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State Responsibility Article 1 Articles: internationally wrongful act of a State entails the international responsibility of that Article 2 ARSIWA: is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to the State under international and...

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State Responsibility - Article 1 ARSIWA/ILC Articles: “Every internationally wrongful act of a State entails the international responsibility of that State.”

- 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; and (b) Constitutes a breach of an international obligation of the State.”

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State responsibility refers to ‘liability’ of a state under international law. Responsibility arises from the breach by a State of an international obligation. That obligation can be one of customary international law or a treaty obligation. Several wrongful acts put together are wrongful (a composite act) (Article 15)

Primary Rules are customary or treaty rules laying down substantive obligations for States

Secondary Rules are rules relating to (a) whether there has been a breach of a primary rule; and (b) the legal consequences of such a breach.

Omission: • Corfu Channel case (1949) ICJ Rep. 4, where the ICJ held that Albanian was responsible because it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn third States of their presence. • In the US Diplomatic and Consular Staff in Tehran case, 1980 ICJ Rep. 3, the Court concluded that Iran was responsible for the “inaction” of its authorities which failed to take appropriate steps to protect the embassy and its staff.

Breach of an international obligation

Article 12 – there is a breach of an international obligation by a state when an act of the state is not in conformity with what is required of it by that obligation, regardless of its origin or character “regardless of its origin” – all possible sources of international obligation Rainbow Warrior case Any violation by any state of any international obligation, of whatever origins, gives rise to state responsibility and consequently, to the duty of reparation. Inter-temporal law Article 13 – an act of a state does not constitute a breach of an international unless the state is bound by the obligation in question at the time the act occurs. (Island of Palmas case)

Attribution States can only be held responsible for acts which are attributable to them. A state, being an abstract entity, can only act by and through its organs or agents. The question is which organs or persons can be considered as acting on behalf of the state. Conduct of state organs (Direct Liability) 

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A State is responsible for the conduct of its organs (Legislative, executive or judicial) (Art. 4) … even when those organs are acting in excess of authority (ultra vires) (Art. 7, Mallén case, Youmans’ Claim). -

Purely personal acts cannot be attributed to State even if committed by agent of State (Mallén) Act must be purportedly or apparently done while carrying out official functions (Caire Case)

Conduct of private entities (Indirect Liability) 1. Persons or entities empowered to exercise elements of governmental authority (Art. 5) 2. Foreign State organs placed at another State’s disposal (Art. 6) 3. Persons or entities acting under the direction and control of the State (Art. 8, Nicaragua)

4. Persons or entities exercising elements of governmental authority in default of the official authorities (Art. 9) 5. Successful revolutionary movements which become the government (Art. 10) 6. Where and to the extent that the State acknowledges and adopts the conduct (Art. 11, Teheran)

Circumstances Precluding Wrongfulness In certain circumstances a state may justify or defend an act in breach of an international obligation. If the defence is successful, a state will not be held responsible for the internationally wrongful act in question. The 'circumstances precluding wrongfulness' are set out in Chapter V of the ILC Articles (Articles 20-25). These circumstances are: -

Consent, o A state can preclude the wrongfulness of its breach of an international obligation when such breach was undertaken with the consent of the victim state (party). o Article 20

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Self-defence, o a state can be precluded from wrongfulness when its acts that violate international law are precipitated by the need for self-defence o Article 21

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Countermeasures o a state found to have acted in breach of international law is obliged to perform the obligation breached, end the unlawful act, and/or make reparation in the form of restitution, compensation and satisfaction. If the wrongful state fails to do so, an injured state is entitled to adopt measures to induce the wrongful state in question to comply with its international obligations. Such measures are also referred to as "countermeasures” o Article 22

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Force majeure, o when a state is not able to perform its international obligations due to an irresistible force or an unforeseen event that is beyond the control of the State. o Article 23

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Distress o applies when an international obligation is breached as a last resort in order to save lives o Article 24

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Necessity. o necessity could be invoked when such breach of obligation is needed in order for a state to safeguard its 'essential interests' against a 'grave and imminent' danger. o Article 25

Onus of establishing circumstances is on State seeking to avoid responsibility Not allowed to breach a jus cogens norm (Article 26 ARSIWA) Once circumstances precluding wrongfulness no longer exist, State must comply with international obligation unless obligation terminated (Article 27 ARSIWA) Even if wrongfulness of act is precluded, compensation may be due if material loss suffered but then compensation determined by agreement and not according to ARSIWA (Article 27 ARSIWA)

Enforcement An injured state may invoke state responsibility for obligations owed to it, to a group of states (including the injured state itself) and under certain conditions to the international community as a whole, i.e. when the obligation is an "erga omnes” norm (Article 42 ILC Articles). In the first two scenarios (when obligation is owed to it or to a group of state including the injured state), the state invoking state responsibility is directly injured by the internationally wrongful act. Whereas, in the case of obligations erga omnes, such state does not need to have been directly injured by the wrongful act in question. A state other than the injured state may also invoke state responsibility when the obligation breached is owed to the international community as a whole (Article 48 ILC Articles).

