CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESPONSIBILITY OF STATE AND RESPONSIBILITY OF INDIVIDUAL … According to the ILC’s Draft Articles ,which can also in some ways be considered as a reflection of customary international law, 13 every internationally wrongful act of a State entails its international responsibility (Article 1). The elements of such an internationally wrongful act area breach of international law which is attributable to a state. The breach may be the result of either an action or an omission (Article 2). As the ICJ pointed out “For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” 14 This was in fact envisaged in article 8 of the Draft articles, which states: “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, or under the direction or control of, that State in carrying out the conduct.” The ICJ also found that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State. 15 According to the Draft articles the responsible state shall cease the violation and offer appropriate assurances and guarantees of non-repetition, if circumstances so require (Article 30). The consequences of such a breach were described already a century ago in a classical judgment of the Permanent Court of International Justice (PCIJ) which stated “the essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.” 16 This finding is in fact envisaged in the work of the ILC, which confirmed in regulations of the Draft articles that the second general obligation of a state is to make full reparation consequent upon the commission of an internationally wrongful act. 17 Due to the quite developed jurisprudence of the Permanent Court of International Justice and later the International Court of Justice 18 and the work of International Law Commission 13 This was for example confirmed by the ICJ, see: Application of the Convention on the Prevention and Punishment of the Crime of Genocide…, par. 385. 14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. ICJ Reports 1986, p. 14, par. 115. 15 Application of the Convention on the Prevention and Punishment of the Crime of Genocide …. Ibid. 16 PCIJ, The Factory at Chorzow (Claim for Indemnity), Merits, Germany v. Poland, 13. 09. 1928, on line at: http://www.worldcourts.com/pcij/eng/decisions/1928.09.13_chorzow1.htm (accessed 27. 06. 2017). 17 ILC Commentary on the Draft Articles on Responsibility of States…, p. 91. 18 Definitely some cases had tremendous impact on the development of the law on international responsibility, as for example: Factory at Chorzow, ibidem; Corfu Channel, Merits, ICJ Reports 1949, p. 4; United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), judgement, ICJ Reports 1980, p. 3; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, p. 14; Gab č ikovo- Nagymaros project (Hungary v. Slovakia), judgement, ICJ Reports 1997, p. 7; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 198; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43.

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