Comprehensive Study Notes on International Responsibility in Public International Responsibility

Definition and Conceptual Framework of International Responsibility

International responsibility is defined as an international legal institution aimed at eliminating the effects of certain damages caused by a subject of international law to another subject. This can arise either through internationally wrongful acts or through specific damages resulting from internationally lawful activities. The fundamental purpose of this regime is to ensure that the party suffering the harm is restored to their rightful position.

Responsibility is considered an inherent characteristic of international law. As established by the Permanent Court of International Justice (PCIJ) in the Case Concerning the Factory at Chorz3w (Chorz3w Fabrikası Davası, $1927$), "Reparation is an indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself." This principle reinforces the idea that the obligation to repair harm is automatic and does not require explicit mention in treaties.

The Status of Individuals and International Organizations

In international law, the responsibility of natural persons (individuals) is primarily established within the framework of international criminal responsibility. Individuals can be held accountable for specific international crimes such as piracy (deniz haydutluēu), the slave trade (k6le ticareti), war crimes (savaœ su7ları), and genocide (soykırım).

As a matter of principle, international organizations are held responsible for their internationally wrongful acts. The International Court of Justice (ICJ/UAD), in its advisory opinion on "Reparation for Injuries Suffered in the Service of the United Nations" (BM Hizmetinde Uēranılan Zararların Giderilmesi), noted that responsibility can also stem from relationships between a state and an international organization.

Codification Efforts by the International Law Commission (ILC)

The United Nations International Law Commission (ULC/UHK) has conducted studies on state responsibility spanning over $50$ years. This work resulted in two separate draft articles: the "Responsibility of States for Internationally Wrongful Acts" and a portion of the "Responsibility of States for Acts Not Prohibited by International Law," specifically focusing on the "Prevention of Transboundary Harm from Hazardous Activities."

The issue of state responsibility for actions that are not legally prohibited has emerged primarily regarding environmental pollution with transboundary effects. While codification for these lawful but harmful activities continues, the rules regarding the general international responsibility of states are currently considered part of customary international law (6rf ve 1det kuralları). The ILC has proposed convening an international conference to turn the Draft Articles into a formal international treaty.

The Legal Nature and Elements of State Responsibility

State responsibility is strictly legal (civil) in nature, not criminal. In international law, there is no concept of state criminal responsibility. A "crime" necessitates a determined punishment and the ability to subject the perpetrator to that punishment, which contradicts the nature of international law. International Criminal Law focuses on punishing individuals, not states. This is evidenced by the practices of International "Ad hoc" criminal courts and the International Criminal Court (ICC), which establish the guilt and punishment of officials rather than the state itself.

According to the ILC Draft Articles, "Every internationally wrongful act of a State entails the international responsibility of that State." The birth of state responsibility requires the following elements:

1. An Internationally Wrongful Act: This consists of the violation of an international obligation and the attribution of that violation to the State.
2. Damage (Zarar): While some doctrinal views suggest that damage is not a mandatory condition for responsibility, it is generally considered in the context of reparation.
3. Causality (İlliyet Baēı): A direct link between the wrongful act and the resulting harm.

Regarding fault (kusur), opinions are divided. Prof. Dr. H7seyin Pazarcı argues that the act must result from fault. However, the opposing and more modern view is that fault is not a general condition for state responsibility, unless the specific international obligation being violated explicitly requires a showing of fault.

The Breach of International Obligations

An international obligation can originate from various sources: international treaties, custom, general principles of law, unilateral acts, or decisions made by international organizations and courts which the parties have agreed to follow. For an act to be wrongful, it must be assessed against the obligations the state held at the moment the act occurred. An obligation that ceases to exist after the act does not retroactively remove responsibility. Furthermore, an act being compliant with domestic (national) law does not prevent it from creating international responsibility if it violates international law.

A breach of an obligation can occur through a "positive" act (doing something that is prohibited) or a "negative" act (failing to act when there is an obligation to do so/omission). A wrongful act does not terminate the underlying international obligation; the state remains bound by it even after a breach occurs.

Attribution of Conduct to the State (State Organs and Private Persons)

Conduct is attributed to the state if it is performed by state organs, whether legislative, executive, or judicial. This includes failures to take necessary precautions or the failure to enact required laws. The specific rank or hierarchy of the official (civil servant, security officer, or soldier) is irrelevant. However, the official must be acting in their capacity as a state organ using public power. Acts committed by officials for personal reasons, without the appearance of public authority, do not trigger state responsibility.

In the judiciary, responsibility arises from the "denial of justice" (adaletten ka7ınma). Examples include: defects in the establishment of a court, lack of access to courts, procedural irregularities, extraordinary delays in the distribution of justice, failure to diligently prosecute or punish those who commit crimes against foreigners, and the non-execution of judgements rendered in favor of a foreigner.

As a general rule, a state is not responsible for the acts of private individuals. However, there are two major exceptions:

1. If the individual acted in the service of the state or under its instruction/command, they are treated as an organ of the state.
2. If the state failed to take the necessary measures expected of it to prevent the actions of the private individual.

