Цывкунова Интернатионал Лаw Учебно-методическое пособие 2010

Task 6. Work in groups. You are members of some governing body. Come up with your own Convention on the Rights and Duties of States. Try to preserve the appropriate composition and the style of such an instrument. Make use of the following sample:

Convention on the Rights and Duties of States

THE STATES PARTIES to this Convention,

Bearing in mind the importance of maintaining and strengthening international peace and security,

Considering that the faithful observance of ______________________

is the greatest importance for _______________________ and for the implementation of other purposes of the ______,

Convinced that there is an urgent need to _____________ for the prevention of ____________,

Believing that ____________________________________

Have agreed as follows:

ARTICLE 1

ARTICLE 2 ………..

ARTICLE 10

The present Convention shall be open for signature by all States, until

__________ at United Nations Headquarters in New York.

ARTICLE 11

The present Convention is subject to ratification. The instruments of ratification shall be deposited with _____________

ARTICLE 12

The present Convention shall remain open for accession by any State. The instruments of accession _________________________

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ARTICLE 13

The present Convention shall enter into force on the ________ day following the date of deposit of the twenty-second instrument of ratification or accession with ___________

ARTICLE 14

The original of the present Convention, of which the Russian, English

_______ are equally authentic, shall be deposited with _______ who shall send certified copies thereof to all States.

IN WHITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed the present Convention at (city)______ on (date) _______________.

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Unit IV. Section 3

International Responsibility

Task 1. Match the following verbs with their definitions:

to extradite	to forbid, prohibit (by legal action)
to bar	to prevent; make impossible
to imperil	to send (someone who may be guilty of a crime and
	who has escaped to another country or state) back
	for trial
to preclude	to be the cause of; lead to (something bad or unde-
	sirable)
to set forth	to give, esp. as a result of an official decision
to award	to act in accordance with a demand , rule, etc; to
	abide by
to comply with	to declare
to give rise to	to put in danger; to endanger

Task 2. Translate the following sentences into Russian:

•The temporary cease-fire agreement does not preclude possible retaliatory attacks later. Human rights treaties often preclude necessity as a defense.

•The whole project is imperiled by lack of funds. It goes without saying that any infringements of these new restrictions will imperil what is already an extremely sensitive access agreement.

•The English murderer was caught by the French police and extradited to Britain. Is there an extradition treaty between these two countries?

•Even these companies are barred from selling to the domestic market. They seized his passport and barred him from leaving the country.

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•She has been awarded a scholarship to study at Oxford. A Nobel Prize was awarded to Waksman in 1952.

•The concept of legal equality is set forth in the Statute of the International Court of Justice.

Task 3. Breach of international obligations may give rise to an appropriate remedy, including collective sanctions, restitution, indemnity and satisfaction. Explain in a nutshell the idea of each remedy.

Task 4. Read about the circumstances precluding wrongfulness (the extracts were taken from the book International Law (2001) by Antonio Cassesse and from the lecture The Nature and Forms of International Responsibility (2006) by James Crawford and Simon Olleson. Can you think of your own examples of their implementation by States?

A state’s violation of international law may be justified on the grounds of consent of the State injured, self-defense, countermeasures, force majeure, distress, state of necessity.

Consent to carry out activities that would otherwise be prohibited by international law renders those activities lawful. A State may consent to station foreign troops on national territory, to allow foreign military aircraft to cross the airspace, to authorize a foreign state to fish in territorial waters, etc. However, consent is not valid if it is directed to permitting activities contrary to jus cogens (such as consent for foreign armed forces to enter the territory to massacre civilians or a specific ethnic group).

In certain circumstances, a State may permissibly disregard other international obligations whilst acting in self-defense in accordance with Article 51 of the UN Charter which says:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be imme-

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diately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

It should be stated that the failure of the UN collective system for enforcing peace resulted, among other things, in an expansion of resort to self-defense; in other words, it led to the invocation by states of Article 51 in cases which hardly amounted to self-defense or even in cases that were clearly not covered by the provision at issue.

Thus, one may mention the US attack on Libya carried out on 14 April 1986. This attack, which caused the death of 37 persons, almost all civilians, was made in response to the bombing, in West Berlin, on 5 April, of a disco, allegedly carried out by Libyans. The US justified their bombing as follows: ‘Over a considerable period of time Libya has openly targeted American citizens and US installations. The most recent instance was in West Berlin on 5 April, where Libya was directly responsible for a bombing which resulted in the death of one US soldier and injury to a large number of American servicemen and other persons’.

On 20 August 1998, US submarines fired missiles against a military training camp in Afghanistan and a chemical plant in Sudan. This attack was in response to terrorist attacks organized by the group led by Osama bin Laden, including the shelling of the US embassies in Kenya and Tanzania. The justification for the US action was given by the US President on 21 August 1998 as follows: ‘The US acted in exercise of our inherent right of self-defense consistent with Article 51 of the UN Charter. These strikes were necessary and proportionate response to the imminent threat of further terrorist attacks against US personnel and facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat. The targets were selected because they served to facilitate directly the efforts of terrorists specifically identified with attacks on US personnel and facilities and posed continuing threat to US lives’.

Countermeasures taken by a State in response to an international wrongful act of another State are not wrongful acts, but are recognized

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as a valid means of self-help as long as certain conditions are respected. Countermeasures as described in the ILC Articles only cover the suspension of performance by a State of one or more of its obligations. Certain obligations, such as that to refrain from the use of force, those of humanitarian character prohibiting the taking of reprisals, and those under other peremptory norms may not be suspended by way of countermeasures.

