State Responsibility Flashcards
The status of ARSIWA
Desribing customary law and being a reflection on it
Art 1 ARSIWA
Every internationally wrongful act entails the international responsibility of a State
Art 2 ARSIWA
- Attribution
- Act in breach
Primary rules
The prohibitions, permissions, commands etc. binding on States as a matter of CIL and treaties
Secondary rules
Rules about what happens if there is a breach of primary rules
Direct victims
If the victim of the wrong is the State itself
Indirect victims
E.g. if a national of a State is a victim, then the State is an indirect victim
Caire Claim 1929 (France v Mexico)
F: A care claim brought against Mexico by France, Mexican soldiers arrested, tortured and killed a French national in Mexico when he refused to give them money, not in the course of their military duties
I: Was Mexico responsible?
H: Yes - the State is objectively responsible for the acts attributable to them, irrespective of fault
Corfu Channel Case 1949 (UK v Albania)
F: UK brought a claim against Albania as a British ship sailed off a coast in Albania and struck by a sea mine
I: Was Albania responsible?
H: Yes - even though it was not clear that it had laid the minefield, they must have known about it
What follows from the Corfu Channel case?
That if they had not known, they would not have been responsible
What does the content of most norms in IL point to?
Strict liability
Art 4 ARSIWA
No responsibility for private acts, only when an organ of a State is acting in its capacity as an organ of a State
Noyes Claim 1933 (US v Panama)
F: A US national was living abroad and driving in his car through a village, there was a political rally happening, gov sent additional police, but before they arrived, the US citizen injured
I: Was there international responsibility of Panama?
H: The mere fact that an alien has suffered at the hands of private persons which could’ve been averted by the presence of police doesn’t make a gov liable under IL;
Noyes Claim circumstances giving rise to responsibility
- Behaviour in connection with the particular occurrence
- General failure to comply with gov’s duty to maintain order, to prevent crimes, and to prosecute and punish criminals
Youmans Claim 1926 (US v Mexico)
F: US nationals were in Mexico, attacked by a mob, took shelter in a house and Mexican troops were sent to protect them, soldiers went to the house but joined the mob and told the American solciers to come out and killed them
I: Was Mexico responsible?
H: Yes, they were clearly using their capacity as soldiers to encourage them to come out
Mallen Case 1927 (Mexico v US)
F: A Mexican representative living in Texas, not really liked by the US Marshall, so first the Marshall assaulted him on the stret, and then stopped the train the Mexican guy was on and put him in jail
I: Was US responsible?
H: Yes, the first act private, but stopping the train in the Marshall capacity
Nicaragua 1986
Effective control test established: whether you’re exercising effective control of a group on a day-to-day basis, cf support
Tadic 1999
Overall control test - general control over the group, including encouragement etc.
Bosnia Genocide 2007
ICJ reaffirmed the effective control test
Al-Jedda v UK 2011
F: The presence of UK forces in Iraq mandated by Security Council, but no control over the acts or ommissions there
I: Were the actions attributable to Security Council or UK?
H: UK
Netherlands v Nuhanovic 2013
Holds out prospect of dual attribution to the UN and the State
Application of the Interim Awards Case 2011
F: Macedonia brought a case against Greece concerning Greek objections to Macedonia joining NATO, Greece claimed it’s a lawful countermeasure for Macedonia using the Sun of Virgina symbol
I: Was it?
H: No, not a serious enough breach, not “material”
Factory at Chorzow 1928
The primary remedy in IL is restitution
Pulp Mills on the River Uruguay 2010 (Argentina v Uruguay)
Uruguay just wanted satisfaction from Argentina - to admit that it did something wrong - which is a remedy when reparation not possible
2 classes of individuals not having the status of de jure organisations as per Nicaragua
- Those totally dependent on the foreign State, paid, equipped and operating according to planning and direction of the foreign State
- Persons who, although paid, financed and equipped by foreign State, nevertheless retained a degree of control and independence
2 degrees of control as per Tadic
- One for acts performed by private individuals engaged by the State to perform illegal acts in the territory of another - effective control needed
- One for acts performed by organised and hierarchically structured groups - overall control sufficient
