#3542 - State Responsibility - Public International Law

• Definition: circumstances where state will incur legal responsibility for violating a primary obligation of international law + consequences flowing from the breach

• i.e. breach of primary obligation of IL giving rise to secondary obligations of state resp.

• Sources of primary obligations

1. Customary IL

2. Treaties, incl. SC Res under Chapter VII UN Charter

3. General principles of IL

ILC Draft Articles 2001 (60 Arts in 3 Parts)

• Validity – codification of customary IL + progressive development

• Passed following lengthy negotiations b/w states, largely accepted as common practice (contrast with ILC Draft Arts on Diplomatic Protection)

• Crawford Commentaries – distinguished writings of jurists under Art 38(1)(d) ICJ Statute also possibly a source of law

• 4 requirements

1. Internationally wrongful act

2. Breach

3. Attribution

4. Circumstances precluding wrongfulness

5. Consequences

Internationally wrongful act + breach

• Art 1 – every internationally wrongful act of state entails international resp. of that state

• NB: UN (Reparations for Injuries Case) + liability of UN for actions of its organs (for other int. org. - Art 58)

• Art 2 – int. wrongful act or omission = attributable to the state under IL & constitutes breach of int. obl.

• Internationally wrongful act/omission – characterisation of act as int. wrongful is governed by IL (Art 3) so domestic provisions can’t be invoked to deny wrongfulness

• Act or omission (US Hostages Case)

• Breach = objective theory (strict liability – most widely used) or subjective (requires fault) – not pronounced on in Arts. – only requirement of causality. Dixon suggests applying strict liability for jus cogens& fault approach for other obligations.

• Caire Claim – court confirmed no fault on the part of Mexico was required

• Corfu Channel – fault is required

Attribution

• Art 4 – conduct of any state organ as determined by IL is attributable to that state

• Responsibility attaches to the office/position

• Can’t invoke provisions of domestic constitutional order/law to escape liability

• Person or entity – in broad sense, includes any natural or legal person, incl. individual office holder, department, commission, other body exercising public authority

• Irrelevant whether person/entity acting in that capacity had improper motives/was abusing power (Caire Claim – Mexican soldiers acted under colour of authority; i.e. in uniform)

• Art 5 – conducts of persons or entities exercising elements of govt. authority is attributable, as long as it acts in that capacity

• E.g. airline controlling immigration; privately run prisons in UK

• Art 6 – conducts of organs placed at disposal of a state by another state

• Not very rare! E.g. Switzerland acting on behalf of Lichtenstein;

• Art 7 – conduct of organ of state/person or entity empowered to exercise elements of govt. authority will be attributable to it if they act in that capacity, even if exceeds govt. authority or contravenes it

• Caire Claim–murder of French nat.’l by 2 Mexican officers who, after failing to extort money, took Caire to barracks & shot him. Held: even though acted outside their competence/superiors countermanded the order, it involve state resp. b/c acted under cover of their status using means placed @ their disposal on acc of that status

• Art 8 - conduct directed or controlled by the state

• 2 types of cases

1. where states supplement their own action by recruiting/instigating private persons or groups who act as “auxiliaries” while remaining outside official structure of the state - e.g. persons sent as “volunteers” to neighbouring countries/instructed to carry out certain missions abroad

2. under direction & control of state – organised/non organised groups in another state’s territory

• state directed/controlled specific operation & conduct complained of was an integral part of it

• Degree of Control required

• Nicaragua Case (effective control) – US assisted contras in overthrowing the Communist govt. in Nicaragua (supporting neighbouring El Salvador) (NB: CIA selling arms to Iran covertly & using funds to support the contras!). Held: US resp. for planning, direction & support given to contras but not all conduct was attributable – need actual evidence of instructions/direction by the state over specific acts – general situation of dependence & support insufficient.

• Talmon: ICJ uses 2 tests:

1. Strict control – v. high threshold (requires proof of complete dependence of entity + particularly high degree of control (state must have actually exercised it – mere potential for control isn’t enough). Essentially, secessionist movement can’t function w/out the state.

