7: State Responsibility & Remedies Flashcards
ARSIWA Art 1: State Responsibility for its own acts
responsibility of a state for its own wrongful acts
ARSIWA Art 2: Elements of a wrongful act
An act or omission which:
a. is attributable to the state under international law
b. constitutes a breach of an international obligation
Terhan - both elements must be satisfied.
ARSIWA Art 3: Characterisation of a wrongful act
2 limbs:
- only unlawful if it is unlawful under international law (not just domestic law)
- state cannot escape responsibility for an internationally wrongful act just because it may be lawful under domestic law.
ARSIWA Art 4: Organs of a state
Conduct of any person considered an organ of the state IS attributable to the state.
ARSIWA Art 5: Persons exercising gov. authority
Even if not an official organ of the State, but has been invested with some form of governmental authority - conduct IS attributable to the state.
ARSIWA Art 6: Organs placed at disposal of other state
If one state has temporarily assigned one of its organs to be under control of another state, the controlling state will be responsible for its actions.
ARSIWA Art 7: Ultra Vires
Even when person/entity’s conduct is outside of the power given to them by the state, the state IS still attributable.
‘cloaked with governmental authority’ idea.
ARSIWA Art 8: Conduct directed/controlled by State
Concerns civilians or non-state actors.
considered an act of state if acting on state instruction, or under its direction/control.
issue of effective control is central to this article.
Nicaragua & effective control.
ARSIWA Art 9: Absence or default of official authorities
in exceptional cases, there may be an absence of government control in a state.
the conduct of an entity who assumes governmental authority may still be attributable to state.
Yeager v Iran.
ARSIWA Art 10: Other movement becomes government
The actions of a revolutionary group that subsequently becomes government - IS attributable to state.
- not responsible for their actions if they do not become government.
ARSIWA Art 11: Conduct acknowledged by State
even when a state is not responsible under preceding articles, they assume responsibly if:
- adopt it as its own
- often relates to private entities
ARSIWA Art 16-18: Responsibility for conduct of another State
16: Aiding and assisting = responsible
17: directing & controlling (requires actual control) = responsible
18: coercion
ARSIWA Breach Rules:
Art 12: breach = not in conformity with obligations.
Art 13: breach only occurs if the state is bound by the obligation @time.
Art 14: breach of an obligation happens at the time act is performed.
Art 15: composite acts; breach committed when wrongfulness is established by commencing act.
Defences + Circumstances precluding wrongfulness:
Art 20: CONSENT - where a state consents to a breach.
Art 21: SELF-DEFENCE - within bound of Charter s51. (immediate, proportionate).
Art 22: COUNTERMEASURES
Art 23: FORCE MAJURE - high threshold, irresistible force/coercion, makes it materially impossible for state to perform obligation. Rainbow Warrior.
Art 24: DISTRESS - no other reasonable way to save lives, very exceptional circumstances, emergencies. Rainbow Warrior.
Art 25: NECESSITY - exceptional circumstances, is the only way a state can safeguard an essential interest against grave and imminent peril.
Responses:
Retorsion - lawful but unfriendly acts in response. Remain consistent with obligations.
Countermeasures (Art 49): act taken by injured state which would be unlawful but is not wrongful given it is taken as a response to the other violating state.
Cannot involve a use of force*
may not effect: human rights, predatory norms etc.
6 conditions of countermeasures.
