state responsibility (2).ppt

7/22/2019 State Responsibility (2).ppt

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State Responsibility


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References

Chapter 13, International Law, A South African

Perspective, John Dugard

Commentaries to the draft articles on

Responsibility of States for internationally

wrongful acts adopted by the International

Law Commission at its fifty-third session

(2001)

The nature and forms of International

Responsibility, James Crawford and Simon

Olleson


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The nature of State Responsibility

The Draft Articles on State Responsibility

o Attribution of conduct to a state

o Circumstances precluding wrongfulness

o Legal consequences of internationally

wrongful acts

o Serious breaches of peremptory norm

o Invocation of the responsibility of a state

o Countermeasures

The treatment of aliens

The expropriation of foreign property


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The nature of State Responsibility

When a state commits an international wrong,

against another state it incurs internationalresponsibility.

Responsibility may arise from the violation of treaty

obligation or general obligation owed towards allstates

The delinquent state is obliged to make reparation

Article 1 of the International Law Commissions Draft

Articles on Responsibility of States for Internationally

Wrongful Acts stipulates that every internationally

wrongful act of a State entails the international

responsibility of that State


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State

responsibility

DirectState v state

Violation of

provisions intreaty or general

international law

Indirect

States v foreign nationalsDeemed to have injured

the state of nationality of

the foreignerBreach of international

minimum standard when

treating the foreigners


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The Draft Articles on State

Responsibility

In 1956 the ILC started work under the special

rapporteurship of Garcia Amador of Cuba on

the subject of State Responsibility. He was

replaced by Roberto Ago of Italy

Completed for first reading in 1996

In 2001 under the special rapporteurship of

James crawford of Australia, the ILC adopted

59 set of draft articles on second reading.


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Draft articles large represent codification of

international law

Has been considered as a restatement of law

Have been cited with approval by the ICJ and

international tribunals-eg Application of the

Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia

and Hezegovina v Serbia and Montenegro

2007)


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The emphasis is on the secondary rules of

State responsibility (the general conditions

under international law for the State to beconsidered responsible for wrongful actions or

omissions, and the legal consequences which

flow there from)

The articles do not attempt to define the

content of the international obligations breach

of which gives rise to responsibility (This is the

function of the primary rules, whosecodification would involve restating most of

substantive international law, customary and

conventional)


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Elements of state

responsibility(Art 2 ILC Draft Articles on

State Responsibility)

Conduct is

attributable to

state

Breach of

International

obligations


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Attribution of conduct to a state

Art 2 of the International Law Commissions

Draft Articles on Responsibility of States for

Internationally Wrongful Acts provides that

there is an internationally wrongful conduct

consisting of an act of 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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Application of the Convention on the Prevention and

Punishment of the Crime of Genocide (Bosnia and

Herzegovina v Serbia and Montenegro 2007)

one of the cornerstones of the law of state

responsibility, that the conduct of any state

organ is to be considered an act of the state

under international law, and therefore gives

rise to the responsibility of the state if it

constitutes a breach of an international

obligation of the state. This rule, which is oneof customary international law, is reflected in

article 4 of the ILC Draft Articles on State

Responsibility.


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Art 4, 5, 6,8,9,10,11 of the ILC Draft Articles on

State Responsibility

States act through its organs or agents

The rules of attribution specify whose conduct

may engage the responsibility of the state

Eg. state officials, army, police, court etc

the defendant state cannot argue that the

conduct in question is permitted by its

municipal law- Norwegian Loans Case


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Attribution

of conduct

to a state

Art 4

Organs

of the

state

Executive

legislativeJudicial

Art.5conduct

of persons

exercising

elements of

governmental

authority

Conduct by

private

individualsArticle 8

Article 9

Article 11

The conduct of an

insurrectional

movement whichbecomes the new

government of a state -

art 10


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Article 4

Difference Relating to Immunity from Legal Process

of a Special Rapporteur of the Commission on

Human Rights, Advisory Opinion

Rainbow Warrior Incident 1985

Nicaragua case


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the expression state organ as used in customary

international law and in art 4 of the ILC articles,

applies to one or other of the individual or collective

entities which make up the organization of the stateand cat on its behalf

it remained to be determined in the present case

whether , the persons that committed the acts of

genocide had such ties with the FRY that they can be

deemed to have been completely dependent on it


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Article 7-A state is responsible for acts

performed by officials within the scope of

their employment. Liability extends beyond

official acts performed within the scope of

duty to ultra vires acts committed by officials

Youmans Claim, S v Ebrahim, Caire Case


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As a general principle the conduct of private

persons is not attributable to a state under

international law, but where there is a specialrelationship between the persons and the

state their conduct is attributed to the state

This include the conduct of groups whichI. Art 11-conduct acknowledged and adopted

by state-Tehran Hostages case

II. act under the direction or control of thestate-Article 8


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In Nicaragua Case, ICJ held that for this

conduct to give rise to legal responsibility ofthe US, it would in principle have to proved

that the state had effective control of the

military or paramilitary operations in thecourse of which the alleged violations were

committed


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In the Prosecutor v Tadic, the Appeals

