringement of mandatory provisions of the general international law.

The chapter of III part of the second considers gross infringements of the obligations following from mandatory provisions of the general international law.

The part of the third project of Articles speaks about implementatsii to the international responsibility of the state. The chapter I is devoted a calling question to responsibility by the sustained state (item 42-48).

Part the fourth contains general provisions in which it is said, that applied norms of international law continue to define questions of responsibility of the state for international-illegal acts in that measure in what they are not regulated by given articles.

Such is the general structure of the project of Articles about the responsibility, accepted on December, 12th, 2001 the Resolution of 56th session of General Assembly of the United Nations under reports of the Sixth committee.

Except a question of responsibility of the states the Commission is engaged in working out of norms of the international responsibility of the international organisations. So, in 2002 the Commission had been approved the report presented by working group on responsibility of the international organisations. But as the international organisations rather steels actively act recently in the international relations, the problem of their responsibility as international subjects is only at a working out stage. The report has planned a direction for the future work of the International Law Commission.

Process of codification of norms about responsibility is not finished, it proceeds. Agreements on some basic questions are not reached yet. However, in our opinion, this process, activity of the states and their interest in its functioning show, that the international community realises all necessity and importance of the done work. After all the main appointment of institute of responsibility is maintenance of efficiency of action of norms of international law.

<< | >>
A source: The protyre Elena Anatolevna. International legal responsibility of the states. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2006

More on topic § 2. Formation and development of institute of responsibility in international law:

  1. Formation of institute of responsibility in the international air law
  2. Chapter 3. PROGRESSIVE DEVELOPMENT And CODIFICATION of INSTITUTE of RESPONSIBILITY In the INTERNATIONAL AIR LAW
  3. § 3. The first period of formation of institute of responsibility for fulfilment of encroachments on departure of the international criminal justice: 18661944
  4. responsibility Institute in modern international law
  5. CHAPTER 1. FORMATION OF INSTITUTE OF RESPONSIBILITY FOR FULFILLMENT OF ENCROACHMENTS AGAINST DEPARTURE OF THE INTERNATIONAL CRIMINAL JUSTICE
  6. § 5. The third period of history of formation of institute of responsibility for fulfilment of encroachments on departure of the international criminal justice: 1993-1998
  7. § 4. The second period of history of formation of institute of responsibility for fulfilment of encroachments on departure of the international criminal justice: 1945-1949
  8. § 6. The fourth period of formation of institute of responsibility for fulfilment of encroachments on departure of the international criminal justice: since 1998 on present time
  9. § 3. Formation and development of institute of gamblings and a bet in the domestic law and order.
  10. § 1.1. Formation and development of the contract of delivery as civil law institute
  11. formation and development of institute of an error and its theoretical substantiation in the romano-German criminal law
  12. Dementyev Andrey Andreevich. RESPONSIBILITY INSTITUTE In the INTERNATIONAL AIR LAW. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -, 2016 2016
  13. the Head І. Institute of international legal responsibility in system of the international relations
  14. the Chapter I. Formation and development of the international private law in Turkish Republic
  15. § 1. Formation n development of norms of international law about lawful participants of confrontations: istoriko-legal aspect
  16. § 1. Formation and development of the international humanitarian law about the forbidden methods and weapons of war in XIX - the beginning of XX centuries
  17. § 1. Rather-legal analysis of history of occurrence and institute formation nezakljuchyonnosti the civil-law contract in private law
  18. absolute responsibility of the states and the international organisations in international law
  19. responsibility of the international intergovernmental organisations in international law
  20. 3.1. Tendencies of development of institute of a special disciplinary responsibility at the present stage