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					Internationally wrongful acts

       State responsibility
      Diplomatic protection
          State responsibility
         Diplomatic protection

• When and how a State can be held
  responsible for a breach of its international
  obligations (state responsibility).
• How a State can make a claim on behalf of
  one of its nationals arising from a breach by
  another State of its international obligations
  which has affected the national concerned
  (diplomatic protection).
         State responsibility

„[T]he fundamental principle governing the
law of international responsibility: a State is
responsible only for its own conduct, that is
to say the conduct of persons acting, on
whatever basis, on its behalf.‟ (ICJ Bosnian
Genocide case 26 February 2007)
             State responsibility
• Primary rules: rules of international law (eg
  prohibiting torture and cruel and inhuman
  treatment, non intervention in other States)
   – usually rules of cil.
• Secondary rules: rules which show when states
  are responsible and what they should do to remedy
  the breach.
   – Articles on the Responsibility of States for
     internationally wrongful acts
        State responsibility
UNGA Res 56/83
Takes note of the articles on responsibility
of States for internationally wrongful acts
…, presented by the International Law
Commission, … and commends them to the
attention of Governments without prejudice
to the question of their future adoption or
other appropriate action;
         State responsibility
Articles on the Responsibility of States for
internationally wrongful acts
– note status carefully: text of Resolution
– not binding, not UNGA Declaration
– Articles mix of codification and progressive
  development
– Resolution adopted without vote
– cited by ICJ (the Wall case CB 274) ; Bosnian
  Genocide case (paras 398-407).
              State responsibility
Articles
Article 1
  Every internationally wrongful act of a State entails the
  international responsibility of that State.
Article 2
  There is an internationally wrongful act of a State when
  conduct consisting of an action or omission:
  (a) Is attributable to the State under international law; and
  (b) Constitutes a breach of an international obligation of
  the State.
             State responsibility
Articles
Article 4
The conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in
the organization of the State, and whatever its character as an organ of
the central government or of a territorial unit.
of the State.
Article 7
The conduct of an organ of a State or of a person or entity empowered
to exercise elements of the governmental authority shall be considered
an act of the State under international law if the organ, person or entity
acts in that capacity, even if it exceeds its authority or contravenes
instructions.
            State responsibility
Articles: instructions/direction/control of State
Article 8
  The conduct of a person or group of persons shall
  be considered an act of a State under international
  law if the person or group of persons is in fact
  acting on the instructions of, or under the direction
  or control of, that State in carrying out the
  conduct.
• Reflects cil (Bosnian Genocide case para 398).
           State responsibility
„ …United States participation, even if preponderant or
decisive, in the financing, organizing, training, supplying
and equipping of the contras, the selection of its military
or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, …, for the purpose
of attributing to the United States the acts committed by
the contras in the course of their military or paramilitary
operations in Nicaragua. … . [E]ven the general control by
the respondent State [the US] over a force with a high
degree of dependency on it, would not in themselves mean,
… that the United States directed or enforced the
perpetration of the acts …alleged by the applicant State.
(Nicaragua case para 115)
        State responsibility
„For this conduct to give rise to legal
responsibility of the United States, it would
in principle have to be proved that that State
had effective control of the military or
paramilitary operations in the course of
which the alleged violations were
committed.‟ (Nicaragua case para 115,
cited in Bosnian Genocide case para 399.)
          State responsibility
„[I]it is not necessary to show that the persons who
performed the acts alleged to have violated international
law were in general in a relationship of “complete
dependence” on the respondent State; it has to be proved
that they acted in accordance with that State‟s instructions
or under its “effective control”.
It must however be shown that this “effective control” was
exercised … in respect of each operation in which the
alleged violations occurred, not generally in respect of the
overall actions taken by the persons or groups of persons
having committed the violations. Bosnian Genocide case
para 400).
             State responsibility
  Articles: „failed States‟
  Article 9
  The conduct of a person or group of persons shall be
  considered an act of a State under international law if the
  person or group of persons is in fact exercising elements of
  the governmental authority in the absence or default of the
  official authorities and in circumstances such as to call for
  the exercise of those elements of authority.
• „Failed states‟: the Elmi case (CB 265).
           State responsibility
Articles: successful insurrections
Article 10
1. The conduct of an insurrectional movement which
becomes the new government of a State shall be
considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other,
which succeeds in establishing a new State in part of the
territory of a pre-existing State or in a territory under its
administration shall be considered an act of the new State
under international law.
            State responsibility
  Articles: State’s acknowledgement & adoption of
  conduct
  Article 11
  Conduct which is not attributable to a State under the
  preceding articles shall nevertheless be considered an
  act of that State under international law if and to the
  extent that the State acknowledges and adopts the
  conduct in question as its own.
• Iran hostages case: CB 266 – attributed to Iran because
  of Khomeini’s approval of actions.
         State responsibility
• Responsibility for terrorist actions: need
  for effective control (Nicaragua case)?
• ICTY Tadic case: ‘overall control going
  beyond the mere financing and equipping
  of such forces and involving also
  participation in the planning and
  supervision of military operations’
  – ‘relaxed’ standard’ (Jonathan Somer ASIL
    Insight 24/8/2006)
         State responsibility
„The Court has given careful consideration to the
Appeals Chamber‟s reasoning in support of the
foregoing conclusion [the „overall control‟ test‟],
but finds itself unable to subscribe to the
Chamber‟s view. [T]he Court observes that the
ICTY was not called upon in the Tadić case …nor
is it in general called upon, to rule on questions of
State responsibility, since its jurisdiction is
criminal and extends over persons only.‟ (Bosnian
Genocide paras 402-3).
              State responsibility
  „Insofar as the “overall control” test is employed to
  determine whether or not an armed conflict is international,
  which was the sole question which the Appeals Chamber
  was called upon to decide, it may well be that the test is
  applicable and suitable; the Court does not however think
  it appropriate to take a position on the point in the present
  case.‟ (Bosnian Genocide para 404)
• Post 9/11: right of self defence in response to armed attack
  by non state actor
   – issue of test for state responsibility resolved by BG case but
     right of self defence against non state actors located in another
     state open: to be discussed further in week 12.
           Diplomatic protection

