State Responsibility

Question 1

State Responsibility Fundamentals

Answer 1

Addresses responsibility of state where behavior is not just ordinary treaty breach and not yet individual criminal liability. System of liability for internationally wrongful acts, which all can trigger state response.
Art. 58: State responsibility is w/o prejudice to individual responsibility.

Vast majority of cases: financial expropriation, environmental issues, inferences with domestic affairs, etc. not human rights violations.

Question 2

Four Things regarding State Responsibility

Answer 2

1. Act is attributable to the state.
2. The int’l wrongful act actually happened (there was a breach of a serious norm of treaty law or of customary int’l law).
3. Defenses
4. Remedies

Question 3

When is an act attributable to the state?

Answer 3

A private act that is an individual int’l wrongful act ≠ part of state responsibility. But funding, training, resources => there may be a state responsibility issue (Nicaragua case).

• Art. 4: Any conduct by a state organ is attributable (Agency question)
• A group of persons under state control is attributable
• Effective Control Test: from the Nicaragua case: did the act occur under the “effective control” of the state?

Question 4

State Responsibility Defenses

Answer 4

Circumstances precluding wrongfulness:

• Art. 20: Consent: saying the the state consented to the act
• Self-Defense: imminent or actual threat
• Art. 23: Force Majeure
• Art. 24: Distress had to breach to save a live
• Art. 25: Necessity committed lesser evil to avoid bigger evil

Question 5

Remedies in State Responsibility Cases

Answer 5

• Art. 30: Cease and desist injunctive order
• Art 31 and 34: Full reparations for the injury. Three possible (not mutually exclusive) ways:
  
  1. Restitution: brining parties to prior situtation
  2. Compensation: quantify harm and pay
  3. Satisfaction: court acknowledge breach and requires the breaching party to apologize (expressive remedy).