International legal responsibility

In the Ancient World, the subjects of international law were not states as such, but their rulers ^[1] . Due to cruelty and extreme hostility between states, norms on international responsibility were not developed and were practically absent. The state (represented by a sovereign ) for breach of obligations under an international treaty was responsible in the form of hostilities directed against it, as well as religious curses against the “treacherous” ruler .

Treaty of Versailles (1919) , according to which reparations were imposed on Germany as a measure of international responsibility

With the development of international law during the Middle Ages, the norms of international responsibility were consolidated in the form of religious precepts and sanctions by the Papal throne . The hostages acted as means of ensuring the fulfillment of international obligations, as well as the possibility of imposing an interdict - excommunication, which was the first instrument for imposing international responsibility. In addition, the practice of guaranteeing the implementation of international treaties by third states or the Pope , as well as the pledge of cities and territories, has developed. At the conclusion of the Peace of Westphalia, a considerable number of articles were devoted to restitution and collective sanctions against violators of the new international system of relations (Article XVII of the Osnabruck Treaty ).

The first normative consolidation of the norm on international legal responsibility of states was found in the Hague Conventions . The 1907 Convention on the Laws and Customs of the Land War, in particular, established: “A belligerent who violates the provisions of the said Regulation shall have to compensate for losses, if there is reason to it. She will be responsible for all actions committed by persons who are part of her military forces ” ^[2] . Inter-American conferences of 1889 - 1890 and 1902 were also devoted to problems of state responsibility. Many issues of responsibility were fixed at the regional level, and even more often at the level of bilateral treaties between states. There was no uniform practice for the implementation of responsibility.

The signing of the Versailles Peace Treaty of 1919 intensified the development of international responsibility standards. As a result of its signing, Germany was imposed measures of international responsibility in the form of territorial concessions, abandonment of colonies, restrictions on military forces and reparations in the amount of 269 billion gold marks . The development of international law and the need for its codification and adoption of new multilateral conventions led to the holding of a conference on the "progressive codification of international law" within the framework of the League of Nations , which also touched upon issues of international legal responsibility.

In 1927, the Institute of International Law adopted a resolution “The international responsibility of states for damage caused on their territory to the identity or property of foreigners” ^[3] . However, most of the rules relating to this period of development of the institution of international responsibility concerned only the responsibility of states for the actions of individuals.

The end of World War II , in particular the Nuremberg and Tokyo military tribunals, had a great influence on the formation of norms on international responsibility. The statutes of these tribunals determined the grounds for the responsibility of the highest officials of the state. The grounds, forms and types of responsibility of states were subsequently enshrined in the UN Charter ^[4] . Separate rules on international responsibility also appeared in the UN Convention on the Law of the Sea .

Since 1953, the UN International Law Commission began the development of draft conventions on the international responsibility of states, as well as the international responsibility of international organizations. Today, the codification of international liability standards continues. An important achievement in this area was the adoption by the UN General Assembly on December 12, 2001 of a resolution that contained as an annex the document “Responsibility of States for Internationally Wrongful Acts” ^[5]

• States
• International organizations ;
• State-like entities ( Holy See , Order of Malta );
• Peoples fighting for independence.

Responsibilities of International Organizations

As a general rule, an international organization is responsible for the acts of its authorized persons and agents, if they act in the performance of the functions of the organization, as well as authorized persons and agents placed at the disposal of the international organization by a state or other international organization. In addition, the international organization is responsible for another act that is recognized and accepted by the international organization as its own ^[6] .

However, the question of independent international responsibility of international organizations remains open. According to the first point of view (mainly supported by Soviet scientists), an international organization cannot bear independent responsibility (especially material), since its budget consists of contributions from member states (Yu. M. Kolosov, L. A. Modzhoryan, E. A . Shibaeva and others.) . Western doctrine asserts the opposite , although there are several approaches to this issue, based on a different understanding of the concept of powers of an international organization (F. Seyrsted, G. Kelsen, J. Brownlee and others) ^[7] .

Despite this, in the modern science of international law, the following problems are identified in the field of responsibility of international organizations :

1. The problem of the responsibility of states for the activities of the organization due to their participation in this activity or membership in the organization.
2. The problem of the organization’s responsibility to its members and non-participating states.
3. The issue of attributing a wrongful act either to an organization, or to Member States, or both.

The issue of private responsibility in international law

According to the general principle, individuals, not being subjects of international law , but being in cases when international law protects their interests, in particular, in cases of compensation for damage caused by them, only as destinators of its norms, can neither be subjects of international tort , nor subjects of claims about responsibility ^[8] . At the same time, some scholars hold the view that private individuals are subjects of international law ^[9] , and therefore, subjects of international responsibility. However, the generally accepted point of view is that individuals are not subjects of international responsibility, in particular because they bear personal responsibility for committed international crimes, namely international criminal responsibility ^[10] .

