14-15 Responsibilities PDF

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Introduction ● Liability for conduct in breach of its international obligations ● Who is responsible (states) and who is accountable (IO’s, NGO’s, individuals, etc.)State International Responsibility ● Responsible for acts, omissions, or if acting ultra vires ○ Wrongful Acts, Harm and Damage, etc. ●...

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Introduction ● Liability for conduct in breach of its international obligations ● Who is responsible (states) and who is accountable (IO’s, NGO’s, individuals, etc.) State International Responsibility ● Responsible for acts, omissions, or if acting ultra vires ○ Wrongful Acts, Harm and Damage, etc. ● Domestic law is not decisive ● State responsible for acts of individuals if it acknowledges or adopts these acts or if individuals are in ‘effective control’ → agent of the State General Principles of State Responsibility ILC Articles on State Responsibility ● 1 - responsibility occurs whenever a State violates a duty owed to another State ● 2 - requirements: ○ Act must be attributable to a State (Act or omission) ○ Conduct must constitute a breach of an international obligation (that is in force at that time) → Consideration: circumstances which may be relevant → whether the treaty obligation was suspended, defences in play, etc. ● Treaty will determine what the obligation is and what must be done to fulfill that obligation Different Categories of Unlawful Acts ● ILC Articles on State Responsibility Art 40 → aggravated State responsibility with two elements: ○ Nature of the breach (serious breach arising under a peremptory norm) ○ Magnitude of the breach (gross and systematic) ● Serious breach of an obligation owed to the international community as well as an obligation on States not to recognize or support the consequences of that unlawful action ○ Every State can invoke a breach of duty owed to the international community as the basis for state responsibility, not just the one harmed ■ Barcelona Traction - erga omnes ● ILC Articles on State Responsibility Art 41 → consequences of a serious breach ○ Additional penalties than merely reparation Breach of An International Obligation of a State Fault, Injury, and Damage ● ILC Articles on State Responsibility Art 12 → view taken seems to suggest that there is no requirement of fault unless it is outlined as a condition for the act/omission to exist ● Objective/risk theory - responsibility arises from the commission of the prohibited act (strict liability) ○ Majority of decisions of international tribunals appear to support this ○ Equivalent of a strict liability offence ● subjective/fault theory - responsibility requires the commission of the prohibited act to be accompanied by intention or negligence on the part of the actor ○ Generally, motive and mental element are irrelevant → UNLESS, motive is a specific element of definition of permitted conduct ● Role of damage and harm is still developing ‘Time Factor’ and Continuing Wrongful Acts ● Art 13 - requires that there was an obligation in place at the time the act took place → becomes complicated with continuous acts

○ If it is customary international law → was the law formed by the time there was a violation? Responsibility Under International or National Law? ● Even if a particular act is lawful under national law, it may still be unlawful and give rise to legal responsibility under international law ● National law differentiates between crime, contract, tort, etc. → international law makes no distinction ● Rainbow Warrior Arbitration ○ Greenpeace sent the Rainbow Warrior to protest French nuclear activities in French Polynesia ○ Undercover French military sank their ship which was in New Zealand harbour at that time ○ Attack on Rainbow Warrior was a violation of territorial sovereignty of New Zealand → violation of international law ■ No distinction between contractual and tortious responsibility, any violation gives rise to State responsibility Treatment of Aliens under International Law ● Treatment of nationals of other states ● Generally speaking, developed states follow the ‘international minimum standard’ irrespective of how they treat their nationals where developing states favour ‘national treatment’ Injury to a State ● Mavrommatis Palestine Concessions (Greece v UK) ○ Began as a case between a private person and a State (Mavrommatis and the UK) ○ Greek Government took up the case → entered the domain of international law ○ State is entitled to protect its subjects when injured by acts contrary to international law committed by another State → State takes up a case on behalf of one of its subjects International Minimum Standard or National Treatment? ● Neer Claim (US v Mexico) ○ US claimed Mexico had failed to exercise due diligence in prosecuting the murderer of a US national ○ Commission indicated the standard that it would have to apply: ■ (1) put to the test of international standards ■ (2) treatment of an alien should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would recognize its insufficiency ○ Commission was not prepared to hold Mexico liable, there was diligence shown even if it was not to the US standard Admission and Expulsion of Aliens ● Basic understanding that aliens do not have a right to live within the territory of another State → but there are minimum conditions relating to a State’s right to expel such citizens: ○ Cannot be arbitrary, discriminatory, use excess force, or in breach of an expelling State’s treaty obligations ● Rankin v Iran ○ American national working in Iran ○ New government took office, claimant requested and was granted permission to be evacuated from the country ○ He attempted to claim compensation for loss of salary and abandoned personal property resulting from his alleged expulsion from Iran ○ He could not satisfy the burden of proving his decision to leave was caused by specific acts or omissions attributable to Iran → the general turmoil and chaotic conditions associated with the change of government appears to have been the motivating factor to leave

