State Responsibility PDF

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Public International Law – Week Five State Responsibility

Lecture Overview 1. 2. 3. 4. 5. 6. 7. 8. 9.

Introduction to State Responsibility Essential Elements of Wrongful Acts Conduct Attribution Circumstances Precluding Wrongfulness Countermeasures Consequences of Wrongful Acts Wrongful Acts of Special Character or gravity Enforcement of a claim

Introduction to State Responsibility Function of State responsibility: -

State responsibility governs the consequences of breaches of international legal obligations: distinction between primary and secondary obligations.

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State responsibility is a “general law of wrongs’ (Crawford)

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NO distinction between treaty and other obligations.

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We will focus on States (rather than, say, international organisations)

Long Process towards codification: -

International Law Commission (ILC), established in 1947 by the UNGA: codification and development of international law.

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Stated work on State responsibility in 1956

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First reading of draft articles only complete in 1996: general coverage, no requirement of fault, distinction between primary and secondary rules.

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Second reading: ARSIWA, adopted in 2001

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ARSIWA were noted and annexed to the UNGA resolution 56/83 (28 Jan 2002), and recommended to governments.

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No plans for a convention on state responsibility based on ARSIWA.

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These are not treaties, merely draft articles (refer to them as these).

Theories of state responsibility: -

Subjective theory: fault required

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Objective theory: no fault required

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Case law/practice tends to support the objective theory.

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ARSIWA: no requirement of fault.

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But: no presumption either way, depends on (a) context and (b) content of primary obligation said to have been breached

Essential Elements of Wrongful Acts Establishing State Responsibility Article 2 ARSIWA: -

‘There is an internationally wrongful act of a State when conduct consisting of an action or omission:

a) is attributable to the State under international law b) constitutes a breach of an international obligation of the State’ -

These elements must be met cumulatively

Essential Elements 1. Conduct 2. Attribution 3. (Absence of valid justification of non-performance: see circumstances precluding wrongfulness) 4. Breach of an international obligation

Breach of international obligation -

Primary rules/obligations Logically prior to SR Article 12 ARSIWA:

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“There is a breach of an international obligation by a State when an act of State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”

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Article 13 ARSIWA: legally binding at time of act

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Content is very important regarding: Requirements (if any) of fault, harm and damage Which States can invoke responsibility? Conduct

Conduct covers: Action: positive acts Omission: lack of an action -

There is no difference in in principle between the two

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Combinations are possible (of both action and omission)

Examples: -

Corfu Channel Case (United Kingdom v Albania) ICJ Rep 1949 4, p. 22: Albania’s failure to warn the UK about mines.

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United States Diplomatic and Consular Staff in Tehran Case (United States v Iran) ICJ Rep 1980 3, paras 63-64, 76: Iranian authorities’ failure to take action.

Does there need to be damage by the act/omission? -

Important but not necessary

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Damage most likely influences consequences of established responsibility (e.g. declaratory judgement v reparations)

Fault: Does the State have to have intention? -

Not required by the secondary rules on state responsibility

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Nuanced view: Articles 2 and 12 ARSIWA

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Article 12: “There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”

Attribution Introduction: -

Dealt with in Articles 2 and 4-11 ARSIWA

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Also referred to as ‘imputability’

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Acts of States are still acts of human beings

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But which acts of which human beings count as acts of States and thus count towards establishing SR?

1. Acts of Officials Article 4 ARSIWA: “1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.” Includes: -

All branches of government

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All states of a federation E.g. LaGrand Case (Germany v United States) ICJ Rep 2001 466: US bearing responsibility for the acts of Arizona authorities.

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Domestic law identifies officials

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Acts that are ultra vires (going beyond what they were supposed to do) still count. See article 7 ARSIWA on “Excess of authority or contravention of instructions” E.g. Youmans Claim (US v Mexico) 4 RIAA 110 (1926): acts beyond or against orders are attributable to the state.

2. Acts of other individuals -

Persons exercising governmental authority as determined by domestic law (Article 5 ARSIWA) even though not state officials.

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Persons acting under the direction or control of a State (Article 8 ARSIWA).

