State Responsibility La Responsabilità dello Stato

1. State ResponsibilityLa Responsabilità dello Stato Dr Rachael Lorna Johnstone Università d’Akureyri Islanda

2. Who is the State? For whose behaviour can the State be held accountable in international law?

3. International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. 2nd reading 2001 (ILC Articles)Commissione del diritto internazionale (CDI): La codificazione della responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001 • International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)Judgement of 26 February 2007 (Genocide Convention Case)La Corte internazionale di giustizia: genocidio in Bosnia-Erzegovina, 2007 • United Nations Security Council (UNSC) Counter-Terrorism Resolutions, principally, Res. 1368, 1373 and 1540Consiglio di sicurezza: contro-terrorismo • United Nations Human Rights Treaty Bodies (UNHRTBs) on Human Rights Comitati dei diritti umani

4. Primary and Secondary Rules • Norme primarie e norme secondarie It is one thing to define a rule and the content of the obligation it imposes and another to determine whether that obligation has been violated and what should be the consequences of the violation. Only the second aspect comes within the sphere of responsibility proper. Roberto Ago, 1970 Yearbook, p178, para. 7

5. Commissione del diritto internazionale (CDI): La codificazione della responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001 Article 1 Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that State ? What acts are internationally wrongful? ? What acts are acts of a State?

6. Commissione del diritto internazionale (CDI): La codificazione della responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001 Article 4 Conduct of Organs of a State • 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the state. • 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

7. Commissione del diritto internazionale (CDI): La codificazione della responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001 Article 4, commentary para 11 Where the law of a State characterizes an entity as an organ, no difficulty will arise. On the other hand, it is not sufficient to refer to the internal law for the status of State organs…. a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it that status under its own law.

8. Commissione del diritto internazionale (CDI): La codificazione della responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001 Article 8 Conduct Directed or Controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, orunder the direction and control of, that State in carrying out the conduct.

9. Commissione del diritto internazionale (CDI): La codificazione della responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001 Article 8, commentary As a general principle, the conduct of private persons or entities is not attributable to the State under international law. Circumstances may arise, however, where such conduct is nevertheless attributable to the State because their exists a specific factual relationship between the person or entity engaging in the conduct and the State. a real link between the person or group performing the act and the State machinery. Para 1 such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State’s direction or control para 3

10. Commissione del diritto internazionale (CDI): La codificazione della responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001 Article 12 Existence of a breach of an international obligation There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.

11. Genocide Convention Case ICJ, Feb. 2007La Corte internazionale di giustizia: genocidio in Bosnia-Erzegovina, 2007 (a) what rules can help us determine whether an entity is an organ of the State even when it is not so considered under the State’s internal law? (Article 4) (b) in the absence of explicit instructions, what degree of “control” is necessary for an entity to be considered an agent of the State? (Article 8) Effective control (controllo effetivo): Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) 1986 I.C.J. 14. Overall control (controllo globale): Prosecutor v Tadić, ICTY (Tribunale penale internazionale per la ex-Iugosvalia) Appeals Chamber Judgment (camera d’appello) 15 July 1999.

12. Genocide Convention Case to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of a particularly great degree of State control over them, a relationship which the Court’s Judgment quoted above [Nicaragua] expressly described as “complete dependence”. It remains to be determined in the present case whether, at the time in question, the persons or entities that committed the acts of genocide at Srebrenica had such ties with the FRY [Serbia] that they can be deemed to have been completely dependent on it.Para 393 “complete dependence”“lacking any real autonomy”Para 394

13. Genocide Convention Case It must however be shown that this “effective control” was exercised, or that the State’s instructions were given in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. Para 400

14. Genocide Convention Case Who is the State? (negative obligations) • Organs de iure under the internal law of the State • Organs de facto under a strict test of “complete dependence.” • Agents acting under instruction or “effective control”

15. UN Security CouncilConsiglio di sicurezza Resolution 1368 12 September 2001 Recognizing the inherent right of individual or collective self-defence in accordance with the Charter. Preamble para 3 …Regards such acts, like any act of international terrorism, as a threat to international peace and security.”Op para 1 Calls onall States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stressesthat those responsible for aiding, supporting, or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable. Op para 3 Expresses its readiness to take all necessary steps to respond to the terrorist attacks. Op para 5

