INTERNATIONAL LEGAL ASPECTS OF ECONOMIC RESPONSIBILITIES OF STATES
##plugins.themes.bootstrap3.article.main##
##plugins.themes.bootstrap3.article.sidebar##
Abstract
The subject of the article is international legal aspects of economic responsibility of states. The aim of the article is to find an answer to the problematic issues of economic responsibility of states and its international legal aspects. Different concepts of economic responsibility are analyzed due to the lack of a unified approach to it both in economics and in related branches of law. It is noted that the institution of economic responsibility is designed to stabilize the relations of socio-economic development, the interests of participants in social exchange and to achieve the goals of sustainable development. From the international legal point of view of understanding economic responsibility, the state bears two types of responsibility – material (economic) and non-material (political). And international legal responsibility of the state is considered as an institution of the law of international responsibility. It is from this point of view the economic responsibility of the state is considered by international lawyers and specialists in the field of international relations. The methodology of the article is based on the fact that there are three basic mechanisms of liability – derivative of property rights, contracts, and torts. Contract law deals with breaches of duty, tort law deals with accidental or intentional injury to persons or property, and property law deals with misappropriation or interference with property rights. It is concluded that the state is the same economic entity in terms of economics as all equal economic entities. However, the applicability of the means of economic responsibility in the international legal aspect is complicated by the immunity of the state with regard to its property. Therefore, there are signs of liability not for all property, but only for that which has certain signs of applicability – use for commercial purposes, connection with the subject matter of the claim. In the aspect of economic responsibility, there is a distinction between immunity from jurisdiction and immunity from enforcement. The problem of differentiation of commercial and state property is outlined, attention is focused on the existence of certain categories of state property, the public nature of which is not in doubt and which are not considered possible for economic (property) responsibility for the conduct of diplomatic and consular activities of their missions, consulates, special missions, etc., whose immunity is enshrined in the Vienna Convention on Diplomatic Relations of 1961; military property, as well as property used for military purposes; property that is part of the cultural heritage of a foreign state or part of its archives, as well as property that is part of an exhibition of items of scientific, cultural or historical significance. It is also concluded that economic responsibility in international law is not always associated with the negative consequences of unlawful behavior, because it can also be applied as a result of lawful behavior, leading to the infliction of harm to other subjects. Thus, the economic responsibility of the state is on the verge of regulation of public and private law. This is its peculiarity and complexity of its application to the state.
How to Cite
##plugins.themes.bootstrap3.article.details##
economic responsibility, functions of responsibility, expropriation of property, state immunity, coercive measures, commercial property, public property
Blazhevych, Yu. Yu. (2006). Responsibility of states for internationally illegal actions: dis. … Candidate of Law. Science. Kyiv, 205 p.
Shaw, M. (2003). International Law. 5th Edition. Cambridge: Cambridge University Press, 1288 p.
Draft articles on the responsibility of states for internationally wrongful acts with comments on them. Yearbook of the International Law Commission. 2001. Volume II. Part two. a / cn.4 / ser.a / 2001 / add.1 (part 2). P. 35.
Yearbook of the International Law Commission. 1973. Vol. II. A / CN.4 / SER.A / 1973 / Add. l, p. 175.
Pellet, A. (2010). The definition of responsibility in International law. In J. Crawford, A. Pellet, S. Ollesson (eds). The Law of International Responsibility. Oxford: Oxford University Press, P. 3−16.
Draft Articles on Jurisdictional Immunities of States and Their Property, with commentaries, 1999. ILC Report on Jurisdictional Immunities of States and their Property // Yearbook of International Law Commission. 1991. Part 2. P. 56.
Kröll S. Enforcement of Awards / Bungenberg / Griebel / Hobe / Reinisch // International Investment Law. A Handbook. Chapter 11, SectionVII. CH Beck - Hart – Nomos. 2015. P. 1502, para. 67.
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). Op. cit. P. 152, paras. 131–132.
Kröll S. Enforcement of Awards. Op. cit. P. 1 499, para. 54.
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). Op. cit. P. 146-147, para. 113.
Sinclair I. The Law of Sovereign Immunity // Recueil des cours. 1980. II. P. 218; Badr GM State Immunity. An analitical and prognostic view. The Hague, 1984. P. 107-112; Bouchez L.J. The Nature and Scope of State Immunity from Jurisdiction and Execution // NYIL, 1979. Vol. X. P. 19.
See.: Verhoeven J. Immunity from Execution of Foreign States in Belgian Law // NTIL, 1979. Vol. X. P. 73–84.
For a detailed analysis of court cases, see.: Sinclair I. Op. cit. P. 221-241; Crawford J. Execution of Judgments and Foreign Sovereign Immunity // AJIL, 1981. Vol. 75. P. 835–858; Seidl-Hohenveldern I. State Immunity: Austria // NYIL, 1979. Vol. X. P. 106–109.
