State-Responsibility Notes PDF

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Structured notes on state responsibility...

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State Responsibility How to answer a question on state responsibility/treatment of aliens/Diplomatic protection To establish liability under IL, plaintiff state must establish - Occurrence of act/omission - Attributable to defendant state - Violates an IL obligation binding upon the state - Violation has caused wronged party injury - If the wronged party is not the state itself  must be a right of DP Defendant state may attempt to contend - Plaintiff state does not enjoy right of DP due to bond of nationality with aggrieved state - Corporation is non-existent or insufficient - Aggrieved party has failed to exhaust local remedies - International legal justification for acts

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“Rules that determine when a state is to be considered for wrongful acts or omissions and the legal consequences that flow therefrom” – Crawford. In Chorzow Factory Case, the PCIJ held “it is a principle of international law, and even a greater conception of law, that any breach of an engagement involves an obligation to make reparation”. “Every internationally wrongful act of a state entails the international responsibility of that state – art 1 of ILC’s Article on the Responsibility of States for IWAs (2001).

Articles on the Responsibility of States for Internationally Wrongful Acts 

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Primary rules are obligations, both substantive and procedural, binding states. o Obligation not to use force against another state o Respect the diplomatic immunity of ambassadors Secondary Rules are those rules that govern the consequence of non-performance, or breach, of primary rules. ILC states that the Articles were developed in line with the logic that international responsibility falls within the category of secondary rules  Rainbow warrior case.

Elements of State Responsibility Corfu Channel  ICJ found Albania to be liable for the consequences of mines being laid within its territorial waters that caused damage to UK warships, despite not having laid them itself. However, the factual circumstances were such that the laying of the mines could not have been accomplished without Albania’s knowledge. For State Responsibility to exist certain elements need to be established: • Must be an act / omission which violates a rule of PIL (either Treaty or CIL) = ‘internationally wrongful act’. • The act must cause a damage or loss suffered.. • The act must be attributable or imputable to a person of international law. • Idea of attribution is difficult- this is when court gets involved. Under what circumstances can this persons actions be tied to a State.

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Becoming a State issue is good because: its exemplary so stops anti-social behavior; State has deeper pocket. There are no reasons (factors) which would preclude responsibility (eg Consent, Self Defence, Force Majeure, etc)

In Spanish Zone of Morocco   

1) An international legal obligation must exist as between two particular states; 2) There has occurred an act or omission which violates that obligation AND which is imputable to the state responsible 3) Loss of damage has resulted from the unlawful act or omission

Where there is a responsibility, it will result in a duty to make reparation if the obligation in question is not met (Chorzow Factory) Attribution   

Concept of attribution allows one to identify the acts for which the state is not generally responsible. Attribution encourages compliance with rules of international law by creating a link between responsibility and control. US v Mexico  a state may be responsible for its failure to prevent certain acts by purely private actors, or failure to take action to punish the individuals responsible.

Number of ways in which conduct may come to be attributed to a state – 1. Conduct of an organ of the state

Conduct of state organ is considered to be an act of that state. Article 4 applies to those under a State’s municipal law – Police officers, soldiers, etc. Private actors can also be equated to de facto organs in certain situations. This was emphasised in Application of Genocide Convention  ‘The private group must act in complete dependence on the state of which they are merely the instrument. In this situation, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the state to which he is so closely attached as to appear to be nothing more than its agent.’ 2. A person or entity exercising governmental authority on behalf of a state

Article 5  The conduct of any such person or entity which is not an organ of the state, but which: (1) is empowered under a state’s municipal law to exercise elements of governmental authority; and (2) has acted in that specific capacity, may be attributed to the state. Many state functions are usually outsourced. Some functions which retain certain public or regulatory functions may be privatised. This is demonstrated in the case of BH Mayer’s

3. Responsibility for acts ultra vires

Attribution to a state might also arise if state organs or agents, or persons exercising elements of governmental authority, commit an act which is ultra vires (exceeds the competence of) the state, or otherwise contravenes its instructions  Article 7 A state must oversee or otherwise control the organs and entities which it operates. Honduras Case  Unlawful conduct may arise from acts of any state organs, officials, or public entities, independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of their authority; under international law a state is responsible for the acts of its agents undertaken in their official capacity. Caire Case  French national was killed by two Mexican officers after they failed to extort money from him. Responsibility of Mexico was engaged ‘in view of the fact that they acted in their capacity of officers and used the means placed at their disposition by virtue of that capacity’

