CYIL vol. 8 (2017)

KAROLINA WIERCZYŃSKA CYIL 8 ȍ2017Ȏ and its impact on codification of law on international responsibility, the fundamental rules of states’ responsibility were confirmed and its constituent elements recognized. The content of state responsibility is rather clear and uncontroversial in comparison to the responsibility of the other entities in international law, especially non-state actors. The current international law tends not to deal with the rules of the responsibility of legal person other than state – leaving this competence in the domain of state’s jurisdiction. 19 For example the ILC in its work refers to the responsibility of legal persons leaving this question to the decision of the state. 20 Such a solution removes the question of the responsibility of other entities than state from the field of interest of the international community leaving the problem of imposing a sanction to the states. Criminal sanction is not required, as is underscored in the international conventions or the work of the ILC, the liability of a legal person might be civil or administrative. Consequently, international law does not offer any universal or uniform rules of responsibility for those other than states and individual legal persons, including corporate subjects, additionally criminal or terrorist groups which are not usually recognized as legal persons seem as being fully out of the scope of the interest of the international law. 2.1 Non-state actors – responsibility of proto-states? Entities with no defined territory, permanent population, government or the capacity to enter into international relations cannot be classified as states. 21 Another question is recognition- some entities could be recognized as states or at least as legal entities despite the fact that some elements of statehood aremissing. 22 The Islamic state, so called ISIS, is a political, terrorist entity, armed non-state actor, which clearly is not a sovereign state when taking into account the Montevideo requirements. ISIS’s self-proclamation of being a Caliphate does not replace the constitutive elements of statehood. Paradoxically non recognition of statehood in the context of ISIS makes its status towards the international community no simpler but even more complicated. On the one hand, international recognition of ISIS as a state would clarify the current legal situation not only of such an entity but also of its responsibilities vis-à-vis the international community, as for example the obligation to respect jus cogens norms and 19 See for example art. 5 para. 1 of the of the International Convention for the Suppression of the Financing of Terrorism “Each State party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence.... Such liability may be criminal, civil or administrative”, UNTS 2178, p. 197, and similarly, the United Nations Convention against Transnational Organized Crime, art.10 para. 2: “Subject to the legal principles of the State party, the liability of legal persons may be criminal, civil or administrative”, UNTS 2225, p. 209. 20 See specifically ILC, Text of draft article 5, paragraph 7, provisionally adopted by the Drafting Committee on 7 July 2016, A/CN.4/L.873/Add.1, 8.07.2016, which states: Subject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative; see also respectively: ILC, Second report on crimes against humanity, A/CN.4/690, by Sean D. Murphy, Special Rapporteur, 21.01.2016, pp. 29-31. 21 Classical criteria of statehood are settled in art. 1 of Montevideo Convention on Rights and Duties of States, which is often cited as a point of reference in discussions on the question of statehood, see for example CRAWFORD, J., Brownlie’s Principles … p. 128. 22 For example Republika Srpska was never internationally recognized as a sovereign State, but it had de facto control of substantial part of territory, and many Bosnian Serbs were loyal towards it. Another example might be South Osetia which declared independence but is not internationally recognized sovereign State.

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