State responsibility

The state responsibility and international responsibility to the question whether and to what extent subjects of international law , usually States , for internationally wrongful act are liable or omission. It contains secondary liability rules in the event that states violate primary action or omission or obligations that a State party to an international unlawful conduct attributable 's.

It must be distinguished from international criminal law , to which only individuals are subject, and state liability for risky or dangerous, but permissible behavior.

International law regulation

State responsibility has not yet been regulated by international treaty law. However, essential parts of state responsibility arise from customary international law and are therefore binding on states.

The codification work of the UN International Law Commission (ILC) in particular provides clues for a customary international law obligation . With the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ASR), dt. "Article drafts on the responsibility of states for actions contrary to international law" from 2001, the attempt was made to summarize the previously unwritten rules of customary international law on state responsibility. This primarily includes regulations on imputability and the consequences of a violation of international law obligations by states.

The draft articles were adopted by the General Assembly of the United Nations on December 12, 2001 (Resolution 56/83), but have not yet led to the conclusion of an international treaty. The article drafts themselves are therefore still non-binding. However, they can be used to prove the existence of a customary international law regulation on the responsibility of states.

The Draft Articles on Responsibility of International Organizations (DARIO) represent an incomplete draft on the responsibility of international organizations .

Violation of an obligation under international law

State responsibility contains regulations on the responsibility of states under international law for conduct contrary to international law. The prerequisite for state responsibility is therefore initially that an obligation under international law (primary obligation) has been violated. When such an obligation exists and what it contains does not result from state responsibility, but from the other regulations of international law. A violation occurs when the actions of a state are not in accordance with what a binding regulation of international law requires of that state. The violation can be both a violation of a prohibition (illegal act ) and a violation of a command (illegal omission). The question of the violation of an obligation under international law is, however, logically preceded by the question of the attributability of this violation. Because only the action of a subject under international law can be viewed as a violation in the sense of international law. This problem arises particularly with the acts of natural persons acting on behalf of legal persons.

The individual obligations under international law can be divided into three groups:

• bilateral commitments such as the Vienna Convention on Diplomatic Relations
• collective obligations such as the Convention on the Prevention and Punishment of Genocide with effect erga omnes
• mutual obligations such as disarmament treaties

Imputability of the violation

The violation is attributable if the state itself - through its organs - acted. Usually these are acts or omissions of the executive , legislative or judicial institutions of a state, i.e. the government , the legislature or the courts . But also private individuals and companies who have been assigned a state function or sovereign powers are included. In these cases, the state cannot exonerate itself by the fact that its organs have exceeded their powers and competencies under national law (so-called ultra vires ).

Other acts and omissions, for example by citizens or domestic companies, are generally not attributable to a state. Exceptions only exist if the state has directed or controlled certain behavior or subsequently recognizes this behavior as its own. The behavior of persons or groups who exercise certain elements of sovereign authority in the absence of state control may also have to be attributed to the state.

The actions and omissions of another state are also deemed to be attributable violations under special conditions. If a state supports another state in its behavior that is contrary to international law, guides and controls it or forces it to behave in a certain way, it must allow this behavior of the other state to be attributed to itself as its own behavior.

There is some disagreement about state liability. The problem arises in particular when member states of federal states, within the scope of the competences transferred to them by the federal state, conclude international treaties with other international law subjects and then violate the contractual obligations contained therein. A minority of opinion assumes that the member states must then be liable for their violations and not the state. The prevailing opinion, however, assumes an exchange of the obligated parties and advocates a liability of the state. This view was followed in the LaGrand case and the International Court of Justice . Here a US state had committed the violation of international law; The US as a federal state was eventually sued .

justification

Nonetheless, behavior that is in violation of international law does not exist if a state has violated an obligation under international law with its behavior, but under certain circumstances this behavior does not appear to be illegal . Such justifying circumstances that exclude illegality can in particular consist in the fact that there is consent from the state whose rights were violated, that the action represented legitimate self-defense, that force majeure was involved or that an emergency or a State emergency made action absolutely necessary.

Legal consequences

If behavior contrary to international law can be attributed to a state and if this behavior was not justified, this state is responsible for the behavior under international law. This responsibility gives rise to liability obligations on the part of the state (so-called secondary obligations), which in particular amount to immediately stopping and not repeating the behavior that is contrary to international law and to making up for any disadvantages that may arise. This compensation can take the form of a restoration of the original condition ( restitution ), in the form of compensation , i.e. compensation for the financial loss , and / or in the form of satisfaction through acknowledgment of the violation, a declaration of regret, a formal apology or some other appropriate measure Procedure ( satisfaction ) exist.

Assertion

An assertion of the responsibility of a state under international law can only be made by another state and only if the asserting state is affected by the illegal behavior of the violating state because the violated international legal obligation to it existed. The assertion is usually made through a notification of the violation and notification of the form of the requested compensation. In certain circumstances, the injured state can also take proportionate countermeasures against persistent violations. Disputes between states may have to be resolved before the International Court of Justice .

Web links

• Werner Meng : International organizations in international tort law ZaöRV 1985, p. 324–371

Individual evidence

1. ↑ Liability under international law for cross-border damage from nuclear accidents using the example of Belgian nuclear power plants Scientific services of the German Bundestag , 3.2. Strict liability for damage caused by dangerous but not prohibited activities, August 30, 2017, p. 11 f.
2. ↑ ILC Draft Articles on State Responsibility (English)
3. ↑ Draft articles of the ILC on state responsibility (German)
4. ↑ Draft articles on the responsibility of international organizations 2011 United Nations website , accessed August 1, 2018
5. ↑ Mirka Möldner: Responsibility of International Organizations - Introducing the ILC's DARIO Max Planck Yearbook of United Nations Law 2012, pp. 281–321 (English)
6. ↑ Kristina Daugirdas: Reputation and the Responsibility of International Organizations  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. The European Journal of International Law 2015, pp. 991-1018 (English)  
7. ^ Jörn Griebel: International investment law. Textbook for study and practice . Beck, Munich 2008, ISBN 978-3-406-58085-7 , p. 51 f.
8. ↑ General international law: Responsibility under international law, website of the European University Viadrina , June 21, 2011