The correlation of the responsibility of the individual and the state within the legal framework as a prerequisite for international legal responsibility of the state

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The correlation of the responsibility of the individual and the state within the legal framework as a prerequisite for international legal responsibility of the state

Oleksii Malovatskyi, Institute of Private Law and Entrepreneurship named after academician F. G. Burchak National Academy of Legal Sciences of Ukraine,

Kyiv, Ukraine

Abstract

The article aims to study the category “responsibility of an individual and a state before the law” and determines the correlation through a systematic analysis of general and special characterological and identification features, and on this basis attempts to response to the question if a state is responsible to a person in international law. The next problem is determined by the fact that the issue of responsibility in legal science is the most debated, but still remains the most complex and controversial one. No other topic in law might have caused so much discussion as the responsibility perspective. It should be taken into consideration that the problem of responsibility has its strategic origins in a general philosophical understanding of the positioning (place) of the individual in a modern state and the respective correlation of the rights and obligations of the individual and the state. The methodological basis of the article comprises the relevant scientific methods, notably historical, logical and comparative methods, analysis and theoretical research method. The attempt to scrutinize the phenomenology of the responsibility of the individual to the state and the state to the person in view of legal relationship, to determine the regularities thereof and provide a theoretical rational for the responsibility of the state in international law to the person is deemed topical. The study is based on a critical analysis of the latest developments of Ukrainian and international scholars.

The findings of the research allowed to draw to the conclusions that in law and modern international law in particular, the state is responsible to the person only in case this responsibility is expressly provided for in legal norms (Constitution, law, and court decision) or in the norms of international law (conventions, treaties, customs, decisions of the International Court of justice, etc.), but the state formally and normatively does incur obligation to act responsibly, that is, morally, although this issue is being disputed in recent studies. Consequently, if the state has violated the norms of law, which regulate its activities with regard to the individual, then it will be liable to the individual for violation of the norms of law and violation of the norms of international law and, accordingly, it will cause legal liability under the norms of domestic legislation or international legal liability for violation of the norms of an international treaty. However, when we consider the responsibility of a person regarding the law, his or her natural duty is to act responsibly, namely morally, and avoid committing violations of social expectations embodied in the legal norm. Hence, a person's responsibility arises not only in respect of violating the right, but also for violating the norms of morality, that is, for behaviour that differs from social expectations - a model (standard). In view of the above, it is possible to arrive at a conclusion that there is no unity of views in the definition of the term “responsibility” in science. This is due to the fact that this term integrates philosophical and legal concepts that result in complexity in generalized and comprehensive interpretation and are characterized by the interpenetration of these concepts. However, the general content of responsibility should be construed as the process of determining the following system complex of questions: 1) who is responsible (an individual or the state)? 2) what or whose behaviour entail responsibility (legitimate or illegal; one's own or someone else's)? 3) the degree of awareness of responsibility for behaviour (for a person), 4) legal consequences (punishment or encouragement) for the violation committed. individual state moral responsibility

Keywords: individual, state, responsibility, moral responsibility, legal responsibility, international legal responsibility.

INTRODUCTION

The issue of responsibility in legal science is the most discussed and controversial one. No other subject matter in law provokes more debate than responsibility. This is determined by the fact that the field-specific topic originates in a general philosophical understanding of the place of an individual in a modern state and the mutual correlation of the rights and obligations of mentioned subjects, namely, the individual and the state. Among modern researchers, the issue of responsibility was studied by S. Aleksieiev, O. Baku- mov, O. Bandurka, I. Bezklubyi, S. Bratus, H. Chanysheva, V. Danlap, Dz. Fein- berh, Zh. Feinberh, R. Hudin, S. Husarev, H. Khart, D. Khasman, Ì. Khukkot,Ì.Koziubra, V. Lasi, D. Lipinsky, O. Malovatskyi, V. Nersesiants, N. Onishchenko, P. Rabinovych, D. Shvarts, V. Shynkaruk, P. Talbot, M. Tereshchuk, O. Tykhomy- rov, K. Vazhna, S. Velsh, M. Vytruk, S. Yaremchuk, etc.

