deck_4619318 Flashcards
State responsibility is a fundamental principle of international law.
J. Crawford, S. Villapando.
The burden of the proof is on the country that is asserting the breach. Charges of exceptional gravity must be proved by evidence that is fully conclusive.
The Genocide Convention Case (Bosnia and Herzegovina v Serbia and Montenegro)
Responsability is a necessary corollary right. All rights of international character involve international responsability. Responsibility results in a duty to make reparations if the obligation is not met.
Spanish Zone of Morocco Case - Judge Huber
It is a principle of international law, and an even greater conception of law, that any breach of an engagement gives rise to responsibility.
The Chorzow Factory case
Every internationally weongul act of a state entails the international respons.
Art 1. Draft Articles
Art 1 has been applied in
Corfu Channel, Military and Paramilitary activities in and against Nicaragua
There can be distinctions between the obligations of a state towards international community and the to another state.
Barcelona Traction case
Every state, by virtue of its membership in the international community has a legal interest in the protection of certain basic rights and fullfilment of certain obligations.
Barcelona Traction case.
There is an I.W.A. when the conduct(act or omission):a) Is ATTRIBUTABLE to the Stateb) Consititutes a breach of International Obligations.
Art. 2 Draft Articles
Art 2 was applied in the case of
United States Diplomats and Consular Staff in Therna
The characterization of an act of state as internationally wrongful is governed by international law.
Art 3 Draft Articles
Municipal law is irrelevant (droit interne) when assesing international responsibility.
Reparation for Injuries case
There is a breach of international obligaiton when the conduct of the state is not in conformity with what is required by that obligation, regardless of its origin.
Art 12 Draft Articles
Any violation by a State of any obligation, of whatever origin gives rise to S.R. and consequently to a duty of reparation.
Rainbow Warrior Case
Art 12. also applied in
Oil Platforms case
State responsibility can co-exist with individual responsibility
Genocide Convention case
State Organs - The conduct of any state organ shall be considered as an act of state (principle coming from customary law)
Art. 4 Draft Articles
Art 4 is one of the cornerstones of S.R.
Genocide Convention
According to a well established rule of IR, the conduct of any state organ must be regarded as an act of that state.
Difference Relation to Immunity from legal Process of Special Rapporteur
The conduct of a person that is not a state organ but which is empowered by the law of that state to exercise elements of governamental authoritithy shall be considered an act of state. (Parastatal entities - prison guards)
Art 5 Draft Articles
Conduct of organs put at the disposal of another state
Art 6 Draft. A.
Even if it is ultra vires it still an act of state
Art 7 - Caire Case
It is a clearly established principle of international law that acts of state will be regarded as such even if they are ultra vires.
Sandline case
The conduct of a person is considered an act of state if that person is actiong on the instructions of, or under the discretion or control of that state.
Art 8 DA.
The degree of control may vary according to the case
Tadic Case
Insurgents
Art 10 DA
Conduct ackwoledged and adopted
Art 11 - Tehran Case
The conduct shall be considered as an act of state if the person was in fact exercising elements of the governamental authority.
Art. 9 DA
Consent as precluding SR
Art. 20
Self Defence precluding SR
Art. 21 - Legality of the threat or use of nuclear weapons
Countermeasures
Art. 22
Requirements for countermeasures: 1 Taken in response to previous IWA of another state.2. Directed against that state.3. Only to discountinue the act
Gabcikovo Nagymaros Project case
Countermeasures must be proportionate
Art. 51
an injured state may only take countermeasures against a state responsible to induce the latter to comply with the obligations that arise from the worngufl act
Art. 49
Obligations are not affected by counter measures
Art. 50
Force Majeure
Art. 23 - Serbian Loans, Gill case
The test to apply for force majeaure is absolute and material impossibility
Rainbow Warrior
Distress - Wrongfulness is precluded if the author had no reasobale way, in a situation of distress of saving the author’s life.
art 24 DA
Rainbow Warrior Requirements for Distress
- Existence of exceptional circumstnaces.2. The re-establishement of the intitial situation asap.3. Existence of good faith in the effort
Necessity - May not be invoked unless the act was the obly means for the state to safeguard an essential interest against a grave and imminent peril
Art. 25
Necessity is a ground recognised in international law for precluding wrongfulness on an EXCEPTIONAL basis
Gabcikovo - Nagymaros
Nothing in this chapter precludes the wrongfulness of non compliance with Jus cogens
Art 26 DA
The injured state can invoke the respobsibility
Art 42
Cessation
Art 29
Germany raised issues about the assurance of non repetition
Le Grand case
Reparation - inclues damage weather material or moral
Art. 31
The esential princple contained is that the reparation must as far as possible wipe out all the consequences of the ilegal act and re-establish the situation
Chorzow Factory
Forms of Repatation - Restitution- Compensation - Satisfaction
Art 34.
