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ProtocolThe international responsibility of States
Article by Pierre Désert published on June 25th, 2008When a State ratifies a treaty, it undertakes to respect the undertakings that it has made before the whole of the international community. If it fails to meets its obligations and goes against the provisions of the treaty, it can be held responsible at international level.
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In the matter of responsibility of States, two different areas must be distinguished: that of general international law, which is valid for all international areas, and the specific case of human rights law, which, because of its nature, requires a different treatment.
Responsibility of States in general international law
In general international law, States are the sole subjects of treaties. International responsibility can only be claimed by a State (or group of States) against another State (or group of States); individuals do not have any role to play at this level.
The act of holding a State responsible assumes the existence of an act that can be attributed to that State and was committed in breach of one of that State’s international obligations.
Attributing an act to a State
In principle, the behaviour of all human beings, commercial companies or communities linked to the State by nationality, habitual place of residence or place of constitution, can be attributed to a State, regardless of whether or not they are linked to the public authorities.
In international law, however, this principle is dismissed both to limit responsibility to behaviour that renders the State responsible as an organisation and to take account of the independence of persons acting on their own initiative and not at the instigation of a public entity.
The general rule is therefore that the only behaviour attributed to a State at international level is that of its government organisations or of other entities acting at the instigation or under the direction or control of these organisations, that is, in the capacity of agents of the State.
For example, the term “agents of the State” applies to representatives of the government (heads of State, ministers, diplomats) or to local authorities, as well as to members of national parliaments and members of the armed forces and police, or to any person on whom public authority is conferred, even temporarily, when they act in the context of their official duties. Outside the scope of these duties, only their personal responsibility can be invoked.
Violation of a State’s international obligation
Violation of an international obligation assumes that the State has not heeded a standard rule or commitment to which it subscribed when becoming party to a treaty.
This violation may take several forms. It may be a positive action (such as resorting to force outside the cases listed in the UN Charter, namely legitimate defence and cases of threats to peace, interruption to peace or act of aggression; illegal occupation of a foreign territory etc), or an abstention (for example, a State must ensure, within the boundaries of its territory, that no group prepares or carries out actions that are hostile to another State. If it does not do this, it is likely to be held responsible).
Methods by which States can be held responsible
The victim State must make its complaint to the State that perpetrates the failing. The dispute must be settled peacefully (recourse to force is strictly within the United Nations Charter), and a number of possibilities are opened. Diplomatic channels are the first priority. If these fail, the States can use legal (or judicial) channels, bringing their dispute before an arbitration committee or an international jurisdiction (such as the International Court of Justice, the UN judicial body, which is the only organisation competent to handle inter-States disputes). It is at this stage that the methods for making restitution, and the amounts payable, can be determined.
Consequences of a State being held responsible
Being held responsible at international level gives rise to two principal obligations for a State found guilty of a violation of its obligations.
On the one hand, it is required to stop the illegal activity if it is continuous in time (for example, illegal occupation of a foreign territory). The State must, where necessary, guarantee by all appropriate means before the victim State and the international community that the violation will not be repeated.
On the other hand, it must re-establish the material situation that existed prior to the illegal act. If this is not possible (significant loss of life, destruction of national monuments, etc.), the State perpetrating the act must pay compensation in its capacity as author of the damages suffered.
International responsibility is therefore strictly inter-State and follows a specific procedure.
International human rights law
International human rights law is a specific discipline of international law, in that its subjects are not States, but individual people. In this regard, treaties on human rights benefit from direct effect, i.e. individual people can directly invoke these texts before national jurisdictions. The national judge will therefore be the first judge of these treaties.
Creation of management organisations by the UN human rights treaties
All the major universal human rights agreements adopted by the United Nations, namely the Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965), the International Pacts Concerning Civil Rights and Politics (ICCPR, 1966) and Economic, Social and Cultural Rights (ICESCR, 1966), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW, 1979), the Convention Against Torture (CAT, 1984), the Children’s Rights Convention (CRC, 1989), and the Convention Concerning Migrant Workers’ Rights (CMW, 1990), have created an organisation (generally termed “Committee”), consisting of independent experts, which is responsible for monitoring respect for and effective application of the treaty, through periodic reports submitted by party States. Frequently, however, these obligations are greatly under-respected.
In some cases, and this is especially the case with the two 1966 pacts, the Committee can have what is termed “parajudicial” competence: individuals can lodge a complaint against a State for violation of one of the protected rights. However, the request must satisfy certain conditions of admissibility, and especially when the State has accepted the competence of the controlling organisation in its location. This does not always go without saying, as certain States believe that accepting the jurisdiction of an international organisation undermines their sovereignty too much; a good number of States refuse to allow an international organisation to control their actions.
Procedures before the controlling organisations
Individuals claiming that they are the victim of a treaty violation may lodge a complaint before the appropriate committee after their action before the Courts in their own State has been rejected (for example, if they are complaining of a violation of their right to freedom of expression, protected by Article 19 of the PIDCP, they may complain to the Human Rights Committee, the organisation created by the pact, after the rejection of their action before the national Courts).
The Committee, if it considers that the claim is admissible and that rights have been violated, may then make recommendations to the State on the method by which the prejudice suffered by the complainant can be made good, and the State has three months in which to advise the steps it has taken to make good the violation. If the application is inadmissible, or the Committee concludes that the treaty has not been violated, the proceedings will stop.
The recommendations are not a sentence in the true sense, as the committees cannot issue sanctions against States, they having considered that the imposition of a sanction would also have the effect of undermining their sovereignty.
The specific case of regional systems
At regional level, things are sometimes done differently. The most striking example is that of the European Human Rights Convention (EHRC) system. The convention has led to the establishment of a court, which is a true jurisdiction. The European Court of Human Rights can receive complaints from individuals who believe themselves to be victims of a violation of their rights by a Member State, and its competence is binding: as soon as a State ratifies the EHRC, it is automatically subject to the Court’s control.
If the Court believes that the convention has been effectively violated, it can compel the State committing the violation to make reparation for it by all means, via modification of legislation, and if necessary through financial compensation.
The fulfilment of decisions is monitored by the Committee of Ministers of the Council of Europe, which is the executive body of the organisation and consists of Foreign Affairs Ministers from Member States.
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- Attached documents
- Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty | English | html
- International Covenant on Civil and Political Rights | English | html
- List of signatories to the Second Optional Protocol by region | English | PDF
- Flyer for the UN Protocol Ratification Campaign | English | PDF
