The International Law Commission’s Draft Articles of the Responsibility of States for International Wrongful Acts purport to set the general rules of state responsibility, however in practice the application of these rules vary in function of regions, mechanisms, and the primary rules concerned. The ILC Draft Articles are intended to apply to international human rights conventions, yet there are claims that the two sets of rules are not compatible with each other due to the special character of human rights conventions. In addition, the individual-oriented character of human rights convention blurs the question of ”to whom the obligor state is responsible”. As the rules of state responsibility regulate only the breach of inter-state primary obligations, it is possible that the obligations flowing from human rights conventions may require different secondary rules.
In line with this setting, the dissertation purports to address the relationship of the rules of state responsibility and human rights conventions, and to examine whether the secondary rules applied to breaches of human rights convention obligation are different from the general rules, or require modification. Can the human rights norms be qualified as lex specialis? And has the human rights practice in turn inversely shaped the general norms?
The dissertation will firstly analyze the compatibility of the rules of state responsibility and human rights conventions. The research will address the arguments that assert the incompatibility of the two regimes. Subsequently, the research will examine the text of the ILC Articles, the practice of international courts and tribunals, arbitrations, and the practice of the human rights treaty mechanisms; in order to identify the written and unwritten secondary rules pertaining to the primary human rights norms. Research questions are: How do the rules on violations of human rights (including the consequences of such violations) fit to the general norms of state responsibility? Are they in conformity or in conflict? In which circumstances do the human rights obligations pose challenges to the rules of state responsibility, and whether/how is it provided for such challenges in the rules of state responsibility?
In addition, the dissertation will compare the patterns of applying the (secondary) rules of state responsibility in the context of different human rights conventions (as primary rules). The European Court of Human Rights and Inter-American Court of Human Rights have developed their own style of maneuvering with the rules of state responsibility in order to fit them into their regimes. Meanwhile the universal human rights treaties, notably the core UN human rights treaties, have developed less coherent and clear patterns. Yet, given the wide geographical coverage of state parties of universal human rights convention and the fundamental character of the rights provided for in those conventions, it is all the more important to formulate a pattern that facilitate the application of the rules of state responsibility in cases of violations of human rights treaty obligations. This is most important for rights of a progressive nature, where it is difficult to determine whether there has been a breach of an international obligation and when state responsibility arises, although they are probably the most violated rights.