Section 5 - State Responsibility

Question 1

when is a state responsible in intl law?

Answer 1

A state is responsible in international law for conduct in breach of its international obligations

Question 2

Does state responsibility belong to customary or treaty law, and why?

Answer 2

The law of state responsibility is customary international law. Unlike state immunity, which has been developed largely by domestic legislation and domestic courts, state responsibility is pre-eminently an area of international law developed by state practice and international judgments,

Question 3

define international obligation

Answer 3

an obligation owed under international law by
one state to another state (therefore ‘primary obligation’);

Question 4

define primary rules

Answer 4

‘primary rules’: the rules of international law which determine whether
there has been a breach of a primary obligation

Question 5

define secondary rules

Answer 5

‘secondary rules’: the rules of international law which determine whether a breach of a primary obligation is attributable to a state and the legal consequences (i.e. the law of state responsibility);

Question 6

define internationally wrongful act

Answer 6

a breach of a primary obligation which is
attributable to a state;

Question 7

what is an injury?

Answer 7

the effect of an internationally wrongful act on another state or its nationals, including any damage, material or moral;

Question 8

what is an injured state

Answer 8

the state harmed by the injury;

Question 9

what is a responsible state?

Answer 9

the state which caused, or is believed to have caused,
the injury;

Question 10

When is an act wrongful?

Answer 10

Articles 1, 2 and 3 provide that every internationally wrongful act of a state entails its international responsibility The act is wrongful only when conduct (a) is attributable to that state under international law and (b) constitutes a breach of an international obligation of that state

Question 11

when can responsibility be attributed to a state?

Answer 11

For a state to be responsible, the conduct in questionmust be attributable
to the state. The general rule is that only the conduct of a state’s organs of
government or its agents (persons or entities acting under the direction,
instigation or control of those organs) can be attributable to the state.

Question 12

give an example of when a person can be considered as an organ of the state

Answer 12

It also includes persons or entities that in fact act as organs, even if they are not classified as such by internal law. Police forces outside London are not treated in UK law as state organs,15 but are regarded as such in
international law since their task, the maintenance of law and order, is a fundamental function of the state.

Question 13

Can pure;y personal act committed by person of state be attributed to a state?

Answer 13

No. Purely personal acts cannot be attributed to a state, even if committed by someone who is clearly an agent of the state, such as an assault by a policewoman on a foreign national she catches in bed with her husband, even if the assailant has not yet taken off her uniform

Question 14

what happens If an organ of state A is ‘placed at the disposal’ of state B to exercise elements of governmental authority of state?

Answer 14

If an organ of state A is ‘placed at the disposal’ of state B to exercise elements of governmental authority of state B, its conduct is considered an act of state B (Article 6). The organ must be acting with the consent,
and under the authority and direction and control, of the other state and
for its purposes.

Question 15

explain unauthorised/ultra vires conduct and wrongful acts

Answer 15

The conduct of state organs, or persons or entities empowered to exercise elements of governmental authority, are considered acts of the state if those organs, persons or entities act in that capacity, and even if they exceed 1their authority or contravene instructions (Article 7). This is a strict rule, states having sought to evade responsibility by claiming that the conduct was unauthorised.

this is often the case with torture

Question 16

Under which condiitons is the conduct of an individual person attributable to a state?

Answer 16

(1) they are in fact exercising elements of governmental authority, even if this is on their own initiative;
(2) they do so in the absence or default of the official authorities, which may be due to the total or partial collapse of state institutions;
(3) the circumstances ‘call for’ the exercise of those elements of governmental authority, in that there is a need for the functions to be carried on

Question 17

what were the findings of the court in the Tehran Hostages case in regards to attribution of responsibility?

Answer 17

In the Tehran Hostages case, the International Court of Justice found that the seizure of the US embassy and the detention of its staff by militant students was attributable to Iran. By subsequently endorsing the actions and perpetuating them, organs of the Iranian state hadmadethose actions into acts of the state

Question 18

what is considered a breach of international obligation?

Answer 18

That will be the case if the act is ‘not in conformity with what is required of [the state] by that obligation’, and regardless of the origin or character of the obligation.

To determine whether there has actually been a breach of an international obligation,
has to examine the facts of each case in the light of the primary rules, whether contained in a treaty or in customary international law.

International law does not draw the distinction found in domestic law between contractual and tortious responsibility, and therefore, in deciding whether there has been a breach of a treaty, one may have to interpret its provisions in the light of relevant customary international law.

An international obligation can exist in respect of any matter. The enactment of legislation that is in conflict with an international obligation will not necessarily amount to a breach: it depends how the legislation is given effect

Question 19

what is the intemporal rule in IL?

Answer 19

‘An act of a state does not constitute a breach of an international obligation unless the state is bound by the obligation in question at the time the act occurs.’

This is a general principle of international law: an act must be judged according to the applicable international law at the time, not the law when a dispute about it arises, which could be many years later

Question 20

what is a big issue when intl obligation breaches are extended in time?

Answer 20

Identifying when an internationally wrongful act begins, and how long it continues, is a problem that often arises. Article 14(1) provides that the breach of an international obligation by an act that itself does not have a ‘continuing character’ occurs at the moment the act is performed, even if its effects continue.When awrongful act has been completed but its effects continue (for example, pain fromtorture), this prolongation is relevant to the amount of compensation. A breach by an act that does have a continuing character extends over the entire period the wrongful act continues, such as unlawful occupation of territory or an embassy

Question 21

how would genocide be considered a breach of internaitonal obligations?