The purpose of this article is a study of the category of the responsibility of a person and a state before the law and determination of their relationship through the definition of general and special features of such a legal category, and on this basis making an attempt to give an answer to the question of whether a state is responsible to a person in international law.

The methodological basis of the article is formed by historical and logical methods, a comparison and theoretical research method, and the method of analysis

New is the attempt to investigate the responsibility of a person to the state and the state to the person, as a certain legal relationship, to determine the laws and formulate a theoretical justification for the responsibility of the state in international law to the person.

This study considers a scope of critical analysis of the latest developments of Ukrainian and foreign scholars.

MATERIALS AND METHODS

Responsibility of the individual and the state in the Ukrainian doctrine of law.

In Ukrainian philosophical science, responsibility is considered as a philosophical and sociological concept that characterizes the measure of compliance of the behaviour of a person, group, stratum, or state with existing requirements, current social norms, rules of cohabitation, and legal laws; the ratio of duty and the measure of its fulfilment by its subject (person, group, or class). A famous Ukrainian scientist M.I. Koziubra states that legal liability is the statutory obligation of a person to endure adverse consequences, both of a property and non-property nature, the type and measure of which is determined by the competent authority based on the results of an act committed by a person, specified by law, as an offense (Koziubra, 2015, pp. 301-302). The authors of the manual on the theory of law give the following definition of responsibility, construing it as a general sociological category that expresses a conscious attitude of a person to the requirements of society, responsibilities, social tasks, norms and values, awareness of the essence and significance of activities, their consequences for the society, a certain social group or a particular person (Husarev & Tykhomyrov, 2017, pp. 236-254). In the textbook on the theory of law, another definition of the category is cited, notably this is a duty that did not exist before the committing of the offense, this duty arises as a consequence of the offense, which implies the obligation of the subject to endure negative consequences (personal, property, or organizational nature) provided for by the sanction of the law violated by him (Bandurko, 2018, pp. 291). P.M. Rabinovich, an outstanding Ukrainian scholar in the field of law, argues that legal liability is an additional legal obligation of the offender, enshrined in legislation and provided by the state, to be forcibly deprived of certain benefits belonging to him or her (Rabinovich, 2021, pp.209).

Doctor of law I.A. Bezklubnyi investigating the problem of correlation between legal and legal liability, indicates that the adjective “legal” (responsibility) will be appropriate only in the context of negative liability, which, in accordance with the norm of the law, is applied to a person for an offense committed by him in the past. Positive responsibility can be considered at the level of a legal principle that ensures the proper exercise of a person's subjective rights and obligations and warns not only on internal, but also against external, social conflicts” (Bezklubnyi, 2012, pp.8-10). M.M. Tereshchuk considers that legal liability in public law is a normative, guaranteed and secured by state conviction and coercion public-and-legal obligation to comply with the norms of public law, implemented in the lawful behaviour of the subject of law, approved and/or encouraged by the state, and, in case of its violation, the obligation of the offender to endure condemnation, restriction of personal, material and organizational rights (Tereshuk, 2018, pp. 211). A team of scientists investigating civil liability issues defined that when it comes to compensation for damage caused by the use of artificial intelligence, the operator will be liable for the damage caused if he/she cannot prove that he/ she has taken all necessary measures to prevent the damage (Maydanyk, Maydanyk & Velykanova, 2021).

Having analysed the latest Ukrainian doctrine of law, it should be noted that it has not developed a generalized definition of the category “responsibility”.

However, having critically evaluated this doctrine, it is possible to assert that the responsibility is a social phenomenon that requires from individuals and states (public authorities) behaviour, the model of which is fixed in the norms of law (legal principles, norms of morality, and customs and norms of laws), which can regulate both public and private legal relations (industry responsibility). And if the behaviour corresponds to the model (norms of law), then there are positive consequences, that is rewards or support for activities on the part of the state (positive responsibility). In the same case, when the behaviour does not correspond to the model, a new duty arises for the person or state (public authority) - in the form of punishment or compensation for damage. Hence, it can be stated that the category of “liability” covers the norms of both public and private law, which regulate both the state of compliance with legal norms and the consequences of their compliance or violation.

