Public International

LawSanta Clara Geneva Summer Abroad Program

Dr. Sandra Krähenmann

State Responsibility ‘international responsibility’ : all the forms of new

legal relationship which may be established in international law by a State’s wrongful act

 

Directly injured State and other States

Countermeasures

Reparations

Source: Customary International Law

 - reflected in ILC Articles on Responsibility of States for Internationally Wrongful Acts

International Wrongful Act (IWA) Elements of an IWA (Article 2):

 

1) Conduct (act or omission): objective element

 2) that is attributable to a state under international law: subjective element

 United States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980.

"56.First it must determine how far, legally, the acts in questions may be regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or incompatibility with the obligations of Iran under treaties in force or under any other rules of IL that may be applicable."

AttributionArticle 4: Conduct of State Organs

 

 covers all the individual or collective entities which make up the organisation of the State and act on its behalf.

 Salvador Commercial Company Case, Tribunal, 1902, RIAA, Vol. XV, p.455, at p. 477: "... a state is responsible for the acts of its rulers whether they belong to the legislative, executive or judicial department of the Government, so far as the acts are done in their official capacity." “

 includes any person or entity which has that status in accordance with the internal law of the State

AttributionArticle 5: Conduct of Persons or entities exercising elements of governmental authority

 

 authorized by the law of the State

 to exercise elements of governmental authority

- e.g. Airlines checking passports

- e.g. Private Military and Security Companies

AttributionArticle 6: Conduct of Persons or entities placed at the disposal of another State

 

 Attribution to the receiving State if:

1) Placed at the disposal of

Drozd and Janousek v. France and Spain, European Court of Human Rights, Judgement, 1992. Judiciary of Andorra composed of French and Spanish Judges:“Those courts, in particular the Tribunal de Corts, exercise their functions in an autonomous manner; their judgements are not subject to supervision by the authorities of France or Spain. …Finally, it should be recalled that the secondment of judges or their placing at the disposal of foreign countries is also practised between member States of the Council of Europe, as is demonstrated by the presence of Austrian and Swiss jurists in Liechtenstein.”

2) Status of an organ of the sending State3) Exercise of governmental authority

AttributionArticle 7: Excess of Authority (Ultra Vires)

 

 Conduct of State organ, person or entity empowered to exercise elements of governmental authority is attributable even if:

Velásquez Rodríguez v. Honduras, Inter-American Court, Judgement, 1988.

"170. This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.

1) acted ultra vires2) or contrary to instructions

AttributionArticle 8: Instructions or Conduct Directed or Controlled by the State

 

 Attribution of conduct of private persons or entities

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), ICJ, Merits, Judgement.“115. All the forms of the United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. 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. "

 Question of degree of control: effective

AttributionArticle 9: Conduct Carried out in the Absence or default of the official authorities

 

 Attribution of conduct of private persons or entities

 if the persons or entities are in fact exercising elements of governmental authority

 in the absence or default of official authority

 if the circumstances “call” for the exercise of those elements of authority

Yeager v. the Islamic Republic or Iran, Iran-United States Claim Tribunal, 1987, 17 Iran.U.S.C.T.R 92, at 93-113: Acts of Revolutionary Guards:43.The Tribunal finds sufficient evidence in the records to establish the presumption that the revolutionary 'Komitehs' or 'Guards' after 11 February 1979 were acting in fact on behalf of the new government, or at least exercised elements of governmental authority in the absence of official authorities, in operations of which the new government must have had knowledge and to which it did not specifically object.

AttributionArticle 10: Conduct of an Insurrectional or Other Movement

 

 Attribution of conduct of private persons or entities  if the insurrectional movement becomes the new

government of the State; or

 if the insurrectional movement establishes a new State

Bolivar Railway Company, Claims Commission, 1903, RIAA, Vol. IX, p.445, at p. 453: "The nation is responsible for the obligations of a successful revolution from its beginning, because in theory, it represented ab initio, a changing national will, crystallising in the finally successful result."

AttributionArticle 11: Conduct Acknowledged and Adopted by a State as its own

 

 if and to the extent

 through words or conduct

 as its own

 after the fact

AttributionActs of Individuals as a “Catalyst”

 

 Conduct as such not attributable to the State

 But conduct reveals another unlawful act, usually an omission, attributable to the State

AttributionUnited States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980.