In the theory of international law, there are two grounds for international legal responsibility:

• Legal ( on the basis of what? ) Is a norm of international law, on the basis of which the subject is liable, or which may violate. These norms can be contained in any sources of international law and other acts fixing rules of conduct binding on the state. They are treaties, customs, decisions of international courts and arbitrations, binding acts of international organizations, some acts of international conferences and meetings, certain unilateral acts of states of international legal character ^[11] .
• The actual ( for what? ) Is the actual actions (or inaction) of the state, which include elements of the offense , that is, the wrongful nature, damage and cause-effect relationship between them.

International legal responsibility is realized in two forms: tangible and intangible. Liability includes, with certain reservations, the following forms:

• Reparations - compensation for harm caused by goods, works or services (see compensation)
• Restitution - the return of a state to a position that existed before the commission of the offense. An example of restitution is the release of illegally detained persons, the return of unlawfully confiscated property, and the abolition of an unlawfully prescribed judicial measure. Restitution cannot be applied if it is financially impossible, or if it entails a burden disproportionate to the benefits of restitution compared with compensation ^[12] . Some forms of restitution may be intangible, for example, repeal of a law or other normative act contrary to international law, cancellation of a court decision that violates the rights of another state, etc.
• Compensation is a term used in modern international law to mean financial compensation for material damage or non-pecuniary damage. Compensation may include interest on the amount in which the damage is estimated. Compensation is the most used form of compensation for damage in international relations ^[13] .

Intangible liability includes:

• Satisfaction - satisfaction of harm (caused primarily to the international prestige of the state, its political interests) by intangible means. It is usually carried out in the form of an official apology, condolences, recognition of the unlawfulness of one’s own actions, and may also include disciplinary measures or punishments against those whose actions led to an unlawful act ^[14] . Satisfaction takes place in cases where the damage caused cannot be financially assessed or the violated rights cannot be restored financially, often in addition to applying other measures of responsibility: compensation, restitution ^[15] . An example of the satisfaction of an international organization is that NATO officially apologizes to Afghanistan for the deaths of civilians as a result of the bombing in the southern Afghan province of Helmand ^{[16] [17]} .
• Assurances or guarantees of the non-repetition of an unlawful act in the future - this form is close to satisfaction, sometimes it is considered as its kind ^[18] .

• Declarative decisions - a statement of the fact of the commission of an offense by any official body. The prevailing point of view is that it is a type of satisfaction ^[20] . Thus, the UN International Court of Justice announced in a decision on the incident in the Corfu Strait that the actions of the British Navy to mine Albanian waters without permission from Albania were in violation of international law, and that such a statement responded to the request made by Albania and was in itself proper Satisfaction ^[21] .
• Restriction of sovereignty - occupation of the territory of a state; holding officials accountable, etc. In modern international law, it is possible only through the implementation of international sanctions imposed by the UN Security Council , or through the procedure in the International Criminal Court or in specially created international tribunals, respectively.

• The consent of the authorized body or official of one state to commit a specific act by another state. The wrongfulness of such an act is excluded to the extent that it does not go beyond the scope of this consent ^[22] . A similar provision applies to international organizations ^[23] .
• Self-defense adopted in accordance with the UN Charter. If we turn to the UN Charter, it enshrines the right to individual or collective self-defense as an inalienable right of each state. In order for the measures taken to be self-defense, it is necessary that their application be immediately reported to the Security Council, and the actions themselves do not affect the powers of the Security Council ^[24] .
• Countermeasures , that is, acts of the state that are unlawful, but are deprived of such status in connection with their use in response to the unlawful act of another state in order to terminate such action or to compensate for damage.
• Force Majeure - the onset of a situation in which the subject is forced to act contrary to international obligation as a result of force majeure or uncontrollable unforeseen events ^[25] . However, the actions of the state are not recognized due to force majeure circumstances if:
  • force majeure situation is caused, either entirely or in combination with other factors, the behavior of the state that refers to it.
  • the state assumed the risk of such a situation ^[26] .
• Disaster - situations in which representatives and agents of the state are not able to comply with international obligations due to accidents and the impact of destructive forces of a natural and / or man-made nature, having no other way to save their life or the lives of those entrusted.
• Necessity - only in cases:
  • illegal action is the only way for the state to protect a substantial interest from serious and imminent danger;
  • the act does not cause serious harm to the essential interests of a particular state or states in respect of which this obligation exists, or of the international community as a whole ^[27] .

• Санкции в международном праве

• Международное право / Отв. ed. G.V. Игнатенко и О.В. Тиунов. — 5-е изд., перераб. и доп.. — М. : Норма: ИНФРА-М, 2010. — 783 с. - 4000 copies. — ISBN 978-5-16-004137-7 .