3 'Aggravated' state responsibility

3.1 MAIN FEATURES

Hitherto we have seen that responsibility for 'ordinary' breaches of international law embraces accountability for violations of bilateral treaties or of multilateral conven­tions or general rules laying down 'synallagmatic' obligations, that is, rules protecting reciprocal interests of States (economic and commercial relations, the reciprocal treatment of nationals and of consuls or diplomats, etc.). The consequences of the breach of any such rule creates a 'bilateral relation' between the responsible and the wronged State. Hence the whole relation remains a 'private' matter between the two States. 'Aggravated responsibility has markedly distinct features. It arises when a State violates a rule laying down a 'community obligation', that is either a customary obligation erga omnes protecting such fundamental values as peace, human rights, or self-determination of peoples or an obligation erga omnes contractantes laid down in a multilateral treaty safeguarding those fundamental values. In the case of this 'aggravated responsibility' the material or moral damage, if any, is not an indispensable element of State responsibility. What matters is that the breach results in the infringement of a State's right to compliance by any other State (or contracting State) with the obligation. Following such a breach of one of the aforementioned rules, a 'public relation' comes into being between the delinquent State and all other States or, as the case may be, all the other contracting States. The 'public' nature of the relation lies in that any other State, regardless of whether or not it has been materially or morally damaged by the breach, can invoke the responsibility of the wrongdoer (this invocation may also be made by a competent international body, either on its own initiative, or at the request of a State). In other words, the States that take action to invoke this class of responsibility do not pursue a personal or individual interest; they pursue a community interest, for they act on behalf of the whole world community or of the plurality of States parties to the multilateral treaty. In addition, all the States entitled to demand compliance with the obligation that has been infringed may take a host of remedial actions designed to impel the delinquent State to cease its wrongdoing or to make reparation.

3.2 THE LEGAL REGULATION OF AGGRAVATED RESPONSIBILITY

(a) Subjective and objective elements of the wrongful act

Let us now enlarge on the main traits of this class of responsibility that differentiate it from 'ordinary responsibility'.

Both categories share the legal regulation of the subjective and objective elements of responsibility, except for the questions of (i) the nature and gravity of the inter­national obligation breached, (ii) damage, and (iii) fault.

The obligation the breach of which may give rise to 'aggravated responsibility' must be a 'community obligation, that is, an obligation (i) concerning a fundamental value (peace, human rights, self-determination of peoples, protection of the environment), (ii) owed to all the other members of the international community;

(iii) having as its correlative position a 'community right, that is, a right belonging to any other State; (iv) this right may be exercised by any other State, whether or not damaged by the breach; and (v) the right is exercised on behalf of the international community and not in the interest of the claimant State.

Furthermore, the breach of this obligation must be gross or systematic; in other words, it may not be a sporadic or isolated or minor contravention of a community obligation (for instance, the infringement of the right of an individual to fair trial). It must be serious or large scale (for instance, aggression, genocide, or grave atrocities against one's own nationals or all persons belonging to an ethnic group

Let us now consider the question of damage. As we saw above, material or moral damage is an indispensable element of the wrongful act that may trigger the 'ordinary responsibility'. Things are different in the case of 'aggravated responsibility'. Here a State is responsible towards all other States simply for breaching an international obligation, regardless of whether or not a particular State has been materially or morally damaged. If a State grossly violates human rights of its own nationals, no material or moral damage is caused to any other State, but only a legal injury is brought about to the right of every other State.

Finally, let us consider the subjective element of responsibility. The gravity of the breach and the fact that the obligation violated is of fundamental importance for the community as a whole entails that in cases of 'aggravated responsibility', intent is always inherent in this class of responsibility and need not be proved by the claimant State (however, in the case of genocide, this State must prove that the officials and agents of the delinquent State,,agents who engaged in such conduct acted with a special intent, to destroy, in whole or in part, a national, ethnic, racial or religious group; similarly, in the case of aggression, it would seem that a claimant State should prove that the State's officials that planned and unleashed aggression had the animus agressionis, that is, they intended to invade and conquer foreign territory, or destroy the foreign State apparatus, and so on).

(b) Consequences of the wrongful act

(i) General. The most notable differences between the two classes of responsibility may be found not only in the preliminary conditions for the existence of responsibility, but also in the consequences of the wrongful act, in particular: (i) the obligations incumbent upon the delinquent State; (ii) the States entitled to invoke the aggravated responsibility.