 

1st Phase: Storming and initial occupation of the Embassy by the Students: A purely private act

“59. Previously, it is true, the religious leader of the country, the Ayatollah Khomeini had made several public declarations inveighing against the United States as responsible for all his country's problems. ... In the view of the Court, however, it would be going too far to interpret such general declarations of the Ayatollah Khomeini to the people or students of Iran as amounting to an authorization. ... Again, congratulations after the event, such as those reportedly telephoned to the militants by the Ayatollah Khomeini on the actual evening of the attack, and other subsequent statements of official approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the militants' attack on the Embassy. ..."

AttributionUnited States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980.

 

1st Phase: Storming and initial occupation of the Embassy by the Students: Catalyst effect

61. The conclusion just reached by the Court, that the initiation of the attack on the United States Embassy on 4 November 1979, and of the attacks on the Consulates at Tabriz and Shiraz the following day, cannot be considered as in itself imputable to the Iranian State does not mean that Iran is, in consequence free of an responsibility in regard to those attacks; for its own conduct was in conflict with its international obligations. By a number of provisions of the Vienna Conventions of 1961 and 1963, Iran was placed under the most categorical obligations, as a receiving State, to take appropriate steps to ensure the protection of the United States Embassy and Consulates, their staffs, their archives, their means of communication and the freedom of movement of the members of their staff. ...§67. This inaction of the Iranian Government by itself constituted a clear and serious violation of Iran's obligations to the United States….

AttributionUnited States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980.

 

2nd Phase: Continuing Occupation: Conduct acknowledged and endorsed

"74. The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States government was complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of the State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible. ..."

Circumstances Precluding

Wrongfulness (CPW)

 

Article 20: Consent

- e.g. presence of foreign troops

Article 21: Self-defence

- in accordance with UNC

Article 22: Countermeasures

- Acts in response to an IWA

Circumstances Precluding Wrongfulness (CPW)

 

Article 23: Force majeure

Irresistible force or unforeseen event

Article 24: Distress

Beyond the control of the State concerned

Absolute impossibility to perform the obligation

Choice to act is effectively nullified

No other reasonable way

To save life of the author or lives of others

Circumstances Precluding Wrongfulness (CPW)

 

Article 25: Necessity

Necessity may not be invoked unless the act :

a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or the international community as a whole

In any case, necessity may not be invoked

a ) the obligation in question excludes it;

b) The state contributed to the situation of necessity

Circumstances Precluding Wrongfulness (CPW)

 

Article 25: Necessity

Necessity may not be invoked unless the act :

a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or the international community as a whole

In any case, necessity may not be invoked

a ) the obligation in question excludes it;

b) The state contributed to the situation of necessity

Circumstances Precluding Wrongfulness (CPW)

 

Article 25: Necessity

Necessity may not be invoked unless the act :

a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and

b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or the international community as a whole

In any case, necessity may not be invoked

a ) the obligation in question excludes it;

b) The state contributed to the situation of necessity

Legal Consequences of an Unlawful Act

 

Article 30: Cessation and non-repetition

If the act is on-going

Factory at Chorzów (Germany v. Poland), PCIJ, Judgement, Jurisdiction, 1927, Series A, No.9, at p. 21.

"It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. “

Article 31: Reparations

If adequate, guarantees of non-repetition

Legal Consequences of an Unlawful Act

 

Forms of Reparation

3) Satisfaction (Article 37)

Rainbow Warrior (New Zealand/France), Arbitration Tribunal, 1990, RIAA, Vol. XX, 1990, p. 217, at p. 272.

"There is a long established practice of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities. "

Countermeasures: implementation of

international responsibility

 

Substantive Limitations 1) Directed against the State who committed the IWA 2) Temporary : termination once IWA ceases and made reparations 3) As far as possible: reversible in their effects

4) Proportionate

5) Shall not affect certain obligations:

Dispute resolution

Fundamental obligations, namely:

a) Threat or use of force

b) Human Rights obligations

c) obligations of a humanitarian character prohibiting reprisals d) other peremptory norms

Countermeasures: implementation of

international responsibility

 

Procedural Limitations: “Cooling off”

1) Call upon responsible State to comply with its obligations 2) Notification

3) Offer to negotiate

But: urgent countermeasures to preserve the injured State’s rights are allowed