State Obligations in Human Rights PDF

Preview

Summary

reading material...

Description

 Robert McCorquodale ∗  

The law of state responsibility distinguishes ‘public’ actions for which the state is accountable from those ‘private’ ones for which it does not have to answer internationally. Thus the conduct of persons not acting on the state’s behalf, or which is not attributable to the state, generally is not considered an 1 act of state. One of the core elements of an international legal system concerns the extent to which states have international legal responsibility for their actions. A significant body of law has developed to clarify the extent of a state’s responsibility under international law. As the quotation above notes, this law has tended to be limited to certain actions by a state and to certain conduct by some persons. This chapter will explore the extent to which general international law principles of state responsibility have been influenced by international human rights law, rather than the 2 impact of state responsibility on international human rights law. It will focus on the two core aspects of state responsibility: attribution to a state, and the extent of the obligations on a state for which it has international legal responsibility. 3 It will also consider the general impact that international human rights law may have had upon the broader understanding of state responsibility. In so doing, the issue of whether it is appropriate in any event to engage in an evaluation of the impact of international human rights law on the general international law of state responsibility, especially considering the apparently ‘private’ nature of many human rights abuses, will be considered.

∗ Director, British Institute of International and Comparative Law, and Professor of International Law and Human Rights, University of Nottingham. I am very grateful for the research assistance of Mehnaz Yoosuf and for the insights of Associate Professor Penelope Simons of the Faculty of Law, University of Ottawa. 1 H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (2000) 148. 2 There is still a need to address fully the impact of state responsibility on international human rights law, though it has been dealt with to some extent. See, eg, N. Jägers, Corporate Human Rights Obligations: In Search of Accountability (2002) 175, who indicates that ‘[t]he law of state responsibility offers an interesting, yet under utilised tool for addressing human rights violations resulting from corporate activities’; M. Sornarajah, ‘Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States’ in C. Scott (ed), Torture as Tort (2001) 491–512; and O. De Schutter, ‘The Accountability of Multinationals for Human Rights Violations in European Law’ in P. Alston (ed), Non#State Actors and Human Rights (2005). 3 This chapter will not deal with the (albeit important) procedural and remedial issues arising from state responsibility, such as the exhaustion of local remedies, remedies, or defences (sometimes called, rather coyly, ‘circumstances precluding wrongfulness’): International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission Report, 53rd sess, UN Doc A/56/10, August 2001, s 4 (‘ILC’s Articles on State Responsibilitf’).

El

t

i

il bl

t htt //

/ b t

t 2065911

 The general international law of state responsibility is a law created by states in which states themselves determine their own obligations for certain public acts in relation to other states and how a state can then enforce these obligations against other states. Thus it is a law by states for states about when states are legally responsible to other states. The principles developed by this law would therefore seem unable to engage with international human rights law, where the focus of protection is the human person. Further, at a time when international human rights law is being strongly criticised for its lack of direct responsibility on nonGstate actors for violations of human rights, 4 any direct connections with general international law in regard to state responsibility principles could be problematic: The narrow focus of human rights law on state responsibility is not only out of step with current power relations, but also tends to obscure them. The exclusive concern with national governments not only distorts the reality of the growing weakness of nationalGlevel authority, but also shields other actors from greater responsibility. The focus on state responsibility also creates a false sense of rigidity or inevitability about social and political hierarchies and existing 5 inequities. This concern may be alleviated to some extent if it is shown that international human rights law approaches have had a positive impact on some of these aspects of the general international law of state responsibility. In addition, the International Law Commission (‘ILC’) was clear that the international law of state responsibility — as set out in its Articles on State Responsibility — expresses secondary rules that ‘indicate the consequences of a breach of an applicable primary obligation’. 6 Thus it is an issue as to whether the secondary rules of state responsibility are relevant at all in regard to the primary obligations established in international human rights law through treaties and customary international law. Indeed, it is Clapham’s view that ‘human rights law has developed a set of state obligations that cannot be understood by the application of the primary rules of diplomatic protection of foreigners and the secondary rules of state responsibility’.7 Whilst there may be strength in this view at one level, it does not deal with the issue of whether the secondary rules of state responsibility may be understood by reference to the primary rules of international human rights law, and the practice of the international human rights bodies must also be considered. 4

See, eg, R. McCorquodale, ‘An Inclusive International Legal System’ (2004) 17 Leiden Journal of International Law. 5 C. Jochnick, ‘Confronting the Impunity of NonGState Actors: New Fields for the Promotion of Human Rights’ (1999) 21 Human Rights Quarterly 56, 59. 6 ILC, Commentaries on the Report of the International Law Commission, 53rd sess, UN GAOR, 56 th sess, Supp No 10, UN Doc A/56/10 (SUPP) (2001) (‘ILC Commentary’), reproduced in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002) 16, 74. 7 A. Clapham, Human Rights Obligations of Non#State Actors (2006) 318. See also the critiques of R. Pisillo Mazzechi, ‘The Marginal Role of the Individual in the ILC’s Articles on State Responsibility’ (2004) 14 Italian Yearbook of International Law 39, 47; D. Bodansky, J.R. Crook and E. Brown Weiss, ‘Invoking State Responsibility in the TwentyGFirst Century’ (2002) 96 American Journal of International Law 798, 809; and Charlesworth and Chinkin, above n 1, 148.

