ACCORDING TO THE 2001 INTERNATIONAL LAW COMMISSION'S ARTICLES ON THE RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS, WHAT ARE THE LEGAL CONSEQUENCES OF BREACHES OF PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW AND WHO CAN INVOKE THEM?
Literature Review
The study of Marjan Ajevski “Serious Breaches, The Draft Articles on State Responsibility And Universal Jurisdiction” contemplates the issue of the responsibility of the states over the violation of the international norms. According to the author, the first attempts to define the framework of the state responsibility were made in 1976, when the distinction between the crimes and delicts was provided. Moreover, the author draws attention to the importance of the Article 40 and 41 of the ILC’s Articles on the responsibility of the states. Based on these provisions, the breach of the international law on behalf of the state takes place in case there is a violation of the obligation having the origin in the peremptory norm as the part of the widely recognized rules of the international law. In addition, the founders of the legal act contemplate the existence of the seriousness in the actions of the state if there is a constant violation and non-fulfillment of the obligations taken within the framework of the international law system. Furthermore, there are particular consequences taking place upon the violation of the peremptory norms. They are defined in the Article 41 of the Article on the responsibility. According to the findings of the author, any state offender should refer to any available legal instruments in order to eliminate the results of the breach of the international rule. Meanwhile, the states are obliged to interpret the actions of the other countries as the subject of the international relations in order to maintain the existence of the legal order. Besides, it is important to note that the above mentioned provisions apply to the serious breaches of the obligations of the states taking origin in the peremptory norms. However, the list of these obligations is not clear so that the existence of the breach of the law should be considered by the International Court of Justice on the case-by-case basis. Consequently, the author emphasizes that for the consideration of the action of the state, the examination of the notion of the peremptory norm from the Article 53 of the Vienna Convention on the Law of the Treaties should be conducted. In general, the peremptory norm should be understood as the rule which is recognized by the majority of the subjects of the international relations, which meaning and other interpretation is not allowed. With that, the Articles should be regarded as not clear and exact one due to the fact that there is no exclusive list of the actions of the state falling within the scope of the violations of the provisions of the Articles, while the mechanisms of the cooperation and their types are not included into the text of the legal act. In this regard, the Articles require the forthcoming amendments or deliberate interpretation regardless of the numerous case law, in order to avoid the ambiguity in the interpretation of the actions of the states. Simultaneously, one of the main provisions of the Articles is the stipulation of the relevant subjects that are vested with the power to invoke the responsibility of the states irrespective of the participation and conduct of the injured country. In this regard, the Article 48 covers the following two groups having the authority to impose the responsibility over the state committed the violation of the provisions of the Articles:
The entire amount of the countries bearing the responsibility to protect the compliance with the erga omnes norms and other principal rules of the international law.
Despite the fact that the Article 48 is not clear enough for the interpretation of the features and power of the states that may invoke the responsibility, it seems clear that all states in the international arena should observe over the activity of the other states in order to avoid the violation of the international rules that may cause the conflict situation between the countries of the particular group covered by one international instrument. With that, the main purpose of the international law as to the observation of the legal order and its further maintenance can be realized successfully upon the joint cooperation of the countries (Ajevski, 2008).
