LECTURE SIX
STATE RESPONSIBILITY.
STATE RESPONSIBILITY.
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In a weak system like international law, the rules on responsibility cannot be strong. Progress of the system will depend on the rules getting stronger. perhaps like in domestic systems, the distinction between contract, tort and crime will come to be made. But, that day is yet far off.
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The best that has been accomplished so far has been to codify the secondary rules of state responsibility in the form of a draft code. The draft code is the work of the International Law Commission.
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The Commission had attempted the codification of the primary rules. The primary rules were very much weighted towards the rules on the protection of aliens, which as Harris points out, was thought of as the whole of state responsibility. Harris’ Chapter itself shows the influence of this view. There is a substantial section on state responsibility for mistreatment of aliens.
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This was a very controversial subject. It split the world on the basis of the North-South divide. It had much to do with colonialism and the post-colonial conflicts. Hence, drafting a code was fraught with difficulty. It was easier to draft the secondary rules. But, the developing states resist the acceptance of the Draft Code.
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First, we look at the Draft Code.
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It begins by stating the rules of attribution of acts to the state, after defining state responsibility as arising to perform an obligation due under a rule of international law or treaty.
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States , like companies, cannot act but have agents and officials who act on its behalf. Their conduct engages the responsibility of the state under certain circumstances. First, there is the identification of the class of agents. State entities, even a constable could engage a state in liability
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Then come the circumstances in which omissions could result in liability. Where there is a duty to act and there is no performance of that duty, responsibility arises. Eg. Diplomatic Hostages in Teheran Case.
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The defences to liability are stated next. These include self defence, force majeure, necessity and countermeasures. The last two are controversial. The way necessity in Article 25 is stated is too confined. Argentine economic crisis. The act of the state must have been the only means available to escape the situation of necessity. The test is too stringent.
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Reparation through damages. Chorzow Factory Case.
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The notion of ius cogens. Responsibility arising from obligations owed to the whole of the international community. The South West Africa (Namibia) Case. The Court backpedals in the Barcelona Traction Case by announcing obligations erga omnes (obligations owed to all states) arising from violation of ius cogens principles. Genocide, racial discrimination, slavery, torture now identified as prohibited by ius cogens principles.
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Long provisions on countermeasures. Remedy of the powerful as weak states cannot take countermeasures. Hence, weak states object.
TREATMENT OF ALIENS.
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Notion of mediate injuries. Citizen’s injury is an injury to his home state which can espouse his claim.
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International minimum standard as the cornerstone of the system. The US stands guard over its citizens as they trade and invest overseas. Requirement that these citizens be treated in accordance with an external standard. Latin Americans always argued for a national standard of treatment. Compare the Michael Fay incident in Singapore.
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Law is stated in the Neer Claim (1926). The treatment should “amount to an outrage, to bad faith, to wildful neglect of duty, or to an insufficiency of gvernenmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency”.
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But, Latin Americans resisted this. They argued that an alien is entitled only to national treatment according to national laws administered by national tribunals or courts.
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The schism is deeply felt in the law on foreign investment, specifically expropriation of property of aliens. In modern times, expropriation would be of the property of large multinational corporations.
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Third World resistance to Western law of full compensation. Permanent sovereignty over natural resources.
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The requirements for a lawful expropriation. No discrimination, due process, public purpose and full compensation.
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Now investment treaties and an explosion of case law.
LECTURE SEVEN.
USE OF FORCE.
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Struggle to prohibit the use of force and promote peaceful settlement of disputes.
2.The distinction between
ius ad bellum and
ius in bello.
3.Just war doctrine of Grotius. Requirement of a prior illegality for use of force. Abuse as state’s subjective belief in the justness of its cause was sufficient. But, since reasons had to be given, there were justifications which came to be so common as to create categories.
4.Among these categories were (i) humanitarian intervention (to protect persecuted minorities) (2) reprisals for injuries (3) rescue of nationals abroad and (4) self-defence. But, these were justification for the use of an existing right to war.
5.The League of Nations in 1919 made the first effort to prohibit the use of force in the context of a global institution with a structure that required settlement of disputes through peaceful means. The creation of the Permanent Court of International Justice. But, no strong prohibition of use of force.
6.Wars broke out. Italian invasion of Ehtiopia and the German intrusions in Europe. By 1939, Europe was at war. EH Carr, The Twenty Year Crisis suggested the futility of restraining power of states to pursue national interests through the use of force. The realist opposition to outlawing the use of force.
7.The Kellog-Briand Pact (1926). Treaty for the Renunciation of War.
8.A new effort at the conclusion of the Second World War. The Charter prohibition of the use of force in Article 2 (4) subject to the “inherent right” of self defence “if an armed attack” occurs.
9.The Cold War. Balance of power. A divided Germany with European satellites of the Soviet Union. In the American sphere, the emergence of Cuba, as a communist state. The struggle for expansion of influence in Africa and Asia.
