12 State Responsibility

Front 1

Where is the law of state responsibility found?

Back 1

Within the lex generalis (or the general principles of international law).

Front 2

Who put together the laws surrounding the laws of state responsibility?

Back 2

The International Law Commission (ILC)

Front 3

Who criticises the ILC for being in charge of the laws of state responsibility and why?

Back 3

Allott.

Says the ILC are picked by the Government and therefore only put what the government want into the state responsibility laws.

Doesn't restrict states just affirms their powers.

Leaves State Responsibilty a "bland gruel" that states are happy to accept.

Front 4

Where are their rules to hold states accountable for breaches outside of state responsibility?

Back 4

In the lex specialis - specialised areas of law.

For example treaties have the conditions of what can happen if their's a breach.

Front 5

If their is already lex specialis what is the point of state responsibility?

Back 5

Widens what can be done where there is no lex specialis specifically relating to the wrong.

Front 6

What is needed to trigger State Responsiobility?

Back 6

An internationally wrongful act.

Front 7

What two things are needed for something to be considered to be an internationally wrongful act?

Back 7

It must be an act OR omission that:

1. is attributable to the State under international law

2. constitutes a breach of international obligation of the State

Front 8

Where can the legal basis of internationally wrongful acts be found?

Back 8

Article 2, ILC 2001

Front 9

Something to analyse about article 2:

Back 9

An internationally wrongful act can be an act OR an omission. This is quite good as it is more wide than just an act.

Front 10

Criticism of the State part of State responsibility

Back 10

State responsibility is only relevant to States. The ILC didn't deal with International Organisations, Businesses or individuals.

This shows how fragmented the law on state responsibility is.

Front 11

Article 2(a) on State Responsibility

Back 11

Internationally wrongful act is attributable to the State under International Law.

Front 12

How can we tell if something is attributable to the state?

Back 12

An act or omission is attributable to the state if it is done (or not done) by an organ of the state.

Also certain qualities are always attributable to the State.

Front 13

USA v United Mexican States

Back 13

Example of attributability of states.

Mexicantroops in trouble because troops had opened fire on American citizens. Mexicowas held responsible for this as "needless to remark" that soldiers make the government liable. Claims Commission (ad hoc commission set up justto deal with what had happening in Mexico).

Front 14

CaireClaim: France v Mexico

Back 14

Example of attributability of states.

Cairewas a French national killed by Mexican soldiers after he was blackmailed togive money and refused to give it.

So even if actingunlawfully or beyond legal powers officers have absolved the legality of theState.

Front 15

Did the ILC create the laws of State responsibility?

Back 15

Not really, just codifying pre-existing laws.

Front 16

US v Iran

Back 16

Example of how far attribution can be taken:

Overrunningof US embassy of Tehran. American personal taken for over 100 days. US tried for a militant operation to blame Iran. However ICJ looked at WHO actually overran embassy - almost forensic approach.

Here said there was no suggestions that the militants acted on behalf of the state.

Went on to become an act of the state???

Front 17

Bosnia v Serbia

Back 17

Yugoslaviacomprised of various different provinces. After Cold War became it split up,with many wars and claims for independence and new states. Issue arose for Bosnia-Serbiapeople in Bosnia and Herzegovina. Were they agents of the state or fighting thegovernment as an independent group? It resulted in a massacre, so couldstate be held accountable?
Here not enough evidence that the state can be responsible for their actions.

Front 18

Article 7, ILC Articles 2001

Back 18

The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law f the organ, person or entity acts in that capacity, even if it exceeds authority or contravenes instructions.

Front 19

Why is article 7 interesting?

Back 19

Only "elements" of government are required - and even if something goes beyond it's capacities (such as Caire claim v Mexico) the act/omission is still attributable to the State.

This is also interesting when looking at cases where you can;t see who is the government due to rebelions or war torn countries.

Front 20

Nicaragua case

Back 20

Court looking at rules of State Responsibility. Seems to be a fundamental issue of fairness thataccompanies these points. Is it fair to link back rebels acts to the US? Wouldit be unfair if not looked at? Dino don’t think that necessary if onlyconsideration. Is there justice? Just because there’s a relationship with the contras and US it is most importantly that difficulty of “trace back” and ICJ is really trying to work out what is the right standard to set and the one it setsnow is one of effective control. However all the forms of US participating can’t mean (without more evidence)that the US the acts were attributable to the US.Here there is a setting out a standard from ICJ here.

