International Law: State Responsibility (Fall 2024/2025) PDF

INTERNATIONAL LAW: STATE RESPONSIBILITY FALL 2024/2025 WHAT IS STATE RESPONSIBILITY? A competent legal system, be it domestic or international, must be able to: 1. Identify the concrete rights and obligations that exist. 2. Specify what happens when one of the subjects violates its obligatio...

INTERNATIONAL LAW: STATE RESPONSIBILITY FALL 2024/2025 WHAT IS STATE RESPONSIBILITY? A competent legal system, be it domestic or international, must be able to: 1. Identify the concrete rights and obligations that exist. 2. Specify what happens when one of the subjects violates its obligations. In domestic law, when a citizen violates an obligation or breaks a law, the state’s judicial and enforcement arm can take the corresponding action. The same is not true for states in relation to violations of international law since there is usually no enforcement mechanism for the violation. Rather in the case of states that violate their obligations, this invokes something called ‘state responsibility’. GUIDANCE FOR INVOKING ‘STATE RESPONSIBILITY’ ◦ A system of rules and principles has been developed in international law to assist in determining when a state has violated its obligations and, if necessary, what the consequences of such violation should be. ◦ The most relevant rules and principles relating to this are found in a series of articles on Responsibility of States for Internationally Wrongful Acts prepared by the International Law Commission (ILC) on the basis of the prior work carried out by a number of Special Rapporteurs. ◦ The final set of articles were adopted by the ILC in May 2001, and in December 2001, the UN General Assembly also recommended the articles. ◦ Though the articles have yet to be developed into a treaty, they have been referred to in a large number of cases and are generally considered to reflect customary international law. ATTRIBUTION OF CONDUCT One of the core elements of state responsibility is that the wrongful conduct can be attributed to a state: article 2(a). ◦ The issue of attribution is dealt with in articles 4-11 in Chapter III of the ILC articles. Principles of state attribution 1. Acts performed by the state and its organs 2. Acts performed by organs exercising governmental authority 3. Acts by organs on loan from another state 4. Acts performed by private individuals 5. Acts performed by third party but subsequently acknowledged and adopted 6. Acts of an insurrectional movement PRINCIPLES OF STATE ATTRIBUTION 1. Acts performed by the state and its organs: ◦ According to Article 4 of the ILC articles, all conduct of state organs is considered an act of the state. ◦ It is irrelevant what position the organ holds within the state and if it is an organ of the central government or of a local small unit within the state. PRINCIPLES OF STATE ATTRIBUTION 2. Acts performed by organs exercising governmental authority: ◦ Article 5 of the ILC articles is concerned with state responsibility for individuals and entities that exercise governmental authority in the absence of their status as a state organ in the formal sense. ◦ To an increasing extent, private corporations have begun to fulfil functions that are normally exercised by the organs and institutions of the state, and Article 5 specifies that the conduct of individuals and entities that have been empowered to exercise governmental authority are attributable to the state. ◦ Article 5 is of relevance, therefore, to the privatization of certain military and police functions, matters relating to the running of detention and prison facilities and the delegation of powers relating to immigration and border control to private airlines or ships. PRINCIPLES OF STATE ATTRIBUTION 3. Acts by organs on loan from another state: ◦ Article 6 of the ILC articles covers the rather exceptional situation where a state places one of its organs at the disposal of another state. ◦ E.g. Health service units in crisis situations, or occasional appointment of judges. ◦ Article 6 specifies that the acts of the ‘loaned’ organ are attributed to the receiving and not the sending state. PRINCIPLES OF STATE ATTRIBUTION 4. Acts performed by private individuals: ◦ Article 8 of the ILC articles specifies that a state is only responsible for the conduct of a private person or group if they are ‘in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct’. ◦ Example: ◦ The case of Nicaragua wherein the ICJ, among other things, had to determine if the United States were internationally responsible for violations of the laws of armed conflict committed by a paramilitary force—the Contras—in Nicaragua. ◦ Although the Contras were heavily funded and supported by the US government, the Court did not find that their acts could be attributed to the United States because it could not be proven that they had effective control of the military of paramilitary operations. PRINCIPLES