State responsibility

Introduction

[X] may seek to show that [Y state] has committed an internationally wrongful act (IWA) by [the act or acts per the facts and who did it] and should be held responsible.

The international law relating to states responsibility can be found in the Draft Articles on Responsibility of States for Internationally Wrongful Acts (DASR), which in most respects are considered as evidence of customary IL.

States are responsible for their IWAs (DASR Art 1/Armed Activities on the Territory of the Congo/ Corfu Channel cases). Under DASR Art 2, to invoke state responsibility, a wronged state must prove that an international obligation has been or is being breached, and that the wrongful act is attributable to the state against whom responsibility is alleged. A causal link to the damage must also be shown in order to get a remedy.

Has an international obligation been breached?

There is a breach of an international obligation when an act of the state does not conform to the obligation (DASR Art 12) and the state was bound by the rule at the relevant time (DASR Art 13).

• A wrongful act may be an omission (Tehran Hostages case; Corfu Channel case).

• International law, not municipal law, is used to characterise the act as wrongful or otherwise (DASR Art 3)

• The law of state responsibility leaves the ‘fault element’ of the IWA to the primary rule breached. Many rules require no fault, so the fault/mental element is applicable in only limited circumstances

• A wrongful act may be a breach of contract or torts (Rainbow Warrior Arbitration) or possibly of an international criminal nature

[Consider per facts from other areas of law; if unknown from law learned but the act seems wrongful, simply state ‘we can assume that [x act] is prohibited under international law’]

Was there damage to another international subject caused by the act?

To be able to obtain a remedy, the wrongful act must have caused damage to another state. The damage here is…

• EG material or moral

• to a state itself

• to a state’s national/s (Caire Claim)

• to the entire international community (in cases where an obligation erga omnes is breached)

[Note the damage caused and how it was caused directly by the act]

Can the act be attributed to the state?

Organs of the state

The conduct of any state organ is an act of the state if the organ was acting in that capacity (DASR Art 4; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights)

• This applies while acting in the capacity of an organ of the state, even if the organ exceeds its authority or contravenes instructions (DASR Art 7/Caire Claim).

• Organs include the legislature, executive, government departments, ministers, courts, officials/bureaucrats, military

Persons or entities exercising governmental authority

The acts of individuals or entities who are exercising elements of governmental authority can be attributed to the state, provided the person or entity is acting in that capacity in the particular instance (DASR Art 5).

• This applies even if in doing so the person or entity exceeds its authority or contravenes instructions (DASR Art 7/Caire Claim).

• ‘Governmental authority’ from Art 5 has not been defined, but the ILC Commentaries note that this should be considered by the tribunals depending on the powers conferred, the purpose for which they are to be exercised and the extent to which the entity is accountable to the govt for their exercise.

• ‘Exercising governmental authority’ can mean private entities carrying out traditional public functions such as running prisons or exercising powers over quarantine or other things

Non-state actors/individuals under the direction/control of a state

The acts of a person or group may be attributed to a state if the person or group is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (DASR Art 8).

• This applies even if the actor is not carrying out an official function

• A person/group may be considered to be under the ‘direction or control’ of a state if:

  • The state is in effective control of the person or group, meaning that it ‘exercised such a degree of control in all fields as to justify treating the [person or group] as acting on its behalf’ (Nicaragua case)

    • It must be shown that this ‘effective control’ was exercised or instructions were given in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken (Nicaragua case)

  • The state had ‘effective control of the military or paramilitary operations in the course of which the alleged violations were committed’ (Nicaragua case)

  • The person or group acts in ‘complete dependence’ on the state, of which they are merely the instrument (Bosnian Genocide case)

• Merely providing finance or subsidies is not enough (Nicaragua/Tadi?)

Non-state actors/individuals exercising governmental authority in the absence of official authorities

The acts of a person or group will be attributed to a State if the person or group is exercising elements of governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority (DASR Art 9/Yeager v Iran).

• A group may be found to be exercising the relevant authority if it sets up quasi-governmental institutions and is negotiating the establishment of a common administration (Elmi v Australia).

Acts of an insurrectional movement that forms a new government/state

Forms new government

The conduct of an insurrectional movement which becomes the new government of a state is considered an act of that state (DASR Art 10.1/Caire Claim/Bolivar Railway Company Claim)

• The state will still be held liable where the insurrectionists were acting outside the scope of their orders (Caire Claim: Mexico was held liable for the killing of a French national by revolutionaries)

• No requirement...

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