Circumstances Precluding Wrongfulness

There are specific situations where the wrongfulness of an act is removed, classified by their relation to the victim:

Grounds related to the victim:

1. Consent (Maēdurun Rızası): Consent must be validly declared. Any act outside the scope of the given consent still entails responsibility. Notably, consent cannot justify a violation of "Jus cogens" (peremptory/mandatory) norms; any treaty violating such norms is void.
2. Self-Defense (Meœru M7dafaa).
3. Lawful Countermeasures (Meœru karœı-6nlemler).

Grounds not related to the victim:

1. Force Majeure (M7cbir Sebep): An irresistible or unforeseeable event beyond the state's control that makes it materially impossible to fulfill the obligation. The state must not have contributed to the situation through negligence or fault. Examples include natural disasters like floods or earthquakes, or severe weather forcing an aircraft into another state's airspace. The $1982$ UN Convention on the Law of the Sea (Article $18(2)$) recognizes force majeure as a valid reason for stopping or anchoring during innocent passage.
2. Distress (Zorunluluk Durumu): Occurs when an individual (or those in their care) faces a threat to life that can only be avoided by violating the obligation. The state must not have caused this situation through intent or negligence, and the act must not create a greater danger. The Rainbow Warrior Case ($1987$) is a key example, where French agents sank a Greenpeace ship in New Zealand. While the ICJ arbitrator initially ordered reparations and an apology from the French Prime Minister, a later $1990$ ruling on the early removal of agents from Hao Island clarified that while distress is a principle for precluding responsibility, the specific medical/humanitarian reasons cited by France did not meet the life-saving threshold for legal distress.
3. State of Necessity (Zaruret Hali): This applies when violating an obligation is the only way to protect an essential interest from a grave and imminent danger. The act must not seriously harm an essential interest of the victim state. It cannot excuse the breach of a peremptory norm or be invoked if the state contributed to the situation. A classic example is the Torrey Canyon incident, where the UK bombed a damaged Liberian tanker to burn spilled oil and prevent further environmental disaster. This act, normally illegal, was not criticized because no other means existed to prevent the danger.

Responsibility in Cases of Insurrection and Implementation

If an insurrection or uprising fails, the state cannot be held responsible for the rebels' actions. However, if the uprising succeeds and a new government is established, the new administration is held responsible for both its own actions during the conflict and the actions of the previous government regarding resulting damages.

To invoke responsibility, the injured state must notify the wrongdoing state of its claim, including its specific demands for reparation. Failing to notify may be interpreted as a waiver of the right to claim responsibility. Implementation often involves "Diplomatic Protection," where a state takes up the claim of its national. The conditions for this are: the individual must be a national of the claiming state, and all "Local Remedies" (i7 baœvuru yollarının t7ketilmesi) must have been exhausted. Exhaustion of local remedies only applies to private individuals; it is not required for direct harm to international legal persons (states), as this is a consequence of sovereign equality.

Consequences of Responsibility and Reparation

The primary consequence is the Obligation of Reparation (Onarım Y7k7ml7l7ē7), which aims to eliminate all negative consequences of the wrongful act. It is not a criminal penalty. It consists of:

1. Restitution (Eski hale iade): Returning things to the state they were in before the act.
2. Compensation (Tazminat): Direct monetary payment for loss.
3. Satisfaction (Manevi tatmin): Moral or non-monetary redress.

International Measures and Enforcement

To ensure compliance with international law, various measures are used:

1. Legal Measures: These include non-recognition of a situation, formal condemnation (kınama), rejecting legal effects via court rulings, and the suspension or termination of treaties (e.g., Article $60$ of the Vienna Convention on the Law of Treaties).
2. Pressure and Deterrence Measures: These do not have direct legal consequences but aim to isolate or pressure the state through public opinion. Examples include announcing the wrongful act, denying membership to international organizations, suspending membership rights or expulsion, cutting economic/technical aid, and severing diplomatic relations.
3. Countermeasures and Forcible Methods: These are the most significant tools for enforcement.

Retorsion (Misilleme): A lawful but unfriendly response to another state's act that is not necessarily illegal but harms interests. Decisions are based on political discretion, no prior notification is required, and the response does not need to be proportional or identical. Examples include closing ports, breaking trade relations, declaring diplomats "persona non grata," boycotts on imports, or requiring visas for citizens of the opposing state.

Reprisal (Zararla Karœılık): An act that is normally illegal, performed to force another state which has committed a prior illegal act to return to legality. Conditions include: prior demand for correction and notification, acts limited to the involved states, proportionality between the harm and the countermeasure, the exclusion of the use of force, and the cessation of the measure once compliance is achieved. Examples include the suspension of treaty performance, seizure or confiscation of goods and ships, and embargoes.

Forcible Measures: These include armed enforcement measures taken in accordance with United Nations decisions.