1. PUBLIC INTERNATIONAL LAW Dr. Indre Isokaite Law Faculty of Vilnius University Institute of International and EU Law Public Law Department 2016

2. State Responsibility for Internationally Wrongful Acts Articles on Responsibility of States for Internationally wrongfull acts International Law Commission, 2001 http://legal.un.org/ilc/texts/9_6.htm

3. Ground for State Responsibility Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law (objective element) (e.g. In Teheran case (United States of America v. Iran, 1982) omission: being aware of the obligation and necessity to take action, in presence of required means, however, the State fails to use them: “the Iranian State - which, as the State to which the mission was accredited, was under obligation to take appropriate steps to protect the United States Embassy - did nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages) ”; and (b) constitutes a breach of the international obligation of a State (subjective element).

4. Internationally wrongful act of a State Conduct of any State organs (institutions and officials) – irrespective of whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State (Genocide case, 2007, implies that State organ is part of the State‘s structure/organisation, acting under the law of a State and on behalf of the State (de jure) or a formally separate body, however, actually fully depending on the State (de facto), supported financially, politically, logistically or militarily). Conduct of persons or entities that are empowered by the law of that State to exercise elements of the governmental authority and acts within the limits of that capacity (also may be e.g. NVOs that implement functions of public administration)

5. Internationally wrongful act of a State Conduct of a person or group of persons if they are in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (test of effective control, e.g. Nicaragva case, Teheran case, Genocide case: full dependence/complete subordination is not required, however, general control and dependence, e.g. financial support, training, organising, supply), it is required that management and control should be exercised in respect of a particular conduct that is not in line with PIL or when the State orders certain conduct. Conduct of a person or group of persons in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority (e.g. captain of a ship or pilot of an airplane or other person in case of a critical situation).

6. Internationally wrongful act of a State Conduct of an insurrectional or other movement which becomes the new Government of a State Conduct acknowledged and adopted by a State as its own Conduct of other State bodies attributed to a State

7. Circumstances precluding wrongfulnes 1. Consent Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent. 2. Self-defence The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.

8. Circumstances precluding wrongfulnes 3. Countermeasures in respect of an internationally wrongful act. The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State (provided that they are legitimate).

9. Circumstances precluding wrongfulnes 4. Force majeure The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. Except when: (a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the State has assumed the risk of that situation occurring.

10. Circumstances precluding wrongfulnes 5. Distress The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care. Except when: (a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the act in question is likely to create a comparable or greater peril. Distress is when a failure to exercise international obligation is inevitable in order to safeguard life of people and there is no other alternative.

11. Circumstances precluding wrongfulnes 6. Necessity (other interest/value than life of people is protected) Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity. Case of Gabcikovo Nagymaros

12. Types of wrongful acts I.International crimes II.International offences International crime is a grave violation of a binding rule of general PIL: violation of jus cogens rule – violation of an obligation to protect basic interest (value) of International Community material breach – failure to implement the obligation systematically or to a significant extent (otherwise – international offence)

13. International crimes Examples aggression – grave violation of the obligation to maintain peace and security - colonial oppression – grave violation of an obligation of respect to self-determination of peoples - slavery, genocide apartheid, torture – grave massive violation of human rights’ protection - massive pollution of atmosphere or sea – grave violation of the principle of environmental protection - other grave violations of ius cogens rules: war crimes, crimes against humanity, etc. (dualism of responsibility: individual criminal responsibility also applies)

14. International Criminal Court The International Criminal Court is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. The Court may exercise jurisdiction over the crime of aggression, subject to a decision to be taken after 1 January 2017 by a two-thirds majority of States Parties and subject to the ratification of the amendment concerning this crime by at least 30 States Parties. Any State Party to the Rome Statute can request the Prosecutor to carry out an investigation. A State not party to the Statute can also accept the jurisdiction of the ICC with respect to crimes committed in its territory or by one of its nationals, and request the Prosecutor to carry out an investigation. The United Nations Security Council may also refer a situation to the Court. 123 States Parties. http://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx

15. International Crimes Specific consequences – all States are injured/victim States (relation between the responsible State and all International Community) Specific rights of other than injured States: Right to present a claim invoking State responsibility (cessation of violation and reparation) Right to implement countermeasures Duties of other than injured States (cases of Palestine, Namibia, etc.) not to recognise unlawful situation; not to render assistance for the support of unlawful situation; to cooperate applying legitimate means in stopping the violation.