Restitution )in kinda the most obivous
art 35 - PULP MILLS Case Arg v Uru (customary )
Restitution is no bueno. It counts only for calculating damages
BP Case
Compensation - for damages caused, including loss of profits
Art 36, Gabcikovo Nagymaros, I’m Alone case
Punitive damages do not exist in IL
Velasques Rodriguez v Honduras
Satisfactionn
Art 37 - Corfu Channel Case
We the peoples of the UN determined: to save succeding generations from the scrouge of war
Preamble
Art. 2(4) UN Charter
All members shall refrain in International relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other matter inconsistent with the purpse of the UN.
Art 2(4) is a cornerstone of the Charter
Armed activities on the territory of the Congo DRC v Uganda
Use of force does not extend to economical measures
Nicaragua
The prevailing view is that force is confined solely to armed force used directly or indirectly.
Bronwlie
Art 2(4) prohibits all types of armed force, from the slightest to the most severe
Corfu Channel case
Singnalled intention to use force if certain events occur is a threat
Legality of the threat or use of Nuclear Weapons
Although the prohibition is clear on its face, the treat of force remains a part of everyday life on the international plane, and state practice has demonstrated a certain tolerance to it
Brownlie
Increasing levels of armaments it’s not against 2(4)
Nicaragua
Passing trough an international strait with a warship us not against 2(4)
Corfu Channel
Provides that the UN shall ensure that state which are not memebers of the UN act in accordance with these principles so far as it is necessary for the maintance of international peace and security.
Art. 2(6)
The use of force beyound frontiers in the territory of another state.
Art 2(4)
Outside the scope: target killings, the use of force against insurgents, non military effects
Art 2(4)
The use of force is lawful if it is not directed against the teritorial integrity of a state. BOWETT
Bowett
Art 2(4) prohibits all uses of armed forces in international relations. BROWNLIE
Brownlie
Nothing in the present charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a state member
Art 51 UN Charter
Self defence is part of customary Law
Nicaragua
“the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to an actual armed attacked conducted by regular forces”
Nicaragua
In order to resort to self defence, a state has to be able to demonstrate that it has been the victim of an armed attack. It bears the burden of proof.
Oil Paltforms case
The meaning of armed attack remains controversial, particularly in relation to international responses to terrorism. It appears that it will be discussed on a case by cases basis. BROWNLIE
Brownlie
1368 and 1373(2001)
Us right to self defence
2249(2015)
France-ISIS
State practice has become, since 2001, more accepting to self defence in relation to non state actors.
Brownlie
Collective self defence requirements
Nicaragua
Any kind of weapon, including nuclear if proportionate
Legality of the threat or use of Nuclear Weapons
Self-defence in response to attacks by non state actors in the light of recent state practice: a step forward?
Raphael Van Steenberghe
Jurisdiction is an aspect of sovereingty: it refers to a state’s competence under international law to regulate the conduct of natural and judicial persons.
Brownlie
Nothing in this Chapter shall authorise the UN to intervene in matters which are essentially within the domestic jurisdiction of any state
Art. 2(7)
Jurisdiction to prescribe
Power to make law
Jurisdiction to adjudicate
power to take judicial action
Jurisdiction to enforce
Power to ensure complience with the law
- A state cannot exercise jurisdiction outside its territory unless an international treaty or customary law permits it to do so. 2. Within its territory, a state may exercise its jurisdition on any matter. States have a wide discretion.
Lotus Case
The question weather a certain matter is or is not solely within the jurisdiction of a state is an essentialy relative question
Nationality Decrees in Tunis and Marocco
Many countries, civil law, claim jurisdiction over the acts of their nationals
Re Gutierrez, Public Prosecutor v Antoni
Passive personality principle: a state may claim jurisdiction for offences committed abroad which have affected or will affect the nationals of their state.
Cutting case, highly criticised in Lotus case
It serves no wider goal, lacks aim of repression
Donnediu de Varbes
Protective princple - states may exercise jurisdiction over alines who have commited an act abroad which is deemed prejudicial to the security of the particular state concerned.
Joyce v DPP
Brownlie Definition: Universal jurisdiciton amounts to asserting the criminal jurisdiction by a state in the abscence of any other generally recognised head of perspective jurisdiction
Browlie
Crimes that are percieved as an attack upon the international order
Arrest Warrant Case
Slavery under universal jurisdiction
Lotus case
Genocide under universal jurisdiction
Jorgic v Germany
It comes as something of a surprise that none of the judges in Arrest Warrant explicitly posits a definition of universal jurisdiction, despite the concept’s centrality to the case.In fact, Judge ad hoc Van den Wyngaert suggests, in her dissenting opinion, that ‘[t] here is no generally accepted definition of universal jurisdiction in conventional or customary international law’,
Universal Jurisdiction, claryfing the basic concept O’keefe
Ascensio observes that universal jurisdiction ‘is usually defined negatively, as a ground of jurisdiction which does not require any link or nexus with the elected forum’.”
Universal Jurisdiction, claryfing the basic concept O’keefe
Similarly, Reydams states: Negatively defined, [universal jurisdiction] means that there is no link of territoriality or nationality between the State and the conduct or offender, nor is the State seeking to protect itssecurity or credit.
Universal Jurisdiction, claryfing the basic concept O’keefe