The professor of Lauterpacht Research Centre for International Law, James Crawford, provides the deliberate analysis of the historical evolution of the Articles on Responsibility of the States for Internationally Wrongful Acts. He states that the peremptory norms should be considered from the perspective of the entire practice of the states, relevant case law covering the findings of the judiciaries of the principal court institutions having the right to interpret the international norms of the law. In this regard, the existing international conventions in its provisions stipulate the power of the relevant body which may deal with the cases arising from the violation of the rules of the international law. These court institutions usually involve the International Court of Justice, the arbitration courts or any ad-hoc commissions that are responsible for the resolution of the dispute between the states. Consequently, the author underlines that such actions as the genocide, exposure to the aggressive behavior and conduct, apartheid, refusal in the self-determination are covered by the notion of the breach of the peremptory norms. In this respect, under the reasoning of the International Court of Justice, the actions, posing the threat to the humankind as well as it may lead to the violation of the basic rights and freedoms of the individuals, should be prosecuted on behalf of the states that are vested with the opportunity to invoke the responsibility. Besides, Crawford considers that the invocation of the responsibility should be linked to the extend of the powers and obligations of the states in the international law. Moreover, the concept of the injured state should be taken into account for the proper analysis of the mechanism that will allow to restore the violated rule of the international law. At the same time, there are integral obligations which exist only between limited category of the states, while the duties to protect human rights and freedoms do not fall under the lieu of this category. Although, there is a positive moment in the Articles on the state responsibility, as the country has the freedom of choice in the identification the method of the compensation to the non-injured states for the breach of the international law. Finally, the main idea of the author defined in the study is that every state as the end-use subject of the international relations should be responsible for the personal behavior in relation to the necessity to perform taken obligations, while the injured state has the unlimited power to submit the claim to the other country violating the international law to bear the responsibility concerning the compensation of the damages occurred (Crawford, 2010).
In contrast, the other work of James Crawford on the state responsibility adds value to the understanding of the scope of the state responsibility. The author stands to the idea that the states are the principal subjects that have the international obligations. Meanwhile, the framework of the breach of the international rules should be based on the context of the obligation of the state as the overwhelming amount of the international rules poses the challenge for the states in the understanding the seriousness of the actions. Moreover, the state responsibility represents the stable institution within the international law which comprises such constituent elements as attribution, excuses, legal consequences and the breach of the law itself. The author draws attention that the states should respect the existence of the obligations in accordance with the findings and judgment of the International Court of Justice in the Case concerning the Barcelona Traction, Light and Power Co Ltd. Meanwhile, the crime committed on behalf of the state is dramatically different to the interpretation of the criminal behavior of the individual. Therefore, the Articles on the state responsibility face certain challenges in the implementation and the realization of the idea of the state responsibility. In this regard, it is quite difficult to measure the proper amount of the compensation that should be provided by the state in order to restore the condition prevailing before the violation of the peremptory norms of the international law. Despite the fact that the historical evolution and drafting process of the 2001 Articles on Responsibility of States evidence the intention of the states to include the term «crime» in text of the legal act, the current version does not stipulate this notion. In fact, the founders of the legal instrument did not reach the consensus as to the proper framework which should be covered by the crime committed on behalf of the state. Furthermore, the author highlights the importance before the state offender to continue to perform of the international obligation so that to avoid much more serious consequences. In this respect, Crawford believes that the Articles may be amended with regard to the defining the concept of the assurances and guarantees applicable to the perspective behavior of the states. Afterwards, the attitude of the states towards the role of the Articles in the observation of the behavior of the states in the international arena can be strengthened and improved. Meanwhile, the concept of the damages can be reconsidered due to the globalization spreading within the world as well as new systems of the law are developing from day to day. Furthermore, the penalties and sanctions should be discussed by the states as the current society is aware about the conflicts and nay other violations of the international obligations which are not prosecuted efficiently. This statement means that the seriousness of the penalties should be increased in order the state will be afraid of the further violation of the international obligations that may pose the risks to the safety of the individual. Besides, the rest of the international community should pay attention any action of the state may may undermine the role of the international law in the world. Accordingly, the author conducts the evaluation of the impact of the Articles on the State Responsibility over the conduct of the states. In this regard, it should be said that approximately all states and the international courts, tribunals use these Articles as the important source interpreting the state responsibility. Moreover, this source of the law is regarded as the evident reflection of the international customary law. Besides, the sphere of the application of the Articles on the Responsibility is quite limited so that the states should discuss the perspective amendment to the text of the convention going beyond the scope of the substantial obligations of the states. Finally, the impact of the Articles on the further conduct of the states may be changed by the international court and tribunals that provide the states with the understanding of the norms and rules, while nowadays the countries should respect every provision of the international law that creates the binding obligations over the states (Crawford, 2006).