Answer 21

The breach of an international obligation through a series of acts ‘defined in the aggregate as wrongful’ occurs when conduct occurs which, taken with other acts, is sufficient to constitute thewrongful act. The breach then extends over the entire period the acts are repeated and are still wrongful (Article 15). Genocide or systematic acts of discrimination prohibited by a trade agreement would fall into this category

Question 22

which circumstances preclude wrongfulness in international law?

Answer 22

1 - when consent is given
2 - self defence
3 - force majeure
4 - distress
5 - necessity

Question 23

what is the difference between jus ad bellum and jus in bello?

Answer 23

law on the use of force (jus ad bellum)

law of armed conflict (jus in bello)

Question 24

what is the substance of repsonsibility in intl wrongful acts?

Answer 24

obligation to make reparation. they also have to cease the act, and offcer appropriate assurances and guarantees in case they cant

Question 25

what is moral damage?

Answer 25

‘Moral’ damage includes pain and suffering, loss of loved ones
and affronts to honour, dignity or prestige.

Question 26

what are different forms of reparation?

Answer 26

restitution: The responsible state is under an obligation to re-establish the situation that existed before the wrongful act, in so far as this is ‘not materially impossible’ or ‘does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’

compensation: The responsible state is under an obligation to compensate for damage caused by its wrongful act insofar as it has not been made good by restitution (also most common one)

satisfaction: Insofar as an injury cannot be made good by restitution or compensation, the responsible state must give satisfaction. This may be an acknowledgment of the breach, an expression of regret, a formal apology or ‘another appropriate modality’.

interest: Interest is payable on the principal sum of any compensation ‘when this is necessary to ensure full reparation’, the rate and the method of calculation being set so as to achieve that result

Question 27

explain Serious breaches of obligations under peremptory norms of general
international law

Answer 27

To be ‘serious’, the breach must involve a ‘gross or systematic’ failure to fulfil the obligation. The particular consequences are, first, states must cooperate to bring, through lawful means, the serious breach to an end, irrespective of whether or not an individual state is actually affected by the breach

Question 28

how can a state claim injury?

Answer 28

Although state responsibility arises without any need for the injured state to invoke it, in practice an injured state has to give notice to the responsible state of its claim.

Question 29

when can a state loose the right to invoke responsibility

Answer 29

Article 44 restates two fundamental rules that a state may not invoke the responsibility of another state in respect of injury to its nationals if the claim (a) does not satisfy the nationality of claims rule69 or (b) is one to which the rule of the exhaustion of local remedies applies,70 and any
available and effective local remedy has not been exhausted.

Question 30

What are countermeasures and when can a state take them

Answer 30

The ability to takecountermeasures is a most important means by which a state can respond effectively to breaches of its international rights rather
than relying solely on methods of peaceful settlement. Even if such methods are readily available, they may take years to produce a result (an international interim measure of protection (injunction) not being that easy to get or to enforce), and compensation (even if full and paid promptly)
often not being a real substitute for performance of the broken obligation

Question 31

in what consist countermeasures?

Answer 31

Countermeasures consist in the injured state not performing certain of its international obligations towards the responsible state, but only for the purpose of inducing the responsible state to cease acting wrongfully and make full reparation. Lawful countermeasures are not wrongful

Question 32

what are the procedural conditions of a wrongul act?

Answer 32

First, the injured state should call upon
the responsible state to cease its wrongful act and to make reparation

Secondly, the injured
state should notify the responsible state of its decision to take countermeasures,
and offer to negotiate.

Thirdly, since in many situations these two requirements may take too long, paragraph 2 recognises that the injured state may take ‘such urgent countermeasures as are necessary to preserve its rights’, such as freezing bank accounts held in the injured state.

Fourthly, the countermeasures should be suspended ‘without undue delay’ if the wrongful act has ceased or the dispute is ‘pending’ before an international court or tribunal that has jurisdiction to make decisions on theparties

Fifthly, countermeasures may be taken or continued if the responsible state fails to implement the dispute settlement procedures in good faith, such as non-cooperation in the establishment or procedure of a tribunal, non-compliance with an interim measures order or a refusal to accept the final decision

Question 33

How do you distinguish legal personality in an international orgaanisation and the states?

Answer 33

An international organisation
has international legal personality separate from its member states

Question 34

Q: What were the United States’ main requests to the ICJ in the Tehran hostage case?

Answer 34

The U.S. requested the ICJ to:
Declare Iran in breach of international obligations.

Order the release of hostages and protection of diplomatic immunities.

Order Iran to prosecute or extradite those responsible.

Demand reparations for violations of international law.

Question 35

What basis of jurisdiction did the U.S. present to the ICJ?

Answer 35

The U.S. cited three compromissory clauses: two from the Vienna Conventions on diplomatic and consular relations and one from a 1955 Treaty of Amity with Iran.

Question 36

How did the ICJ determine the attribution of actions to the state of Iran? Did the ICJ find Iran in violation of international law?

Answer 36

The ICJ ruled that Iran’s approval and perpetuation of the student militants’ actions effectively made them agents of the state.

Yes, the ICJ ruled that Iran breached obligations under the Vienna Conventions and the Treaty of Amity, violating the rights and immunities of U.S. diplomatic and consular personnel.