16. International Offence Any violation of PIL, other than International crime: Violation of other than jus cogens rule or immaterial violation of jus cogens rule; Relation is only between the responsible State and the injured State: - only the injured State is entitled to present a claim and apply countermeasures; Duties of other States - not to recognise unlawful situation and not to render assistance in support thereof (a minimum conduct requirement in response to any violation of PIL); - cooperation in terminating the violation.

17. Reparation – State responsibility for internationally wrongful acts. Types and forms Principle of full reparation, 1928 Chorzow factory case Types: Material and moral responsibility I. Material responsibility – substantial/material reimbursement of damage Two forms of reparation: Restitution – a State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: is not materially impossible; does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. Compensation – a State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established. Gabcíkovo-Nagymaros case, 1997

18. Reparation – State responsibility for internationally wrongful acts. Types and forms II. Moral (political) responsibility Reimbursement of moral damage: - satisfaction (if damage may not be reimbursed by restitution and compensation as they are not enough or the damage may be reimbursed only in the way of satisfaction): - recognition of the violation including the decision of ICJ whereby the violation is stated (cases of Arrest warrant, Genocide, etc.); official excuse; declaration of regret; nominal compensation of damages (symbolic compensation); applying responsibility to those liable for violation (including extradition); other form. Requirements for the form of satisfaction: proportionality in respect of the damage and prohibition to humiliate the responsible State.

19. Countermeasures Procedural requirements: Before invoking countermeasures the injured State should ask the responsible State to implement the duties related with its responsibility; The injured State should notify of the decision to invoke countermeasures and should propose negotiation (except for urgent means, inevitable to protect the rights of the injured State); Injured State should follow obligations under the applicable procedure for dispute settlement (except for cases when responsible State breaches these obligations). Countermeasures that are forbidden (not in line with jus cogens and some other PIL rules): - treat to use or use of force; -violation of basic human rights; -reprisals violating obligations of humanitarian nature (e.g. grave violations of the rules of International Humanitarian Law); -other violation of jus cogens rules; -violation of inviolability of diplomatic and consular premises, archives, documents, etc.

20. Countermeasures Countermeasures is the form of invoking responsibility taken by an injured State Aim is to force the responsible State to implement the duties and international obligations (to stop the violation, to make a reparation in certain cases); Content is a temporal suspension of the exercise of international obligations towards the responsible State. Requirements for legitimacy: - proportionality – measure shall be proportional in respect of the nature of the infringed rights and gravity (e.g. extreme economic or political coercion that is directed against the unity of territory and political independence, breach of diplomatic and consular immunities); - duration – until the violation is terminated and the dispute is before the court or arbitration (if the responsible State is not following the means for dispute settlement – until the reparation is provided ).

21. Invocation of responsibility by an injured State Duty to duly present a claim to the responsible State: - content of a claim: how the violation shall be terminated and what form of reparation shall be provided; - form of a claim: taking into account the nature and amount of a claim and relation to the status of the responsible State, the claim may be raised by various State bodies and officials in various forms (diplomatic nota, oral statement); if the claim is related with the protection of a natural or legal person, meeting conditions for diplomatic protection regarding the citizenship (national link/attribution) and exhaustion of domestic remedies is also required to be followed; - time/moment of a claim: the claim shall be submitted within a reasonable time.

22. Invocation of responsibility by an injured State Loosing the right to present a claim: - refusal from the claim (must be clear and not ambiguous); - implied refusal means conduct that demonstrates that the State agrees with the fact that the time has expired (e.g. being inactive or delay in presenting claim during sufficient time, failure to uphold the claim by a constant and coherent conduct, etc.). Duly notified claim shall not be annulled by the following: -Endured implementation; -Refusal by the responsible State to satisfy the claim; -Protest by a responsible State or notification of a counterclaim.