El

t

i

il bl

t htt //

/ b t

t 2065911

Despite these concerns, it is clear that the ILC itself considered that international human rights law was relevant to the development of the general provisions about state responsibility when it (finally) completed its Articles on State Responsibility. The ILC’s Commentary to these Articles notes that these provisions are relevant to all areas within the international legal system, though there may be different compliance mechanisms for its enforcement in parts of that system — such as with human rights treaty monitoring bodies.8 Whilst there is an exclusion of the application of the Articles where the existence, content or implementation of state responsibility is governed by special rules (lex specialis) of international law 9 — and international human rights law clearly has special rules and procedures — the ILC has considered that areas of international law such as human rights are ‘special regimes’ and are not outside the framework of general international law. 10 The ILC has commented that these Articles are generally applicable to ‘the whole field of the international responsibility of States, whether the obligation is owed to one or several States, to an individual or a group, or to the international community as a whole’.11 Indeed, the potential impact of international human rights law on the general international law of state responsibility is seen in the number of references in the ILC Commentary to human rights examples and cases. 12 A clear demonstration of the connection between international human rights law and the general principles of state responsibility is seen in the fact that human rights treaty monitoring bodies have applied the general law of state responsibility to key aspects of human rights matters before them. Sometimes they have done this explicitly, for example, the InterGAmerican Court of Human Rights stating that: According to the rules of law pertaining to the international responsibility of the State and applicable under international human rights law, actions or omissions by any public authority, whatever its hierarchic position, are chargeable to the State which is responsible under the terms set forth in the American Convention 13 [on Human Rights]. The Grand Chamber of the European Court of Human Rights has added: [The Court] must also take into account relevant rules of international law when examining questions concerning jurisdiction and, consequently, determine State responsibility in conformity and harmony with the governing principles of international law of which [the European Convention on Human Rights] forms a part, although it must remain mindful of the Convention’s special character as a human rights treaty.14 8

See ILC Commentary, above n 6, in relation to Part II and III of the ILC Articles on State Responsibility. See ILC Articles on State Responsibility, above n 3, art 55. 10 See International Law Commission Study Group on Fragmentation of International Law, ‘First Report: Study on the Function and Scope of Lex Specialis Rule and the Question of “Self#Contained Regimes”’, UN Doc ILC(LVI)/SG/FIL/CRD.1/Add.1 (2004) [134]. 11 ILC Commentary, above n 6, 76. 12 See, eg, ibid 129. 13 The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, InterGAm Ct HR (Ser C) No 79 (Judgment of 31 August 2001) 10, International Human Rights Reports (2003),758, [154]. 14 Behrami and Behrami v France and Saramati v France, Germany and Norway, European Court of Human Rights, Grand Chamber, (Decision on Admissibility 31 May 2001), [122]. 9

More often, however, human rights treaty monitoring bodies have applied the general law of state responsibility implicitly. 15 In fact, in the development of jurisprudence in this area, international legal dispute settlement bodies of all kinds have rarely set out clearly the influence of one law on the other, or even distinguished clearly between the concepts of attribution or the scope of a state’s obligations. 16 Nevertheless, there is no reason why international human rights law and general international law principles of state responsibility cannot be considered as being of relevance to each other, such that it is possible to evaluate the impact of the former on the latter.   The first two articles of the ILC Articles on State Responsibility provide: Article 1: Every internationally wrongful act of a State entails the international responsibility of that State. Article 2: 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; and (b) constitutes a breach of an international obligation of the State. 17 These two Articles, which establish that there is state responsibility for an internationally wrongful act where that act is attributable to the state and it is a breach of an international obligation of the state, are generally considered to represent customary international 18 law. General Attribution The relevant actions and omissions that are attributable to a state are the acts and omissions of its officials and organs: The conduct of any state organ shall be considered an act of that state under international law, 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

15

R. Lawson, ‘Out of Control. State Responsibility and Human Rights: Will the ILC’s Definition of the ‘Act of State’ Meet the Challenges of the 21st Century?’ in M. Castermans, F. van Hoof and J. Smith (eds), The Role of the Nation#State in the 21st Century (1998), 115, who notes that ‘the [ECHR] has consistently applied the principles articulated in the ILC Draft Articles on State Responsibility, without, however, referring expressly to the Draft Articles’. 16 See J. Cerone, ‘Out of Bounds? Considering the Reach of International Human Rights Law’, Center for Human Rights and Global Justice, New York School of Law, Working Paper Number 5 (2006) 26 at (last accessed on 5 March 2007). 17 ILC Articles on State Responsibility, above n 3, arts 1, 2. 18 See, eg, Factory at Chorzów (Claim for Indemnity) Case (Germany v Poland) (Merits) (1928) PCIJ Ser A, No 17. Not all the ILC Articles can be considered to be customary international law, though most of them — including those relevant to this paper — have been adopted by international tribunals as reflective of customary international law: See H. Duffy, ‘Towards Global Responsibility for Human Rights Protection: A Sketch of International Developments’ (2006) 15 Interights Bulletin 104.

