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6. State responsibility
6.1 The laws of state responsibility
6.1.1 definition
The laws of state responsibility are the
principles governing when and how a state
is held responsible for a breach of an
international obligation.
Rather than set forth any particular
obligations, the rules of state
responsibility determine, in general,
when an obligation has been
breached and the legal consequences
of that violation.
In this way they are "secondary" rules that
address basic issues of responsibility and
remedies available for breach of "primary"
or substantive rules of international law, such
as with respect to the use of armed force.
Because of this generality, the rules can be
studied independently of the primary rules of
obligation.
(2) the circumstances under whic
h actions of officials, private indiv
iduals and other entities may be a
ttributed to the state.
6.1.3 development
Until recently, the theory of the law of state
responsibility was not well developed. The
position has now changed, with the adoption of
the Draft Articles on the Responsibility of
States for Internationally Wrongful Acts
("Draft Articles") by the International Law
Commission (ILC) in August 2001.
The Draft Articles are a
combination of codification and
progressive development. They
have already been cited by the
International Court of Justice and
have generally been well received.
Although the articles are general in
coverage, they do not necessarily apply in
all cases. Particular treaty regimes, such
as the General Agreement on Tariffs and
Trade and the European Convention on
Human Rights, have established their
own special rules of responsibility.
6.2 state responsibility6.2 state responsibility6.2.1 definition6.2.1 definition
Traditionally, Traditionally, the term "state responsibility" referred only to state the term "state responsibility" referred only to state responsibility for injuries to aliens. It included not only "secondarresponsibility for injuries to aliens. It included not only "secondary" issues such as attribution and remedies, but also the primary ry" issues such as attribution and remedies, but also the primary rights and duties of states.ights and duties of states.
For example the asserted
international standard of
treatment and the right of
diplomatic protection.
6.2.2 the traditional focus on Early
efforts by the League of Nations and
private bodies to codify the rules of
"state responsibility" reflected the
traditional focus on responsibility for
injuries to aliens.
The League's 1930 Codification
Conference in The Hague was able
to reach an agreement only on
"secondary" issues such as
imputation, not on substantive rules
regarding the treatment of aliens
and their property.
6.2.3 trends
It took nearly 45 years, more than thirty r
eports, and extensive work by five Special
Rapporteurs in order for the Internationa
l Law Commission to reach agreement on
the final text of the Draft Articles as a wh
ole, with commentaries.
At the same time, the customary international
law of state responsibility concerning matters
such as detention and physical ill-treatment of
aliens and their right to a fair trial has been
rendered less important than formerly by the
development of international human rights law,
which applies to all individuals, whether aliens
or nationals.
The concept of a general regime of
legal responsibility, which the rules of
state responsibility have taken on, is
an inception of the civil law system
and is largely foreign to the common
law tradition.
6.2.4 Draft Articles
The final text of the Draft Articles was
adopted by the ILC in August 2001,
bringing to completion one of the
Commission's longest running and
most controversial studies.
On 12 December 2001, the United
Nations General Assembly adopted
resolution 56/83, which "commended
[the articles] to the attention of
Governments without prejudice to the
question of their future adoption or
other appropriate action."
Crawford notes that the rules are
"rigorously general in character,“
encompassing all types of
international obligations.
The Corfu Channel Case (United The Corfu Channel Case (United Kingdom of Great Britain and Kingdom of Great Britain and Northern Ireland v. People's Northern Ireland v. People's
Republic of Albania)Republic of Albania)On 22 October 1946, two British destroyers hit sea-On 22 October 1946, two British destroyers hit sea-
mines in Albanian waters at the straits of Corfu, mines in Albanian waters at the straits of Corfu, damaging them and killing naval personnel during damaging them and killing naval personnel during the Corfu Channel Incident.the Corfu Channel Incident.
The International Court of Justice ordered Albania to The International Court of Justice ordered Albania to pay the UK £843,947 in compensation. This was the pay the UK £843,947 in compensation. This was the first case brought before the ICJ.first case brought before the ICJ.
6.2.6 Internationally wrongful acts
According to the Draft Articles, an
internationally wrongful act must:
be attributable to the state under
international law; and
constitute a breach of an international
obligation of the state.
6.2.7 consequence6.2.7 consequence
An internationally wrongful act which results from the breach by a An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection State of an international obligation so essential for the protection of fundamental interests of the international community that its of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole breach is recognized as a crime by that community as a whole constitutes an international crime. constitutes an international crime.
6.2.8 categories6.2.8 categories
On the basis of the rules of international law in force, an On the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance breach of an international obligation of essential importance for the maintenance of international peace and security, such for the maintenance of international peace and security, such as that prohibiting aggression;as that prohibiting aggression;
(b) a serious breach of an international obligation (b) a serious breach of an international obligation of essential importance for safeguarding the of essential importance for safeguarding the right of self-determination of peoples, such as right of self-determination of peoples, such as that prohibiting the establishment or that prohibiting the establishment or maintenance by force of colonial domination;maintenance by force of colonial domination;
(c) a serious breach on a widespread scale of an (c) a serious breach on a widespread scale of an international obligation of essential importance international obligation of essential importance for safeguarding the human being, such as those for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;prohibiting slavery, genocide and apartheid;
(d) a serious breach of an international obligation (d) a serious breach of an international obligation of essential importance for the safeguarding and of essential importance for the safeguarding and preservation of the human environment, such as preservation of the human environment, such as those prohibiting massive pollution of the those prohibiting massive pollution of the atmosphere or of the seas.atmosphere or of the seas.
Any internationally wrongful act which Any internationally wrongful act which is not an international crime in is not an international crime in accordance with paragraph 2 accordance with paragraph 2 constitutes an international delict.constitutes an international delict.
6. 3 international crime6. 3 international crime
6.3.1 definition
International crime may refer to:
Crime against international law
6.3.2 The four biggest areas of 6.3.2 The four biggest areas of transnational crime are:transnational crime are:
Drug traffickingDrug trafficking Arms traffickingArms trafficking Money launderingMoney laundering Smuggling of cultural artifactsSmuggling of cultural artifacts Trans-national trafficking in human beings receives a Trans-national trafficking in human beings receives a
great deal of attention by international bodies because great deal of attention by international bodies because of its particularly intimate nature.of its particularly intimate nature.