4. Other circumstances a. Acts under the direction or control of the state: - may be attributable if “acting on the instruction of that State in carrying out the conduct” AARISWA Art 8 - Nicaragua – For state responsibility to be engaged, it was insufficient for USA to have taken a preponderant role in financing, organising, training, supplying the contras. This is according to the principle whereby a state is responsible for the acts of private persons if their conduct is pursuant to the instructions of a state, or where it has effective control over the conduct which has led to the breach. o Relatively high threshold. o Tadic’s approach of ‘overall control’ was overturned as ICJ considered it to be too broad and beyond the fundamental principle of state responsibility. Genocide Case – Bosnia and Herzogovina v Serbia and Montenegro 2007 - Facts o Massacres committed by the army of the VRS (breakaway group of FRY – Federal Republic of Yugoslavia) in Srebrenica o Question as to whether it could be attributable to the Federal Republic of Yugoslavia - Found o There may have been a close connection between the VRS and FRY (paid VRS salaries) o However there was no direct FRY participation o VRS did not have the status of an organ of the FRY and was not equated with an organ because  No complete dependence  No effective control o Affirmed effective control: ICJ stated: control must be in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions of the persons or groups having committed the violations

b. Responsibility of a state in respect of the act of another state - This occurs when one state somehow implicated in the conduct of another actor. - Responsibility can arise in the following situations: o A state aids another actor in breaching an obligation owed by both of them. Aid must be materially significant, and state is responsible for the aid, not the breach itself.  ARISWA Art 16 o If a state exercises control over another actor, state will be responsible for breach  Art 18 o If a state coerces another into breaching an obligation, responsible for breach  Art 17

In all situations, state must have knowledge of circumstances of wrongful act committed. Nicaragua  US were only responsible for training and financing the contras, not for their acts. Breach of International Obligation 

“Violates an international legal obligation binding upon that state or an international legal duty owed by that state to one or more other states” – art 2

Violation of International Obligation  

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Follows logically that an international obligation must bind a state at the time of the breach for international responsibility to result  ARSIWA Art 13 Art 14  a breach occurs at the moment when the act occurs, unless it is of a ‘continuing character,’ in which case it extends over the entire period during which the wrongful act continues. there will be no breach if the wrongful act was committed before entry into force of the obligation

Requirement of Fault? 

Corfu Channel Case – Held that Albania’s omission to notify transiting ships that manes had been laid in its territorial sea had engaged in its responsibility.

Existence of Harm or damage Nicaragua  helped to determine the principle that a breach of international obligation might be committed, irrespective of whether material harm or injury was sustained by the complaining party.

Circumstances precluding wrongfulness 

This happens when there is usually an act which would normally be internationally wrongful is not deemed as such.

Consent A state may consent that another state act in a manner which, but for the consent, would have been internationally wrongful  Article 20 

A state may allow another state to use its air space, etc.

Self-Defence Invocation of self-defence allows a state to justify conduct which would otherwise be unlawful  Article 21 

A state may even use force when acting in self-defence pursuant to Article 51 of UN Charter. Such force must comply with the requirements of necessity and proportionality in order to remain within the limits of self-defence.  Nicaragua

Countermeasures Article 22 provides that a Countermeasure taken validly will preclude wrongfulness of an act which would otherwise be unlawful. Countermeasure can be considered as a valid means of self-help in response to the internationally wrongful act of another. Some conditions for countermeasures can be categorised:  Nuclear weapons case    

It must be taken in response to a previous wrongful act of another state directed at the injured state Injured state must have called upon the wrongdoing state to cease its wrongful conduct or to make reparations The countermeasures must be commensurate or proportional to the injury suffered; AND It should be terminated as soon as the wrongdoing state resumes compliance.

Force Majeure 

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This occurs when the state is powerless to act due to occurrence of irresistible force or unseen event  Article 23 o Earthquake, flods, etc. Emphasis is on the fact that the stat had no choice, and could not have resisted the event or escaped the breached High threshold The obligation needs to be considered materially impossible  Lighthouses Artbitration Force majeure cannot be invoked where state has caused the situation in question, or not taken precautionary measures against the foreseeable situation.  Rep of Burundi This cannot be applied where the situation is simply a difficulty or where there is a burden in complying  Rainbow Warrior

Distress Act is done to save the do-er’s life or the lives of others entrusted in their care  Rainbow Warrior: France sought to justify removing the 2 officers from island of Hao on grounds of distress. Was accepted in relation to one officer due to serious health risk  Does not apply if the situation of force majeure is due wholly or partially to the conduct of the state invoking it, or the act is likely to create equal or greater peril o However can apply in situation where plane is required to land due to safety/weather/mechanical fault. Rainbow Warrior – France removed two people from NZ without NZ’s consent. France tried to argue the defence of ‘distress’ contending that there existed a ‘case of extreme urgency involving elementary humanitarian considerations’ to justify the removal of the two officers, referring to the ill health of one of them. France’s invocation was rejected on all fronts. Tribunal rejected the contentions on three grounds; the existence of exceptional circumstances of extreme urgency of medical nature; re-establishment of original situation as soon as emergency had come to an end; AND good faith efforts to obtain consent of other party.