It may suffice to mention that the current international practice of states includes cases where countries, individually or jointly, have decided to react against gross violations of basic international norms by other States by adopting economic measures against the delinquent State. Thus, for example, the USA put into effect economic countermeasures (suspension of deliveries of corn, withholding of industrial goods, etc.) against the USSR as a consequence of the Soviet ‘invasion’ of Afghanistan in 1979.

Force majeure is defined as follows in Article 24(1) of International Law Commission Draft (2000): ‘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’.

In the Rainbow Warrior case France claimed that urgent medical reasons had imposed repatriation to France, without the consent of New Zealand, of a French agent, Major Mafart, from a French military facility on the island of Hao. For France those medical reasons amounted to force majeure. The Arbitral Tribunal rejected the French claim. Quoting the works of the ILC, it held that force majeure ‘is generally invoked to justify involuntary, or at least unintentional conduct’ and relates to ‘an irresistible force or unforeseen event’ against which the State has no remedy and which makes it ‘materially impossible’ for the State to act in conformity with this obligation. The Tribunal went on to note that the test for applying the doctrine of force majeure was one of ‘absolute and material impossibility’, whereas a ‘circumstance rendering performance [of the obligation] more difficult or burdensome’ did not constitute such a circumstance precluding wrongfulness.

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According to the ILC, illustrations of distress are the unauthorized entry of an aircraft into foreign territory to save the life of passengers, or the entry of a military ship into a foreign port without authorization due to a storm (this happened in the case of The Creole). In the Rainbow Warrior case the Tribunal held that France’s violation of the obligation to obtain the prior consent of new Zealand to the removal to mainland France of Major Mafart was justified by distress, namely ‘the existence of very exceptional circumstances of extreme urgency’ involving medical considerations. However, the Tribunal found that France incurred responsibility in not returning Major Mafart to the island of Hao once the medical reasons had terminated.

State of necessity has been defined in Article 26 (1) of ILC Draft (2000) as the condition where an otherwise unlawful act is performed and such act ‘(a) is the only condition for the State to safeguard an essential interest against a grave and imminent peril; (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’.

The case of Torrey Canyon can be mentioned. In 1967, the Liberian oil tanker had run aground on the high seas off the British coast. To avoid further damage to the British and French coasts and the sea environment, and as salvage operations were hindered by rough seas, the UK bombed the vessel so as to open the cargo tanks and burn the oil therein. The British authorities invoked necessity and no concerned State protested. The ILC also relied upon the case as an instant of necessity. In 1969 the International Convention Relating to Intervention on the High Seas in cases of Oil Pollution Casualties was made: it among other things authorized States parties ‘to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent dangers to their coastline’ from oil pollution.

The two circumstances of distress and necessity have much in common in that they both excuse conduct which would otherwise be wrongful because of extreme circumstances. Distress and necessity are to be distinguished from force majeure in that violation of the obligation in question is theoretically avoidable, although absolute compliance of the State with its international obligation is not required; a State is not required to

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sacrifice human life or to suffer inordinate damage to its interests in order to fulfill its international obligations.

Task 5. Find in the text the English equivalents for the following expressions:

•устраивать резню, бойню; перебивать;

•ущемлять (нарушать) неотъемлемое право;

•совместимый, согласующийся с чем-либо;

•неминуемая угроза;

•удерживать (от чего-либо), отпугивать;

•обременительный, тягостный;

•а именно;

•смягчать; смягчающие обстоятельства;

•императивные нормы;

•ответное действие; отместка;

•виновное государство (государствоправонарушитель).

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Revision of the Vocabulary Items of Unit IV

Task 1. Provide English equivalents for the following items:

договаривающиеся государства; обладать полным и исключительным суверенитетом над воздушным пространством;

Конвенция о Международной гражданской авиации, 1944; ИКАО; захват судна, угон судна;

космическое пространство; подлежать национальному присвоению; исследовать космическое пространство; небесные тела; достояние всего человечества; геостационарная орбита; космический мусор; общая вещь (лат.);

Конвенция ООН по морскому праву, 1982; ИМО; измерять в морских милях; государство, не имеющее выхода к морю; прибрежное государство; свобода судоходства, свобода полетов;

пользоваться правом мирного прохода; внутренние воды; территориальное море; прилежащая зона; континентальный шельф;

исключительная экономическая зона; открытое море; морское дно и недра; пролив, залив;

преследование по горячим следам; ущемляющий, наносящий ущерб чьей-либо собственности;

совместные усилия; опасный район, «горячая точка»;

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выкуп, требовать выкуп; процветать, преуспевать; пристанище, укрытие, прибежище;

сломить сопротивление кого-либо, принять крутые меры;

международное обычное право; субъекты международного права; государственные границы; постоянное население;

вступать в официальные отношения с другими государствами; подписавшая сторона; оговорка (в международном договоре);

признание государства (частичное признание государства); преодолевать барьеры, препятствия; непреодолимые препятствия; наложить вето на решение;

заявить (2 варианта) о своей независимости в одностороннем порядке; прекращение огня;

присоединять (включать в состав государства) территорию; аннексия, присоединение, включение в состав; вызывать, давать начало (государственному) перевороту; безвыходное положение, тупик; иметь серьезные экономические последствия;

право на суверенитет; равенство государств; право на оборону;

право на осуществление внешних сношений; воздерживаться от актов репрессалий; наемник;

вторжение, набег на территорию другого государства; разжигать гражданскую войну, подрывную деятельность; выполнять обязательства добросовестно; быть несовместимым с целями ООН; вмешиваться во внутренние дела государства; уважение и соблюдение прав человека;

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