23. “ In 1997, the Commission appointed J. Crawford (Australia) as Special Rapporteur and from 1998 to 2001 the ILC undertook a second reading of the draft Articles. Between 1998 and 2000, it reviewed the entire text and adopted a new draft of the Articles that was submitted to the comments of Governments, following the examination of which, during its fifty-third session, in 2001, the final version, consisting of 59 draft articles, was adopted. A commentary to them was also completed. By resolution 56/83 of 12 December 2001, the General Assembly took note of the Articles, the text of which was annexed to the resolution, and commended them to the attention of Governments, without prejudice to their future adoption as a treaty text or other appropriate action. The Articles were again commended by the General Assembly to the attention of Governments in resolution 59/35 of 2 December 2004, which also requested the Secretary-General to prepare an initial compilation of decisions of international courts, tribunals and other bodies referring to the Articles. ” http://legal.un.org/avl/ha/rsiwa/rsiwa.html

24. Succession of States “Clean State” principle or Tabula rasa principle (the successor State should have a right to start its history without any obligations arising from the Predecessor State, however, this depends on the particular type of succession, i.e. new State or united State, etc.). Succession of States means the replacement of one State by another in the responsibility for the international relations of the territory (universal succession, partial succession); Predecessor State means the State which has been replaced by another State on the occurrence of a succession of States; Successor State means the State which has replaced another State on the occurrence of a succession of States.

25. Succession of States The reunification of Germany took place in 1990. The break-up of the Soviet Union occurred in 1991, and of Yugoslavia mainly between 1992 and 1993. The so-called velvet divorce of Czechoslovakia happened in 1993. In short, before the 1990s there was little of recent practice on which to draw… Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia), I.C.J. Reports 1996, pp. 595 and 611-12 and Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, pp. 7 and 72 http://legal.un.org/avl/ha/vcssrt/vcssrt.html

26. Principles of the Succession of States in respect of International Treaties Vienna Convention on Succession of States in respect of Treaties, 23 August 1978 Conflict of two principles: - pacta sunt servanda (interest in stability of international relations and the continuance of the international rights and obligations) - pacta tertiis nec nocent nec prosunt (protection of State‘s sovereignty, international obligations should be assumed freely without possibility to impute them without a consent of a State) Collision shall be resolved in the following ways: Automatic succession - in respect of the most important treaties to international community (e.g. Genocide Convention) - multilateral agreements that establish erga omnes obligations and jus cogens rules - bilateral agreements on the State boundary and regime thereof

27. Principles of the Succession of States in respect of International Treaties Treaties that are not subject to succession – those application whereof to certain territory would be incompatible with the object or aim of the treaty or would materially modify the conditions of the implementation (e.g. Treaties of political and military cooperation, founding treaties of International Organisations) Treaties subject to succession are those succession whereof is allowed: Priority to special treaties – treaties of the successor State(s) regarding the further application of the treaties of a predecessor State with other parties (Article 24) Unilateral declaration of the successor State under the general public international law (Article 9) Tabula rasa(?) – for new independent States previously colonies (under Article 16)

28. Article 24 Conditions under which a treaty is considered as being in force in the case of a succession of States 1. A bilateral treaty which at the date of a succession of States was in force in respect of the territory to which the succession of States relates is considered as being in force between a newly independent State and the other State party when: (a) they expressly so agree; or (b) by reason of their conduct they are to be considered as having so agreed. 2. A treaty considered as being in force under paragraph 1 applies in the relations between the newly independent State and the other State party from the date of the succession of States, unless a different intention appears from their agreement or is otherwise established.

29. Article 9 Unilateral declaration by a successor State regarding treaties of the predecessor State 1. Obligations or rights under treaties in force in respect of a territory at the date of a succession of States do not become the obligations or rights of the successor State or of other States parties to those treaties by reason only of the fact that the successor State has made a unilateral declaration providing for the continuance in force of the treaties in respect of its territory. 2. In such a case, the effects of the succession of States on treaties which, at the date of that succession of States, were in force in respect of the territory in question are governed by the present Convention.

30. Article 16 Position in respect of the treaties of the predecessor State A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.

31. Principles of the succession of States in respect to State property Vienna Convention on Succession of States in respect of State Property, Archives and Debts, 1983 Priority to special treaties (between the successor State and the predecessor State; Articles 11, 14 (para 1), 17 (para 1) and 18 (para 1). Passing of State property without compensation (Article 11) Subject to the provisions of the articles in the present Part and unless otherwise agreed by the States concerned or decided by an appropriate international body, the passing of State property of the predecessor State to the successor State shall take place without compensation. Transfer of part of the territory of a State (Article 14) 1. When part of the territory of a State is transferred by that State to another State, the passing of State property of the predecessor State to the successor State is to be settled by agreement between them.