10.The Non-Aligned Movement as a third force. But, the continuation of the competition for influence between the Big Powers. Peaceful Coexistence Panca Sila. The Bandung Conference.
11.Spheres of influence of Big Powers. No state to break out of the sphere of influence. Soviet invasion of Czechoslovakia. Soviet invasion of Afghanistan. American invasion of the Dominican Republic. American invasion of Grenada.
12.Soviet theory of wars of national liberation.
13.Notion of rescue of nationals (Grenada); Notion of protecting spheres of influence (Cuban missile crisis and Czech crisis).
14.After Charter, revival in Big Power practice of customary law justifications for the use of force. Feeling of the need to justify.
15.The structure of the Charter is clear. No force (Article 2.4) Except in Self Denfence (Article 51). Breach of Peace under Chapter VII .
16.But, revival of customary principles and contrary practices.
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Intervention at invitation. (Czechoslovakia, Hungary, Grenada, Vietnam).
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Humanitarian intervention. (Kosovo; but Bangladesh, Cambodia, Uganda)
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Promotion of democracy (Haiti, Dominican Republic) Wars of national liberation.
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Dismantling of the force of Article 24 and reviving the just war doctrine?
Self-defence.
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Notion of anticipatory self-defence. Six Days War. Oil Platforms Case.
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Armed bands. Cumulative events. Is there a right of self-defence? Nicaragua Case.
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Wide notion of Preemption. Ensure an absence of a politican vacuum so that the intervening state is kept safe- The Armed Activities in the Congo Case.
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Bush Doctrine of Preemption.
Humanitarian Intervention and the Responsibility to Protect.
FOR DISCUSSION IN THE NEXT CLASS.
Dharmaputra is a river having its origin in the snow- capped mountain ranges of the Thimalayas part of which are in the state of Rhina and the other in Lindia. Dharmaputra is a principal tributary of the great Lindian river, the Thine, which runs virtually through the length of Lindia, irrigating its agricultural fields and providing water for other purposes. The source areas of the Dharmaputra are peopled by an ethnic race, known after the river as Dharmans. The race had its origins in Lindia. Many Dharmans continue to live on the border areas between Rhina and Lindia. but these areas had been captured by some three centuries earlier by Rhina and are ruled as a part of Rhina. The Dharmans have greatly resented the rule by Rhina. In 1990, their much-venerated religious leader had fled to Lindia. In 2001, there was a major riot following a fiery speech against rule by Rhina in which many Dharmans were killed. Thereafter, there have been sporadic instances of rioting against the rule by Rhina and a demand that the Dharmans in Rhina be united with their fellow people in Lindia.
In 2012, Rhina, purporting to conserve the water resources of the Dharmaputra for agricultural needs built a dam across the river and diverted it inland. This severely restricted the flow of water into Lindia. Farmers suffered as a result of a severe drought and change of weather patterns that year. People had to relocate due to desertification that resulted from the Thine drying up. Lindia warned that if the dam was not opened within six months and a level of water assured to the lower riparian state, it would take measures to deal with the problem as it saw fit. After the six month period, Lindia covertly ensured that a group of Dharmans, who were citizens of Rhina and whom it had trained, blew up the dam.
Consider the legality of the actions of Lindia
For discussion in class on 25 March 2014
Lindia is a large country in the Indian Ocean. It is a democracy with a federal system of government. The southern tip of Lindia is peopled by an ethnic group who speak the Tatin language, an ancient language with a distinct and unique literature. The Tatins, as the ethnic group is known, had migrated many years back to the island of Manga, which was just 12 miles off the coast of Lindia and had settled on the Northern part of the island. The majority of Manga consisted of the Pura race, which had a military culture that went back into history. Both Manga and Lindia were ruled by the Finglish, who had set up an empire in Asia. The two states became free only 30 years ago.
After independence, the Pura race in Manga began to discriminate against the Tatins. They made their language the only state language, made it compulsory for all persons in Manga to study the Pura language and made their religion the state religion of Manga. The Tatins, as a consequence, were unable to obtain higher education as their knowledge of Pura was not good enough for entry into universities in Manga. They also lost out on employment which was confined to people who could speak Pura fluently. After a while, the initial peaceful protest of the Tatin youth became violent and ripened into a civil war. The Mangan army which consisted exclusively of Purans sought to suppress the rebellion ruthlessly, killing many Tatin civilians in the process.
The course of these events caused concern among the Tatins of Lindia. Seeing their fellow Tatins suffer across the sea, young Lindian Tatins crossed over to Manga to fight on the side of their fellow Tatins of Manga. The Lindian Tatins also established and maintained a safe sea-corridor which could be used by Tatin rebels who were wounded and needed treatment to cross over to Lindia. Such treatment was provided in the Tatin part of Lindia. Weapons and other military items were kept in storage in shore areas of Lindia and there was credible evidence that a ship-building yard was producing armed vessels for use by the Tatin rebels. The activity was concentrated around Tangalore, a coastal town in Lindia.
