State responsibility Flashcards
International responsibility, Dioniso Anzilotti’s theory
reparations= the responsible State owes reparation to the injured State= new legal relationship
Reprisals= instruments of self-preservation rather than consequence of State responsibility
State responsibility, Hans Kelsen’s theory
sanction= consequence of internationally wrongful acts– central to any legal phenomenon
However two States may agree to substitute the sanction with reparation
International responsibility, Roberto Ago’s theory
a. reparations= consequence of internationally wrongful acts
b. countermeasures= instruments to obtain reparations
Codification of State responsibility is entailed in…
The Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)
Elaborated by the ILC
ARSIWA, Art. 31
The responsible State is under obligation to make full reparation for the injury caused by the internationally wrongful act
2. injury includes any damage, whether MATERIAL or MORAL, caused by the internationally wrongful act. For material damage we mean injuries to properties or interests of the State or its nationals that are financially assessable. Moral damages instead are meant as loss of loved ones, individual suffering and pain and intrusion in private life or home; these kind of injuries are but not financially assessable.
Reparation may take the following forms:
- restitution
- compensation
- satisfaction
These forms might be applied all at once or in combination of two or singularly depending on whether they are applicable to the case in question. Restitution has priority over compensation and satisfication; compensantion has priority over satisfication.
Restitution will not always be feasible due to property or lives losses. For what cannot be re-established the liable State will compensate in a pecuniary way (does not include moral damage or lives losses). Satisfaction functions in realtion to moral damages that have been caused.
ARSIWA, Art. 35
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
ARSIWA, Art. 36
- 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
- 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.
- The compensation shall cover any financially assessable damage including loss of profits insofar as it is established
ARSIWA, Art. 37
- 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
- Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality (prosecution of the individual that commited the act, declaratory relief)
- Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State
It covers moral change caused to the State
State responbility, countermeasures, Art. 22, 49 ARSIWA
The wrongfulness of an act of a State not in conformity with its obligations under international law is precluded if and to the extent that the conduct constitutes a countermeasure taken against another State in accordance with the provisions of Chapter II, Part Three (State not complying to its obligations of reparation).
A State may adopt countermeasures to its own discretion– importance of assessing the wrongfulness of an act: if the evaluation is carried out badly, then the countermeasure becomes unlawful.
1. Countermeasures may be adopted by an injured State against the damaging State whenever the latter does not comply with its obligations under Part Two for reparation of injuries. Countermeasures are aimed at inducing the offending State to comply, not punishing it. 2. Countermeasures are limited to the non-performance in the time being of the obligations of the damaged State towards the responsible State (the scenario of reprisal is prohibited) 3. Countermeasures shall, as far as possible, taken in such a way that the damaging State will be able to resume the performance of its obligations in question
State responsibility, Art. 50
- Countermeasures shall not affect:
- obligations under humanitarian law
- the obligation to refrain from any act involving the use of force as embodied in the Charter of the UN
- obligations for the protection of human rights
- other obligations under peremptory norms of general international law
This is known as the substantive aspect of countermeasures
State responsibility, Art. 51, 52, ARSIWA
Art. 51
PRINCIPLE OF PROPORTIONALITY
Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. Normally a countermeasure is deemed proportional if it is similar or the same obligation that will not be peformed by the injured State
Art. 52
1. Before adopting any countermeasure, the injured State shall:
a. call upon the damaging State to fulfil its obligations under Part Two
b. notify to the damaging State of any decision to take countermesaures and offer to negotiate
2. Notwithstanding paragraph (1) the injured State might take urgent countermeasures as are necessary to preserve its rights
This is known as the procedural aspect of countermeasures.
If a litigation is pending before taking any countermeasure, then the right to adopt the latters cannot be invoked by the injured State, nor may they be adopted during the litigation.
In order to have a pending litigation, the damaging State will be required to have ceased the offence.
State responsibility, obligations erga omnes
ICJ’s judgement, Barcelone Traction case
= obligations that are of general concern and interest– obligations towards the international community as a whole.
With respect to such a kind of obligation every State can be held to have a legal interest in the matter.
Such obligations consist in outlawing:
- acts of genocide
- aggression
- acts violating basic human rights
- slavery
- racial discrimination
State responsibility, ARSIWA, Art. 42
A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to:
- that State individually; or
- a group of States including that State, or the international community as a whole (obligation erga omnes), and the breach of the obligation
- specially affects that State
State responsibility, ARSIWA, Art. 48, 54
- Any State other an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:
a. the obligation breached is owed to a group of State including that State, and is established for the protection of a collective interest of the group (obligation erga omnes partes); or
b. the obligation breached is owed to the international community as a whole (obligation erga omnes)- Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
a. cessation of the internationally wrongful act, and assurances and guarantees of non-reprtition in accordane with Article 80; and
b. performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached
- Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
Art. 54
…does not prejudice the right of any State, entitled under Article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.
State responsibility, ARSIWA, Art. 40, 41
SERIOUS BREACHES
Art. 40
This applies to international responsibility arising from a breach committed by a State of an obligation arising under a peremptory norm of general international law.
Such a breach may be deemed serious if it consists in a gross or systematic failure by the responsible State to fulfil the obligation.
- “gross”: direct and outright assult of international values
- “systematic”: in an organized and deliberate manner
In this way the international community distinguishes between minor and major breached of jus cogens.
Art. 41
All States shall cooperate to bring to an end through lawful means to any serious breach within the meaning of Article 40 (“positive duty”).
No State shall recognize as lawful a situation created by a serious breach as meant under Article 40. No State shall either provide assistance or render aid to maintaining the situation (“negative duty”).