OF STATE ATTRIBUTION 5. Acts performed by third party but subsequently acknowledged and adopted: ◦ Article 11 of the ILC articles specifies that a state may become responsible for conduct that was not attributable to the state when it was committed if the state subsequently acknowledges the conduct and adopt it as its own. ◦ E.g. In the Tehran Hostages case, the ICJ concluded that the acts of the Iranian government subsequent to the storming and occupation of the US embassy in 1979 by private Iranian citizens meant that the conduct became acts of the Iranian state. PRINCIPLES OF STATE ATTRIBUTION 6. Acts of an insurrectional movement ◦ It is a well-established principle that the acts of an insurrectional movement are not attributable to the state. ◦ If, however, the movement succeeds in assuming power and establishes itself as the new government of the state, or manages to form a new state in part of the territory of the pre-existing state, Article 10 of the ILC articles stipulates that the state will be responsible for the acts of the movement. CIRCUMSTANCES PRECLUDING WRONGFULNESS Chapter V(5) of the ILC articles lists a number of circumstances the existence of which will preclude the international wrongfulness of an act otherwise in breach of international law. In practice, then, the circumstances listed serve as justification for not complying with an international obligation. These circumstances include the following: 1. Consent 2. Self-defense 3. Lawful countermeasures 4. Distress 5. Necessity CIRCUMSTANCES PRECLUDING WRONGFULNESS 1. Consent ◦ According to Article 20, valid consent by a state to the commission of an act precludes the wrongfulness of that act, so as long as the act does not exceed the limits of that consent. ◦ As the article illustrates, consent must be: a. Given by a person with the authority to do so. b. Given freely without coercion. c. Clearly expressed. 2. Self-defense ◦ Article 21 of the ILC articles specifies that the wrongfulness of an otherwise unlawful act is precluded if it is in conformity with the inherent right to self-defense in Article 51 of the UN Charter. CIRCUMSTANCES PRECLUDING WRONGFULNESS 3. Lawful countermeasures ◦ A state must be allowed to respond to another state’s international wrongful acts by taking certain countermeasures in order to bring the wrongful acts to an end. ◦ Thus, according to Article 22 of the ILC articles, a state is entitled to breach its international obligations towards another state if and to the extent that the act constitutes a countermeasure taken against the latter state. ◦ It follows that the purpose of a countermeasure must be to induce the other state to comply with its international obligations in question. ◦ The measure must be lifted as soon as the internationally wrongful acts on the part of the other state has ceased. CIRCUMSTANCES PRECLUDING WRONGFULNESS 4. Distress ◦ Another circumstance precluding wrongfulness is distress, according to which an agent of a state may be justified in not performing an international obligation if it has no other reasonable way of saving the agent’s life or that of other persons in the agent’s care. ◦ It is covered by Article 24 of the ILC articles. 5. Necessity ◦ According to Article 25, a state can claim precluding wrongfulness on grounds of necessity. ◦ This relates to those rare cases where the only way for a state to safeguard an ‘essential interest’ that is threatened, is to refrain from performing another international obligation that is considered to be of a lesser weight or urgency. CONSEQUENCES OF WRONGFUL CONDUCT The two most important consequences are obligations of the state to cease the wrongful conduct and make reparations. 1. End of wrongful conduct ◦ It is fairly obvious to say, that the most immediate obligation upon the violating state is its responsibility to cease the act in question. The duty of cessation is contained in Article 30(1) of the ILC articles. ◦ Paragraph (2) of the article specifies that the responsible state may be obliged to ‘offer appropriate assurances and guarantees of non-repetition’ if that is required by the circumstances. 2. Obligation to make reparations ◦ A responsible state is under an obligation to ‘make full reparation for the injury caused by the internationally wrongful act’. ◦ This general principle of international law is reflected in Article 31 of the ILC articles. DEBATE QUESTION “All European nations that have an imperial past should pay economic reparations to their former colonies” GROUP F GROUP G FOR AGAINST 1. Hind Adel Ibrahim Ahmad 1. Rashid Ali Rashid Aljarwan Alshamsi 2. Hamda Abdalla Mohamed Allay Alnaqbi 2. Abdulla Sultan Omran Alomran Alshamsi 3. Afra Ahmed Amin Mohamed Aljasmi 3. Salem Hamad Mohammed Saif Alkhateri 4. Alyazya Salim Khalfan Salim Alhashmi 4. Salem Marwan Hassan Abdulla Aldaboos 5. Fatima Majid Ghanim Binjesaim Alkhateri 5. Shammah Abdelrahmam Humaid Abdalla Alsuwaidi