16. UN Security Council Resolution 1373 28 September 2001 • 1. Decides that all States shall:(a) Prevent and suppress the financing of terrorist acts;(b) Criminalize the willful provision or collection…. [of funds directed to terrorism];(c) Freeze without delay funds and other financial assets or economic resources of persons….[involved in terrorism];(d) Prohibit their nationals and any persons and entities within their territories from making any funds…available… [to terrorists];

17. UN Security Council Resolution 1373 28 September 2001 2. Decides also that all State shall: (a) Refrain from providing any form of support, active or passive [to terrorists]… including by suppressing recruitment… and eliminating the supply of weapons; (b) Take the necessary steps to prevent the commission of terrorist acts [including by warning other States]; (c) Deny safe haven [to terrorists and financiers]; (d) Prevent [use of territory by terrorists]; (e) Ensure [terrorists] brought to justice [and adequate criminal law]; (f) [assist one another]; (g) Prevent the movement of terrorists or terrorist groups by effective border controls.

18. UN Security Council Resolution 1540 28 April 2004 1. Decides that all State shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, posses, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery; 2. Decides also that all States… shall adopt and enforce appropriate effective laws [to prohibit the above]; 3. Decides also that all States shall take and enforce effective measures to establish domestic controls to prevent proliferation. Another committee is established to monitor implementation.

19. (i) States must not commit or support acts of terrorism (i.e. they must respect the sovereignty of one another). (Negative Obligation) They are responsible for their actions per Nicaragua. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconstant with the Purposes of the United Nations. UN Charter Art 2(4) General Assembly DeclarationNo. 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United nations (A/8082), 24 October 1970. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force. (Para 1)

20. (ii) States must exercise due diligence to prevent terrorism to protect other States. (Positive Obligation) They are responsible for failing to fulfil their (positive) obligations. Corfu Channel (U.K. v Albania), Merits, 1949 ICJ REP. 4 Every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. (para 22)

21. (iii) States must exercise due diligence to prevent terrorism and protect other States. (Positive obligation) They are responsible for terrorist actions of non-State actors which result.

22. State Responsibility for Terrorism (i) Responsibility for State organs and agents (per Nicaragua) who engage in or offer support to terrorist activities; (ii) Responsibility for failures to exercise due diligence (at a high standard) to prevent non-State terrorist activities; BUT NOT: (iii) Responsibility for the terrorist activities of non-State actors which they have failed to prevent.

23. UN Human Rights Treaty Bodies • Human Rights Committee: monitoring the International Covenant on Civil and Political Rights (ICCPR) • The Committee on Economic, Social and Cultural Rights: monitoring the International Covenant on Economic, Social and Cultural Rights (ICESCR) • The Committee on the Elimination of Racial Discrimination: monitoring the Convention for the Elimination of Racial Discrimination (CERD) • The Committee on the Elimination of Discrimination of Discrimination Against Women: monitoring the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) • The Committee Against Torture: monitoring the Convention Against Torture (CAT) • The Committee on the Rights of the Child: monitoring the Convention on the Rights of the Child (CRC); and • The Committee on Migrant Workers: monitoring the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

24. Human Rights Treaty Obligations • To respect (negative: refrain from action) • To protect (positive: protect from non-State actors) • To fulfil (positive: provide basic minimums)

25. To respect human rights • Police brutality • Treatment of detainees • Prison conditions • De iure discrimination • Deportation where risk of torture • Legal minimum wage • Privatisation of State companies

26. To protect human rights • domestic violence, • slavery and trafficking, • hate speech and racism • violent crime against minorities and • gender discrimination in private employment • gender stereotypes

27. To fulfil human rights • Living conditions of street children & Roma • De facto racial inequality • Poverty • Unemployment • Malnutrition • Consumption of illegal drugs • HIV & AIDS • Housing • Education

28. Human Rights Treaty Obligations • To respect (negative: refrain from action): State per Nicaragua • To protect (positive: protect from non-State actors): no need to identify organ or agent “at fault” (separate delict) • To fulfil (positive: provide basic minimums): no need to organ or agent “at fault” (separate delict)

29. Who is the State? (negative obligations) Article 4: • Organs under internal law of the State • Organs de facto by virtue of “complete dependence Article 8 • Agents acting on instruction or under “effective control”

30. Who is the State?(positive obligations) Not necessary to identify State actor; because State apparatus as a whole has failed to act. State responsibility for the separate delict (inaction or inadequacy of action)

31. State ResponsibilityLa Responsabilità dello Stato Dr Rachael Lorna Johnstone Università d’Akureyri Islanda