Necessity   

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Article 25 Very very difficult to prove. There needs to be an ‘essential interest’ in safeguard o Nagymaros decision  Conduct must be the only means available to state;  Plea cannot seriously impair essential interest of other states or other international community as a whole;  Relevant obligation cannot exclude plea of necessity; AND  State invoking necessity cannot have contributed to the situation. Palestinian Wall Case  No explanation could be given for the necessity of the actions undertaken.

Consequences of an Internationally Wrongful Act 

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Article 34  Reparation must, as far as possible, wipe out all the consequences of the illegal/wrongful act and re-establish the situation which would, in all probability, have existed had the wrongful act not been committed.  Chorzow Factory; Spanish Zone of Morocco Damages awarded can either be material or moral  Art 31(2) and Rainbow Warrior Can take into consideration whether the injured state has already attempted to mitigate some of the damages  Gacikovo-Nagymoros Article 28  State responsibility entails legal consequences Article 29  consequences do not affect the continuing duty of the responsible state to perform the obligation breached Article 30  Responsible state must cease any continuing wrongful act and offer appropriate assurances and guarantees of non-repetition if circumstances require Article 31  Responsible state must make reparations for the injury caused by the wrongful act.

Cessation   

Requires wrongdoing party to cease wrongful act, and when appropriate, offer appropriate assurance and guarantee of non-repetition.  done to safeguard future relationship. Rainbow warrior  Judgement found that cessation only applies if the act was of a continuing character, and if violated rule is still in force at time of judgement. La Grand Case  Germany filed suit against US claiming US failed to notify German nationals facing execution and as a result breached Article 36(1) of Vienna Convention. Held that a breach was constituted and that US owed an obligation to allow the review and reconsideration of the conviction of German nationals.

Reparation  

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Article 31 ARSIWA ‘Reparation must wipe out all the consequences of illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’  La Grand Article 34 sets out the recognised form of reparation in international law o restitution – article 35  Factory at Chorzow  only when restitution is possible, does one turn to possible financial payment.  Article 35(a)  restitution is not necessary if it is ‘materially impossible’  e.g if property has been permanently destroyed.  re-establish the situation unless it is not materially possible or out of proportion  Rainbow warrior case – you could not use restitution because you cannot repair the time that was spent in prison. OR Arrest warrant case – issued against ministry of foreign affairs – in order to retrieve restitution, you need to issue an order that the arrest warrant is cancelled. o

compensation – article 36  Corfu Channel Case – mines were laid and they exploded. Mines were laid by another third state.  Nagymaros  where restoration is impossible, it is a well established rule of international law that an injured state is entitled to obtain compensation from the state which has committed an internationally wrongful act for the damage caused by it.  Factory at Chorzow  amount awarded is based on the principle as such to offset the material loss.

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satisfaction – art 37  considered a moral damage – acknowledgement that a breach was committed.  Rainbow Warrior  can be in the form of an official apology or expression of regret on the part of wrongdoing party.  SS I’m Alone Case

Serious Breaches of Peremptory norms  

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Article 41 sets out a number of consequences for a serious breach of a peremptory norm. Construction of Wall in Occupied Palestinian Territory  Court concluded that ‘given the character and the importance of the rights and obligations involved… all states are under an obligation not to recognise the illegal situation resulting from the construction of the wall… they are also under an obligation not to render aid or assistance in maintaining the situation created by such a construction.’ Jurisdictional Immunities Of the State  applied the principle of article 41.

Invocation of responsibility   

Invoking  to call on someone for assistance. Reparations case  allows for an injured party to be able to invoke responsibility on another state. State calling for invocation must be considered an ‘injured state’

Article 42 Invocation of responsibility by an injured State A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) That State individually; or (b) A group of States including that State, or the international community as a whole, and the breach of the obligation: (i) Specially affects that State; or (ii) Is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. Article 43 Notice of claim by an injured State 1. An injured State which invokes the responsibility of another State shall give notice of its claim to that State. 2. The injured State may specify in particular: (a) The conduct that the responsible State should take in order to cease the wrongful act, if it is continuing; (b) What form reparation should take in accordance with the provisions of Part Two.

Invocation by non-injured parties 

Remedies being claimed to a non-injured party are more limited as compared to an injured party.  it may only claim for cessation of the wrongful act and a guarantee of nonrepetition, or for reparation to be accorded only to the injured party. (Art 48(2))

Article 48 Invocation of responsibility by a State other than an injured State 1. 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 under paragraph 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 responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibi...