Chapter 7 Audio podcast

The COVID-19 pandemic has brought to the forefront a lot of questions about how states must behave towards one another when confronted with a major international crisis.What are, for example, a state's obligations to curb the spread of the virus? When arestates obliged to cooperate with one another? And is apandemic, like the COVID-19 pandemic, such an extraordinary event that it allows states to temporarily suspend some of their international obligations towards one another? And if that is the case, what obligations, in particular?This episode of the International Law Podcast, episode seven, focuses on state responsibility. That is, those parts of international law that contain the basic principles on when states are internationally responsible for their acts and omissions. The rules also specify when states may be justified in not fulfilling their obligations, as well as who is competent to invoke breaches of international law. True to form, I will focus on three particular aspects of the regulation.

The first aspect that I will focus on is quite banal. Essentially,states are only responsible for their own acts. But sometimes states have a duty to act, and simply not justremain inactive. One of the core elements of state responsibility is thatstates are only responsible for their own acts and not for those of other states or the acts of private individuals. Also, wrongful conduct must be attributable to a state. This is reflected in the different ways whereby acts are attributed to a state. Here, one must be aware that states are not merely responsible for acts committed by its own agents;states may also be responsible for an act that is performed by another organ that performs governmental authority. Also, a state may be responsible for acts that are committed by organs that are on loan from other states, or for acts committed by individuals or groups while they act on instruction of, or under the direction of or control of, that state when it carried out the acts.A state may even be responsible for acts that are committed by insurrectional movements that go on to assume power. I should also note that the state is generally alsoresponsible for acts that are what we call ‘ultra virus’; that is, eight acts that were contract orders, or instructions given, or that were in excess of authority.

Furthermore, a state may be found to be responsible for acts of private individuals when the state acknowledges and adopts the acts as if they have been committed by the state. The classic case to illustrate the latter point was the storming and subsequent occupation of the American embassy in Iranin 1979. The embassy was occupied by private demonstrators and the staff was taken hostage, but afterwards the Iranian government took over the situation, which they applauded. They thereby assumed responsibility of the acts of the private demonstrators. Now, sometimes a state will incur international responsibility for simply not acting. That is, for being, and staying, passive. For example, this will be the case when the state is under an obligation to try to prevent certain acts that may harm other states from occurring. In the Iranexample, Iran not only breached its international obligations when it acknowledged and adopted the awful acts of the demonstrators whohad sieged the embassy. Iran also breachedinternational law, because it didn't even try to prevent the demonstrators from stormingthe embassy in the first place.

Here, I should mention that, as I noted in the previous episode, a host state is supplied to protect a foreign state’s diplomatic premises. A host state cannot just sit on their hands when a mob attacks a foreign embassy. It is essentially under a positive obligation to offer effective protection. A state may also be in breach of its international obligations through inaction in cases where there is a general obligation of due diligence. This is where a state must try to prevent various activities that occur on its own territory from causing significant damage in another state. This could be relevant, for instance, in cases of environmental damage, or to the spread of infectious diseases, like a novel Coronavirus. Also, in human rights law, a state may sometimes be under an obligation to offer effective protection to private individuals who may be at risk of being mistreated by other private individuals.

The second point I'll spend some time on, in this episode, concerns the fact that even if a state has committed an act, or not done enough to prevent certain acts from happening, and the state is therefore apparently in breach of an international obligation, it is not certain that this state will actually be internationally responsible. Sometimes, a state may be justified in not complying with an international obligation.In international law,what we're talking about here are so-called circumstances precluding wrongfulness.Essentially, if such a circumstance exists, a state may not be required to comply with its obligation; at least, for as long as the circumstance is there. However, when the circumstance disappears, the underlying obligation resurfaces, and it must be met yet again by the state.In practice, the different circumstances that may preclude wrongfulness will be familiar to national lawyers. They include consent, self-defense, forcemajeure, distress, and necessity. In many ways, the most interesting of these circumstances is the concept of lawful countermeasures.

There is, however, another circumstance that may preclude wrongfulness.And that, in many ways, is the one that is most interesting. It concerns the concept of lawful countermeasures. As I've mentioned many times already in this podcast, there is no centralized system for enforcement ininternational law. There is no police force and no mandatory court system. Therefore,states generally have to enforce their own rights. Essentially,international law is a self-help system. In such a self-help system, a state is sometimes allowed to respond to another state’s breach of international law by taking what is called countermeasures, to try to make the wrongful act stop.

In other words, if state A is breaching its international obligations towards state B, the latter state may breach its own obligations towards state A,simply to try to make that state stop its own breaches. In a sense, this is a form of tit-for-tat interaction.But for such countermeasures to be lawful underinternational law, they must comply with certain conditions, and these conditions are listed in Articles 49 to 54 of the International Law Commission’sarticles on state responsibility that generally reflect customary international law. For one thing, the countermeasure should be a temporary measure that is applied so that it allows for the resumption of the obligationin question, once that will be feasible.For one thing, the countermeasure should be a temporary measure that is applied in a way that will allow for the resumption of the obligation in question. Also, it should be a proportionate measure against the breach of internationallaw that it is a response to.Also, there are some obligations that cannot be the object of countermeasures. An example is the obligation not to threaten or to use force. Other examples are certain fundamental human rights or jus cogens norms. Thus, a state cannot respond to another state's breach of international law by simply detaining that state’s nationals or threatening toill treat them.

The third and last topic I'll stress in this overview of state responsibility concerns the question of who can invoke a breach of internationallaw. When a state is committing an internationally wrongful act,the state must cease the act in question, and when relevant, make full reparation for the injury caused by the international wrongful act. And if the breach is a serious breach of ajus cogens norm, all states must cooperate to bring the breach to an end. All states must also refrain from recognizing a situation that has been created by a serious breach of a jus corgens norm as lawful.

This, for example, is why states cannot recognize that Israel has sovereignty over the occupied Palestinian territories, or that Russia has gained sovereignty over Crimea, because Russia has unlawfully annexed the Crimean Peninsula in 2014.But who can invoke the international responsibility of another state? Normally, it is the state whose rights have been violated and denied; the state that we called the ‘injured state’. So, when state Abreaches its obligations towards state B, it is the latter state that can invoke that breach. So, it is state B that can try to bring the case before court, it is state B that can claim theright to compensation, and it will be state B that may even be entitled to adopt countermeasures to make state A comply with its obligations. And, of course, if the breach has left more than one state injured, all of those states can be said to be injuredstates, and thus also entitled to invoke the breach. However, as mentioned in an earlier episode, things get a bit more complicated when the breach concerns what we call an obligation erga omnes. As I mentioned in episode two, obligations erga omnes are humanitarian, in that they are owed not just to an injured state, but also to other states.

Now,there are two forms of erga omnesobligations. First, there are erga omnespartes obligations. These obligations are owed to a group of states and established for the protection of a collective interest of the group. The mostrelevant of such obligations are found in multilateral treaties where, sometimes, all the parties with treaty can be saidto have an interest in invoking a breach. Pureerga omnes obligations,however, is a broader category of obligations that are owed to all states. Here, all states, regardless of whether or not they are all treaty parties, can invoke a breach of such a norm. For instance, since the right of self-determination is an obligation erga omnes, all states can invoke a breach of that right. The same goes for the prohibition against genocide.Here, all states can invoke a potential breach of the prohibition against genocide.