International law in contemporary world arena

Using the relevant examples, critically discuss: State responsibility is a fundamental principle of international law, arising out of the nature of the international legal system and the doctrines of state sovereignity and equality of states.it provides that whenever one state commits an internationally unlawful act against other state, international responsibility is established between the two. A breach of an international obligation gives rise to a requirement for reparation.

Introduction

State responsibility compromises a main institution of the system of public international law. It deals with a significant number of issues. Firstly, it describes the circumstances in which a state will be held to have breached its international obligations, and aprecise justifications and defences a state may depend on in order to escape from the responsibility for an otherwise wrongful act. Secondly, it wraps the consequences of the breach of an international obligation, including in full reparation as central obligations, as well as the obligation to stop the continuing wrongful acts for the safety and security reasons. Finally, it deals with the responsibility of states that who is responsible for the wrongful act and the measures to deal with such situations and the actions which should be taken as a countermeasures. It implements the responsibility of the wrong doing states. The key point of reference in relation to the law of state responsibility is the Articles on the Responsibility of States for Internationally Wrongful Acts (the ILC Articles), which are adopted by the International Law Commission (ILC) in 2001, which forms the law through the codes and articles for the protection of rights of the states against the wrong doing states. The literature before the formations of state responsibility articles also have great importance because these articles do not classified the state obligations and the concept of state crimes are not included in final version. In order to consider these main conditions, old literature is taken into account as a primary reference till now. This discussion will critically analyse the responsibility of states against the other state who commits the crime under the under the international legal system through various concepts like law of high seas, diplomatic immunity, case studies.

Responsibility of a state in relation to the other state

Chapter 4 of international law commission deals with the responsibility of states .Articles 16 to articles 19 describes the circumstance in which a state is liable for the internationally wrong doing acts of the one state against the another state. Article 16 generally provide the legal aids and the measures to a state against which the particular crime is done by the state whereas article 17 covers the circumstances. Article 18 refers to the responsibility of a State as a result of coercion of another State to commit an internationally wrongful act.Article 19 of ILC is treated as a saving clause.

The states are responsible under international law, human rights laws and the international criminal laws.

Chapter I (of part 3) on invocation contains seven articles, Articles 42-48. Article 42

Addresses invocation of responsibility by an injured state, while Article 48 turns to invocationOf responsibility by a state other than an injured state. Contemporary international law use the term ‘state responsibility ‘in a vast manner. Article 24 of UN Charter provides the United Nation Security Council has main duty is to maintain peace and harmony between the states. A further debate arose in the Barcelona Traction case[1] which was based on the appropriateness of separate category of some wrongful crimes which are considered as ‘international crimes ’which are against the international countries or a threat as a whole but not on a specific victim state. In this case it was held by the court that once a state admits foreign investments or foreign personals in its territory that it is international obligation to protect them as a part of the diplomatic protection. Such obligations are the obligations ergaomnesi.e. all states have a legal interest in their protection. Another example of international crime which covers both state and universal liability is ‘terrorism’. 9/11 attack on America threaten all the countries and it was done by the Islamic country but due to the rule of international law and state responsibility UN was succeeded in maintaining the peace among the other Islamic countries and the world otherwise the situation got worse throughout the other states.

Diplomatic immunity and state responsibility

The concept of ‘diplomatic immunity’ is described in Vienna Convention, 1961. The rules of diplomatic law enshrined in the Vienna Convention have been described as ‗the cornerstone of the modern international legal order.’(Eileen Denza, 2008).[2] A state represents himself or deal with other states through their diplomats, staff members and other officials. Diplomatic immunity or immunities through the other state jurisdictions provide safe way and give those diplomats immunity against law suits and prosecutions. But sometimes this thing also create disturbances among the states. Many principles of diplomatic immunity is now considered as customary laws. But unfortunately, sometimes it protect the diplomates who violates laws of home country and host country as well. On the one hand international law provide many laws for the aid and protection of the rights of the victim states but on the other hand some concepts like ‘diplomatic immunity’ works against these laws. Many times diplomats who are involves in crimes like smuggling etc. but it protects them.it is against the obligations of international law whose main motive is to protect the states against crimes committed by the other state. Diplomats are considered as the part of the states or their representatives for conversations and official matters but if they violate the laws against international obligations then it can create problem between the countries. “Immunity … is not a personal immunity but in reality the immunity of the sending state”. (Satow, 1979)[3].