Front 21

Article 9, ILC 2001

Back 21

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.

Front 22

Article 10, ILC 2001

Back 22

Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movementwhich becomes the new Government of a State shallbe considered an act of that State under internationallaw.

2. The conduct of a movement, insurrectional orother, which succeeds in establishing a new State inpart of the territory of a pre-existing State or in a territoryunder its administration shall be considered anact of the new State under international law.

3. This article is without prejudice to the attributionto a State of any conduct, however related to that of the movement concerned, which is to be consid

Front 23

Yeager v Iran

Back 23

Back up to article 8.

Attributability of acts to the state is not limited to acts is not limited to organs formally recognised by international law.

The State can also be responsible for the acts/omissions of persons if it is established they were acting for the state.

This means that state resposibility is very wide - even in times of rebellion and chaos.

Front 24

Article 11, ILC 2001

Back 24

Conduct acknowledged and adopted by a State as its own Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

Front 25

Explanation of Art 11

Back 25

So even if conduct didn't begin as an act of state in can become one (such as the Consulate case in Iran).

Front 26

How can breaches of international obligations arrise?

Back 26

Through breaches of treaty or custom.

Only two types of relationship - contract and tort. You can breach a contract (treaty) or be negligent towards another state (custom).

Front 27

The Rainbow Warrior case

Back 27

The origin of an obligation is not important. Breaches aren't just confined to treaty obligations - customary law is just as important.

Front 28

Hungary/Slovakia case

Back 28

Basically Vienna Convention says that if there’s a violation of a treaty there is a way to react to this. BUT separate to treaty law there are other obligations and state responsibility can be invoked.

Front 29

Can internationally wrongful acts equal crimes under general principles?

Back 29

No, ILC created art 19 which allowed crimes but it never made it into the final draft as States objected to it.

Front 30

Analysis of article 19 not being in final draft.

Back 30

Two ways to argue:

Anti-Allott - see the ILC CAN do stuff that the States don't want.

Pro-Allott - but the States decided they didn't want that, therefore controlling their own responsibilities and limitations.

Front 31

Article 40, ILC 2001

Back 31

1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.

2. A breach of such an obligation is serious if it involvesa gross or systematic failure by the responsibleState to fulfil the obligation.

Front 32

Article 41, ILC 2001

Back 32

Particular consequences of a serious breachof an obligation under this chapter

1. States shall cooperate to bring to an end throughlawful means any serious breach within the meaning ofarticle 40.

2. No State shall recognize as lawful a situationcreated by a serious breach within the meaning of article40, nor render aid or assistance in maintainingthat situation.

3. This article is without prejudice to the otherconsequences referred to in this Part and to such furtherconsequences that a breach to which this chapterapplies may entail under international law.

Front 33

Article 48, ILC 2001

Back 33

Invocation of responsibilityby a State other than an injured State1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:(a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or(b) the obligation breached is owed to the international community as a whole.2. Any State entitled to invoke responsibility underparagraph 1 may claim from the responsible State:(a) cessation of the internationally wrongful act,and assurances and guarantees of non-repetition in accordance with article 30; and(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.3. The requirements for the invocation of responsibilityby an injured State under articles 43, 44 and 45 apply to an invocation of responsib

Front 34

Objective (strict theory)

Back 34

Maintains that the liability of a state is strict.

If an unlawful act takes place, causing injury from an agent of the state the state will be responsible whether acting good or bad faith.

Front 35

Subjective (fault theory)

Back 35

An unlawful act must be committed intentionally or negligently for the state to be considered liable.

Front 36

So is it objective or subjective?

Back 36

Opinion is divided, but most academics reckon it's objective.

Front 37

France v Mexico

Back 37

An example of a case where it was explicetly mentioned that it was being interpreted under objective responsibility EVEN in the absence of any fault.

Front 38

Corfu Channel Case

Back 38

Example of a case supporting subjective responsibility and that there does need to be some sort of fault.

Front 39

What SHOULD it be? (opions)

Back 39

DINO reckons as the ILC come up with articles they'll make summit.

Allet prob reckons they pussied out of picking objecting which they should have.

At least they didn't straight up go for subjective.

