The Law Of State Responsibility Notes

10. The Law of State Responsibility Introduction The law of responsibility is concerned with the incidence and consequences of unlawful acts, and particularly the forms of reparation for loss caused. The ILC Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (ARSIWA) emphasises on the secondary rules of State responsibility: * Primary: Substantive rules * Secondary: Conditions under which a primary rule will be considered to have been breached and consequences - Defences - Circumstances precluding wrongfulness - Types of reparations an injured state may demand General rules set forth in the ILC Articles may be displaced/overridden by a more detailed or specific agreement/instrument establishing different rules: art. 55 Under international law, a reparable claim against a State will arise when: * an act or omission (or a series of acts/omissions); * that is attributable to a State; * violates an international legal obligation binding upon that State or an international legal duty owed by that State to one or more other State(s); * and there is no international legal justification for the State's act(s) or omission(s); * and a State with a right to protest the wrong elects to raise/pursue that claim (e.g., by exercising a right of diplomatic protection); * and the violation has caused the claimant State or its nationals injury/loss (necessary for reparation/recovery); * and, in the case of injury to a claimant State's nationals (as distinct from injury to the State itself), local remedies in the defendant State have been exhausted. General Principles Every internationally wrongful act of a State entails the international responsibility of that State: ARSIWA art.1 * Customary rule? *> Must have existed at the time of the offending state action/omission and state must not have been a persistent objector. * Treaty rule? *> Offending state must be a party to the relevant treaty and that treaty must have entered in force against the offending state at the time of the state action/omission in question. * General principle? *> Must have existed as such at the time of the offending state action/omission. * A peremptory (jus cogens) norm? *> If a peremptory norm has been breached, and if the state's breach of that norm is "serious" ("gross or systematic failure" to fulfil obligation (Art. 40)), particular consequences arise, including a requirement that all states refrain from "recognising as lawful a situation created by a serious breach" and from "render[ing] aid or assistance in maintaining that situation" (Art. 41) Elements: ARSIWA art.2 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 --> not a private act (b) Constitutes a breach of an international obligation of the State. --> binding obligation * Cases relating to omission: Corfu Channel case. * It is a sufficient basis for Albanian responsibility that 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. * "Damage" to another State is not necessary, depending on the content of the primary obligation, and there is no general rule in this respect. * Intention, i.e., fault is not an element of State responsibility. 1 10. The Law of State Responsibility Characterisation of an act of a State as internationally wrongful: ARSIWA art.3, two aspects: * An act of a State cannot be characterised as internationally wrongful unless it constitutes a breach of an international obligation; * A State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterisation of that conduct as wrongful by international law. Attribution to the State Conduct of organs of a State When the conduct of a organ is considered as the conduct of a State? ARSIWA art.4 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organisation of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State. 1. First, the act of an official acting in a private capacity; and secondly, another at committed by the same official in his official capacity, although in an abusive way. 2. The latter action was, and the former was not, held attributable to the State. * Type of State organ unlimited: *> A State organ extends to organs of government of whatever kind or classification, exercising whatever functions, and at whatever level in the hierarchy, including those at provincial or even local level. * Motive of the offender unrelated: *> Where a person who is a State organ acts in that capacity, i.e., the person acts in an apparently official capacity, or under colour of authority, the actions in a question will be attributable to the State: Mallen case (1927) * It is irrelevant for this purpose that the person concerned may have had ulterior or improper motives or may be abusing public power. * Hierarchy in the official capacity not related: *> Governmental action or omission by the executive gives rise to international responsibility. The distinction between higher and lower officials has no significance in terms of responsibility: Massey (1927) * Generally, a federal State is responsible for the breach of its constituent units: Pellat case (1929); LaGrand case (1999) * Exceptions where federal States is not responsible for constituent units: - Where the constituent unit of a federation is able to enter into international agreements on its own accounts; - Where the responsibility of the federal State under a treaty may be limited by the terms of a federal clause in the treaty. Ultra vires: ARSIWA art.7 * The lack of express authority cannot be decisive as to the responsibility of the State. * State may be responsible for ultra vires acts of their officials committed within their apparent authority or general scope of authority, regardless of whether the official or organ has acted within the limits of his competency or has exceeded those limits: Caire (1929) * Need to be distinguished from the cases where the conduct is so removed from the scope of their official functions that it should be assimilated to that of private individuals, not attributable to the State. * However, if the "private" conduct may be avoided if the conduct complained of is systematic or recurrent, such that the State knew or ought to have known of it and should have taken steps to prevent it, it may still be attributable to the State. What really matters, however, is the amount of control which ought to have been exercised in the particular circumstances, not the amount of actual control (in preventing the breach): Henriquez (1903) Individual or Group Entities not formally state organs may still engage the responsibility of the latter when 'empowered by the law of that State to exercise elements of the governmental authority' and so long as they are 'acting in that capacity in the particular instance': ARSIWA art.5 * Entities may include public corporations, semi-public entities, public agencies of various kinds and even, in special cases, private companies. * What is regarded as "government" depends on the particular society, its history and traditions. 2

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