Some Reflections on the Liability of States for International Illicit Acts

• Author: Ion Ifrim - Roxana Oana Ifrim
• Pages: 145-153

Page 145

Ion Ifrim, PhD in progress - Legal Research Institute "Acad. Andrei Radulescu" of the Romanian Academy - ionut_ifrim24@yahoo.com

Senior Lecturer Roxana Oana Ifrim, PhD in progress - Spiru Haret University, Bucharest - rionescu_2007@yahoo.com

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1. The institution of liability is the heart of any system of legal order. All legal systems contain rules (Dongoroz, 2000, p. 191)¹ more or less perfect, whichPage 146stipulate the liability of subjects, persons who commit illicit (Thierry, Combacau, Sar, & Valle, 1984, p. 673) acts. Standard international law does not actually recognize the individual's capacity to sue and be sued internationally, in other words the individual, as such, does not benefit from "locus standi". The capacity to stand trial in international for remains in the current state of the standard international public law a monopoly of the state (Velasco, 1974-I).

It has been mentioned that the notion of legal order (law order) would lack content if regarding it's consequences, we wouldn't be able to differentiate between a behavior that is consistent with the legal regulations and a conduct that violates (Dominice, 1982, p. 32), (Perrin, 1984, p. 91), (Cottereau, 1991, p. 3) them.

Moreover international law observes these principles, granting rights to its subjects but at the same time imposes some obligations. Failure to comply with the international obligations will attract the liability of the culprit.

In this regard, the author Max Huber (Hubber, 1924, p. 641), emphasize the fact that liability is the core of law. All international rights have as consequence (entail) international liability. International liability is therefore the penalty for violating a rule of law (Carreau, 1986, pp. 397-398), (Arechaga & Tanzi, 1991, tome I, p. 367).

Classical concept defines international liability as "that legal institution by which the state that is assigned an unlawful act in accordance with international law is bound to act against the rule in spite of which that illicit (Rousseau, 1983, pp. 2-6), (Ruzie, 1989, p. 72), (Dupuy, 1984, p. 25), (Zemanek, 1987, p. 60) act was committed".

Liability will create a new legal relationship which will consist of the obligation to compensate having as resolution the right of the harmed state to obtain damages. Another writer, Roberto Ago, defines responsibility as „all forms of new legal relationships which may be incurred in international law as a result of the illicit act of a State" (Ago, Troisieme rapport, 1971, p. 222). In this author's opinion, he considers that an international illicit act arises two types of legal relationships granting -where appropriate- to the state whose rights have been harmed, either the subjective right to request for the damage to be repaired, or the right to request for a sanction to be enforced upon the liable state (which may be exercised as appropriate by a third party state) (Ago, Troisieme rapport, 1971, p. 43), (Dupuy, 1984, pp. 25- 26) (Dominice, 1982, pp. 13-14).Page 147

Thus, if the principle of international responsibility should be rejected it would mean that states will no longer be bound to comply with international law. It will come eventually to be denied the very existence of international legal order (Ago, Troisieme rapport, 1971, p. 216).

Alfred Verdross clearly underlined this view, the denial of this principle would reduce international law to nothingness because denying responsibility for illicit acts will also deny the obligations of States to act in accordance with international law (Verdross, 1959, p. 295).

The fundamental principle linking any international illicit act with the liability of its author is one of the main principles firmly rooted in the doctrine of international law and one that is best supported by state practice and international law (Ago, Troisieme rapport, 1971, p. 215).

As a result, International Law Committee (C.D.I.) has put this rule in the first article of the first part of its draft articles on international liability of states such as for example, the following principle: Any international illicit act committed by a State entails international liability.

Moreover, throughout this century there have been developed numerous coding projects on international liability of states, whose authors were either international organizations under the aegis of which they have been made and various private institutions (private) or individual authors who have taken the initiative in this area. The main feature of the majority of these projects is the fact that they have addressed only the codification of this important matter in terms of international responsibility of the state (bound) arising out of damages were caused in its territory to foreign persons or property of third parties (Ago, Premier rapport sur la responsabilité des État, 1969, p. 131).

This restrictive approach to codifications of customary rules of international responsibility may be due to the influence exerted on the authors of project coding by practice and international law which...