An exception is the case law of Switzerland, whose courts did not distinguish between the two types of immunity, but considered that immunity from enforcement measures did not differ in nature from jurisdictional immunity. See Opinion of the Swiss Government on this issue, as described in the Special Rapporteur's second report on "Jurisdictional immunities of States and their property". Report (second) of the Special Rapporteur of the ILC at its 40th session // Doc. A / CN.4 / 422. P. 37. One of the Federal Court's judgments states: immunity from enforcement measures, unless coercive measures relate to property intended to carry out sovereign actions. " Arab Rep. of Egypt v. Cinetelevision International, 1979 (ILR 65, 1984. P. 425–430).
See: Art. 23 of the European Convention on State Immunity, 1972; Art. 19 (1) of the 2004 UN Convention; Art. 11 (1) (a) of the Canadian State Immunity Act; Art. 1610 (1) of the United States Immunity Act; Art. 12 (3) of the English State Immunity Act.
See: Art. 12 (3) of the English State Immunity Act.
Crawford J. Execution of Judgments and Foreign Sovereign Immunity // AJIL, 1981. Vol. 75. P. 861.
Explanatory Report on the European Convention on State Immunity and the Additional Protocol. Strasbourg, 1985.
American Foreign Immunity Act 1976, Article 1610 (b) (2); British Act 1978, Article 13 (4); Singapore Act 1979, Article 15 (4); Pakistani Law of 1981, Article 14 (2) (b); South African Law 1981 Article 14 (3); Canadian Law of 1982, section 11 (1) (b); Australian Law 1985, Article 32.
Canadian Foreign State Immunity Act 1982, section 11 (3); American Law of 1976, Article 1611 (b) (2).
Case X v. Rep. of Philippines, 1977. See: Materials on Jurisdictional Immunities of States and their Property. NY 1982. P. 297–321.
Fox H. Enforcement Jurisdiction, Foreign State Property and Diplomatic Immunity // ICLQ, 1985. Vol. 34. Р. 117.
Case of Birch Shipping C. v. Embassy of UR of Tanzania, 1980. See.: Trooboff. Foreign State Immunity // Recueil des cours, 1986. P. 366.
Rep. of Philippines, 1977 (Materials on Jurisdictional Immunities of States and their Property, NY 1981. P. 297–321); Alcom v. Colombia, judgment of the House of Lords of Great Britain in 1984 (Trocboff. Op. Cit. P. 365); MK v. State Secretary of Justice, 1986 (Ruth Donner. Some recent case law concerning State Immunity // Finnish YIL, 1994. P. 419); Rep. of Zaire v. Duclaux. Decision of the appeal. Court, 1988 (Ruth Donner. Op.cit. p. 420); Foxworth. Permanent Mission of the Rep. of Uganda to the UN. New York District Court Judgment, 1992. ILR. R. 99. 1994. R. 139.
Article 14 (4) of the English Act. Similar articles are contained in the South African Law, Article 15 (3); in Pakistani Law, Article 15 (4); in the Singapore Act, Article 14 (4).
See: commentary on Article 1611 (b) (House Report N 94-1487, Materials on Jurisdictional Immunities of States and Their Property. NY, 1982. P. 121).
See: The Law Reform Commission, Report N 24. Foreign State Immunity. Canberra, 1984. P. 81. This view is embodied in section 35 (1) of the Australian Foreign State Immunity Act.
Judgment of the Court of Appeal in Trendtex Trading Corp. v. Central Bank of Nigeria, 1977 and Hispano Americana Mercantil SA v. Central Bank of Nigeria, 1979 (ILR. V. 64. 1983. P. 221).
Case of the Central Bank of Nigeria, 1975 (ILR 1984, v. 75. p. 34).
Case of Englander v. Statni Banka Ceskoslovenska, 1969. S. N. Schreuer. Op. cit. P. 157.
Case of the Banque Centrale de la Rep. of Turkey v. Weston Comp. of Finance and Invest. SA, 1978 (Shvydak NG Jurisdictional immunities of a foreign state in the judicial practice of France and Switzerland // review. Inform. BHІIC3. № 49. S. 119-121); Banco de la Nacion (Lima) c. Banca cattolica del Veneto (Vicenza), 1984; Libye c. Actimon SA, 1985 (Schreuer SN, Op. Cit. P. 157).
The Weston Co. case de Finance et d’Inwestissement, SA v. La Rep. De l’Ecuador, 1993 (Danner R. Op. Cit. P. 424).
Article 13 (4) of the English Law; Article 14 of the South African Law; Article 14 of the Pakistani Law; Article 15 of the Singapore Act; Article 11 of the Canadian Law; Art. 32 of the Australian Law.
AJIL 1997. Vol. 91. № 1. P. 187–188.
Morris V. The International Law Commission’s Draft Convention on the Jurisdictional Immunities of States and Their Property // The Denver Journal of International Law and Policy. V. 17. 1988-89; Trooboff PD Foreign State Immunity. Course report. VV 1986. P. 370-372; Coad W. D. The Canadian State Immunity Act // Law and Policy in International Law. V. 14: one thousand one hundred and ninety-seven. 1983. P. 1209; Schreuer CH State Immunity: Some Recent Developments. Cambridge. 1988. P. 128-132; The Law Reform Commission. Report N 24. Foreign State Immunity. Canberra 1984. P. 76.