T4 Responsibility of States for internationally wrongful acts Flashcards
What is an internationally wrongful act?
An act that results from the breach by a state of an international obligation so essential for the protection of fundamental interests of the community that its breach is recognised as a crime by that community as a whole.
What from does an internationallly wrongful act arise?
The violation of a treaty or of a general obligation owed towards all states.
How may a state incur responsibility for wrongful acts?
Directly or indirectly.
How does a state incur responsibility directly?
When, acting through its organs or agents, it violates its obligations towards another state under a treaty or general international law.
How does a state incur responsibility indirectly?
When a state injures the person or property of a foreign national and on so doing is deemed to have injured the state of nationality of the injured person itself
What are the primary rules of state responsibility?
Susbtantive rules requiring states to act in a particular way or to abstain from certain actions in their relations with other states or rules governing the treatment of the nationals of other states.
What are the secondary rules of state responsibility?
Rules which govern the attribution of conduct to a state, the circumstances that preclude wrongfulness of such conduct, the invocation of the responsibility of a state and the consequences of a wrongful act.
When does a state incur direct responsibility of a primary rule?
- When it violates the territorial sovereignty of another state
- Fails to respect the immunities of diplomats
- Interferes with freedom of navigation
- Pollutes the environment of another state
- Breaches a treaty obligation
- Unlawful use of force.
What does article 10 of ARSIWA hold?
The conduct of an insurrectional movement that becomes the new government of a state shall be considered an act of that state under international law.
What are the circumstances precluding wrongfulness of conduct that would otherwise be in breach of international law?
- Consent on the part of the injured state
- Self-defence take in conformity with the charter of the UN
- Countermeasures in response to an illegal act
- Force majeure
- Where the author of the act in question has no other reasonable way in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care
- Necessity
When will the circumstances precluding wrongfulness of conduct not be relied?
If relying on such circumstances would conflict with a peremptory norm of general international law.
Which provision brings the defence of necessity within acceptable limits?
Article 25 of ARSIWA
When does necessity arise?
Where there is an irreconcilable conflict between an essential interest and an obligation of the state.
What are the countermeasures taken since the international legal system has no central authority to enforce international law?
States claim the right to enforce compliance with rules of international law by responding to an illegal act with a reciprocal illegal act designed to compel compliance.
What are countermeasures?
Self-help measures not involving the use of force.
What are the ways in which international organisations may be defined?
- By analysing their composition
- By reference to the method of establishment
- By implication from the existence of separate legal personality
What is the principle of speciality that governs international organisations?
The idea that international organisations have only the power and competencies that are explicitly granted to them by the treaties or agreements that establish them.
What is the purpose of the principle of speciality?
It limits the actions and authority of these organisations, ensuring that they operate only within the scope of their specific mandates.
What is an international organisation?
An organisation established by a treaty or other instrument governed by its own international legal personality.
What is the applicable law governing the actions of international organisations?
Rules of the organisation.
What are the issues on which the rules of the organisation have a bearing?
- Determining the functions of the organs and agents of an organisation for purposes of establishing the attribution of the acts of such organs or agents to the organisation itself
- Establishing the existence of an internationally wrongful act owing to the breach of an international obligation arising from the rules of the organisation
- Establishing the permissibility of the taking of countermeasures by the organisation
What are the rules of the organisation?
Constituent instrument or any rules developed within the context of the work of the organisation.
What are the ways in which an international organisation may incur responsibility?
- Attribution of conduct to the international organisation
- Responsibility in connection with an act of a state or other international organisation (accomplice liability)
What is the other instance in which wrongful conduct may also be attributed to an international organisation?
Where it exercises effective control over an organ of a state or an organ or agent of another international organisation which was placed at its disposal.
What is the test for attribution?
Test of the exercise of effective control in determining to which entity the wrongful conduct is to be attributed.
When does a state member incur international responsibility arising from the wrongful acts of an organisation?
- A state member incurs international responsibility by seeking to circumvent one of its international obligations by causing the organisation to commit an act that, if committed by the State, would have constituted a breach of the obligation
- Residual responsibility will be attributed if veil is pierced.
When will the veil be pierced?
- Where a member state has accepted international responsibility for the act of the international organisation
- Where the member state gave the third party reason to rely on the responsibility of the member state
Which case captures the essence of an internationally wrong?
Spanish Zone of Morrocco Claims (Great Britain v Spain).
What does Spanish Zone of Morrocco Claims say?
Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation
Which treaty regulates IWA?
ARSIWA
What does article 1 of ARSIWA hold?
Every IWA of a state entails international responsibility of that state.
What is the objective theory of state responsibility for IWA?
The objective theory focuses on the act itself rather than the state’s intent or fault. According to this theory:
- A state is responsible for any wrongful act, even if it did not have any intent to cause harm or violate international law.
- The key factor is whether the conduct objectively breaches an international obligation, regardless of the state’s knowledge, intent, or motivation.