For instance,                                                                                                            

In April 2012, in Manila, Panamanian diplomat Erick BairnalsShcks raped a 19 years old girl of FILIPINO but later he was detained on the grounds of diplomatic immunity. This case created a lot of tension within the state and affected their relations.

Another case of diplomatic immunity case was ‘DevyaniKhobragade case’ in which Indian diplomat was arrested in United States for the case of fraud visa. This created tension in between the relations of India and US. As Devyani breached the rules and presented false documents for obtaining the visa, somehow she violated the rules and regulations of states but on the basis of diplomatic immunity she got full benefit by UN. But this case created lots of controversies between these states.

Principle of self-defence as a remedy to save themselves from the prosecution is used by the diplomats. This is stated by the ILC on an article on personal inviolability that the diplomats exempt from the certain punishments which are directly amounts to coercion, but, this, however does not include self-defence (ILC Yearbook, 1958 vol-2 p.138)

Law of sea and state responsibility

Lotus case[4]

Facts: A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The vessel sank and eight Turkish nationals were killed on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).

Issue: can the Turkish jurisdiction violated the rights and prosecuted a foreign national of France? Whether turkey has jurisdiction for the crime which is committed in their country by a foreign person.

It was held by the court that the rule which prohibits a state from jurisdiction of a crime which is committed within its territory does not exist. It doesn’t not mean that international law prohibits a state from jurisdiction in its own country but it also give power of jurisdiction to other state where crime has been committed. Because it is impossible to hold the crime on merely the basis of not having jurisdiction because the criminal belongs to other territory. Therefore, turkey has the right to jurisdiction of the demon.

In this case, international law, clearly stated that if the crime is committed the flag state that he has also the right of jurisdiction. In this particular case, both states had concurrent jurisdiction.

This case gave a new dictum of international law. Here reflects the court reflects the opinion juris.

In this way on the one side international law give rights to the other states for the jurisdiction of the crime committed in their territory which shows a positive side of the international customary law. In contrast, in the cases of diplomatic immunity law give power to diplomats for detention despite of the fact of the violation of obligations. These both concepts manifest the two different sides of the law against stat responsibility.

Nicargua case[5]

Fact: Nicaragua filed a case in ICJ against America concerning a dispute related to the responsibility of American running illegal military and paramilitary force activities within and against Nicaragua in 1984. Later in 1985, ICJ pass the order to immediately stop all the activities which were running by the US in Nicaragua. But in 1986, America challenged the the ICJ for not having the jurisdiction and shows his intention of not to take part in any proceeding of the case.

But ICJ rejected the justification which was given by the US in its defence and stated that the use of arm forces and paramilitary forces violates the obligations of International customary law of not to interfere in other state affairs. Court also noticed that US had violated certain other obligations also which were compromised by the bilateral Treaty of friendship, commerce and navigation of 1956 and it is necessary for the US to make reparation for the injuries caused by them. Later the amount of reparation was decided by the court. But in 1988 US refused to take part in any proceeding of the case as he already mentioned before. In 1991, Nicaragua also informed the court that they do not want to continue the proceeding. By their mutual consent as they withdrawn the case, the court also removed this case from his list.

This case comprised of in-depth relationship between customary international law and treaty. In circumstances where principles of international law clashed with the provisions of treaties. Here the court clearly stated that even if the principles of customary law are codified into treaties, but for the partied where treaties are applicable both the law will run parallel over them. If sometime, treaties ceased to apply, at that time also former will exist i.e. the customary law will be applicable. On the other hand it was argued on the North Sea and continental shelf case. In this case, Germany was bound by the article 6 of Geneva convention  but at the time of codification of article 6 there was no such customary law made so the court held the latter will be applied, where customary international law ceases to apply there treaties and law both will apply.

Both these cases shows the act of opinio juris by the court.