Front 40

Circumstances Precluding Wrongfulness

Back 40

Basically the defences of unlawful acts.

Lowe is critical of them as there is no distinction between behaviour that is right and behaviour that is wrong but excusable in the ILC articles.

Front 41

Issues with precluded wrongfulness and objective theory

Back 41

SOme of the defences/precluding wrongfullness (such as force majeur) don't stop (PRECLUDE) wrongfullness, just remove fault. How can that be a defence if we follow objective theory?

Front 42

Dicking on ILC's development on precluding wrongfulness

Back 42

Thereis a ‘bit of a jumble’ in the way ILC has organised principles on wrongfulness.Instead of intellectually coming up with a new set of propositions, ILC hassimply repeated previous ideas. There is strange grouping of the so-calledgrouping of circumstances precluding wrongfulness.

Front 43

Self-defence precluding wrongfulness

Back 43

Force used in self defence means that wrongfulness is precluded. Security Council can authorise force in self defence.

Front 44

Problem with self defence

Back 44

Not part of circumstances precluding wrongfulness but in fact in UN charter.

Front 45

Article 49, ILC 2001

Back 45

1. An injured State may only take countermeasuresagainst a State which is responsible for an internationallywrongful act in order to induce that State tocomply with its obligations under Part Two.

2. Countermeasures are limited to the non-performancefor the time being of international obligationsof the State taking the measures towards theresponsible State.

3. Countermeasures shall, as far as possible, betaken in such a way as to permit the resumption ofperformance of the obligations in question.

Front 46

Article 51, ILC 2001

Back 46

Counter measures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.

Front 47

Article 52, ILC 2001

Back 47

1. Before taking countermeasures, an injured State shall:

(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations;

(b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.

2. The injured State may take such urgent countermeasures as are necessary to preserve its rights.

3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if:

(a) the internationally wrongful act has ceased;and

(b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.

4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith.

Front 48

Violating international law in order to induce compliance

Back 48

ILC you can only violate economic rules, not rules of force.

Front 49

Hungary v Slovakia

Back 49

Slovakia committed an internationally wrongful act. COuld it be considered lawful as it was a countermeasure after Hungary did an unlawful act? Can only be justifiable if:

- taken in response to someone elses Internationally wrongful act and is directed against that state

- the injured state asked the wrongful state to stop first

- the countermeasure must commensurate with the act
Here it wasn't proportionate, so it wasn't lawful.

Front 50

Article 23 ILC 2001

Back 50

Force Majeure

The idea is presented that there are going to be certain circumstances in which a wrongfulness is precluded. Where the State is forced into a position where you cannot comply with obligation of international law.

Front 51

Article 24, ILC 2001

Back 51

Distress

Unlike 23 it is not involuntary action.

Wrongfulness precluded if author of act has noother way.

Conformity is possible but could result in lossof life.

Front 52

Article 25, ILC 2001

Back 52

Necessity

Situation in which you are acting because you feel that you have irresistible urge to act in a particular way

Deliberate act not to conform with the obligation

Intentionally want to produce conduct considered necessary to safeguard particular interest of state against grave and imminent peril

Front 53

Article 42, ILC 2001

Back 53

Invocation of Responsibility

Anticipate normal style of responsibility –normal state having suffered damage is not the only one that can bring action

Other members of the international community canbring a case

Collective interest art 48

Front 54

Germany v Poland

Back 54

It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.

Reparation is an intrinsic part of failing to apply a convention and it doesn't need to be in the convention itself.

Front 55

Article 35, ILC 2001

Back 55

Restitution.

Designed to re-establish situation had the wrong not taken place.

Front 56

Article 36, ILC 2001

Back 56

Compensation

Monetary recognition of the wrong in relation toan obligation

Front 57

Article 38, ILC 2001

Back 57

Interest

1. Interest on any principal sum due under thischapter shall be payable when necessary in order toensure full reparation. The interest rate and mode ofcalculation shall be set so as to achieve that result.

2. Interest runs from the date when the principalsum should have been paid until the date the obligationto pay is fulfilled.

Front 58

Article 37, ILC 2001

Back 58

Any measure taken that is not restitution or compensation

Not easy to distinguish between pecuniary satisfaction and compensation for breach more to do with interests of the injured party

Front 59

Contribution to injury

Back 59

Compensation should be tagged accordingly whereinjured state was a contributing factor.