State Responsibility Flashcards
What is State Responsibility?
= the legal situation which arises when a state breaches its obligations (what happens when a state breaches the law).
- it is a separate responsibility from other actors
- distinct from ideas like accountability or liability
➞ it is a legal concept
Legal framework of State Responsibility
ARSIWA
Long codification project by the international law commission
- the UN founded group of experts who took on the big legislative projects on important IL issues
Not a treaty
- it has been adopted by the IL community and noted by the general assembly
➞ some parts are/may be custom (generally speaking, the ones that are used the most)
International wrongful act + core principles
➞ this is the origin of State Responsibility. There are core principles
Art 1 ARSIWA
Art 2 ARSIWA
Art 3 ARSIWA
Attribution - international wrongful act
A state is a legal fiction, states don’t have a mind and must act through its organs or agents, therefore conduct must be attributed to.
The concept of attribution allows one to identify the acts for which a state is not responsible. Individuals act on behalf of the state
➞ what acts can a state be held accountable for? is the question you must ask
What are the acts that a state can be held responsible for? - attribution
Art 4 ARSIWA: organs of a state
- de jure organs of state
- de facto organs: dependency test ➞ these are entities which are not officially organs of the state. This is a test of complete dependence to the extent tat they are ultimately independent. There is a very high threshold(Bosnian Genocide case)
Art 5 ARSIWA: entities exercising governmental authority
a. Empowered by internal law to exercise governmental authority
b. Be acting in that specific capacity in relation to the attributable conduct
Art 6 ARSIWA: conduct of organs placed at the disposal of a state by another state
- shall be attributable to the former state
Art 7 ARSIWA: excess of authority
- if they are going beyond what the order had stated, or don’t follow it, this can still be attributable to the state
Art 8 ARSIWA: conduct directed or controlled by a state
- one of the more controversial bases for attribution
- acts under the direction or control of a state ➞ may be attributed to state if they are ”in fact acting on the instructions of or under the direction or control of that state carrying out the conduct”.
- what is the correct test for direction or control of conduct?
Breach - internationally wrongful act
Art 12-15
The obligation in question must be in force and being in on the state
- can be an act or omission
- continuous vs non-continuous acts
- composite acts: by themself they aren’t a breach, but the acts together do form a breach or violation under IL
Responsibility in connection with the act of another state - internationally wrongful act
Arts 16-19
➞ a states responsibility might also be engaged for the act of another actor, if it is somehow implicated in the conduct of the latter
Responsibility can arise from the following situations:
1. Aid or assistance - art 16: in committing an international wrongful act
2. Direction and control - art 17: if a state exercises direction or control over another actor, in which case the state will be responsible for the breach itself
3. Coercion - art 18: between member states in connection with the breach ment and the obligation owed by both of them of another state
Circumstances precluding wrongfulness
Equivalent to ‘defenses’ in domestic law (so it doesn’t mean that it wasn’t wrong, just that it can’t be precluded towards that state) ➞ stouts it from begin an internationally wrongful act
➞ cannot be used for breaches peremptory norms - jus cogens (_acticle 26 ARSIWA)
➞ does not stop the obligation from being binding on the state (as soon as the circumstances stop, it will be IWA)
justifications in articles 20-25 ARSIWA
Content, consequences and remedies
Content = the new legal obligations which bind a responsible state
- the consequence of being bound by ➞ if the state is found responsible then they are obliged to come with remedies (especially when awarded by a court or tribunal)
Content of responsibility
➞ continued duty of performance - article 29
cessation and non-repetition - art 30: an obligation of cessation requires a wrongdoing party to cease a wrongful act and when appropriate, to offer appropriate assurances and guarantees of non-repetition. Cessation only applies when the breach is continuing and if the violated rule is still in force at the time of the judgement. Stop or cease the breach
reparation - article 31: covers the idea that if a state breaches an international law, they should pay costs for it
- may be owed to another state, to several states, or to the international community - art 33
- restitution, compensation, satisfaction ➞ in that order
Serieus breaches of peremptory norms
➞ article 40 & 41
Implementation of responsibility
There are 2 things that a state can do in order to implement the responsibility of another state:
1. Invoke responsibility - e.g. by bringing a case before an international court or tribunal
2. Countermeasures - temporary non-performance of international obligations towards that state
Countermeasures
= temporary non-performance of international obligations towards state which is responsible for an IWA
➞ article 49 ARSIWA
Objective must be to induce the other state to comply with its obligations
Other conditions of countermeasures
Proportionality (in relation to injury suffered)
Notification
Countermeasures must cease if:
- the internationally wrongful act has ceased
- the dispute is pending before a court or tribunal
Countermeasures may only be taken by an injured state ➞ MS can’t agree on this (leaves interpretation open)