Responsibility of the individual and the state in the Foreign post-Soviet doctrine of law

The foreign doctrine of the Soviet and post-Soviet periods also has a variety of approaches to defining the category of responsibility. Ì. Bratus asserts that legal liability is a state of state coercion (or public one, within the limits established by law) to fulfil violated obligations, as the fulfillment of a legal obligation under the influence of state coercion (Bratus, 1976, pp.4-5, 41-42).

Meanwhile, D. Lipinsky, a researcher of the post-Soviet period, provides a more expanded and multidimensional description of the profile definition, indicating that legal liability is a normative, guaranteed and secured by state coercion, persuasion or encouragement legal obligation, which complies with the norms of law, the implementation of lawful behaviour of subjects, supported or encouraged by the state, and in case of its violation - an obligation of the offender to endure condemnation, restriction of property or personal rights and their implementation (Lipinsky, 2004, pp. 46). V.C. Nersesiants, a researcher of the Soviet period argued that legal liability is a negative consequence for the subject who violated the norms of law, notably committed an offense (Nersesiants, 2004, pp.7). N.V. Vitruk, defined that legal liability is a liability stipulated in the Constitution, and legal liability is established in law. This scientist highlighted positive responsibility, that is person's awareness of the content and significance of one's current and future behaviour, as well as its coordination with the constitutional and legal duty. He understood negative (retrospective) responsibility as responsibility for violations of the norms of law that had already taken place. The scholar identifies legal responsibility with the legal form of legal coercion, which is implemented through the implementation of the sanction of a rule of law (Vitruk, 2009, pp. 1-30). S.C. Alekseev, a famous Soviet legal theorist, recalled that “in the event of legal liability”, the offender “reports” he/she is obliged to suffer from legal damage and, therefore, be subjected to personal or material restrictions. Legal liability is the state's response to an offense, the purpose of which is to rehabilitate the offender (Alekseev, 1981, pp.271-272).

It should be noted that the post-Soviet doctrine of law, as well as the modern Ukrainian doctrine, also did not form a single approach to defining the category of responsibility. However, from the aforementioned theoretical studies, it can be concluded that in the paradigmatic sense, responsibility is the obligation of a person to undergo the negative consequences of an offense, which assume carrying out or performing burdensome duties for the violator, the proper performance of which is ensured by state coercion, through the implementation of a sanctioned rule of law. The issue of state responsibility to the individual has been little studied in the post-Soviet doctrine of law.