In the case of 'aggravated' responsibility, under customary law the offending State has obligations towards all other States; correspondingly, all other States have rights, powers, and obligations consequent upon the wrongful act, vis-a-vis the delinquent State.

(ii) Obligations incumbent upon the delinquent State. The wrongdoer is under all the obligations incumbent upon any author of an international delinquency, and dis­cussed above with regard to 'ordinary responsibility'. However, now these obligations are owed not only to the damaged State, if any, but also to all the other members of the international community. In other words, the legal consequences of the wrongful act no longer consist merely of a 'bilateral relation' (between the responsible State and the State victim of the wrongful act), but of a 'community relation' between the wrongdoer and all other States.

Restitution, compensation, or satisfaction in some instances may prove relevant when the wrongful act has caused a material or moral damage to a particular State.

(iii) Rights, powers, and obligations of other States. It is more important to establish the legal position of other States (namely, any member State of the international com­munity, whether or not damaged by the wrong, provided it has the legal entitlement or right corresponding to the obligation breached by the responsible State).

The first set of consequences of breaches of community obligations has been rightly set out by the ILC in Article 42 of its Draft Articles and relates to obligations of all States other than the delinquent one. These States are under the obligations: (a) not to recognize as lawful the situation created by the breach; (b) not to render aid or assistance to the responsible State in maintaining the situation so created; (c) to co-operate as far as possible to bring the breach to an end.

In addition all States other than the wrongdoer have the following powers, rights or claims:

(1) To invoke the aggravated responsibility of the delinquent State, by bringing their claim to the notice of that State.

(2) To demand cessation of the wrong, if it is continuing, and to request assurances and guarantees of non-repetition.

(3) To claim reparation in a form consistent with the nature of the wrong (if a State has been materially or morally damaged, as in the case of aggression, the victim State may claim reparation as may other States to the benefit of the victim State, or, as in the case of gross violations of human rights, to the benefit of the individuals that have suffered from the wrongful act).

(4) If the responsible State has not taken immediate action to discontinue the wrongful act or has not complied with the form of reparation sought by the claiming States, the right to bring the matter to the attention of the competent international bodies. Thus, third States can request the competent body of a universal organization (such as the UN) or a regional organization (such as the OAS, the AU, or the Council of Europe), or of intra-regional organizations, publicly to discuss the wrong done by the delinquent State with a view to attaining public exposure of that wrongdoing, or to adopting collective sanctions, etc. The need for States first to take steps within international organizations or other appropriate collective bodies seems to be warranted and indeed dictated by the inherent nature of this class of responsibility. This responsibility arises out of a gross attack on community or 'public' values. The response to the wrongdoing must therefore be as much as possible public and collective. It would be incongruous and contradictory to contemplate on the one hand a form о States' aggravated accountability for gross breaches of fundamental values of concern to all members of the world community, and then to envisage, on the other hand, response left to the 'private' initiative of each individual member of such community.

(5) If those bodies take no action, or their action has not brought about cessation of the wrong or adequate reparation (if only in the form of strict assurances not repeat the same or similar wrongs in the future), all States are empowered to take peaceful countermeasures on an individual basis. When States opt for individual countermeasures, these must be subject to the conditions enumerated above with regard to 'ordinary responsibility' .In particular, before taking countermeasures, the claimant States must (a) offer to nego­tiate with the responsible State as well as propose other means of peacefully settling the dispute such as mediation and conciliation, if appropriate, or arbitral or judicial settlement; (b) duly notify the responsible State of their intention to resort to coun­termeasures. Plainly, in this case a problem of co-ordination among States resorting to countermeasures may arise.

(6) In case of armed aggression, States are entitled to resort to collective self-defence (subject to the request or consent of the victim of aggression).

A caveat must however be entered. The above measures do not affect or prejudice the possible operation of the UN Security system. If the UN SC considers that a gross violation of community obligations amounts to a threat to the peace, a breach of the peace, or an act of aggression, it may recommend or decide what measures not involving the use of force States are entitled or obliged to take under Article 41 of the UN Charter, or may authorize States to take forcible measures against the wrongdoer. In other words, faced with an international wrongful act that it deems covered by Article 39 of the UN Charter, the SC takes over, and individual States may only take action to the extent allowed by the UN Charter (individual or collective self-defence), or recommended, authorized, or decided upon by the SC.

A final point also proves necessary. As has been stressed above, violations of com­munity obligations may well cause material or moral damage to a particular State.