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Contrast standard of control in Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States) Merits, ICJ Rep 1986 4, paras 114-116 (effective control) with TadiK Case 1999 ILM 1518 (ICTY), para 120 (overall control).

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But: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Merits, ICJ Rep 2007, paras 391-400: effective control.

3. Conduct acknowledged and adopted by a state

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Article 11 ARSIWA: “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.” United States Diplomatic and Consular Staff in Tehran Case (United States v Iran) Merits, ICJ Rep 1980 3, para 71: “The approval given to these facts by… organs of the Iranian State, and the decision to perpetuate them, translated continuing

occupation of the Embassy and detention of the hostages in acts of that State.” 4. Acts of insurrectional movements Article 10 ARSIWA: 1. ‘The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law. 2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law. 3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.”

Circumstances Precluding Wrongfulness (CPW) Chapter V (articles 20-27) ARSIWA: -

“Chapter V sets out six circumstances precluding the wrongfulness of conduct that would otherwise not be in conformity with the international obligations of the State concerned. The existence in a given case [of such a circumstance] provides a shield against an otherwise well-founded claim for the breach of an international obligation.” (Commentary on ARSIWA)

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Six circumstances: consent, self-defence, countermeasures, force majeure, distress, necessity.

Consequences of invoking a CPW: Article 27 ARSIWA:

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“The invocation of a [CPW] in accordance with the chapter is without prejudice to: (a) compliance with the obligation in question, if and to the extent that the [CPW] no longer exists; (b) the question of compensation for any material loss caused by the act in question.

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The underlying obligations continue to exist

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Compensation may still be owed even though there is a CPW

a. Consent

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Article 20 ARSIWA Valid consent precludes wrongfulness as opposed to the consenting state

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Limits and the scope of the consent must be respected

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E.g. transit through airspace or bridge example

b. Self-defence

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Article 12 ARSIWA: “lawful measure of self-defence taken in conformity with the Charter of the United Nations”

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Reference to article 51 UN Charter

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Rule of thumb: Restrained by rules on the use of force and those designed to apply during armed conflict (including human rights).

c. Force majeure

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Article 23(1) ARSIWA: “the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” Not: if brought about by invoking state (article 23(2)(a) ARSIWA), or if risk could have been foreseen/assumed (article 23(2)(b) ARSIWA).

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E.g., accidental intrusion into internal waters or airspace

d. Distress

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Article 24 ARSIWA: Act must be the only reasonable way to save the author’s life or lives of persons under their care Relevant, e.g., ships and aircraft entering territory under stress of weather

e. State of necessity

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Article 25 ARSIWA: Only way to avert imminent peril regarding an essential interest Can only be invoked if: Does not seriously impair essential interest of states towards whom the obligation exists Not expressly excluded Not caused (or contributed to) by State that invokes it E.g., Danube Dam Case (Gabčíkovo-Nagymaros Project) (Hungary/Slovakia) ICJ Rep 1997 7, paras. 49-58 (not granted)

f. Complaince with jus cogen norms (peremptory norms) Article 26 ARSIWA: -

“Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.”

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“[CPW] do not authorize or excuse any derogation from a peremptory norm of general international law.” (Commentary on ARSIWA)

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Not relevant: domestic law

Countermeasures

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Article 22 ARSIWA: “The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of Part Three.”

Article 49 ARSIWA: “Object and limits of countermeasures” -

Response to internationally wrongful conduct: a form of self-help Function: restore compliance, as opposed to punishing the violator Permit resuming the performance of obligations For example: If State A and State B are both building a bridge between themselves, but one state breach the treaty, then the other state have the right to breach the treaty too.

Article 50 ARSIWA: “Obligations not affected by countermeasures” -

Article 50(1): obligations that shall not be affected because of their character (prohibition of the use of force, human rights protection, prohibition of reprisals, peremptory norms).

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Article 50(2): obligations that shall not be affected because they permit the peaceful settlement of disputes (dispute settlement mechanisms, channels of communication).

Article 51 ARSIWA: - “Proportionality. Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.” -

Proportionate to what? Breach, damage suffered, importance of questions of principles: in light of purpose of countermeasures

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E.g., Air Services Agreement Case (France v US) 18 RIAA 416, paras. 81-98.

