State Responsibility

Question 1

Explain the rules of State Responsibility

Answer 1

Also called secondary rules

Address legal relationship arising from the breach of a primary rule.

Question 2

What is ARSIWA?

Answer 2

Articles on Responsibility of States for Internationally Wrongful Acts. Adopted by International Law Commission and endorsed by UN general assembly. Largely reflects custom.

Question 3

What are the elements of an internationally wrongful act of a State?

Answer 3

Article 2 of ILC Draft Articles

The action is:

attributable to the State

Constitutes a breach of an international obligation of the State

Question 4

When is there a breach of an obligation?

Answer 4

Article 12 of draft articles.

Act of State is not in conformity with what is required of it by that obligation.

Question 5

When may the acts of a private individual entail State responsibility?

Answer 5

Art 9- Conduct carried out in absence of official authorities

Art 11- Retrospective approval by the State of the act of the individual

Art 8- Conduct directed or controlled by the State.

Question 6

What does article 9 of the draft articles give rise to?

Answer 6

State responsibility because of actions of private individuals in absence of official authorities. Person must be exercising elements of governmental authority in the absence of official authorities.

Question 7

What does Article 11 of the Draft articles give rise to?

Answer 7

State responsibility over a private individual when the conduct has been acknowledged and adopted by the State.

Question 8

What does article 8 of the Draft articles give rise to?

Answer 8

State responsibility over private individuals who’s conduct was directed or controlled by the State.

Question 9

Bosnian Genocide judgment

Answer 9

For States to be accountable for the actions of private individuals under article 8, it must be shown that ‘effective control’ was exercised. para 400

Question 10

What circumstances preclude wrongfulness?

Answer 10

Consent
Self Defence
Countermeasures
Force majeure
Distress
Necessity

Question 11

What is article 20 of the ILC’s draft articles?

Answer 11

Consent precludes wrongfulness

Question 12

What is article 21 of the ILC’s draft articles?

Answer 12

Self defence precludes wrongfulness

Question 13

What is article 22 of the ILC’s draft articles?

Answer 13

Countermeasures in respect of an internationally wrongful act preclude wrongfulness

Question 14

What is article 23 of the ILC’s draft articles?

Answer 14

Force majeure precludes wrongfulness

Question 15

What is article 24 of the ILC’s draft articles?

Answer 15

Distress precludes wrongfulness. The author must have had no other reasonable way to act in a situation of distress .

Question 16

What are the forms of reparation?

Answer 16

Restitution in kind and restitutio in integrum
Compensation, Damages
Satisfaction
Declaratory judgments
Interest
Countermeasures

Question 17

What are the limits of countermeasures?

Answer 17

Art 49

Must be against responsible State

Must be non-performance of international obligations

Counter measures shall permit the resumption of the performance of these obligations

Question 18

What is Art 51 of the draft articles?

Answer 18

Counter measures must be proportionate to the wrongful act