Public International Law 1 Dersi 6. Ünite Sorularla Öğrenelim

Define the term "state responsibility".

Intrusion of the rights of a legal person by another person or the failure of a person to observe the obligations imposed by law creates liability in various forms under any legal system. International law also imposes such liability on its subjects, principally on states. This liability is known as state responsibility.

Briefly discuss what the responsibility of
individuals may be under international law

Since the end of the Second World War, international responsibility of individuals in the criminal field has witnessed remarkable developments. The Nuremberg and Tokyo trials, the establishment of the International Criminal Tribunals for Yugoslavia (1993) and Rwanda (1994), followed by the establishment of International Criminal Court (2002) have established the responsibility of individuals for their criminal acts. However, responsibility of individuals is not limited to criminal responsibility; and an individual’s civil responsibility cannot be ruled out. However, where an individual has committed wrongful acts as a state official, apart from his personal responsibility, the state will also be internationally responsible for its failure to stop those acts. The individual’s wrongful acts may be attributed to the state. So far, however, there has been practically no development on civil responsibility of individuals for breaches of international law.

Define "diplomatic protection".

It is the procedure employed by the State of nationality of the injured person to secure protection of that person, and to obtain reparation for the internationally wrongful act inflicted. Such protection extends to both natural and legal persons.

What does jurisdiction ratione temporis refer to?

It refers to the jurisdiction of a court of law over a proposed action in relation to the passage of time.

Explain the relevance of ‘fault’ for deciding the breach of an international obligation by a state?

The relevance of fault in deciding the breach of an international obligation by a state is a debatable issue. According to the supporters of ‘objective responsibility’ doctrine, there should be a casual connection between the act and the breach by the state or its organs. The state is responsible for the acts of its officials or organs, which may devolve upon it despite the absence of any fault on its part. To make the state responsible for acts committed by its officials or organs outside their competence, it is necessary to establish that they have acted as authorized officials or organs. There is no clear rule that responsibility is always based on fault or it is independent of it. However, where responsibility is essentially based on acts or omission such as in the Corfu Channel case, fault becomes a vital consideration. If the act is carried out deliberately, consideration of fault has an insignificant role. Hence, everything depends on the context and the interpretation of the obligation breached. As clarified by the Draft Articles, international law does not require fault as a pre-requisite before an act or omission has been characterized as an international wrong. Nevertheless, the case law points to the conclusion that fault is a necessary condition for responsibility.

What are the six circumstances precluding wrongfulness?

• Consent (Art. 20),

• Self-defense (Art. 21),

• Countermeasures (Art. 22),

• Force majeure (Art. 23),

• Distress (Art. 24),

• Necessity (Art. 25).

What can be defined as an alien in terms of law?

A person who, under the law of a particular
state, is not a citizen of that state.

What are the two principal appraoches to the treatment of aliens?

1- international minimum standard of treatment which must be accorded to aliens by all states, irrespective of how they treat their own nationals; and

2- national treatment, that is, treatment equal to that given by the concerned state to its own nationals must be accorded to aliens.

Discuss the core legal consequences of an internationally wrongful act for the responsible state.

The core legal consequences for the commission of an internationally wrongful act are twofold:

1- to cease the wrongful conduct and

2- to make full reparation for the injury caused by the internationally wrongful act.

They are aimed at the restoration of the legal relationship that has been threatened or impaired by the breach. The obligation continues to bind the responsible state. The state therefore remains obliged to perform the obligation in question. Where the internationally wrongful act constitutes a serious breach of an obligation arising under a peremptory norm of general international law, the breach may entail further consequences both for the responsible state and for other states. All states in such cases have obligations to cooperate to bring the breach to an end, not to recognize as lawful the situation created by the breach, and not to render aid or assistance to the responsible state in maintaining the situation so created.

Define diplomatic protection.

Diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.

What are the two most common ways of attaining nationality?

• by descent from parents (jus sanguinis),

• by birth in the territory of the state (jus soli).

According to Article 14 of the Draft Articles on Diplomatic Protection, what does the term local remedies  mean?

According to Article 14 of the Draft Articles on Diplomatic Protection, local remedies means “legal remedies which are open to an injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury.”

Discuss the requirements for the admissibility of a claim based on diplomatic protection.

Admissibility of a claim based on ‘diplomatic protection’ requires compliance with the rules concerning the nationality of claims, and the exhaustion of local remedies available under the law of the delinquent State by the victim. When an injury is suffered by its national, the state of nationality of the victim has the right to bring a claim before the court. The responsibility of a state may not be invoked if the claim is not brought in accordance with any applicable rule related to the nationality of claims. By resorting to diplomatic action or international judicial proceedings on behalf of its national, a state in reality is asserting its own right to ensure respect for the rules of international law. It is an established rule of international law that before diplomatic protection is afforded or before recourse may be made to international arbitral or judicial processes, local remedies must be exhausted. The obligation to exhaust local remedies relates only to legal remedies and would exclude remedies that are discretionary. Local remedies must be exhausted to the fullest extent, including the appeal procedure provided in local law. However, only effective remedies which could affect the final outcome of the case need be exhausted.

Summerize the scope of international responsibility of a state.

Under customary international law, a state is responsible for its internationally wrongful acts. The rule has been upheld in many cases decided by the World Court. State practice, however, does not make it clear that whether the state responsibility is absolute or based on fault. Historically, states have been the primary subjects of international law; responsibility lays with them for the compliance with international obligations. State responsibility extends to state organs as well.

Specify the elements of state responsibility.

The international responsibility of a state results from an omission or commission of an internationally wrongful act. For state responsibility, an internationally wrongful act of a state presupposes the presence of two elements. The conduct arising from an action or omission

(a) must be attributable to the state under international law and

(b) constitutes a breach of an international obligation of the state.

Briefly mention the defenses for breaches of international law. 

International law recognizes certain defenses or circumstances justifying breaches of its international obligations. These defenses/grounds preclude the responsibility of a state for its wrongful conduct. The Draft Articles on State responsibility principally set out six circumstances/defenses. They are as follows: Consent, Self-defense, Countermeasures, Force majeure, Distress, Necessity.

Briefly discuss the consequences of internationally wrongful acts.

The legal consequences for an internationally wrongful act are twofold:

1- to cease the wrongful conduct and

2- to make full reparation for the injury caused by the internationally wrongful act.

Briefly discuss the treatment of aliens.

The treatment of aliens has been a controversial subject under international law. There are two principal approaches:

1- “international minimum standard” of treatment which must be accorded to aliens by all states, irrespective of how they treat their own nationals and

2- “national treatment”, that is, the treatment equal to that given by the concerned state to its own nationals should also be accorded to aliens.

The first approach is backed by developed nations; however, developing countries favor the second approach. Regardless of these approaches, international law does not control the treatment of aliens by states. However, if an alien is ill-treated contrary to the law of state responsibility, this will be treated as the injury to his national state.

How are nationalities of the companies traditionally regarded?

A company has traditionally been regarded as having the nationality of “the State under the laws of which it is incorporated and in whose territory it has its registered office”.

Other than the traditional definition, exemplify a way to set a link between a state and a corporation.

It has been the practice of some States to give a company incorporated under their law diplomatic protection solely when it has its seat (siege social) or management or centre of control in their territory, or when a majority or a substantial proportion of the shares has been owned by nationals of the State concerned.