Law of Responsibility

Question 1

What do states get in return for being held responsible?

Answer 1

Chorzow Factory case settled the fact that the possibility of being held responsible is the price states pay for participation in International Law- “any breach of an international engagement involves an obligation to make reparation”.

Question 2

Responsibility vs accountability and liability?

Answer 2

Liability generally entails a financial obligation to pay compensation, and accountability means an actor (a state, an NGO, a company, an individual etc) being held to explain and justify behaviour that they have taken.

Question 3

Special rapporteur on law of responsibility?

Answer 3

Special rapporteur James Crawford steered ILC work on the law of responsibility

Question 4

ILC principles on state responsibility?

Answer 4

There’s two main ILC principles on state responsibility (1) States can be held responsible for acts attributable to them (2) States can only be held responsible for internationally wrongful acts (ie those in violation of international obligations)

Question 5

Are states responsible for the actions of private individuals?

Answer 5

States aren’t generally responsible for the actions of private individuals, unless the action bears some relation to the state. They’re not responsible for the purely private acts of individuals.

• States can indirectly adopt responsibility for internationally wrongful acts. Ie Tehran Hostages Case
• States are responsible when “Outsourcing” internationally wrongful acts

Question 6

States adopting responsibility?

Answer 6

States can indirectly adopt responsibility for internationally wrongful acts. Ie Tehran Hostages Case- The Ayatollah applauded the hostage taking, which the ICJ held transformed the actions of private individuals into acts of the state.

Question 7

Are states responsible for the actions of their organs and officials?

Answer 7

States are however held responsible for the acts of their organs and officials, even those acting ultra vires, as the state should be controlling its organs. States can’t be expected to control acts of organs and officials in their spare time so these cases are trickier.

Question 8

Can states escape responsibility by claiming that their domestic law grants them immunity?

Answer 8

Responsibility is determined on the basis of international law, so states can’t escape responsibility by claiming that their domestic law grants them immunity, or that that organ of the state is constitutionally independent.

Question 9

Is damage necessary for an internationally wrongful act?

Answer 9

Internationally wrongful acts are those in violation of their international obligations. Damage isn’t necessary, the internationally wrongful act is, and so the damage can be conceptualised as a violation of rights or moral damage.

Question 10

“Outsourcing” internationally wrongful acts?

Answer 10

“Outsourcing” internationally wrongful acts doesn’t allow states to escape responsibility. If an actor/ group is acting “ on the instructions of, or under the direction or control of” the state, then the state will still be responsible for their acts. (Articles on State Responsibility, Article 8)
ICJ’s definition of state involvement uses strict test. In the 1986 Nicaragua case, they held that the United States was only responsible for acts of the contras when the U.S had been in “direct control” of them (stricter than supporting/financing). A decade later ICTY in Tadic applied a looser test and held the “overall control” of Serbia over the acts of irregular troops was sufficient in order to attribute those acts to Serbia. The ICJ in their 2007 Genocide judgement held that the “overall control test” stretched too far and that states can’t be held for the responsibility of others lightly.

Question 11

Construction of a Wall?

Answer 11

• In Construction of a Wall, the ICJ held that where an erga homenes obligation has been breached, states are under an obligation not to recognise the illegal situation, not to render aid or assistance to the state in breach and to ensure the state’s compliance. Note that the idea of erga homenes norms are controversial.

Question 12

Circumstances which preclude wrongfulness for internationally wrongful acts?

Answer 12

There are certain circumstances which preclude wrongfulness- Articles on State Responsibility, Articles 20-25. If a state consents to an action then it will not be internationally wrongful, nor will actions taken in self-defence. Reprisals, known as lawful countermeasures, may also be justified.
Objective situations can also preclude wrongfulness. Force majeure, when events beyond the state’s control (ie flood) make it impossible for the state to perform its obligations, is one example. Distress is when another course of action is available but that course of action would involve sacrifice of the actor concerned (ie landing on foreign territory to avoid crashing). Necessity is when otherwise wrongful behaviour is necessary to protect a vital state interest.
Given political nature of necessity, it has the strictest conditions. See Articles on State Responsibility, Article 25- the national interest at stake must be “an essential interest”, this interest must be under “grave and imminent peril” and the conduct in question must be relatively harmless towards the state to which the obligation is owed or the international community as a whole.
Claiming necessity means state is accepting the act would otherwise be an internationally wrongful act

Question 13

Remedies for internationally wrongful acts?

Answer 13

• Per Chorzow Factory Case, states are expected to offer reparation for injury. Function is not to punish but to repair. - Art 35 State Responsibility- restitution- states should restore the situation to the status quo.
• If this isn’t possible, the state should offer compensation. (Art 36) Crawford, compensation serves to “address the actual loses” incurred not to punish.
• Satisfaction is acknowledging the breach and/or expressing regret, formally apologising or other appropriate modality- the idea is not to punish and Article 37 of the Articles on State Responsibility states that satisfaction “must not take a humiliating form”

Question 14

In the case of multilateral treaties, who can invoke the responsibility of the state carrying out the wrongdoing?

Answer 14

In the case of multilateral treaties, states can invoke the responsibility of the state carrying out the wrongdoing under Article 48 if they’re one of the affected states or a common interest of the international community or a collective interest is at stake

Question 15

Responsibility of international organisations

Answer 15

• Same 2 basic principles apply (1) Organisations can be held responsible for acts that are attributable to them (2) Organisations can only be held responsible for internationally wrongful acts
• George Gaja

Question 16

Erga homenes obligations

Answer 16

• Erga homenes obligations are those which are owed to the international community as a whole- the ICJ has maintained that violating Erga homenes obligations doesn’t give the ICJ jurisdiction but the Articles on State Responsibility allow for them to be addressed diplomatically.
• In Construction of a Wall, the ICJ held that where an erga homenes obligation has been breached, states are under an obligation not to recognise the illegal situation, not to render aid or assistance to the state in breach and to ensure the state’s compliance. Note that the idea of erga homenes norms are controversial.

Question 17

Insurrectional movements seeking to overthrow the state

Answer 17

See the Articles on State Responsibility, Article 10. If the insurrectionists are successful and overthrow the government, the new government they form will be responsible for the acts of the insurrectionists.

Question 18

Individual responsibility

Answer 18

• hallmark of individual responsibility under international law is that individuals will be held responsible directly under international law, without domestic law acting as an intermediary.
• Focusing on individual responsibility tends to mask the extent to which political structures enable terrible acts to be committed
• Evil may be due to rational democracy as well as individual behaviour- see Hannah Arendt, “the Banality of Evil”