32. Principles of the succession of States in respect to State property Rules for different cases One successor State and no predecessor State (e.g. uniting of States): all property of the predecessor State passes to the successor State (Article 16) Several successor States or a successor and a predecessor State, e.g. secession, new State, dissolution (Articles 14, 15, 17 and 18): - immovable property passes according to where it is situated - movable property that is legally related with certain territory (registration place) - other immovable and movable property (situated in third States and which is not significantly related to any State participating in the succession) passes to the successor State in proportion to the contribution of the dependent territory (Articles 15 para 1 c, d and f)

33. Article 17 Separation of part or parts of the territory of a State 1. When part or parts of the territory of a State separate from that State and form a successor State, and unless the predecessor State and the successor State otherwise agree: (a) immovable State property of the predecessor State situated in the territory to which the succession of States relates shall pass to the successor State; (b) movable State property of the predecessor State connected with the activity of the predecessor State in respect of the territory to which the succession of States relates shall pass to the successor State; (c) movable State property of the predecessor State, other than that mentioned in subparagraph (b), shall pass to the successor State in an equitable proportion.

34. Article 18. Dissolution of a State 1.When a State dissolves and ceases to exist and the parts of the territory of the predecessor State form two or more successor States, and unless the successor States concerned otherwise agree: (a) immovable State property of the predecessor State shall pass to the successor State in the territory of which it is situated; (b) immovable State property of the predecessor State situated outside its territory shall pass to the successor States in equitable proportions; (c) movable State property of the predecessor State connected with the activity of the predecessor State in respect of the territories to which the succession of States relates shall pass to the successor State concerned; (d) movable State property of the predecessor State, other than that mentioned in subparagraph (c), shall pass to the successor States in equitable proportions.

35. Article 15. Newly independent State 1. When the successor State is a newly independent State: (c) immovable State property of the predecessor State other than that mentioned in subparagraph (d) movable State property of the predecessor State connected with the activity of the predecessor State in respect of the territory to which the succession of States relates shall pass to the successor State; (d) and (e), to the creation of which the dependent territory has contributed, shall pass to the successor State in proportion to the contribution of the dependent territory; (f) movable State property of the predecessor State, other than the property mentioned in subparagraphs (d) and (e), to the creation of which the dependent territory has contributed, shall pass to the successor State in proportion to the contribution of the dependent territory.

36. Principles of succession of States in respect to debts Priority to special treaties (between the successor State and predecessor State; Articles 37 para 1, 38 para 1, 40 para 1, 41) No consequences to creditors (protection of the creditors – States or International Organisations – rights not decreasing the amount of financial obligations, Article 36) Article 36. Absence of effect of a succession of States on creditors A succession of States does not as such affect the rights and obligations of creditors.

37. Principles of succession of States in respect to debts Rules for different cases: One successor State and no predecessor State (e.g. uniting) all debts of predecessor pass to the successor (Article 39) Several successor States or a successor State and a predecessor State (Articles 37, 38, 40 and 41): - an equitable share passes to the predecessor State according to the property, rights and interests, also as regards localised debts (i.e. loans granted for a particular part of territory); - for new independent States, previously colonial States tabula rasa principle(?), except for localised debts, Article 38)

38. Article 37 Transfer of part of the territory of a State 1. When part of the territory of a State is transferred by that State to another State, the passing of the State debt of the predecessor State to the successor State is to be settled by agreement between them. 2. In the absence of such an agreement, the State debt of the predecessor State shall pass to the successor State in an equitable proportion, taking into account, in particular, the property, rights and interests which pass to the successor State in relation to that State debt.

39. Article 38. Newly independent State 1. When the successor State is a newly independent State, no State debt of the predecessor State shall pass to the newly independent State, unless an agreement between them provides otherwise in view of the link between the State debt of the predecessor State connected with its activity in the territory to which the succession of States relates and the property, rights and interests which pass to the newly independent State. 2. The agreement referred to in paragraph 1 shall not infringe the principle of the permanent sovereignty of every people over its wealth and natural resources, nor shall its implementation endanger the fundamental economic equilibria of the newly independent State.

40. Principles of succession of States in respect to debts Article 40 Separation of part or parts of the territory of a State 1.When part or parts of the territory of a State separate from that State and form a State, and unless the predecessor State and the successor State otherwise agree, the State debt of the predecessor State shall pass to the successor State in an equitable proportion, taking into account, in particular, the property, rights and interests which pass to the successor State in relation to that State debt. 2.Paragraph 1 applies when part of the territory of a State separates from that State and unites with another State

41. Article 39 Uniting of States When two or more States unite and so form one successor State, the State debt of the predecessor States shall pass to the successor State. Article 40 Separation of part or parts of the territory of a State 1.When part or parts of the territory of a State separate from that State and form a State, and unless the predecessor State and the successor State otherwise agree, the State debt of the predecessor State shall pass to the successor State in an equitable proportion, taking into account, in particular, the property, rights and interests which pass to the successor State in relation to that State debt. 2.Paragraph 1 applies when part of the territory of a State separates from that State and unites with another State.