Case studies

CRITICAL ANALYSIS OF STATE RESPONSIBILITY AGAINST OTHER STATES WHO COMMIT CRIME

Case study 1:

The Migrants Deaths on the Mediterranean in the Council of Europe

In the year 2011, fifteen hundred deaths were recorded in the Mediterranean Sea for individuals that on transit to Europe. The migrants had effective communication equipments and communicated their distressed situation to the maritime authorities based in Mediterranean Sea and the military vessels that were in the same location or passing by (Crawford 2013). In this case study, there is the failure of the state to act accordingly in response to the distress; hence, the case is coupled with multiple breaches of state responsibilities.

In this case study, the breach of responsibility is based on moral failures and the concept of state duty and responsibility. The case is an international crime as the state military and the relevant authorities did not act promptly despite the numerous attempts to be reached. The international obligation for a state like Libya was jeopardized. Libya is to be held responsible for jeopardizing state responsibility (Crawford 2013). Despite the fact that, Libya has been dubbed a failed nation, the state should have acted promptly according to the law on the consequences of liability. Libya is responsible for saving the victims and it was their moral duty to ensure that the migrants under their jurisdictional territorial waters were saved.

Case Study 2:

Environmental Air Pollution

In the year 2002, Beijing recorded the highest number of respiratory problems with neighboring countries being affected by the same issue. The respiratory problems were due to the high urbanization an increased industrialization by 31.2 percent. Despite numerous efforts to persuade China to reduce the rate of air pollution, the Chinese state did not act promptly and breached their responsibility of safeguarding and preserving the environment through the regulations stipulated in the international environmental acts (Fitzmaurice &Fitzmauric 2004). The fundamental international crime against the protection of the environment is violated in this case study. The causal connection that is linked with the crime and the alleged breached environmental act is the responsibility of the state to ensure that the rates of air pollution is controlled or minimized so that the other states are not playing the role of the Beijing in air pollution control (Randelzhofer 1999).

It is prudent to identify with the countries that have signed the MOU on environmental air pollution mitigation. In air pollution, there is trans-boundary harms that are recognized in the international environmental act and therefore, any spillage or leakage of pollutants into the atmosphere especially from one country to another requires state responsibility (Fitzmaurice &Fitzmauric 2004). The China state has the general defense liability to ensure that products produced in the country are not polluting the environment to the extent of affecting nearby states. Thus, there are consequences that must be taken in order to charge China for violating state environmental responsibility.

China is one of the nations that refused to sign the MOU but environmental acts require that, China is responsible for every industrial action in relation to environmental responsibility (United Nations & Crawford 2002). In this case study, breach of state international obligations are violated which constitute international crime against other states. The main international obligation is the importance of safeguarding and preserving the environment through massive pollution of air and water bodies. Thus, in this case study, China is responsible for the consequential effects and thus, breach of obligation to international states is evidenced (United Nations & Crawford 2002).

Case Study 3:

Genocide in Serbia and Montenegro

In the year, 2006, the international court of Justice adjudicated a case on genocide. The case was presented by Bosnia Herzegovina and was presented against Montenegro and Serbia. In this case study, there are critical issues that must be considered in relation to secondary and primary international law. The case involves non state actors and thus, the state could be held accountable for the breached law. Serbia and Montenegro in this scenario has the international obligation for paying for the genocide affected victims and the breach is on a wide spread rating.

The omission of the responsible actions and not attending to the injuries so that the violating acts against humanity were not adhered to in this case. Despite the state de facto control acts, the state must be held accountable for the non state actors. There are numerous evidences that are linked with the genocide action that they Serbia state and Montenegro state should have incorporated into the strategies used in making the state responsible for all the actions that are linked with the situation (Islam 2010). However, a joint responsibility can also be applicable in this case as there were unreported scenarios and issues that are related to the case study.

The responsibility of the state in regard to international law must be triggered by a breach of a specific law. In this case study, the legal obligation has been violated. The subjects that are involved in the violation of regulations are the states and not the individuals since they are denied the right to access health care and immediate action.

Case Study 4:

Mountain Glaciers and GLOFs

The retreating nature of the glaciers by 10 percent since the year 1960s has been of major concern to the international environmental acts. Post industrial temperatures are the main critical factors to be considered as the main cause of the retreat. Precipitation and the amount of cloud cover are some of the factors involved and reflect the post effect of industrialization. According to World Glacier monitoring service, all the glaciers are receding. Six glaciers have also recorded the same effect in India (Verheyen 2005).

