State Responsibility

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

• The nature of State Responsibility• The Draft Articles on State Responsibilityo Attribution of conduct to a stateo Circumstances precluding wrongfulnesso Legal consequences of internationally

wrongful actso Serious breaches of peremptory normo Invocation of the responsibility of a stateo Countermeasures• The treatment of aliens• The expropriation of foreign property

The nature of State Responsibility• When a state commits an international wrong, against

another state it incurs international responsibility.• Responsibility may arise from the violation of treaty

obligation or general obligation owed towards all states

• The delinquent state is obliged to make reparation• Article 1 of the International Law Commission’s 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’

State responsibility

DirectState v state

•Violation of provisions in treaty or general international law

DirectState v state

•Violation of provisions in treaty or general international law

IndirectStates v foreign

nationals•Deemed to have injuredthe state of nationality of the foreigner•Breach of international minimum standard when treating the foreigners

IndirectStates v foreign

nationals•Deemed to have injuredthe state of nationality of the foreigner•Breach of international minimum standard when treating the foreigners

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.

• 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)

• The emphasis is on the secondary rules of State responsibility (the general conditions under international law for the State to be considered 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, whose codification would involve restating most of substantive international law, customary and conventional)

Elements of state responsibility

(Art 2 ILC Draft Articles on State Responsibility)

Conduct is attributable to

state

Conduct is attributable to

state

Breach of International obligations

Breach of International obligations

Attribution of conduct to a state

• Art 2 of the International Law Commission’s 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

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 one of customary international law, is reflected in article 4 of the ILC Draft Articles on State Responsibility”.

• 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

Attribution of conduct to a state

Attribution of conduct to a state

Art 4Organs of the state

Executive

legislativeJudicial

Art.5 –conduct of persons exercising

elements of governmental

authority

Conduct by private

individuals•Article 8•Article 9•Article 11

Conduct by private

individuals•Article 8•Article 9•Article 11

The conduct of an insurrectional movement which becomes the new government of a state -art 10

• 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

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v Serbia and Montenegro 2007)

“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 state and 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”

• 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

• As a general principle the conduct of private persons is not attributable to a state under international law, but where there is a special relationship between the persons and the state their conduct is attributed to the state

• This include the conduct of groups which I. Art 11-conduct acknowledged and adopted by

state-Tehran Hostages caseII.act under the direction or control of the state-

Article 8

• In Nicaragua Case, ICJ held that ‘for this conduct to give rise to legal responsibility of the US, it would in principle have to proved that the state had effective control of the military or paramilitary operations in the course of which the alleged violations were committed’

• In the Prosecutor v Tadic, the Appeals Chamber held that ‘it was sufficient, for attribution to take place, to establish overall control going beyond the mere financing and quipping of such forces and involving also participation in the planning and supervision of military operations’

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v Serbia and Montenegro 2007)

• 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

“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 massacres……all indications are to the contrary: that the decision to kill adult male population of the muslim community in Sebrenica was taken by some of the VRS main staff, but without instructions from or effective control by the FRY”

• Article 9• The conduct of a group of persons maybe

attributed to a state if the group were in fact exercising elements of governmental authority in default of the official authorities

• In Yeager v Islamic Republic of Iran, it was held that ‘ at least exercised elements of governmental authority in the absence of official authorities, in operation of which the new Government must have had knowledge and to which it did not specifically object’

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 20b) self defence taken in conformity with the

Charter of UN-art 21c) countermeasures in response to illegal act- art 22

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 author’s life or the lives of other persons entrusted to the author’s care-art 24f) 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

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 an international 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

Gabcikovo-Nagymaros Project Case (1997)

• Countermeasures are recognised as valid means of self help as long as:-a) To induce compliance with obligationsb) They must be as far as possible reversiblec) They must be proportionated) There must be have been a request to the state

to fulfil its obligations and notifications of the decision to take countermeasure accompanied by an offer to negotiate

“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 resources of the Danube…failed to respect the proportionality which is required by international law”

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 use of

force as embodied in the UNC ;b)Obligation for the protection of fundamental human

rightsc) Obligations of humanitarian character for prohibiting

reprisalsd)Peremptory norms of general international law

Necessity1. 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 an essential interest against a grave and imminent peril(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole

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 of necessity

• 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 the international 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

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 to make full reparation for the injury caused b the wrongful act-art 31

• In the Chorzow Factory Case, the PCIJ held that: ‘the essential principle contained in the actual notion of an illegal act…is that reparation 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 in kind would bear…’

[Reparation(Art 31 )]

Forms of Reparation (Art 34 Draft Article

on State Responsibility )

[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

Compensation (Art 36)Corfu Channel Case

1949

Satisfaction (Art 37)Rainbow Warrior

Case (1990)

If not possible If not possible

Serious breach of peremptory norms of international law

(Art 40)

Character of the obligation

breached-peremptory

norm

Serious in nature-gross or systematic

failure

Consequences of breach (Art 41)•Cooperate to

end•Not to

recognize

Consequences of breach (Art 41)•Cooperate to

end•Not to

recognize

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 arising under 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)

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 owed to the injured state itself or to a group of states including that state and that state is specially affected

• 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 the international community as a whole

• A state which is not itself injured by an internationally wrongful act, may nevertheless invoke the responsibility of the wrongdoing state when it violates obligations protecting the collective interests of a group of states or of the international community as a whole