• How a State can make a claim on behalf of one of
  its nationals arising from a breach by another State
  of its international obligations which has affected
  the national concerned: „State responsibility for
  injury to aliens‟
   – „right‟ of State: has discretion whether to make
      claim
        Diplomatic protection
Requirements
• Individual (or company) must be national of
  State making the claim
  – int‟law determines wh State entitled to exercise
    protection
  – must be „genuine connection‟ or „effective link‟
    the Nottebohm case (CB 267)
  – Company: Barcelona Traction (CB 270): also
    requires „genuine connection‟.
       Diplomatic protection
• Requirement of exhaustion of local
  remedies in the responsible state:
  – Norwegian Loans case CB 270: potentially very
    stringent
  – does not require resort to appeals that have
    objectively no prospect of success (Pratt and
    Morgan v Jamaica HRC).
        Diplomatic protection
• Expropriation CB 271
  – note conditions for expropriation to be lawful
  – Hull formula on compensation.
          Diplomatic protection
  Defences
  Articles
• Force majeure (Art 23)
   – requires making compliance with obligation impossible
     (Rainbow Warrior arbitration CB 273).
• Necessity (Art 25)
   – „only way for State to safeguard an essential interest
     against a grave and imminent peril‟ (Wall case CB
     274).
• Does not exclude compensation (Art 27).
           Diplomatic protection
  Reparations
  Articles
• Duty to cease wrongful act (art 30) (Wall case CB 275).
• Obligation to make full reparation (Art 31)
   – scope of obligation (art 33).
• Forms of reparation (Art 34)
   – restitution (Wall case), compensation (Wall case), and satisfaction
   – reparations in Bosnian Genocide case were Court‟ s orders (paras
     459-70.

				
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