Opinion - Letters to the Editor   

Legal responsibility

This refers to the Chief Justice of India, K.G. Balakrishnan’s article based on his Presidential address at the international conference of jurists on December 13, 2008 (Edit Page, December 16). Under the subtitle “Practical constraint,” a sentence reads: “While one can say that there is a moral duty on all governments to prevent and restrain the activities of militants on their soil…” As a long time student of international law, I beg to disagree with this statement.

The corpus of contemporary international law amply bears out the legal (not moral) responsibility, a state for terrorist activities within its territory; it is a legal responsibility, despite whatever difficulties a state may have in its compliance. In the Island of Palmas case, way back in 1920’s, an arbitration tribunal held that territorial sovereignty has concomitant territorial obligations. In the Corfu Channel case (ICJ Reports 1949, at p. 22), the International Court of Justice underscored “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” Further, the Court noted in the Nicaragua case (1986) the importance and customary international law effect of some of the provisions of the 1970 Friendly Relations Declaration. These include two provisions, one in the statement of the principle of prohibition of force and the other in the principle of non-intervention: (1)“Every State has a duty to refrain from organising, instigating, assisting or participating … in terrorist acts in another State or acquiescing in organised activities within its territory directed towards commission of such acts when the acts referred to in the present paragraph involve a threat or use of force.” (2) “Also, no State shall …… tolerate ……. terrorist activities” against another State. The Court ruled in that case that the Friendly Relations Declaration in this respect reflects the opinion juris of states.

I submit that modern international law recognises the responsibility of a state to ensure that its territory is not being used to the detriment of other states. Further, the International Criminal Tribunal on Yugoslavia (Tadic and Milosevic cases) and the Statute of the International Criminal Court recognise attribution to criminal responsibility on the basis of jurisdiction and control. This highlights a new dimension for territorial responsibility under international criminal law, when home-grown terrorists engage in crimes against humanity in another country.

V. S. Mani,

New Delhi

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