The Mangan army sent a raiding party to Tangalore. It bombed a building which was thought to be the place where the wounded rebels were being treated. It also destroyed a ship-building factory but it later turned out that the factory was building fishing vessels. The party also destroyed a building which had a large cache of military weapons, the story of which was unlawful in Lindian law.
Lindia has now brought a case before the ICJ arguing that Manga has responsibility in international law for damages caused and for other violations of international law.
Argue the case for the two states.
LECTURE EIGHT
HUMAN RIGHTS
1.Human rights is a triumph of natural law over positivism. Its recognition of inherent rights in the individual is based on the assertion that state power must not be used to abuse such rights and hence is a restriction on sovereignty.
2.Though the idea did exist from early times, the modern human rights movement is traced from the end of the Second World War. Incidents that led to the war were internal and their prevention gave an impetus to the movement.
1.The 1948 Declaration on Human Rights. Eleanor Roosevelt. Non-binding prescriptions.
3.Three generation of rights or three ideological divisions. First are those that the US and Europeans have been concerned with. These are political and civil rights. They are contained in the International Covenant on Civil and Political Rights ICCPR (1966).
4.The second are rights associated with socialism. These emphasized conomic and social rights. They are contained in the International Covenant on Economic and Social Rights. ICESR (1966).
5.The third are rights that concern developing countries, which are solidarity rights. The right to development is the most important amongst them. It is premised on the notion that without eradication of poverty, other rights are meaningless. The right to development forms centerpiece but Western scholars regard such solidarity rights as not human rights. The right to self determination is another such right.
6.Cultural relativity debate. Now in abatement. It is generally recognized that there are core rights that are universal.
7.The argument that economic development should be prioritized over individual human rights.
8.Compliance mechanism; The right of petition to the Human Rights Committee. European Court of Human Rights. Court of Human Rights of Latin America.
9.The non-derogability of certain human rights. The right to life (6,ICCPR); right against torture (7,ICCPR); right against slavery (8 ICCPR); no imprisonment for contract debts (11, ICCPR); nullum crimen sine lege (15, ICCPR); right of recognition as a person (16, ICCPR); freedom of thought, conscience and religion (18, ICCPR).
10.Right to life: capital punishment. Construction of other rights: right to food; right to clean air; right to water; other life sustaining essentials.
1i.Right against torture. (the time bomb situation). Are there exceptions. Notions of proportionality . Is it meaningful or should the prohibition be absolute.
12.Extraterritoriality of such rights. Article 2 of ICCPR. “all individuals within its jurisdiction and subject to its control”. UK forces in Iraq and US forces in Guantanomo Bay. Wall Opinion.
1.Ties with notions of state responsibility for violations of ius cogens principles.
12. Problem of Self-Determination and Secession.
13.Notions of head of state responsibility. (Pinochet; Al Asdani).
14. Immunities of heads of state.
LECTURE NINE
1. SELF DETERMINATION AND SECESSION.
SELF DETERMINATION AND SECESSION.
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Self determination originated as doctrine after the First World War in order to settle boundaries of European states on the basis of ethnicity.
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The issue then was whether the principle could be used to end colonialism in Africa and Asia.
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The process of decolonization began in 1947 with the United Nations with the progressive creation of states in Africa and Asia.
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The issue was whether self-determination was ended with decolonization.
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The principle of uti possidetis that the boundaries of a state should be those which existed at the time of its creation.
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But, internal insconsistencies as colonial administrations had put together people of different ethnicities and religion for their own convenience.
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Two authoritative Western pronouncements. The Quebec Reference in Canada and the Badinter Commission Report on Yugoslavia.
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Both stated that equality was the basic right to be guaranteed in the context of multiethnic socieities.
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Where such equality was violated egregiously by state policy, the right to secede arose in the minority which had indicia of statehood to secede and create a new state. But, there are stages that need to be adopted. One must examine whether there are alternative constitutional arrangements. Failing them, secession may be the answer.
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The Kosovo situation. Ethnic cleansing. Serbian atrocities. Milosovic. Kosovo’s unilateral declaration of secession. Its acceptance by other states.
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Consequences of Kosovo. The idea of Humanity’s Law. The notion that a combination of laws become relevant:
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(i) human rights law that identifies the extent of the violation of equality and nature of the discrimination;
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(ii) humanitarian law that seeks to determine situations like effect on civilians and destruction of civilian property as well as mistreatment of combatants;
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(iii) the growing notions of accountability that brings violators, including heads of state to trial. The Pinochet example. The trial of Milosovic.
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The creation of a new state. The Kosovo precedent. The effect of the unilateral declaration of secession. The Advisory Opinion on Kosovo (Please look at the ICJ website for the Opinion). The repsonse to the declartion by other states.
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The Crimea situation and the use by Russia of the Kosovo Precedent.
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Growth of accountability. Pinochet Case. Batang Kali incident before British Courts. http://www.bbc.com/news/uk-26640527
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The confluence of these ideas in the form of a law protecting human security. The notion of cosmopolitanism.