week 4 - state responsibility

Question 1

What are Rules on State Responsibility?

What do they address? What is their purpose?

Answer 1

• they are rules that specify specify what happens when a subject of international law violates its obligations + how the aggrieved party can seek justice

aggrieved party = wronged party

Question 2

Why is state responsibility objective?

+ is causation of damage reqruied for a state to be held responsible?

Answer 2

• A state is legally responsible for breaches of inter law, even if there is no court / tribunal with the jurisdiction to establish the specific breach (ex. ICJ)
• THUS - state responsibility is objective = it is triggered solely by an internationally wrongful wrongful act, not the decision of a court
• State responsibility DOES NOT require causation of damage
  Even if no damage is caused u can be held responsible

Question 3

SO how can a state claim another state breached intr law if no court has jurisdiction over a dispute?

Answer 3

diplomacy

Question 4

What is Attribution?

Answer 4

• A set of rules that establish a link between a person committing a wrongful act and the state
• Assigning responsibility to a state or a person who had committed a wrongful act

Question 5

Why is Attribution tricky when regarding international law?

Answer 5

A state is an abstract legal entity ⇒ it can’t act on its own
individuals are the ones who make decisions on behalf of the state

So how can we differentiate between the act of a state VERSUS the act of an individual person?

Aka when does the act of an individual human being count as the act of a state?

Question 6

Where can we find the rules on attribution?

Answer 6

conditions for attribution = Found in ARSIWA Chapter III Art. 4 - 11

Question 7

What does ARSWA stand for?

Answer 7

Responsibility of States for Internationally Wrongful Acts

https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf

Question 8

Overview of ARSIWA Articles 4-11:

Answer 8

Attribution for acts performed by;
Art 4 = the state + its organs

Art 5 = entities exercising governmental authority

Art 6 = organs “on loan” from another state

Art 7 = an excess authority
Art 8 = private individuals (but) directed / controlled by the state
Art 9 = in the absence of an authority
Art 10 = acts of an insurrectional/revolutionary movement
Art 11 = acts subsequently acknowledged & adopted by the state

Question 9

What are the Primary rules regarding state responsibility?

Answer 9

Rules that define obligations a state must follow to comply w/ international law

Found in treaty provisions or customary international law

Q; what obligations does a state have?

ex. A primary rule defining when a (territorial) state must refrain from exercising its jurisdiction in a foreign state

Question 10

What are the secondary rules regarding state responsibility?

Answer 10

specify if a state is responsible for breaching primary rules + what to do next

Basically determine the consequence for violating a primary rule

Q; when does a breach entail responsibility?

what r the consequences of an intr wrongful act?

Question 11

Differentiate between the law of treates + law of state responsibility:

Answer 11

Law of treaties;
- Determines if a treaty is in force + whether or not the obligations of the treaty are binding on a state

Law of state responsibility;
- Regards the responsibility + consequences of the breaching actor (the state) for breaching an existing treaty obligation (or CIL)

Question 12

Who has responsibility under International Law?

Answer 12

1. International Organizations ⇒
   Have responsibility under international law
2. International Corporations ⇒
   Have responsibility under international law
3. State Representatives ⇒
   DO NOT have responsibility under international law, HOWEVER → they can be held criminally liable as individuals for violations of inter law

Question 13

Which source of law reflects the rules of state responsibility?

Answer 13

• Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)
• They were prepared by the international law commission + adopted in May 2001
• It is not enforced ⇒ compliance is not ensured

HOWEVER → it is still significant because it is considered to reflect Customary Inter Law

Question 14

When does a State incur international responsibility?

3 CRITERIA

Answer 14

1. There must be a breach of international obligation => Action or omission
2. Attribution of the action to the state - art. 4-11ARSWA
3. No circumstances precluding wrongfulness

Question 15

What are the steps for finding out if a state State incurs international responsibility?

Answer 15

FIRST; Identify the relevant action or omission

NEXT;
1. Is the act attributable to the state?
=> Who committed the action or omission?
=> Art. 4-11 ARSWA

2. Is there a breach of a state’s international obligations?
3. Do circumstances precluding wrongfulness apply?
   => Identify the possible circumstances
   => Check if the conditions for those circumstances are satisfied
   => Art. 20-26 ARSWA

Question 16

What is the law that governs State responsibility?

Answer 16

Customary International Law

! NOT international law commission articles on state responsibility !

Question 17

What is an internationally wrongful act?

Answer 17

c. It entails that there is a breach of an international obligation that is attributable to a State.