Responsibility of the individual and the state in the foreign doctrine of law

Of considerable interest is the latest foreign legal doctrine scrutinizing the category of responsibility. Max Hocutt, a famous American philosopher, stated: “We can imagine a world in which there would be a single rule of lex talionis (the law of just punishment) - “an eye for an eye”, “a tooth for a tooth”. However, this is not the best example, as proven, so many things have been abandoned to improve the standard of responsibility” (Hocutt, 2017, pp. 79-89). The most authoritative English scientist G.L. Hart, noted that the basis for responsibility is the action of a person who is denoted by the verb “to do”, but in the past tense “did”. In order for such an action to be considered an action of a person, the latter must have free will, and only when a) a person has committed a deed, b) he or she had free will, c) then the question of punishment or reward arises (Hart, 1948, pp. 171-94). Joel Feinberg criticizes the philosophical and legal concept of responsibility proposed by Hart, pointing out that a linguistic approach is not always appropriate. The best method is to determine the critical circumstance that caused the consequences (Feinberg, 1970, pp. 90-96). The scientist explained: “... to be responsible for something (after the fact itself) might also mean that someone did it, or caused it, or became responsible, or accountable for or bears legal responsibility as a negative response from for such actions” (Feinberg, 1970, pp. 204). The famous American scientist-philosopher P.Talbot, researching the issue of responsibility and general honesty from the standpoint of formal logic, pointed out that if “A” caused loss or damage in “B”, then “A” should be responsible, that is to reimburse such expenses. The scientist stresses that the principle of responsibility is a complex principle. To apply this principle, we must be able to identify actor “A”, the transfer of damage or costs, and recipient “B”. The transition is identified with filing a claim against “A”. “Being responsible” implies the idea of financial constraints or applying coercion to “A” to influence his or her behaviour or well-being. The scientist states, that this principle is based on the following statement: “it is not fair to impose losses on another person if you do not bear at least some of them yourself.” Another part of the principle of liability is that if the actions of “A” caused loss in “B” or caused damage to it, the position of “B” must be restored, whether it is restitution or corrective justice. In other words, “A” pays what “B” gets. Meanwhile, when it comes to liability in criminal law, for the crime committed by “A” against “B” the government mainly focuses on bringing “A” to justice and does little to compensate for the losses of “B”. Thus, the scientist drew to the conclusion that the component of the principle of responsibility is “incurring expenses at your own expense”. Meanwhile, the researcher states that this principle determines the emergence of the concept of strict liability, that is even in the absence of a causal relationship, a person can be brought to legal responsibility or other sanctions (responsibility for risk). Another concept is the concept of efficiency. It gives an answer to the question is how much “A” should compensate “B” for the damage caused is the concept of efficiency. It consists in the following: “the damage caused by `A' is attributed to everyone, where the representative of all is `B', then they return and rely on `A' (`A' becomes responsible). What happens to `B' is a completely different question, but the result is `mostly' effective'” (Talbot, 1986, pp. 240-262).

Meanwhile, his compatriot Daniel Hasman argued, “... anyone who violates a moral right is not only responsible because of this, he is “prima face” and bears moral responsibility because he violated an obligation.”

The scientist came to the conclusion that responsibility, as a moral and legal principle, gives rise to legal liability only in the case of damage caused to the rights enshrined in the law” (Hausman, 1986, pp. 263-269).

Alan Schwartz, an American Scientist, using logical syllogisms, argued: “in American legal science, there are two principles. The first is the principle of corrective justice - the court must impose damages that Y suffered if X caused them due to illegal actions. The second principle is that the court will impose on X the damage caused by Y only if it is required that X should bear the risks of damage made to Y, which should reduce the damage “ (Schwartz, 1986, pp. 270-277).

German researcher Robert Goodin tried to explain the differences between “responsibility” and “liability”. He insisted that it is generally accepted that “responsibility” is how people should be treated (punished or rewarded) for their behaviour.

Liability should be separated from the concept of responsibility, especially in cases when the aggregate responsibility does not result in the aggregate legal liability. Accordingly, he considers that responsibility is not an accusation, but rather a “task of responsibility” (Goodin, 1988, pp. 359-367).

William Dunlap, an American researcher, objected to Robert Goodin's arguments and asserted that the model of responsibility, which is based on the principle of responsibility, which assumes liability, is outdated and does not meet the requirements of the present. Such a model can be replaced by a concept of strict liability, subsidiary liability, and innocent liability (in cases of an accident), or the plaintiff can choose who to assign responsibility to, that is on the one with the “deepest pockets” or the most convenient defendant” (Dunlap, 1991, pp. 153-175). Researcher William Lasey argued that legal liability refers to the general components, which are usually necessary for initiating a legal charge in private law, and in order to be required by a court order to compensate for the damage or make other compensation for the damage caused. There is another responsibility, known as moral responsibility. It is based on the requirements of a legal assessment and accusation of someone whose behaviour is morally wrong or subject to moral approval. Both moral and legal responsibility have the same function, notably, attribution of behaviour and its consequences to the subject. However, since legal liability always refers to attributing negative behaviour and its consequences, moral liability refers to both positive and negative behaviour and its consequences (Lucy, 2010). The authors of the monograph “Law and reason” investigated the relationship between the English term “liability” and “responsibility”, and “retribution”. They assume that responsibility before the law, especially in criminal liability, should be based on the responsibility, which, in turn, grounds on retribution (Hag & Waltermann, 2021, pp. 255-288). In the latest collective monograph on the issues of responsibility considering the use of robots and artificial intelligence, the authors view responsibility through the prism of logical understanding of the following statement: “... people don't think about responsibility when everything goes well and no one gets hurt. This concept is applied only when something goes wrong: damage is caused, people are injured, or property is stolen. Then people want to know who is responsible, who should be blamed, and who is liable for damages or compensation.” (Ñ. Bartneck, C. LQtge, À. Wagner & Welsh, 2021).