Besides, James Crawford jointly with the colleagues in the paper “The ILC's Articles on Responsibility of States For Internationally Wrongful Acts: Completion of the Second Reading”, analyzes the concepts of the injury and damage in relation to the breach of the law by the states. To some extent this paper is considered to loose the relevance for the contemporary society due to the fact that the historical path to the drafting of the Articles has no importance today. Nowadays the international community is seeking for the measures that may improve attitude of the states to the compliance with the provisions of the articles, while the legal act in fact should take the significant role in the fulfillment of the obligations and the subsequent imposition of the sanctions over the countries for the wrongful actions. However, according to the authors, the Articles contain the strong part on the resolution of the disputes between the states. Moreover, there is a clear mechanism for the consideration of the countermeasures which should be imposed over the state by the injured state of the group of the countries. In addition, the author draws attention to the fact that the international community should decide about the form of the Articles, whether it should exist as the international convention having the binding force or be implemented in the national legislation of the country with the ratification instruments. This issue is important as the country should be obliged to realize the decision of the relevant court body which has to consider the violation of the international rules. Moreover, the mechanisms of the judicial settlement of the cases between the states should be reconsidered as there is no clear procedure for the proper submission of the claims on behalf of the injured party. At the same time, the settlement procedure takes a lot of time, while sometimes the violation of the international norms requires the immediate reaction from the international community in order to prevent the spread of the disastrous consequences in relation to the safety of the individual. With that, the authors provide the comparison between the international convention and the recommendations of the General Assembly. In case the Articles have the form of the international treaty, this decision will confirm the durability of the conventions and its binding force. Although, the inclusion of the articles on the responsibility in the text of the recommendations adopted by the General Assembly will leave the room for several amendments and inclusions, while the behavior of the states will have the flexible nature. In this regard, the authors states that the International Court of Justice regularly rely on the text of the articles in addition to the same conduct of the international tribunals which treat the ILC’ Articles as the important source of the law. This approach to the articles on the state responsibility forces the countries to consider as to whether the law development process requires the inclusion of the articles in the proper legal form as the international treaty requiring the subsequent ratification. Furthermore, the process of the adoption of the Articles and its drafting period shows that the majority of the states could not reach the consensus over the extension of the several provisions, in particular, Article 19, 53, etc. In this regard, it is impossible to state that the entire international community respects the role of the Articles in the governance of the behavior of the states, while some provisions of the text are regarded as empty for certain states. Finally, the articles in general are considered to benefit the codification of the international rules and facilitate the process of the development of the numerous branches of the law within the international law system. Furthermore, the long-lasting period preceding the adoption of the Articles presents the evidence on the commitment of the Commission to work over the improvement of the international law system where the states exercise the major portion of the activity in relation to the improvement of the welfare of the individual (Crawford, Peel and Olleson, 2001).
Concerning the limits of the state responsibility, Silvia Borelli reviews the concept of activity of the states under the notion of the state responsibility and its relevance to the international law. In this regard, the author lists the circumstances based on which the country should be regarded liable for the violation of the particular rule of the international law. At the same time, there are several justifications which may be used by the state for the interpretation of the behavior leading to breach of the peremptory norms. Through the entire study completed by the author, she highlights the complex nature of the international rule. This means the the customary international law on the state responsibility should be regarded as the completed volume of the regular rules and norms that are used for the interpretation and functioning of the lex specialis principle. According to this, the majority of the states agree with the position that the quite diversified rules should be invoked by the states based on the specific nature of the international obligations. Moreover, certain rules of the international law should be in force between the states in order the invocation can be used. With that, the author believes that it is impossible to cover and note all legal obligations that any state may bear due to the extended framework of the international law. At the same time, the articles on the state responsibility are considered to be unfinished by the International Law Commission due to the several omissions in the text of the recommendations. In fact, as it has been mentioned above, there is no obvious mechanism that should prevent the similar offensive behavior of the state in future. Meanwhile, the developers of the articles have not agreed about the division of the sanctions, while there is a list of the justifications that may explain the behavior of the states. In this regard, there is no proper understanding of the limits of the justification that may be invoked by the states offenders what may undermine the peaceful situation in the world. Moreover, the absence of the strict punishment for the violation of the international rules forms the basis for the existence of the disrespectful attitude of the countries to the international rules in general as well as to the provisions of the ILC’s articles on the responsibility of the states (Borelli, 2012).