territorial unit of the state. 19 A state is responsible for the actions of its executive, legislative, judicial and other state organs and officials, including police, military, immigration and similar officials. This is the position even where those actions are committed outside the scope of the state official’s or organ’s apparent authority if they ‘acted, at least apparently, as authorised officials or organs, or that, in so acting, they … used powers or measures appropriate to their official character’. 20 This customary international law position is confirmed by international human rights law, in which treaty monitoring bodies have consistently found a state responsible for actions and omissions of its organs or officials, even when acting outside their official authority, such as in cases of violation of human rights in detention and for torture. 21 In addition, states have been found responsible for a violation even where, under the state’s constitutional system, that state does not have direct control over the organ or official 22 who violated the human right concerned. It is also clear that when such individuals act for the state, there is no restriction on the types of obligation for which the state itself may be responsible should the official occasion a breach. Hence, in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Case’), the International Court of Justice (‘ICJ’) accepted that a state could be held directly responsible for genocide even though the actual events were ordered or carried out by individuals (and the individuals were also directly responsible under international law).23 In contrast, the acts of private persons and other nonGstate actors are not generally 24 attributable to the state under the principles of state responsibility, even where the private entity is whollyGowned by the state or the state has a controlling interest in it. 25 Yet it has long been the case that there has been attribution to a state of the acts of private entities that are exercising public or governmental functions. 26 One specific exception where a state may be responsible for the acts of nonGstate actors is where the state could be considered to adopt the actions of nonGstate actors. 27 An example is the Case 19

ILC Articles on State Responsibility, above n 3, art 4. Caire Claim (France v Mexico) 5 Reports of International Arbitral Awards 516 (1929). However, ‘much depends on the type of activity and the related consequences in the particular case’: I. Brownlie, Principles of Public International Law (5th ed, 1998) 454. 21 See, eg, the series of cases discussed in S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights: Cases, Commentary and Materials (2nd ed, 2004), esp 198–207, 275–7. 22 For example, the (federal) Australian government was internationally responsible for the actions of the (subGnational) Tasmanian government in Toonen v Australia, HRC, UN Doc CCPR/C/50/D/488/1992 (4 April 1994). This is because the responsibility of a state cannot be avoided by use of its national law or practice: Article 27, Vienna Convention on the Law of Treaties 1969, which represents customary international law: Free Zones of Upper Savoy and the District of Gex Case (France v Switzerland) (1932) PCIJ Rep, Ser A/B, No 46, 167. 23 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Yugoslavia) (Preliminary Objections) ICJ Rep [2007], 565. 24 ILC Commentary, above n 6, 91, 121. 25 Ibid 110, 112. 26 See the discussions at the League of Nations Conference for the Codification of International Law 1929, referred to in ibid 100–01. 27 Ibid 92. 20

concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), where the ICJ found the acts of militants, who seized control of the US Embassy in Tehran, were attributable to the Iranian government since the authorities took no steps to try to prevent the seizure and subsequently endorsed the actions of the 28 militants. This approach has been reflected in the decisions of international human rights treaty bodies, which have attributed to the state the acts of private entities, especially with the growth in privatisation of those state entities that retain some public functions. 29 Thus it would appear that the practices and principles found in international human rights law reinforce the general principles of state responsibility, so that there is development and confirmation of the customary international law principles relating to attribution. State Control A key issue concerns whether a nonGstate actor is under the control of a state or not, because there is attribution to a state under Article 8 of the ILC Articles on State Responsibility where: [T]he person or group of persons is in fact acting on the instructions or under the direction or control of that State in carrying out the conduct. 30 In relation to the attribution to the state of the actions of nonGstate actors acting extraterritorially, the ICJ established in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) (‘Nicaragua Case’) 31 a test for the degree of control over nonGstate actors that was needed by the state for attribution to be found. In that case, the United States of America (‘US’) had, inter alia, financed, trained, supplied and equipped the contras, who were an armed opposition group opposed to the Nicaraguan government. The ICJ decided that, while the US could be held responsible for the particular acts of financing, training, etc, of the group, and that therefore some of the acts of the contras were attributable to that State, there was insufficient evidence to find that the US exercised ‘effective control’, being ‘such a degree of control in all fields as to justify treating the contras as acting on its behalf [and thus] that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law’ as Nicaragua had alleged. 32 The Court held that, even if the US’ participation in such acts was ...