Chamber held that it was sufficient, forattribution to take place, to establish overall

control going beyond the mere financing and

quipping of such forces and involving alsoparticipation in the planning and supervision

of military operations


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Tadic Case concerns with individual criminal

responsibility

Overall control test used to determine the

nature of the armed conflict

Overall control test broadened the scope of

state responsibility


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The Applicant has not proved that

instructions were issued by the federal

authorities in Belgrade, or by any other organ

of FRY, to commit the massacresall

indications are to the contrary: that the

decision to kill adult male population of the

muslim community in Sebrenica was taken bysome of the VRS main staff, but without

instructions from or effective control by the

FRY


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Article 9

The conduct of a group of persons maybe

attributed to a state if the group were in factexercising elements of governmental authority

in default of the official authorities

In Yeager v Islamic Republic of Iran, it was heldthat at least exercised elements of

governmental authority in the absence of

official authorities, in operation of which thenew Government must have had knowledge

and to which it did not specifically object


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Circumstances precluding

wrongfulness

The wrongfulness of conduct that would

otherwise be in in breach of international law

is precluded by

a) consent on the part of the injured state-art

20

b) self defence taken in conformity with the

Charter of UN-art 21

c) countermeasures in response to illegal act-

art 22


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d) force majeure, that is the occurrence of an

irresistible force or of an unforeseen event,

beyond the control of the state-art 23e) where the author of the act in question

has no other reasonable way in a situation

of distress, of saving the authors life orthe lives of other persons entrusted to the

authors care-art 24

f) necessity-art 25 None of these circumstances can be relied on

if to do so would conflict with a peremptory

norm of general international law-art 26


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Countermeasures Self help measures not involving the use of force

Countermeasures are limited to special

circumstances and subjected to strict control

Art 49 provides that:

1.an injured state may only take countermeasures

against a State which is responsible for aninternational wrongful act in order to induce that

state to comply with its obligations

2. Countermeasures are limited to the non

performance for the time being of international

obligations of the State taking the measures towards

the responsible state


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Gabcikovo-Nagymaros Project Case

(1997)

Countermeasures are recognised as valid

means of self help as long as:-

a) To induce compliance with obligations

b) They must be as far as possible reversible

c) They must be proportionate

d) There must be have been a request to the state

to fulfil its obligations and notifications of thedecision to take countermeasure accompanied

by an offer to negotiate


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Czechoslovakia, by unilaterally assuming

control of a shared resource, and thereby

depriving Hungary of its rights to an equitable

and reasonable share of the natural resourcesof the Danubefailed to respect the

proportionality which is required by

international law


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3. Countermeasures shall, as far as possible, be

taken in such a way as to permit the resumption

of performance of the obligation in question Countermeasures are to be proportionate

Shall not affect:

a) The obligation to refrain from the threat or useof force as embodied in the UNC ;

b) Obligation for the protection of fundamental

human rightsc) Obligations of humanitarian character for

prohibiting reprisals

d) Peremptory norms of general international law


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Necessity

1. necessity may not be invoked by a State as a

ground for precluding the wrongfulness of an act

not in conformity with an international obligation

f that State unless the act:-

(a) is the only way for the state to safeguard anessential interest against a grave and imminent

peril

(b) does not seriously impair an essentialinterest of the State or States towards

which the obligation exists, or of the

international community as a whole


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2. In any case, necessity may not be invoked by

a state as a ground for precluding

wrongfulness if:a) The international obligation in question

excludes the possibility of invoking necessity;

b) The State has contributed to the situation ofnecessity


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A state taking countermeasures is not relieved

from fulfilling its obligations:

a. Under any dispute settlement procedure

applicable between it and the responsible State

b. To respect the inviolability of diplomatic

consular agents, premises, archives and

documents

Art 49 shall not prejudice the right of a state to

take lawful measures against a state that

breaches any obligation owed to theinternational community as a whole to ensure

cessation of the breach and reparation in the

interest of the injured state or the beneficiaries

of the obligation breached


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Legal consequences of

internationally wrongful acts

The State responsible for an international

wrongful act is under obligation to cease that

act, if it is continuing, and to offer assurances

and guarantees of non-repetition-Art 30, case:La Grand (Germany v USA), Avena (Mexico v

USA)

The responsible State is under an obligation tomake full reparation for the injury caused b

the wrongful act-art 31


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In the Chorzow Factory Case, the PCIJ held

that: the essential principle contained in the

actual notion of an illegal actis thatreparation must, so far as possible, wipe out

all the consequences of the illegal act and

reestablish a situation which would in all

probability, have existed if the act had not

been committed. Restitution in kind, or, if this

is not possible, payment of a sum

corresponding to the value which restitution inkind would bear


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[Reparation(Art 31 )]

Forms of Reparation

(Art 34 Draft Article

on State

Responsibility )

Restitution(Art 35)

If possible

Compensation (Art 36)

Corfu Channel Case

1949

Satisfaction (Art 37)

Rainbow Warrior

Case (1990)

If not

possible If not possible


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Serious breach of peremptory

norms of international law

(Art 40)

Character of

the obligation

breached-

peremptory

norm

Serious in

nature-gross

or systematicfailure

Consequences of

breach (Art 41)

Cooperate to end

Not to recognize

S i b h f


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Serious breaches of peremptory norm Art 40 and 41 provide that states shall co-operate

to bring to an end through lawful means any

serious breach of international obligation arisingunder a peremptory norm of general

international law and shall not recognise as

lawful situation created by such serious breach

Examples of such norms: the prohibition on

aggression, slavery, genocide, race discrimination,

apartheid, and torture and the obligation to

respect the right of self determination

A breach of an obligation is serious if it involves a

gross or systematic failure by the responsible

state to fulfill the obligation-art 40(2)


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Invocation of the responsibility of a

state (Art 42)

A state may invoke the responsibility of

another state, by presenting a claim against

such state or instituting legal proceedings

against it, if the obligation breached is owedto the injured state itself or to a group of

states including that state and that state is

specially affected


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Art 48(1) provides that:

Any State other than an injured State is entitled to

invoke the responsibility of another state 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 theinternational community as a whole

A state which is not itself injured by an

internationally wrongful act, may neverthelessinvoke the responsibility of the wrongdoing state

when it violates obligations protecting the collective

interests of a group of states or of the international

i h l

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