State responsibility

Question 1

Internationally Wrongful Acts, codification + Art. 2

Answer 1

International wrongful act= violation of an obligation by a subject of international law.
When individuals violate international law= international crime that produces international individual criminal responsibility.
INTERNATIONALLY WRONGFUL ACTS PRODUCE INTERNATIONAL RESPONSIBILITY= State responsibility/ responsibility of international organizations.

Attempted by the League of Nations and the UN.
ILC’s work= Articles on the Responsibility of States for Internationally Wrongful Acts.

Art. 2
There’s an internationally wrongful act of a State for each of his conducts consisting in an action or omission:
- when such conduct is attributable to the State under international law (= subjective element); and
- when the State’s conduct consists of a breach of at least one of its international obligations (= objective element)
AN INTERNATIONALLY WRONGFUL ACT DOES NOT NECESSARILY PRODUCE DAMAGE.

Question 2

State responsibility, Subjective Element, Art. 4, 8, 11

Answer 2

Art. 4
1. The conducts of any organ of the State are considered conducts of the State, whatever:
- the branch of the organ
- the centrality of the organ in the government of in the territorial unit of the State
- position the organ holds in the internal organization of the State
Problem: it arises in determining which persons and which entities are to be comparable to the State rather individual actions. Typically it is the domestic legal system itself, such as the Constitution, that identifies those people (e.g.: policemen, judges, ministers,…) as DE JURE “State organs”.
Internal State practice may also produce DE FACTO State organs. The latter individuals are to be identified as a person or entity “completely dependent” on the State.
In addition to that, according to Article 5, a State might entrust exercises that fall under governmental authority to private or para-statal companies (e.g.: private companies running prisons or airlines companies exercising control over immigration) but it will be accountable of their conduct insofar as their actions can be considered “governmental”.
“Governmental authority” is much fact-specific and depends on:
- what powers are given
- how the powers are entrusted
- why the powers are entrusted= purpose
- extent of the powers
In addition, when State A entrusts some governmental authority of his (military primarily) to State B, the actions perpetrated by that State A organ under control of State B are responsibility of the latter and will be liable for crimes committed by it.

SUBJECTIVE ELEMENT, PRIVATE INDIVIDUALS
General rule: States cannot be held accountable for actions of private individuals.
The only responsibility falling upon the State might be omission of prevention or repression with respect to those individual acts if the State had opportunity to hinder them but did not (in this case it is obvious that the State is responsible for its own conduct.

Art. 8
The conduct of a person or group of persons shall be considered an act of the State if those people were acting under instructions, direction of control of the State in carrying out the conduct.

Art. 11
Apart from the preceding Articles, a State is responsible for individual actions if in any moment the State itself acknowledges or adopts the conduct in question as its own.

DOCTRINE OF COMPLETE AND EFFECTIVE CONTROL/ DEPENDENCE:
the private individuals shall be found to be completely dependent on the State in order for the latter to be responsible.

Question 3

State Responsibility, Objective Element, Art 12, 26

Answer 3

Art. 12
There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation.
The origin of the obligation (treaty or customs) is irrelevant.

Circumstances precluding wrongfulness= circumstances that render lawful a conduct which is objectively wrongful

Art. 26
Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.

• valid consent
• force majeur
• distress
• necessity

Question 4

State Responsibility, Objective Element, Art. 20

Answer 4

Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.

Question 5

State Responsibility, Objective Element, Art. 23

Answer 5

Force Majeure= irresistible external force rendering it impossible to the State (or State organ) to respect an international obligation
Fortuitous event= unforeseen external event rendering impossible to the State organ to realize that he/she is not respecting an international obligation.
Art. 23
Derogations from State’s international obligations are possible under circumstances of force majeure, which means occurrence of an irresistible force creating a situation or unforeseeable event, beyond the control of the State, that makes it materially impossible to the State to accomplish its obligations.
The case of force majeure does not apply if:
- the State contributed, wholly or even at least in part, to the creation of such situation
- the State had assumed the risk of the situation occurring.

Question 6

State Responsibility, Objective Element, Art. 24

Answer 6

Distress
1. The wrongfulness of an act of a State not in conformity with the one of its international obligations is precluded it the author of the action in question had no other reasonable way of acting in saving his/her own life of the lives of other persons entrusted to the author’s care
2. Paragraph 1 does not apply if:
a. the situation of distress is due, either wholly or in part, to the conduct of the State invoking the right
b. the act in question is likely to create a comparable or greater peril

Question 7

State Responsibility, Objective Element, Art. 25

Answer 7

Before WW1 every State would abuse the right to necessity to justify any particular act.
Nowadays under Art. 25
1. Necessity may not be invoked by a State unless the act:
a. is aimed at preserving an essential interest of the State or a grave peril; and
b. does not seriously impair an essential interest of either the State or States towards which the acting State violated its obligations or of the international community as a whole
2. In any case, necessity may not be invoked if:
a. the State contributed to the creation of the situation of necessity
b. the international obligation in question does not provide the possibility of invoking necessity

Question 8

State Responsibility, Art. 31

Answer 8

1. a State committing an internationally wrongful act is under obligation to make full reparation for the damage caused by its conduct
2. injury includes any kind of damage, whether material or moral
   Reparation may take the following forms:
   - restitution
   - compensation
   - satisfaction

Question 9

State Responsibility, Art. 35

Answer 9

A State responsible for internationally wrongful act is under an obligation to make restitution, that is to restore the situation which existed before the act. Let this not be the case if:
- restitution is materially impossible
- restitution does not involve such a burden out of all proportion to the benefit deriving from restitution instead of compensation. It is to say that the burden and the restitution must be of similar gravity

Question 10

State Responsibility, Art. 36

Answer 10

1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution
   
   2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established
      Compensation covers moral damage as well.
      In State practice compensation is the prevailing form of reparation.

Question 11

State Responsibility, Art. 37

Answer 11

1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensantion
   
   2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality
   3. Satisfaction shall not be out of proportion to the injury and may not take a form huminiliating to the responsible State
      It covers moral change caused to the State

Question 12

State responsibility in cases of insurgencies

Answer 12

A State fighting against a an insurgecy will not be resopnsible for the latter’s actions as this would not make sense.
Instead, if an insurgency movement is successful and creates a new State, then the newly established State will be responsible for the movement’s actions committed during the insurgency