Nepal and Bhutan have recently asked for monetary support in order to monitor Himalaya’s glacial water bodies. The main emitter of the gases involved is USA. In relation to the duty of conduct to reversing greenhouse gases, the state of USA is responsible for the compensations as per the treaty of international environmental regulations (Verheyen 2005). This is based on the fact that, USA continually emits greenhouse gases and fails to reverse the emission. By Singing the FCCC, US agreed to prevent anthropogenic interferences and thus, must abide with the action and be held responsible for the breach of conduct.  

Case Study 5:

Israeli Information and Security warfare case

The solar sunrise attack in relation to cyber crimes committed against the US Air force databases via the Texas internet provider was a critical issue that emanated in the year 2010. It is the responsibility of any state to protect its citizens against any attacks that are linked to cyber crime (Warren 2013). The South African government in this case has a state responsibility to effectively ensure that there is awareness in relation to cyber crime.

An international action that is wrong must be accounted as a state international responsibility. Since international obligation is jeopardized in this case study, the state is evidenced to have breached an international obligation (Warren 2013). The conduct of the state is also questionable in this case study and thus, the state must be held responsible for the final actions at international levels. The individuals that have governmental authority were contacted in the case and the state’s basic rules were violated. A principle of human protection and environmental concerns are raised in this case. It is the duty of the state to be responsible for the ultimate actions against the vulnerability of individuals and the communities in relation to cyber crime (WILLISCH 1987).

Case Study 6:

Australia and USA Commission of International Crimes

The USA in this case study abandoned the crimes committed against Australian in relation to the attacks. The wrongful acts were based on human right violations acts and it was the duty of the USA state to be responsible of any wrongful act. Legal actions were taken for the damages that occurred and positive impacts of state responsibility acts are evidenced in this case study. US breached the act of protection of human beings and the environment thus, its obligation to compensate the victims which, was successful. Therefore, this is one the case studies that the state took responsibility of the actions committed and have reversed the situations by paying partially for the damages caused as evidenced in the past two years of compensation.

Conclusion

In conclusion, International law is trying to balance the state responsibilities by making different laws and treaties. It put lagal obligations on the states who commit the crime against the other states. From the critical analysis of international law it is stated that it is succeed to achieve its aim of peace and harmony among the states but still some concepts still need some improvements to maintain the peace. Crimes like terrorism and smuggling need more strict actions and laws. Overall, international law is keep modifyinf its laws according to the requirements.

References

Websites

Westlaw.com

https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-summary/

Books

CRAWFORD, J. (2013). State responsibility: The general part.

FITZMAURICE, M., & FITZMAURICE-SAROOSHI. (2004). Issues of state responsibility before international judicial institutions. Oxford [u.a.], Hart.

Grant, J 2010, International Law Essentials, EUP, Dundee, GB. Available from: ProQuest ebrary. [15 April 2016].

ISLAM, N. (2010). The law of non-navigational uses of international watercourses: options for regional regime-building in Asia. Alphen aan den Rijn, The Netherlands, Kluwer Law International.

RANDELZHOFER, A. (1999). State responsibility and the individual: reparation iinstances of grave violations of human rights. The Hague [u.a.], Nijhoff.

Relations.2nd ed.: Oxford University Press, 1988, pp. 279 – 281.OxfordE. Denza. Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic

Satow, Ernest,Satow’s Guide to Diplomatic Practice 5th Edition(London, 1979

United Nations.,& Crawford, J. (2002). The International Law Commission's articles on   state responsibility: Introduction, text, and commentaries. New York: Cambridge University Press.

VERHEYEN, R. (2005). Climate change damage and international law: prevention duties and state responsibility. Leiden [u.a.], Nijhoff.

WARREN, M. (. (2013). Case studies in information warfare and security: for researchers, teachers and students. Academic Conferences and Publishing International Limited,             United Kingdom.

WILLISCH, J. (1987). State responsibility for technological damage in international law. Berlin, Duncker&Humblot.