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Supv 8 - State Responsibility in International Law State Responsibility
1. Rule of CIL that every IL wrong incurs responsibility per Chorzow Factory Case.
2. ILC Draft Articles on State Responsibility. a. Bosnia & Herzegovina v Serbia & Montenegro (Application of Crime of Genocide) and Nicaragua (Merits) say Part 1 reflects CIL so binding on all, while the other parts are beginning to embody CIL, but be careful. They are becoming CIL as they were endorsed and adopted by the UN so shows state practice, not used treaty to avoid reservations - CLEVER.
3. When does a State incur responsibility?
a. Art 3 ILC Articles say for every internationally wrongful Act. Shaw says this includes act or omission - Thus where failed to protect neighbouring state from terrorist actions per Asian Agricultural Products v Republic of Sri Lanka. b. Breach i. Does the state need to suffer injury? Shaw and ILC Articles says yes. But crossing border damages sovereignty, as does premature recognition (recognition before satisfying Montevideo Convention). ii. But judge the breach against intertemporal law - Thus US and UK don't have to apologise for slavery as at that time, it was lawful. Although some C15 philosophers such as Las Casas and Vitorio said it always was breach of IL. iii. Note - Injured third parties can bring a claim per Darts 48 and 54. Particlarly where the right is erga omnes (owed to all) - Not all are jus cogens (peremtory norms). EOs are space, sea owed to everyone!
iv. Treatment of Foreign Nationals?
1. The developed world maintain "international minimum standard" per Chattin Claim and Neer Claim and Hague Codification Conference 1930. But others use "national standard" so as long as don't discriminate against own nationals, this is adopted in ARt 9 Montevideo Convention
1933. Dixon says pragmatically depending on extent and significance of breach.
2. In R (Abassi) v SoSHD there is no UK duty to bring a claim, but the decision could be subject to JR if arbitrary or against legitimate expectations. This is because the state is asserting is OWN rights, not those of the NATIONAL. Thus nationality is of importance. Nottebaum Case notes there are no limits on who can be a national (Art 4 ILC Draft Articles) but where dual nationality, who can bring the claim out of the two depends upon who has the most "genuine link" - So limited significance. Note in the Barcelona Traction Case, a company's state is where it is registered, its shareholders 20
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