The analysis of the current international doctrine of law argues that the doctrine not only demonstrates a significant diversity in the definition of the category of responsibility, but it is denoted by different terms, notably “responsibility”, “liability” and “accountability”, which significantly complicates the understanding of the category under study. The term “responsibility” means the principle of responsibility, which is construed as a generally recognized obligation of a person to society to be responsible for his/her behaviour on the basis of social norms, including laws. The term “liability” means responsibility in a purely legal sense and is a legal responsibility (social reaction) that manifests itself in the form of positive (reward) or negative (punishment) consequences. While the term “accountability” is used to denote “responsibility” and “liability” together and is an analogue of the Ukrainian word accountability. Thus, the responsibility of the state to the individual or society can be considered in the aspect of accountability.

So, it might be assumed that the responsibility of the state (public authorities) is a certain analogue of the responsibility of a person in law, which consists in the state's compliance with the norms of law and the subjection of its behaviour to positive or negative consequences as a result of compliance or non-compliance with the norms of law. However, the possibility of applying coercion to the state, in order for the state to comply with its duty in line with the norms of law, which itself establishes them, seems impossible to us. These assumptions should be confirmed or rejected considering the theoretical developments of other Ukrainian scientists.

The relationship between the responsibility of a person and a state, as a prerequisite for the international legal responsibility of states to a person.

Professor N.M. Onishchenko substantiates that the state establishes a mechanism for its own public legal responsibility, assumes the obligation to ensure the possibility of its implementation, to make it accessible to citizens. The state becomes a subject of responsibility only in specific legal relations with the participation of a private person whose rights are violated. In other cases, the state acts as an instance to which an official or state body is responsible. A person is born with certain rights (natural), and it is not the state that grants them, and accordingly, the state cannot violate them. That is why the state is responsible to an individual for violating his/her rights. Moreover, the state is responsible for the actions of officials and state authorities - so to speak, for the actions of “third parties”.

The scientist comes to the conclusion that the legal responsibility of the state is the legal consequences that occur for subjects of international law as a result of an international offense committed by them and oblige them to compensate for damage caused to other subjects of international law (Onischen- ko, 2009). Subsequently, the scientist stressed that the state is responsible for the following: a) the actions of legislative authorities, b) violating international obligations under international treaties, c) committing illegal actions by military personnel whose bases are located on its territory, d) actions that have harmful consequences on the territory of another state, for instance, for pollution; the state is responsible for some legitimate actions (damage caused by space objects, etc.), e) the state is also responsible for the actions of the military command in armed conflicts (Onischenko, 2014, pp.3-11).

The arguments by professor Onishchenko confirms the assumptions in this article that the state is responsible, as well as the individual, for violating the norms of law, but emphasizes that it is precisely those norms of law (in specific legal relations) that consolidate the rights of the individual. Meanwhile, the researcher accentuates that the state is responsible for illegal actions, notably violation of international obligations (state responsibility), and also for acts that are not prohibited by international law, but are harmful (state liability). This division of theories of state responsibility in international law is undoubtedly based on the aforementioned theory of individual responsibility.