Consequences Part Two of the ILC Articles (Articles 28-31) lists the general legal consequences of an internationally wrongful act, which are: continued duty to perform, cessation and nonrepetition (Article 30), and reparation (Article 31).

A state that has been found responsible for failing to perform its duty could be obliged to continue to perform its duty as a consequence of being found for the internationally wrongful act of non-performance. In other circumstances, a state that is found responsible for conduct that violates its international obligation could be ordered to cease the wrongful conduct and desist from doing so again. Lastly, to make reparation means that a responsible state has to pay '[...] for the injury caused by the internationally wrongful act' (Article 31 ILC Articles). An injured state may claim reparation in the form of restitution, compensation and satisfaction, or a combination of these forms (Articles 34-37 ILC Articles). Chorzow Factory case o Restitution (Article 35) A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) Is not materially impossible; (b) Does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. o Compensation (Article 36) The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution o Satisfaction (Article 37) The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or other appropriate modality In the Gabčíkovo-Nagymaros Project case, for instance, the ICJ found that both Hungary and Czechoslovakia had breached their treaty obligations. The ICJ ordered both states to negotiate in good faith and take all necessary measures to ensure the achievement of the objectives of the 1977 Treaty. As a form of reparation, both states had to compensate each other for the damage caused by their conduct. An example of a case where both compensation and satisfaction were ordered as reparation is the LaGrand case. In this case, the United States had ordered the death penalty on two German brothers without informing them on their consular rights, one of the death penalties already being executed. Germany filed for a judgment at the International Court of Justice on the basis of a violation by the United States of the Vienna Convention on Consular Relations. Germany requested both compensation and satisfaction from the United States in this case.

CASES Tehran Hostages Case In 1979, several hundred student-demonstrators occupied the US Embassy in Tehran by force and held the embassy staff as hostages. The Court divided the events into two phases. In the first stage, the attack was carried out by militants who in no way could be regarded as “agents” or organs of the Iranian State’. Therefore, according to the Court, the militants’ conduct could not be imputable to the State on that basis. Nevertheless Iran was held responsible in that it failed to protect the embassy and the diplomats as required by international law (Vienna Convention on Diplomatic Relations, 1961) . The second phase started after completion of the occupation of the embassy. At this stage, the Iranian Government was legally bound to bring to an end the unlawful occupation and pay reparation. Instead, it approved and endorsed the occupation and even issued a decree stating that the American embassy was a centre of espionage. The decree went on expressly to declare that the embassy and the hostages would remain as they were until the US had handed over the former Shah for trial. The approval given to the acts of the militants and the decision to perpetuate them translated continuing occupation of the embassy and detention of the hostages into acts of that State. The militants had now become agents of the Iranian State for whose acts the State itself was internationally responsible.

Rainbow Warrior, a Greenpeace vessel when it was leaving to protest French nuclear test in the Pacific, was blown up in Auckland Harbour by French Government secret service agent. The French Government admitted its responsibility for the destruction of the vessel. New Zealand sought and received an apology and compensation for the violation of its territorial sovereignty. Mallen case • a Mexican consul had been violently attacked and beaten twice by an American police officer. • As for the first attack, the evidence indicated a wanton act of a private individual who happened to be an official. • On the second attack, the American police officer, showing his badge to assert his ‘official capacity’, struck Mallen with his revolver, and then took him at gun point to the county jail. It was held that the US was responsible for this second assault.

Nicaragua case The question was whether the conduct of the contras, an insurrection movement against the Nicaraguan Government was attributable to the US so as to hold US responsible for breaches of international humanitarian law committed by the contras. This question was examined by the ICJ in term of effective control. Even though US had provided heavy subsidies and other support, there is no evidence that the US actually exercised such a degree of control. For US to be responsible, it would in principle have to be proved that the State had effective control of the military and paramilitary operations in the course of the violations being committed.

Youmans claim A mob gathered around a house in Mexico within which were three American nationals. The local mayor ordered a lieutenant to proceed with troops to quell the riot and put an end to the attack upon the Americans. The troops however, upon arriving at the scene, opened fired on the house and resulted with the death of the Americans. The commission stated that the participation of the soldiers in the murder could not be regarded as acts by private individual when it was clear that the men were on duty under the immediate supervision and in the presence of a commanding officer. Mexico was responsible.

Caire case A French national was murdered by two Mexican military officers, who after failing to extort money, took him to the military barracks and shot him. The tribunal held that, for the ultra vires acts of the official to be attributable to the States “they should have acted as authorised officials or organs and should have used powers or measures appropriate to their official character”

Prosecutor v Tadi`c The test for whether the conduct of group is attributable to the State is whether they are under the ‘overall control’ of a State, without necessarily this State issuing instructions concerning each specific action. The ILC Article 8 adopts the somewhat stricter test of the Nicaragua case.

Chorzow Factory case (Germany v Poland) 1927 PCIJ Rep (Ser. A) No 9, 47 – In this case, the PCIJ ordered Poland to pay reparations to Germany for wrongfully appropriating land that was owned by German companies in Polish Upper Silesia. The Court held that: ‘Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would in all probability have existed if that act had not been committed’....