Expropriation of Assets ● Compulsory taking of private property by a State ● Resolution on Permanent Sovereignty over Natural Resources ○ Justified on grounds of public utility, security, or national interests ● Charter of Economic Rights and Duties of States 1974 ○ Appropriate compensation to be paid by the State ● Starrett Housing v Iran ○ Considers the meaning of ‘taking’ a property → does not need to be fully literal ■ constructive measures that deprive a claimant of effective use, control, benefits ■ Ex. transfer of title by law ○ Understanding that a state is not liable for economic injury within the accepted police power of states → ex. Confiscatory taxation, forfeiture of property as a criminal sanction, etc. Admissibility ● ILC Articles on State Responsibility Art 44 ○ Nationality as the basis of legal interest ■ Injury is suffered by a natural person or other legal entity, right to bring a claim lies with the State ○ Rule of exhaustion of local remedies → can be excluded - ILC Diplomatic Protection Art 15 ■ Only applies when a State brings a claim on behalf of a national → when a State is asserting a claim for its direct interests, it need not exhaust local remedies ● Eichmann → direct interest for Israel to apprehend Eichmann ■ In mixed rights of the nationals and rights of the State claims, look at the proportions of damages sought → presumption is that the State does not need to exhaust local remedies only if the claim is overwhelmingly concerned with injury to the national Conditions Relating to Nationality ● Nationality must be continuous ● Multiple nationality is complex → principles: ○ ‘Real or dominant’ nationality → genuine link ■ Nottebohm ○ In practice though, genuine link rarely overrides formal nationality ■ Diallo ● Lived in the DR Congo for 32 years but the ICJ and DR Congo did not question his genuine link to Guinea where he was born (undisputed) ● ICJ will not risk leaving the injured person without protection ○ If the national has equally strong ties with 2+ States, neither may exercise diplomatic protection over the other ● No rule on dominant or effective nationality if one of the States of nationality wishes to protect them against a third state ○ Third state may not contest the claim of one of the two powers whose national is interested in the case by referring to the nationality of the other power Corporations ● State where a company is incorporated ● Possible to derogate from this via a separate treaty ● Barcelona Traction ○ Shareholders were Belgian, company was Canadian but operated in Spain ○ Canada wasn’t willing to take the expropriation case against Spain → no obligation to take the case, discretionary

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Belgian couldn’t take the case → if the harm was done to the shareholders as individuals, then Belgian could have taken the case In this instance though, only Canada take the case which they didn’t do

Attribution of Conduct to a State ● The unlawful act or breach has to be attributable to the State, not merely an unlawful act of a private individual ● Any act or omission of an organ of the State → status in national law and acting in that capacity ○ ILC Articles on State Responsibility Art 4 ○ Includes executive and administrative organs of the State, police, judiciary, public authorities, local authorities, state officials, security forces, etc. → extends to whatever level in the hierarchy, no distinction between superior and subordinate officials ○ Caire ■ Excluded responsibility where the act had no connection with the official function and was merely the act of a private individual Lawfulness Under National Law ● The fact that the acts were unlawful under national law does not save the State from incurring responsibility at the international level ● Armed forces → question remains whether there is a different standard applicable to members of the armed forces ● Youmans Claim (US v Mexico) ○ Mexican troops sent to quell a riot → instead, opened fire on US citizens ○ Soldiers looting or committing personal injuries are always in disobedience of state orders BUT → if this view was taken, there would never be any responsibility Private Individuals ● ILC Articles on State Responsibility Art 8 ○ Individuals acting under the control or direction of the State → private individuals as agents of the State ■ AG of Israel of Eichmann ● Absence of government authority and private citizens assume and exercise that authority ● ILC Articles on State Responsibility Art 11 ○ State acknowledges/adopts the acts as their own ■ US Diplomatic and Consular Staff in Tehran ● Iran hostage crisis → private actors who committed internationally wrongful acts, endorsed by certain organs of the Iranian State Revolutionaries/Insurgents ● The act of a rebel group is not considered an act of the State unless the group is successful in overthrowing the existing authorities and becoming the new government of the State ● Short v Iran ○ There was no evidence that the revolutionary group had expelled Short ○ Revolutionary group was not in control of Iran at the time of the expulsion ● Gap in responsibility → where there is no group in effective control of the State Acts of Groups on the Territory of Another State: What Level of Control is Required? ● State responsibility for actions on the territory of another State ● Nicaragua (Merits) Case ○ US encouraged, financed, and supplied Contras, a Nicaraguan rebel group looking to overthrow the government

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For the US to have been responsible, it had to be proved that they had effective control of operations in the course of which the alleged violations were committed → no clear evidence of Contras acting on their behalf ○ ICJ set the test: not merely encouraging, supporting, supplying, etc. the group → degree of direct control of the rebel group so that the rebels are effectively acting as the agents of the assisting State and are dependent on them ○ US was still responsible however under other aspects of international law (breaking a Treaty, use of force, etc.) Prosecutor v Tadic Case ○ Serbian government supplying arms, training, support to Bosnian Serbs ○ Tadic said that the Serbs did not have effective control ○ Court stated that the Nicaragua test set too high of a threshold ○ Identified 3 situations where the need to attribute acts arises → overall control test: ■ State officials acting ultra vires ■ Not state officials but paid and acting under direct instructions (agents) ■ Not state officials but those with specific instructions or military operations (overall command and control, must be more than payment and support but involve planning) CONSIDERATION → that they are talking about two different things… individual responsibility (Tadic) vs state responsibility (Nicaragua) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ○ Genocide against the Muslim population of Bosnia and Herzegovina → actions taken by members of the VRS → Serbia provided funding but were not under Serbia’s control or instructions ○ Bosnia could not successfully prove that any genocide orders came from federal authorities → decisions were made by VRS officers ○ Nonetheless, despite an explicit order to do everything in their power to to prevent genocide operating under their control or support → The then Yugoslavia (now Serbia) Serbian did nothing to prevent it (violated their obligation in the Genocide Convention) ○ State is responsible for only its own conduct → rejected the ‘overall control’ test because it stretches the connection between the conduct of a State’s organs and its international responsibility ○ Reaffirmed ‘effective control’ test in Nicaragua

Defences to State Responsibility ● ILC Articles on State Responsibility Art 20-25 outline circumstances precluding wrongfulness ○ 20 - valid consent by a State to the commission of the act in question ○ 21 - self defence taken in conformity with the Charter of the UN ○ 22 - countermeasures → if the otherwise illegal act is a valid countermeasure taken against the injured state ○ 23 - force majeure → act results from the occurrence of an irresistible force or of an unseen event beyond the control of the State ■ Involuntary ○ 24 - distress → where the author of the act has no other reasonable way in a situation of distress to save the author’s life or the lives of the persons in their care ■ Person under distress is not acting involuntarily, though the choice is effectively nullified by the situation where human life is in peril

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Ex. aircraft or ships entering State territory under stress of weather or following mechanical or navigational failure ○ 25 - necessity ■ Necessity cannot be invoked as a defence unless the act is: ● The only means for the State to safeguard an essential interest against a grave and imminent peril AND ● Does not seriously impair an essential interest of the State(s) to which the obligation exists or of the international community as a whole ■ State cannot rely on necessity if: ● International obligation in question excludes the possibility of necessity ● The State has contributed to the situation of necessity ■ Choosing between compliance with international law and other legitimate interests of the state ILC Articles on State Responsibility Art 26 → none of these circumstances precluding wrongfulness are relevant if conduct is in violation of a peremptory norm

Effects of State Responsibility Reparations ● Restitution in kind ○ Declaration that an offending treaty or act is invalid ○ South West Africa Cases ■ Laws of apartheid were declared unlawful and invalid ● Compensation ● Satisfaction (ILC Articles on State Responsibility Art 37) ○ Declaratory judgments → acknowledgement of breach, formal apology, etc. ■ May be coupled with injunction ○ Guarantee of non-repetition → exceptionally offered by international courts and tribunals ○ Whilst not strictly reparations… ILC Articles on State Responsibility Part II Chpt 3 → countermeasures regime Standing: When Can a State Claim Under State Responsibility? ● State responsibility looks to harm suffered by the State ● ILC Articles on State Responsibility Art 42 ○ Definition of injured state → affects the direct interests of a State ● ILC Articles on State Responsibility Art 48 ○ May still invoke the responsibility of another State if: ■ Breach is an obligation owed to a group of States and is protected for the collective interest of the group ■ Obligation is owed to the international community as a whole (erga omnes) ○ Remedies for this are limited to cessation of the act and assurances of non repetition and reparations ○ Not a codification of customary international law → standing has never been recognized by the ICJ...