Abstract
The chapter analyses the legal regime and the most relevant issues regarding state responsibility for violation of human rights. Firstly, it examines the significant impact of human rights law and practice on the law of state responsibility and, in particular, on responsibility for serious breaches of peremptory norms. By examining numerous cases, including the most recent ones, the chapter discusses a number of relevant issues, including the possibility for States not directly affected by serious violations of human rights to adopt countermeasures against the responsible State, as well as the doctrines of humanitarian intervention and responsibility to protect.
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Notes
- 1.
See Chap. 13, Sect. 13.3.
- 2.
In ICJ 1951, p. 23.
- 3.
On peremptory rules, see Chap. 3, Sect. 3.1.
- 4.
See (New Application: 1962) Belgium v. Spain, second phase, in ICJ 1970, p. 32, paras 33–34.
- 5.
See General Comment No. 24 of 4 November 1994, para 17.
- 6.
See ARSIWA, Article 48(1)(b).
- 7.
Id., Article 48(1)(a).
- 8.
Id., Article 48(2)(a) and (b).
- 9.
The Court has added that “[i]f a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes ... and to bring that failure to an end”: see Belgium v. Senegal, in ICJ 2012, pp. 449–450, paras 68–69.
- 10.
See Gambia v. Myanmar, para 41. It should be noted that Bangladesh could not bring the case before the ICJ in this instance because at the time of ratification of the Genocide Convention it had adopted the following declaration to the jurisdiction clause contained in Article IX: “For the submission of any dispute in terms of this article to the jurisdiction of the International Court of Justice, the consent of all parties to the dispute will be required in each case”. Myanmar had obviously not expressed its specific consent to the submission of the dispute to the ICJ by Bangladesh.
- 11.
Para 3 (a–d).
- 12.
Id., paras 4–5.
- 13.
Id., paras 12–15.
- 14.
See Articles 1(1), 1(2) and 2(1) of the resolution. It also indicates, on the one hand, that “courts shall be considered to provide an available remedy if ... they are capable of dealing with the claim in compliance with the requirements of due process and of providing remedies that afford appropriate and effective redress”; on the other hand, that “[t]he court where claims for relief by victims have been brought should decline to entertain the claims or suspend the proceedings ... when the victims’ claims have also been brought before: a) an international jurisdiction, such as the International Criminal Court; b) an authority for conciliation or indemnification established under international law; or c) the court of another State having stronger connections and available remedies within the meaning of the foregoing paragraphs”: Article 2(2) and (3).
- 15.
Appl. no. 51357/07.
- 16.
See Chap. 7, Sect. 7.6.2.
- 17.
See para 108 of the judgment.
- 18.
See Article 30(b) ARSIWA, which indicates that such assurances and guarantees of non-repetition must be provided by the responsible State “if circumstances so require”.
- 19.
See Chap. 4, Sect. 4.3.1.
- 20.
See Article 5(1)(c) of the resolution.
- 21.
See Chap. 5, Sect. 5.4.
- 22.
Similarly, the OAS took measures against Venezuela itself and against Nicaragua at the end of 2021, due to the serious violations of human rights and the principle of representative democracy by the regime in power.
- 23.
“Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union”.
- 24.
See Resolution CM/Res(2022)2 on the Cessation of the Membership of the Russian Federation to the Council of Europe adopted by the CMCoE on 16 March 2022, according to which it was decided “in the context of the procedure launched under Article 8 of the Statute of the Council of Europe, that the Russian Federation ceases to be a member of the Council of Europe as from 16 March 2022”.
- 25.
See Article 4, subparagraph j.
- 26.
See UNGA A/59/565, para 203.
- 27.
See para 54 of the Declaration adopted at the Summit of 10–14 April 2000.
- 28.
See preamble to Resolution No. 409 of 27 March 2018.
- 29.
See A/RES/60/1.
References
ICJ (1951) Advisory opinion of 28 May 1951 on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. ICJ Reports
ICJ (1970) Belgium v. Spain, second phase. ICJ Reports
ICJ (2012) Judgment of 20 July 2012 in Questions relating to the Obligation to Prosecute or Extradite. ICJ Reports
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Pustorino, P. (2023). International Responsibility of States for Violations of Human Rights. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_14
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DOI: https://doi.org/10.1007/978-94-6265-563-8_14
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