2. Effective control – more frequently used but subsidiary (ICJ only uses it where a) can’t be satisfied) – used to determine partial dependency. Burden of proof lower than for a), yet very hard to establish

• Prosecutor v Tadic (overall control) (ICTY) – whether accused could be guilty of breaches of Geneva Conv. during armed conflict in Bosnia after formal withdrawal of FRY’s forces – depended on whether acts of armed forces of RepublikaSprska could be attributed to FRY. ICTY framed the quest. as one of int. resp. & hold acts of Bosnian Serb forces could be attributed to FRY on the basis that, as a whole, they were under overall control of the state.

• Problematic case – internationalised the conflict to apply the law of state resp. + other problems

• Loizidou v Turkey (effective overall control) – w/out ref to tests applied by ICJ & ICTY, ECtHR developed own test applicable to ‘subordinate local administration’; a secessionist entity which is under effective authority or at least decisive influence of an outside power & survives by virtue of military, economic, financial, political support given to it by the outside state.

• Talmon: context is key – ECtHR used the test to avoid what it called a regrettable vacuum in the system of HR protection in the territory

• Art 9 - conduct carried out in absence/default of official authorities

• Yeager v Islamic Republic of Iran – position of Revolutionary Guards immediately following the revolution of Iran was treated by US/Iran Claims Tribunal as covered by Art 9; i.e. action of performing immigration, customs etc. @ Tehran airport in immediate aftermath of revolution was attributable to Iranian govt. b/c was exercised in absence of actual authorities in operations of which govt. must have known & didn’t specifically object to.

• Art 10 - conduct of insurrectional or other movement

• Conduct of insurrectional movement which becomes new govt. of state will be an act of state under IL

• ... which succeeds in establishing a new state in part of territory or outside it = act of the new state under IL

• Art 11 – conduct acknowledged & adopted by a State as its own

• E.g. Eichmann’s case – a charge neither admitted nor denied by Israeli govt., later SC Res. implied a finding Israel was at least aware of it

Primary state responsibility

• Irrespective of attributality, state can incur primary responsibility b/c of breaching some other int. obl. even though it arose out of situation created by non attributable act

• E.g. acts of private citizen aren’t normally attributable to state, so if he murders a foreign national, it isn’t responsible BUT if fails to fulfil one of its duties arising in connection w/it, it will be responsible under IL.

• Noyes Claim – Panama not responsible for injuries to P b/c were committed by private individuals but USA also claimed it was responsible in its own right for failing to protect him from the injury

• Hostages Case (US v Iran) – Iran not responsible for acts of individuals who stormed US embassy but responsible for failure of own duty to protect it.

Legal Consequences

1. Breach of int. obl. entailing resp. gives rise to legal consequences (customary IL Chorozow Factory Case+ Part III Draft Arts. can take many forms + not ltd to claims/action by the injured state

1. State resp. for int. wrongful act must (Art 30):

1. cease that act, if it’s continuing

2. offer appropriate assurances & guarantees of non repetition, of circumstances so require

• Distinction (but both intimately linked):

1. cessation – 1^st consequence, frequently demanded by states/not subject to req. of proportionality

2. restitution

• La Grand – under VC of Consular Relations,if a state has a foreign citizen arrested, it must notify the consulate so that it can provide consular assistance. Virginian authorities didn’t, Germany got ICJ to declare provisional measures, US under obl. to at least stay the execution but didn’t. Germany sought general & specific assurances as to future compliance but US argued this went beyond the scope of obl. in Conv. + ICJ lacked jurisdiction, and that Germany’s entitlement didn’t extend beyond apology. Alternatively, no assurances or guarantees were appropriate in light of extensive action it took to ensure fed/state officials would in future comply. Held apology wouldn’t be sufficient where foreign national has been subjected to prolonged detention/ sentenced to severe penalties following failure of consular notification but commitment expressed by US regarded as meeting Germany’s request. If US failed to honour, apology wouldn’t suffice.

• NB: in many countries, no diff. b/w pleading guilty/not guilty – whereas in US/UK can plea bargain reducing the sentence; that’s why consular assistance is very important...

2. Obl. to make reparationfor injury caused by internationally wrongful act(Art 31 – codifies custom. IL)

• Forms

1. restitution of property unlawfully taken...