Article 52 ARSIWA:” Conditions relating to the resort to countermeasures” (procedural steps) -

Para. 1: Call on responsible state to comply with obligations, notification that countermeasures will be taken

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Para. 2: Urgent and necessary countermeasures are exempt from para. 1.

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Para. 3: countermeasures may not be taken/must be suspended once wrongful act is ceased or if the dispute is pending before a court or tribunal that has the authority to render decisions binding on the parties.

Consequences of Wrongful Acts Articles 30 and 31 ARSIWA: cessation and reparation -

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Setout immediate legal consequences of internationally wrongful acts These are the principal secondary obligations entailed by state responsibility The (potential) suffering of countermeasures is additional to the obligations of cessation and reparation Article 29 ARSIWA: primary obligation and duty to comply continue to exist

Article 30 ARSIWA: Cessation and Non-Repetition -

“The State responsible for the internationally wrongful act is under an obligation: a) To cease that act, if it is continuing b) To offer appropriate assurances and guarantees of nonrepetition, if circumstances so require”

Article 31 ARSIWA: Reparation “1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.” Function of reparation: - Factory at Chorzów Case (Germany v Poland) Merits, PCIJ Ser A (1928) No 17: “…wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability have existed if that act had not been committed.” Article 34 ARSIWA: Forms of reparation - “Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.” Article 35 ARSIWA: Restitution (in kind) Article 36 ARSIWA: Compensation - Subsidiary remedy: to the extent restitution is not possible

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E.g., Danube Dam Case (Gabčíkovo-Nagymaros Project) (Hungary/Slovakia) ICJ Rep 1997 7, paras. 151-154.

Article 37 ARSIWA: Satisfaction - Only insofar full reparation cannot be made with restitution and/or compensation. Associated with non-material injuries. Examples: declaration, expression of regret, formal apology. - E.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Merits, ICJ Rep 2007, paras. 461-471 (Operative Clause with declarations). Enforcement of a Claim -

Who can invoke the responsibility of another state?

Article 42 ARSIWA: Injured State - If obligation breached is owed to the state individually - If the obligation is owed to a group of states, or the international community as a whole, and the breach specifically affects that state or if the obligation breached radically changes the position of all other states to which the obligation is owed. Article 48 (1)(b) ARSIWA: erga omnes obligations (to the world) - Any state may invoke state responsibility - Erga omnes obligations include prohibitions of aggression, prohibition of genocide, fundamental HR protections (protection from slavery or racial discrimination) Diplomatic Protection: a state may bring a claim based on an inury of its nationals as its own - Claim is the state’s own - No obligation to exercise diplomatic protection - No obligation to pass on reparation received (if any) Nationality of claims (rules on standing): - Natural persons: Articles 4-8 ILC Articles on Diplomatic Protection (2006). E.g., Nottebohm Case (Liechtenstein v Guatemala) ICJ Rep 1955 4: genuine link required -

Legal persons: Articles 9-13 ILC Articles on Diplomatic Protection (2006). E.g., Barcelona Traction Case (Belgium v Spain) (Second Phase) ICJ Rep 1970 3: corporation rather than shareholders

Limits of invocation (for diplomatic protection cases): - Article 44 ARSIWA: Exhaustion of domestic remedies within the responsible state’s legal system

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Exception: Local remedies do not provide reasonable possibility of effective redress or suffer from undue delay (article 15 ILC Articles on Dipl. Protection) E.g., Elettronica Sicula SpA (ELSI) Case (US v Italy) ICJ Rep 1989 15, paras 50-52; Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Preliminary Objections, ICJ Rep 2007, paras 46-48.

Limits of invocation (general), Article 45 ARSIWA: “Loss of the right to invoke responsibility • The responsibility of a State may not be invoked if: • the injured State has validly waived the claim; • the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.” -

Waiver: manifestation of the role of state consent, valid waivers are usually explicit.

Acquiescence: “waiver” by conduct (delay in notifying or bringing the claim is not sufficient to establish acquiescence) Group (plurality) of injured states: -

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Article 46 ARSIWA: “Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act.”

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Each state must still be “injured” according to article 42 ARSIWA

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Problem of double recovery: claiming states are expected to coordinate in order to avoid this...