Question 18

Summarize Art. 1 ARSIWA

basic rule of state responsibility 1/3

Answer 18

Specifies the fundamental rules of state responsibility;
- A state can be responsible for a breach of their international obligations even when there is no court with the jurisdiction to assert it

• So a states liability is asserted by a wrongful act not the verdict of a court
  ⇒ SO if a state violates its obligations it is automatically held accountable right away

Question 19

What are the two elements necessary for state responsibility?

basic rule of state responsibility 2/3

Based on ARSIWA

Answer 19

ARSIWA Art. 2
1. The conduct in question must be attributable to the state
=> aka It was the act of a state

2. The conduct in question must be a breach of an international obligation
   => Customary law or treaty law to which the state is party
   => Aka the act done by the state must violate a primary obligation of that stateExample;
   Tehran Hostages demonstrated ‘state conduct’ can consist of both acts + omissions

Question 20

Summarize Art. 3 ARSWA

basic rule of state responsibility 4/3

Answer 20

a state cant justify a violation of international law by invoking national laws that permit this conduct → it must comply w/ international obligations even if it goes against national obligations

Use in combination w/ Art. 27 VCLT ⇒ ““A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

Question 21

explain Art. 4 ARSWA

Answer 21

All conduct of state organs is considered to be an act of a state

Regardless of whether the organ in question performs executive, legislative or judicial functions

The position the organ holds is irrelevant

Question 22

Explain Art. 5 ARSWA

give examples

Answer 22

Art. 5 = entities exercising governmental authority

Persons or entities which are not organs of the state BUT are empowered by the law to exercise elements of governmental authority
⇒ and thus acted in “official” capacity
Empowerment must be explicit

Usually applies to delegated powers;
For example
1. privatization of military, or priv security firms w police functions
2. privatization of the running of detention & prison facilities
3. privatization of powers relating to immigration/border control to priv airlines/ships
4. delegation of state power to mere individuals

Question 23

How to know if an act of a private person is an “exercise of govt authority”?

regarding Art. 5 ARSWA

Answer 23

1. Look at how the power is conferred to the private entity
   Entity must be powered by internal laws
2. Look at the purpose
   Why is the government authority going to be exercised by this private entity?
   Does the activity usually serve a purpose handled by the government?
3. Look at the extent to which the entity is accountable for the act
   Look at whether the entity answers to the government for its actions

Question 24

Explain Art. 7 ARSWA

Answer 24

Art. 7 = Excess of Authorities

• Regards the abuse of government authority
• a state remains resp for conduct performed by its organs & officials even if this body acted contrary to orders/instructions OR in excess of their auth (aka, conduct ultra vires)

DOES NOT APPLY TO;
- Does not apply to people or groups following orders made by the government!
- Only applies to officials of the organs
If someone is acting on behalf of the state without being authorized = art. 7 is not applicable

Question 25

Explain Art. 8 ARSWA

Answer 25

Art. 8 = conduct directed and controlled by states

• Acts of private individuals or entities do NOT count as acts of the state
• HOWEVER there are situations when state responsibility does exist;
  ⇒ When individuals act upon the instruction + control of the state

Question 26

describe the Military and Paramilitary Activities in and against Nicaragua CASE

How it relates to Art. 8 ARSWA? What did it establish?

Answer 26

ICJ had to decide if the level of influence and control exerted by the United States over the contras was so significant that the contras should be treated as if they were part of the US government or carrying out actions on its behalf
This differentiation is crucial in establishing legal responsibility

Established the Effective Control Test

Question 27

What is the effective control test?

established in Nicaragua CASE + Art. 8 ARSWA

Answer 27

• Basically, they must prove the US had effective control over military and paramilitary operations during which the violations occurred
• ICJ ultimately concluded the level of assistance the US provided was not enough in order for them to be responsible for the violations

Question 28

Explain Art. 9 ARSWA

Answer 28

An organ of a person is an act of a state if they are exercising elements of gov authority in the absence of official authorities

Basically if a non-gov groups starts acting like the gov even tho they aren’t officially in charge, their actions can be considered to be actions of the state
Usually happens when actual gov is exiled, absent, or unable to function properly

Ex. during a revolution, armed conflict, foreign occupation ⇒ there doesn’t HAVE to be a revolution

Question 29

Art. 10 ARSWA

Answer 29

Art. 10 = revolutions + insurrections
When an insurrectional movement successfully overthrows the existing government of a state and becomes the new government, its actions are considered the actions of that state under international law

This idea is based on the continuity of the state

Question 30

Explain Art. 11 ARSWA

Answer 30

Art. 11 = Conduct adopted by the state

A state becomes responsible for an act that wasn’t initially attributable to it when it was committed IF the state acknowledges + adopts the act as its own

Aka it shows willingness to assume responsibility for the act through expressions of approval by numerous state authorities, etc.

mere statements of support/sympathy/general acknowledgement of existence are insufficient

Question 31

describe two examples of Art. 11 Arswa

Answer 31

Art. 11 = Conduct adopted by the state

Tehran Hostages
- Militant students seized the US embassy in Tehran
- The act was not directly carried out by the iranian gov = thus they were not innitaly held responsible
- BUT many iranian gov auth showed support for the act
- Thus the militant students were classified as agents of the iranian gov and therefore iran was internationally responsible

Occupation of Crimea
- In 2014 there was an occupation of Crimea → unidentified armed individuals would take control over certain parts of crimea (often referred to as ‘little green men’)
- Putin described them as local self defence units ⇒ not affiliated with russia thus russia held no state responsibility
- Later → putin admitted it was russian military forces
- This suggests russia adopted this conduct = now can be held responsible