According to Paparinskis, the role of the ILC’ Articles is significant on the consideration of the responsibility of the states in the international investment law. Through the paper, the author considers the examination of the invocation of the norms on the responsibility of the states by the international organizations and any other third parties that may influence the realization of the international norms. In this regard, the author draws attention that international investment law is relevant for the consideration of the value of the articles due to the fact that the state could be responsible before the other state by the property and other financial instruments that are directly linked to the economic performance of the country. With that, the obligation to comply with the international rules may take the leading role as the country will have no desire to respond before the international community in form of loosing the significant portion of the revenue flow to the budget of the country. Besides, there are some evident technical problems in the consideration of the level of the responsibility of the state. It means that in some cases the injured state can not provide the evidence to the international community on the violation of the international rules by the other state due to the lack of the linkage between the actions of the country and the appropriate consequences. Moreover, the technological development means that the country may act in the hidden manner by undermining the welfare of the country, while the actions of the first are quite difficult to ascertain and prosecute. Therefore, the articles on the responsibility of the state are important for the establishment of the declarative framework of the activity and behavior of the state, while it still requires the inclusion of the innovative norms and principles that will increase the level of the responsibility by the states (Paparinskis, 2013).
Finally, some authors interpret the relation of the violation of the international law to the power of the authority to define the act of the breach. In this regard, the drafting history and numerous commentaries show that there is no consensus between the parties as to whether the supranational authority should be launched for the proper observation of the international rule compliance regardless of the role of the United Nations (Caron, n.d.). However, some experts believe that the provisions of the ILC's Articles should not contain any link to the notion of the crime. The reasoning of the author is confirmed by the position that any activity of the country can be based on the appropriate justification while the leadership of the state acts in order to protect the population (Gaja, 1999). At the same time, Rosenstock believes that it is highly important to provide the distinction in the clear manner between the responsibility of the individual under the principles of the international law and the obligations of the countries (Rosenstock, 2002).
Bibliography
Ajevski, M. (2008). Serious Breaches, The Draft Articles On State Responsibility And Universal Jurisdiction. European Journal of Legal Studies, [online] 2(1), pp.12-48. Available at: http://www.ejls.eu/4/51UK.htm [Accessed 7 Mar. 2016].
Borelli, S. (2012). State Responsibility. Oxford Bibliographies Online s.
Caron, D. (n.d.). The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority. SSRN Electronic Journal.
Crawford, J. (2006). State Responsibility. Max Planck Encyclopedia of Public International Law. [online] Available at: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1093 [Accessed 7 Mar. 2016].
Crawford, J. (2010). Articles on Responsibility of States for Internationally Wrongful Acts 2001. Lauterpacht Research Centre for International Law.
Crawford, J., Peel, J. and Olleson, S. (2001). The ILC's Articles on Responsibility of States For Internationally Wrongful Acts: Completion of the Second Reading. EJIL, 12(5), pp.963-991.
Gaja, G. (1999). Should all references to international crimes disappear from the ILC Draft Articles on State Responsibility?. European Journal of International Law, 10(2), pp.365-370.
Paparinskis, M. (2013). Investment Treaty Arbitration and the (New) Law of State Responsibility. The European Journal of International Law, [online] 24(2). Available at: http://ejil.oxfordjournals.org/content/24/2/617.full.pdf [Accessed 7 Mar. 2016].
Rosenstock, R. (2002). The ILC and State Responsibility. The American Journal of International Law, 96(4), p.792.
