International Law: Responsibilities, Dispute Resolution, and State Functions

Posted on Dec 12, 2024 in Law & Jurisprudence

International Responsibilities of States

Elements of International Responsibility

Act or Omission: Attributable to the State, understood as all acts of an organ or agent of the State. The infringement may be a positive act or omission of an act for which the State was required. The act of an agent or organ of State is understood as such even if it has exceeded the limits of the jurisdiction conferred on it by law or has gone against the natural activities of its office.
Contrary to International Law: This constitutes the internationally wrongful act. An act may be perfectly legal under domestic law but not under international law. The illicit act can be derived from a treaty, rule, unilateral act, and so on.

Forms of Reparation for an Internationally Wrongful Act

Legal Consequences of an “Unlawful Act”

Damage is repaired by the State that committed it, and correspondingly, the right to require the repair is held by the State violated. There are three ways to repair:

Restitution: The objective is to erase the effects of damage and try to return to the state prior to the event that caused such damage. Examples would be the restitution of a thing seized or a captured ship.
Compensation: The determination of compensation is guided by the general principles of law, but must compensate for all damages that are directly related to the damage done by the wrongful act, including lost profits (lost revenue that would have been expected in the ordinary course of things) and moral damages (loss of loved ones).
Satisfaction: Whoever offends must perform an act that repairs material or moral harm to the victim, as in the case of damage to the honor of a State. Examples are official apologies, honors to the flag of the offended, paying a symbolic sum, and the formal declaration that a state violates international law.

Judicial and Executive Functions in International Law

Standard-Setting

Unlike domestic law, international law does not have a figure that creates the standards, such as a Congress or Parliament. Thus, the function in international rules is developed through treaties or multilateral conventions governing such matters as the law of the sea, the treatment of prisoners of war, international airlines, suppression of illicit narcotics, human rights, protection of copyright, etc. These agreements can be adopted at a diplomatic conference convened for this purpose. In this case, states are not bound by the treaty unless they expressly show it. Currently, only the European communities are empowered by a multilateral treaty to legislate matters of their activity.

Judicial Function

As in international law, no state is required to submit a dispute with another to an international court without their consent. International courts have limited jurisdiction that ultimately depends on the willingness of States, and it is possible that no international court has competent jurisdiction to resolve a particular dispute (this differs from national courts, whose jurisdiction comes from the law). There are several permanent international courts and tribunals, the most important being the International Court of Justice in The Hague, and its jurisdiction is optional. It is important to note that international courts can only deal with legal disputes and never political ones.

Executive Function

There is no central executive body that has a monopoly of armed force. Therefore, States themselves are limited by international law. Those who take steps to enforce their rights can break through negotiations, legal recognition of land acquisition, suspension of compliance with a treaty, and so on. It is forbidden for States to use force to achieve these ends. Although there is no organ to enforce rights by force, international law has a high degree of effectiveness in meeting the standards. This is because the standards are not met by sanctions that may result in the breach, but for convenience, habit, reciprocity, or the sense of respect for the rule of law.

Peaceful Resolution of Disputes

Political or Diplomatic Means

These means are likely to facilitate an agreement between the parties in dispute. The solution achieved is specified in an agreement or treaty between the parties.

Direct Negotiation: This is the most common recourse. It develops normally through the diplomatic channel, and also between the plenipotentiaries of the States in conflict, between the Ministers of Foreign Affairs, and between presidents and prime ministers. Many treaties provide for this resource of peaceful solution. Some even state that the parties must try to resolve a conflict by this means before resorting to different ones. Direct negotiations may lead to a settlement of the dispute or an agreement on other means for peaceful solutions to their resolution.
Good Offices: Used when distrust between states hinders dialogue, to bring the parties together or drive them to negotiate. This can be done by States, an international organization, or even an outstanding person. These are requested by the parties or a third party that offers them. In this case, it is not considered an unfriendly act, but it may be rejected.
Mediation: A mediator is involved in the negotiations and makes suggestions to the parties or proposes to resolve the conflict. It may be requested by the parties in conflict or be offered by a non-being, in this case, it is not obliged to be accepted. The mediator is a common friend who seeks the agreement of the parties. They recommend and suggest the need for a fair solution.
Research: This means an international commission of inquiry to clarify the factual basis on which there is discussion, preparing the way for a negotiated solution. The parties are not obliged to accept the findings of the commission unless otherwise agreed. The procedure was established by an international treaty concluded by the U.S. with various countries. Chile also signed this treaty.
Conciliation: An international commission conducts an examination and impartial solution to a conflict in terms of an arrangement that can be accepted by the parties. The terms of settlement proposed in the settlement are not binding. The commission consists of members whom each party nominates and appoints one or more designated foreign or jointly. It can be permanent or ad hoc. This commission regulates its own procedure and is empowered to examine witnesses, conduct surveys, and make eye views. The parties are represented by an agent (named). Decisions are taken by majority. It is not a court. There are several types of conciliation.

Arbitration

Arbitration seeks the solution of conflicts between States by judges of their choice on the basis of respect for law. The sentence is mandatory. It is an appropriate means of conflict resolution of a legal nature, such as borders and interpretation of treaties. No State can refer a dispute to arbitration with another without their consent. The competence and jurisdiction of an arbitral tribunal depend on the willingness of the parties. There are three ways to get to arbitration:

The Commitment: An international treaty by which the parties submit an existing dispute to arbitration. The parties determine the matter in dispute, designate the arbitrators, the procedure and applicable law, as well as competition and limits of the arbitral tribunal.
The Arbitration Clause: One that is inserted in a treaty under which the States that hire the treaty agree to submit disputes to arbitration that could eventually arise between them concerning the interpretation and application of the treaty.
The General Treaty of Arbitration: Where two or more States may agree to submit to arbitration all or part of the dispute between them and cannot be resolved by direct negotiations.

Regarding the arbitration, the parties may fix in the commitment procedures for processing or arranging for the same court-determined. This procedure consists of memories, counter-memories, briefs, surveys, visits, etc. The parties are represented by agents and assisted by lawyers and technicians. The principle is that the court must resolve with international law and under equity (the latter a decision of the parties).