What is the subjective theory of state responsibility for IWA?
The subjective theory emphasizes fault or intent behind the wrongful act. Under this theory:
- A state is only responsible if there is an element of fault, intent, or negligence on its part.
- The state’s knowledge or intention to breach international law is key to determining responsibility.
Which provisions of ARSIWA confer attribution?
- Article 4 “Conduct of any State organ”
- Article 5 “Conduct of person/entity which is not an organ of State but is empowered by the law of that State to exercise elements of the governmental authority”
- Article 6 “Conduct of organs placed at the disposal of a State by another State”
Which provisions deal with who can claim when an international obligation is breached and the mechanisms for obtaining redress?
ARSIWA articles 42-48.
What is article 42?
Invocation of responsibility by an injured State.
What is article 43?
Notice of claim by an injured State.
What is article 44?
Admissibility of claims
What is article 45?
Loss of the right to invoke responsibility
What is article 46?
Plurality of injured States
What is article 47?
Plurality of responsible States
What is article 48?
Invocation of responsibility by a State other than an injured State.
What does article 42 hold?
An injured State is entitled to invoke the responsibility of another State if the obligation breached is owed to the State individually or a group of States including the injured State because the breach specially affects that State.
What is an injured State?
A State is injured when affected by breach in a way that distinguishes it from the generality of other States to which the obligation is owed or when the breach affects per see every State to which the obligation is owed.
What is a unilateral action?
When States take enforcement measures on their own, bypassing international mechanisms.
What are the safeguards against abuse?
- International adjudication- due process
- Role of international organisations- collective action
- Customary international law and treaties- norms and standards/binding agreements
Which provision deals with forms of reparation?
Article 34.
What allows for unilateral actions?
Power imbalance between stronger and weaker States.
Which provision deals with restitution?
Article 35.
Which provision deals with compensation?
Article 36.
Which cases deal with standing?
- South West Africa cases
- Belgium v Senegal
What are the requirements to enforce responsibility for IWA?
- Injured State
- Non-injured State
- Standing
What is the requirement of standing?
- Sufficient legal interest
- States not beneficiaries to IL obligations have no right to enforce them
What are the consequences of IWA once State responsibility has been established?
Cessation and reparation.
What is reparation?
State must make full reparation for injured caused.
What is cessation?
State must cease the wrongful act and provide assurances against future breaches.
What are the forms of reparation?
Ito article 34, restitution, compensation and satisfaction.
Which provision deals with satisfaction?
Article 37.
What for is a satisfaction an apporpriate remedy?
Insults of symbols of state such as flags, ill-treatment of heads of state etc.
What is satisfaction?
Acknowledgement of breach, an expression of regret etc.
What provision deals with interest irt to reparation?
Article 38.
What are the circumstances precluding wrongfulness?
- Consent
- Self-defence
- Countermeasures
- Force majeure
- Distress
- Necessity
Which provisions have defences that can be raised to exclude wrongfulness?
Articles 20-25.
What is article 20?
Consent?
What is article 21?
Self-defence.
What is article 22?
Countermeasures.
What is article 23?
Force majeure
What is article 24?
Distress
What is article 25?
Necessity.
What is the defence of consent?
- State gives consent to another to commit IWA in its territory
- Consents for acts violating peremptory norms not valid.
- Extension of principle of volenti non fit injuria?
What is the principle of volenti non fit injuria?
Legal principle primarily rooted in tort law, implying that a person who willingly consents to an action cannot later claim to have been wronged or injured by it.
What is the defence of self-defence?
- Must comply with UN Charter (article 51)
- Should be understood as permissible exception to the use of force
- Accrues individually or collectively
What is the defence of countermeasures?
- Not available to preclude peremptory obligations or to defeat prohibition against use of force.
- Must conform to article 2, be proportionate, follow procedure.
What is the defence of force majeure?
The defence of force majeure refers to situations in which a state is unable to perform its international obligations due to the occurrence of unforeseen and irresistible events that are beyond its control. If successfully invoked, force majeure can exempt a state from responsibility for breaching an international obligation.
What are examples of force majeure events?
Acts of war, insurrection, civil war
What is the defence of distress?
The defence of distress in public international law is invoked when a state breaches an international obligation to prevent a grave and imminent danger to the life of individuals (usually its own nationals or officials) or to essential interests.
When is the defence of distress not available?
If the act in question is likely to create a comparable or greater peril or where States have contributed to the distress
What is the defence of necessity?
The defense of necessity in public international law allows a state to justify breaching an international obligation in exceptional circumstances where the act is the only way to protect an essential interest against a grave and imminent peril.
Which provisions precludes the defence of necessity?
Article 25(1).
What does article 25(1) hold?
Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an internationational obligation of that State unless the act:
1. Is the only way for the State to protect an essential interest against a grave and imminent peril
2. Does not seriously impair an essential interest of the State/s towards which the obligation exists or of the international community as a whole.
