8.5 Statist versus international outlook: emerging trends

• Choice of mechanism for applying int’l rules is the acid test for finding out how states feel about international values.

• States sensitive to international demands – opt for automatic standing incorporation mechanisms of customary law, treaty rules, and decisions of int’l organizations

• Very few countries adopt such an overall internationalist outlook.

• Greece, Netherlands and Spain stand out as countries which do.

• Most states still take a nationalist approach to the implementation of int’l law. They do not make international values prevail over domestic interest and concerns. Put int’l law on same footing as domestic law.

• UK – most extreme respect of parliament supremacy over int’l law.

• France and Russian Federation – more moderate, partially internationalist approach – customary law prevails over domestic law, but not treaty law.

• Most states do not accord primacy to int’l rules in their national legal systems. This shows that they do not want to tie their hands formally with international rules, but does not necessarily mean that they don’t usually follow int’l rules.

• Courts may play a crucial role in ensuring compliance at national level with international legal standards. They can use two interpretive tools – presumption of in favour of international treaties and presumption that treaty-implementing national law is “special”. This can advance int’l law over domestic law.

• Furthermore, there are more international rules that address themselves directly to individuals, either by imposing obligations or granting rights. These international rules reach individuals directly, not via domestic law. Passing of domestic law re this body of individual international law bolsters this body of law, but does not create these rights and obligations – Individuals acquire them automatically, bypassing state.

9 State Responsibility

9.1 General

• Int’l community is so primitive that archaic concept of collective responsibility still prevails  whole collectivity to which the harmed individual belongs can respond

• Whole state incurs responsibility, whole state has to take remedial measures.

• Two different stages of development of law on state responsibility – Traditional and New law.

State responsibility:

• the legal consequences of the international wrongful act of a state, namely the obligations of the wrongdoer (on the one hand) and the rights and powers of any state affected by the wrong (on the other).

• Preconditions exist for this to be invoked.

• Have to define what ‘international wrongful act’ means.

9.2 Traditional law

• Old law of state responsibility consisted of customary rules evolved out of practice of states and cases brought before arbitral tribunals. Very little treaty law on the subject.

Customary rules:

• If a state violated an obligation imposed by an international rule, it bore international responsibility for such violation.

• It had to make reparation for the breach

• OR the injured state was entitled to resort to self-help - forcible action (armed reprisals) or non-forcible measures (economic sanctions, diplomatic sanctions) – designed to impel the delinquent state to repair the wrong or penalize it.

Features of traditional rules on state responsibility:

• Rules were rudimentary.

• They did not specify what counted as international delinquency or what the consequences were.

• It was not specified whether one form of reparation was to be preferred over another, and if so why.

• Choice of class of reparation was left to the injured party.

• It was not clear whether intent or malice was required, or whether a state could be held responsible for the un-intentional and non-malicious acts committed by its state officials that violated international law (culpable negligence, no-Fault regime?).

• State responsibility amounted to a bilateral relation between the delinquent state and the injured state. Only if the two parties entered into negotiations could they establish a dispute settlement mechanism.

• Accountability for international wrongs hinged on collective responsibility. This meant states were held accountable for actions of individuals, and individuals were not responsible at international level.

• Exceptions to this absence of individual responsibility

• Piracy - seen as international crime committed by individuals in their private capacity)

• War crimes – offences committed in inter-state wars, normally by individuals acting as State officials. But liability applied only to soldiers and lower officers, not military leaders and commanders.

• Customary rules on legal consequences of wrongful acts were normally lumped together, both by states and publicists, with the substantive rules governing state behaviour (i.e. rules about treatment of foreigners).

• Because customary rules about state responsibility typically crystallized through disputes about treatment of foreigners.

• Tendency to confuse rules on state responsibility with breaches of int’l rules on rights of foreign nationals and their property.