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State Responsibility Notes

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This is an extract of our State Responsibility document, which we sell as part of our Public International Law Notes collection written by the top tier of Oxford students.

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Definition: circumstances where state will incur legal responsibility for violating a primary obligation of international law + consequences flowing from the breach
? i.e. breach of primary obligation of IL giving rise to secondary obligations of state resp.

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Sources of primary obligations (i) Customary IL (ii) Treaties, incl. SC Res under Chapter VII UN Charter (iii) General principles of IL ILC Draft Articles 2001 (60 Arts in 3 Parts)

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Validity - codification of customary IL + progressive development
? Passed following lengthy negotiations b/w states, largely accepted as common practice (contrast with ILC Draft Arts on Diplomatic Protection)
? Crawford Commentaries - distinguished writings of jurists under Art 38(1)(d) ICJ Statute also possibly a source of law

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4 requirements (1) Internationally wrongful act (2) Breach (3) Attribution (4) Circumstances precluding wrongfulness (5) Consequences Internationally wrongful act + breach

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Art 1 - every internationally wrongful act of state entails international resp. of that state
? NB: UN (Reparations for Injuries Case) + liability of UN for actions of its organs (for other int. org. - Art 58)

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Art 2 - int. wrongful act or omission = attributable to the state under IL & constitutes breach of int. obl.
? Internationally wrongful act/omission - characterisation of act as int. wrongful is governed by IL (Art 3) so domestic provisions can't be invoked to deny wrongfulness
= Act or omission (US Hostages Case)
? Breach = objective theory (strict liability - most widely used) or subjective (requires fault) - not pronounced on in Arts. - only requirement of causality. Dixon suggests applying strict liability for jus cogens& fault approach for other obligations. o Caire Claim - court confirmed no fault on the part of Mexico was required o Corfu Channel - fault is required Attribution

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Art 4 - conduct of any state organ as determined by IL is attributable to that state
? Responsibility attaches to the office/position
? Can't invoke provisions of domestic constitutional order/law to escape liability
? Person or entity - in broad sense, includes any natural or legal person, incl. individual office holder, department, commission, other body exercising public authority
? Irrelevant whether person/entity acting in that capacity had improper motives/was abusing power (Caire Claim
- Mexican soldiers acted under colour of authority; i.e. in uniform)

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Art 5 - conducts of persons or entities exercising elements of govt. authority is attributable, as long as it acts in that capacity
? E.g. airline controlling immigration; privately run prisons in UK

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Art 6 - conducts of organs placed at disposal of a state by another state
? Not very rare! E.g. Switzerland acting on behalf of Lichtenstein;

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Art 7 - conduct of organ of state/person or entity empowered to exercise elements of govt. authority will be attributable to it if they act in that capacity, even if exceeds govt. authority or contravenes it o Caire Claim-murder of French nat.'l by 2 Mexican officers who, after failing to extort money, took Caire to barracks & shot him. Held: even though acted outside their competence/superiors countermanded the order, it involve state resp. b/c acted under cover of their status using means placed

their disposal on acc of that status

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Art 8 - conduct directed or controlled by the state
? 2 types of cases (i) where states supplement their own action by recruiting/instigating private persons or groups who act as "auxiliaries" while remaining outside official structure of the state - e.g. persons sent as "volunteers" to neighbouring countries/instructed to carry out certain missions abroad (ii) under direction & control of state - organised/non organised groups in another state's territory

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