11: Violation of PIL - International Responsibility and Access to Remedy

Question 1

consequences of a violation of PIL

Answer 1

political pressure
- retorsion, and unfriendly by legal measures to condemn behaviour

individual measures adopted by states - reprisals

• counter-measures with strict conditions (temporary, proportional and warning first)
• cannot impose military reprisals/counter-measures

institutional measures adopted by international organisations

collective coercive measures adopted by the UN SC in Chapter 7

state responsibility for international wrongful act
- automatic consequence of any violation that cannot be escaped

Question 2

state responsibility after violation of PIL

Answer 2

IL attributes the state with new obligations and they are automatically under a new burden of legal obligations

• obligation to cease violation
• obligation to repair harmful consequences

international legal obligation to provide a remedy to the victim and repair all damages/costs

rules still being codified and progressively developed by the ILC of the UN

Question 3

international law commission (ILC)

Answer 3

subsidiary organ of the UN
- asked to study certain issues of PIL and to codify a custom in the domain or form new international legal rules

function
- progressive development and codification of IL 

composition

• equal representation of regions, etc.
• no reservation of places from the permanent 5 of the UN SC

ILC can recommend to the GA (not legally binding)

• can take no action and publicise report to the world
• take note or adopt report by resolution (important credibility/legitimacy and can also give rise to a custom if approved by all states)
• recommend the draft to members with a view to conclusion of a convention
• convoke a conference to conclude a convention

Question 4

state responsibility with regards to the ILC

Answer 4

not a convention and ILC deliberately wanted to preserve draft articles as a guideline document

rules generally accepted reflect customary law

state responsibility is left on the level of a GA resolution so states can smoothly adopt it
- slowly gain political approval as states get used to it and then it can be referred to as a document of reference

Question 5

draft articles on responsibility of states for internationally wrongful acts

Answer 5

acts of stat always attributable to the state

Question 6

forms of reparations

Answer 6

restitution
- re-establish the situation that existed before (if materially possible)

compensation

• compensate for damage caused (if restitution is not possible)
• cover any financially assessable damage including loss of profits

satisfaction

• acknowledgement of the breach, expression of regret, formal apology, etc. but not humiliation
• typically for acts in the past like decolonisation
• doing so means you are seen as fair on an international and interpersonal level

Question 7

circumstances precluding wrongfulness

Answer 7

situations where the state cannot evade the violation of IL

consent
- valid consent by a state to the commission of a given act by another state

self-defence
- lawful measure of self-defence taken in conformity with the UN Charter

countermeasures precluding wrongfulness and reprisals

force majeure

• involuntary/coerced conduct
• occurrence of an irresistible force or of an unforeseen event beyond the control of the state, making its materially impossible in the circumstances to perform the obligation
• cannot raise a lawsuit against a state for violation of IL if they act in this situation
• involuntary behaviour or at least no element of free choice (but not eh same as distress)

distress
- actor/state agent has no reasonable way of saving their life or lives of other persons entrusted to their care

necessity

• grave danger either to essential interests of the state or the international community as a whole
• only way for a state to safeguard an essential interest against a grave/imminent danger

Question 8

general condition of compliance with peremptory norms

Answer 8

circumstances precluding wrongfulness cannot be invoked if the act of a state isn’t in conformity with an obligation arising under a peremptory norm of general IL

Question 9

consequences of invoking a circumstance precluding wrongfulness

Answer 9

state still has to comply with the obligation in question to the extent that the circumstance precluding wrongfulness no longer exists

state has to compensate for any material loss caused by the act in question