42. Rules on succession of States in respect to archives Priority to special treaties (by successor State and a predecessor State, treaties of the successor State(s), Articles 27 para 1, 28 para 7, 30 para 1 and 3, 31 para 1 and 4). Article 23 Passing of State archives without compensation Subject to the provisions of the articles in the present Part and unless otherwise agreed by the States concerned or decided by an appropriate international body, the passing of State archives of the predecessor State to the successor State shall take place without compensation. Article 25 Preservation of the integral character of groups of State archives Nothing in the present Part shall be considered as prejudging in any respect any question that might arise by reason of the preservation of the integral character of groups of State archives of the predecessor State. Article 26 Preservation and safety of State archives For the purpose of the implementation of the provisions of the articles in the present Part, the predecessor State shall take all measures to prevent damage or destruction to State archives which pass to the successor State in accordance with those provisions.

43. Rules on succession of States in respect to archives Rules for different cases One successor State and no predecessor State (uniting, accession) all archives of the predecessor State pass to the successor State (Article 29) several successor States or a successor State and a predecessor State (e.g. secession, newly independent State, dissolution, Articles 27, 28, 30 and 31) - municipal archives that are relevant for a usual administration of the territory pass to respective successor State which gains that territory; - successor State gains the portion of the archives that is mostly related with that territory; - successor State is entitled to get the access to the portion of the archives that did not pass to that State (including the right to receive copies) on e.g. territory of the State, State boundaries, historical, cultural heritage, etc. - new independent State should receive the archives that where attributed to its territory before the independence (Article 28 para 1 d)

44. Article 27. Transfer of part of the territory of a State 1. When part of the territory of a State is transferred by that State to another State, the passing of State archives of the predecessor State to the successor State is to be settled by agreement between them. 2. In the absence of such an agreement: (a) the part of State archives of the predecessor State, which for normal administration of the territory to which the succession of States relates should be at the disposal of the State to which the territory concerned is transferred, shall pass to the successor State; (b) the part of State archives of the predecessor State, other than the part mentioned in subparagraph (a), that relates exclusively or principally to the territory to which the succession of States relates, shall pass to the successor State.

45. Article 27. Transfer of part of the territory of a State 3. The predecessor State shall provide the successor State with the best available evidence from its State archives which bears upon title to the territory of the transferred territory or its boundaries, or which is necessary to clarify the meaning of documents of State archives of the predecessor State which pass to the successor State pursuant to other provisions of the present article. 4. The predecessor State shall make available to the successor State, at the request and at the expense of that State, appropriate reproductions of its State archives connected with the interests of the transferred territory. 5. The successor State shall make available to the predecessor State, at the request and at the expense of that State, appropriate reproductions of State archives of the predecessor State which have passed to the successor State in accordance with paragraph 1 or 2.

46. Germany‘s unification mholloway63.wordpress.com www.socsci.uci.edu500

47. Collapse of the USSR sodahead.com occawlonline.pearsoned.com

48. Yugoslavia maps.nationmaster.com

49. Czechoslovakia http://www.newworldencyclopedia.org/entry/Dissolution_of_Czechoslovakia

50. Hong Kong special administrative region www.noplacelikehere.com

51. Thank you! The so-called Cold War was still an important factor when the 1978 Convention was adopted. As a consequence, some of the draft articles were adopted by separate votes. In addition, there was no general doctrine which resolved the problems of succession to treaties. In particular, the situations in which new States are created vary enormously, and a “one-size fits all” approach was quite unsuitable. The number of different theories of succession did not make the task of devising a text on the subject any easier. As a result, the 1978 Convention contains much that is contentious progressive development of international law. When the Commission was developing its draft articles (in the relatively short space of seven years) the most recent State practice related to former colonies but was not consistent. Consequently, those rules of the 1978 Convention which are concerned with newly independent States are excessively complex. the 1978 Convention does not apply to a succession of States which occurs before its entry into force (6 November 1996) http://legal.un.org/avl/ha/vcssrt/vcssrt.html