Researcher S. Yaremchuk argues that “nowadays, the institution of state responsibility to the person provides for a system of norms, ..., international law set forth in international conventions and documents that Ukraine has ratified; the norms of the Constitution of Ukraine that impose obligations on the state in relation to the person, his/her rights and freedoms; the norms of all branches of law that provide for the responsibility of the state to citizens (Yaremchuk, 2017, pp.567-537). O.S. Bakumov assumes that the responsibility of the state is part of its legal status. The state bears private and public legal responsibility. Referring to the work by O.V. Pinaeva, the researcher notes that for violating the law, the state applies coercion both to the person and to itself, etc. (Bakumov, 2019, pp. 3-13).

In our opinion, the claim about the possibility of a state to apply coercion to itself should be justified, it would probably be worth noting that if the state, as an official, violates the norms of law, thereby causing harm to a person, then such an official is liable.

K.A.Vazhna, studying modern concepts of state responsibility in international law, stresses that two competing concepts should be considered, notably responsibility for guilt - subjective responsibility and responsibility without guilt - objective responsibility. She supports the concept of state responsibility without guilt, but points out that when it comes to violations of generally recognized peremptory norms of international law (jus cogens), there is some support for the existence of guilt in the actions of the state. The scientist claims that the responsibility of a state in international law occurs if 1) an internationally wrongful act (action or omission) is assigned to a given state in accordance with current international law; 2) an internationally wrongful act (action or omission) constitutes a violation of an international legal obligation of a given state; meanwhile, an act that does not correspond to what is required of a state by this obligation and occurs at a time when the state is bound by this obligation; 3) there are no circumstances that, in accordance with the norms of current international law, exclude illegality of the act. The guilt of the state, under these circumstances, is presumed (Vazhna, 2018, pp.150-163).

The scholar considered the responsibility of the state for violation of international legal obligations. She considers that responsibility comes in the absence of guilt, but when a state violates obligations arising from the peremptory norms of modern international law, then the concept of responsibility for guilt dominates.

O.V. Malovatsky in his article on the issues of state responsibility for international illegal acts, substantiates that the classical science of international law construes state responsibility as an obligation to give compensation to an individual for damage caused by actions of state authorities. The modern doctrine of international law defines that the responsibility of a state under international law is a status that arises after the committing an international wrongful act, which involves the duty of the state to restore the status of international relations that had existed before committing an international wrongful act (Malovatskyi, 2018, pp. 25-46).

Important in these conclusions is that in law, notably in modern international law, the state is responsible to the individual only when, as N.M. Onishchenko specifies, it is explicitly provided for in legislative norms (Constitution, law, court decision) or a norm of international law (conventions, treaties, customs, decisions of the International Court of justice, etc.) and there is no obligation to behave responsibly, that is, morally, although this issue is disputed in recent studies.

An example could be Article 3 of the Constitution of Ukraine, which envisages that the state is responsible to the person for its actions. As well as the provisions of Article 1 of the 1950 European Convention on human rights, according to which “the high contracting parties shall guarantee to everyone within their jurisdiction the rights and freedoms defined in Section I of this convention”. Consequently, by violating the norms of law that regulate the activities of the state before the person, the state will be liable to the person for violation of the norms of law and violation of the norms of international law, and accordingly there will be legal liability under the norms of domestic legislation and international legal liability for violation of the norms of an international treaty.

But when we refer to the responsibility of a person before the law, it is his/her natural duty to behave responsibly, that is, morally, and not allow violations of social expectations reflected in the norm of law.

Consequently, a person's responsibility arises not only for violating the law, but for violating the norms of morality, that is, for behaviour that differs from social expectations, which are considered to be a model (standard).

CONCLUSIONS

Considering the above, it can be concluded that there is no unanimity of views in construing the term “responsibility” among the scholars. This notion integrates philosophical and legal concepts. This determines the complexity of its generalized and unified comprehension. Moreover, it is characterized by the interpenetration of the aforementioned concepts.

However, the common understanding of responsibility is the process of determining: 1) who is responsible (a person or the state), 2) for what and whose behaviour shall entail responsibility (legitimate or illegal; one's own or someone else's), 3) the degree of the ability to be aware of the responsibility for one's behaviour (for a person), 4) the legal consequences (punishment or encouragement) for the committed violation.

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