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BASIC CONCEPTS ARSIWA is a codification of customary international law (eg Art 23 Necessity) and progressive development (eg Art 41 Peremptory Norms)
-> THEY ARE NOT BINDING Applicable to ALL obligations (customary, treaty etc) - Art 12 ARSIWA
BREACH OF INTERNATIONAL LAW State responsibility provides that a breach of an international obligation gives rise to a requirement for reparation. In theory every breach of international law, whether treaty or customary international law, involves state responsibility. The arbitral tribunal in Rainbow Warrior (New Zealand v France) noted that international law did not distinguish between contractual and tortious responsibility, so that any violation by a state of any obligation gives rise to state responsibility and consequently to the duty of reparation. This is also reflected in Art 12 ARSIWA. ILC Articles on the Responsibility of States for Internationally Wrongful Act (ARSIWA) Article l Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that State. Article 2 Elements of an internationally wrongful act of a State 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. Article 3 Characterization of an act of a State as internationally wrongful The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. Article 12 Existence of a breach of an international obligation There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character. Article 13 International obligation in force for a State An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs. Article 14 Extension in time of the breach of an international obligation
1. The breach of an international obligation by an act of a State not having a
continuing character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation. Article 15 Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation. Article 16 Aid or assistance in the commission of an internationally wrongful act A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. Article 17 Direction and control exercised over the commission of an internationally wrongful act A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. Article 18 Coercion of another State A State which coerces another State to commit an act is internationally responsible for that act if: (a) the act would, but for the coercion, be an internationally wrongful act of the coerced State; and (b) the coercing State does so with knowledge of the circumstances of the act.
THE RELEVANCE OF INTENTION/FAULT There are contending theories as to whether responsibility of the state for unlawful acts or omissions is strict or whether it is necessary to show some fault or intention on the part of the officials concerned.
The principle of objective responsibility maintains that the liability of the state is strict and based on the premise of creating a risk. Once an unlawful act has taken place, which has caused injury and which has been committed by an agent of the state, that state will be responsible in international law to the state suffering the damage irrespective of whether or not negligence, recklessness, intent or bad faith were involved.In the Caire Claim (France v Mexico), the French-Mexican Claims Commission held that Mexico was responsible for the injury caused to France by the shooting of a French citizen by Mexican soldiers in accordance with the objective responsibility doctrine. Responsibility for the acts of the officials or organs may devolve upon the State even in the absence of any intentional or negligent conduct on the part of its agents.
The principle of subjective responsibility emphasises that an element of intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is necessary before his state can be rendered liable for any injury caused.In the Home Missionary Society Claim (US v Britain), the imposition of a 'hut tax' in the protectorate of Sierra Leone triggered a local uprising in which Society property was damaged and missionaries killed. The tribunal dismissed the claim of the Society (presented by the US) and noted that it was established in international law that no government was responsible for the acts of rebels where its agents were not guilty of breaches of good faith or negligence.
The Commentary to the ILC Articles emphasised that the Articles did not take a definitive position on this controversy, but noted that standards as to objective or subjective approaches, fault, negligence or want of due diligence would vary from one context to another depending upon the terms of the primary obligation in question. In recent decades the doctrinal debate has lost much of its practical importance, considering that in view of the expansion and growing complexity of state organs and activities, the application of the subjective fault principle has become more difficult and less practical. Unless a state intentionally directs and controls a wrongful act of another state or coerces it to commit such act, international tribunals do not inquire whether a state's agent acted with intent to perform an internationally wrongful act. Intent or fault is not regarded as a discrete element of state responsibility but is taken into account in the assessment of compensation or within the context of circumstances precluding wrongfulness.
ATTRIBUTION OF ACTS AND OMISSIONS TO STATES General Aspects Every breach of duty on the part of states must arise by reason of the act or omission of one or more organs or agents, as the state as an abstract legal entity cannot, in reality, 'act' for itself. The state is not responsible under international law for ALL acts performed by its nationals, it is responsible only for acts of its servants that are imputable or attributable to it. Attribution is the legal fiction which assimilates the actions or omissions of state officials to the state itself and which renders the state liable for damage resulting to the property or person of an alien. The status of the individual actor is only one factor in establishing attribution - in effect, a causal connection between the corporate entity of the state and the harm done. State Organs Article 4 Conduct of organs of a State
1. 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.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State. This approach reflects customary law. Early arbitrations established the principle that governmental action or omission by the executive gives rise to international responsibility. This was most visible in the failure by states to provide security to foreigners and their property. In Massey (US v Mexico), the US recovered damages by reason of the failure of the Mexican authorities to take adequate measures to punish the killer of a US citizen working in Mexico. LaGrand (Germany v USA) is an example of the responsibility of federal states for acts of authorities of units of the federations. Two German nationals in the US had been condemned to capital punishment in Arizona without regard for their consular rights under the Vienna Convention. The Court ordered the stay of the executions and observed that the domestic distribution of functions between federated entitles is irrelevant: the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State. The Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States. Persons exercising governmental authority Article 5 Conduct of persons or entities exercising elements of governmental authority The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the
governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. In Armed Activities (DRC v Uganda), the ICJ held that Uganda was responsible for the acts and omissions of members of its armed forces on the territory of the DRC. While the conduct of the UPDF as a whole is clearly attributable to Uganda, being the conduct of a State organ, Uganda contended that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, but this argument was rejected. By virtue of their military status and function, the persons concerned were exercising governmental authority. Accordingly, their conduct is attributable to Uganda. Ultra Vires or Unauthorised Acts Article 7 Excess of authority or contravention of instructions 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. In international law, pleas of unlawfulness under domestic law are rejected when assessing the responsibility of the state. This was acknowledged by the ICJ in Armed Activities (DRC v Uganda), who held that it was irrelevant for the attribution of their conduct to Uganda whether the UPDF personnel acted contrary to the instructions given or exceeded their authority. State Control and Responsibility Article 8 Conduct directed or controlled by a State 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. Another issue is the question of attribution for the acts of entities not belonging to the state or acting under official governmental authority but which hold enough links with the state that a degree of control by the state can be envisaged. Difficulties have arisen in seeking to define the necessary direction or control required. The Commentary to the article emphasises that such conduct will be attributable to the state only if it directed or controlled the specific operation and the conduct complained of was an integral part of the operation. In Paramilitary Activities (Nicaragua v USA), the ICJ declared that in order for the conduct of the contra guerrillas to have been attributable to the US, who financed and equipped the force, 'it would in principle have to be proved that
state had EFFECTIVE CONTROL of the military or paramilitary operation in the course of which the alleged violations were committed'. General overall control would have been insufficient to ground responsibility-USA not responsible as the court wasn't satisfied that the operations launched by the contras force, "AT EVERY STAGE OF THE CONFLICT", reflected strategy and tactics "wholly devised" by the USA
? Finding in spite that a number of operations and paramilitary activities planned (practical assistance), if not by the US advisors, then at least in close collaboration with them + supply of aircraft to the contras by USA
+ financial support Court established that the United States authorities largely financed, trained, equipped, armed and organized the contras
? But this does not warrant a finding that the US gave "direct and critical combat support"
? Because once US aid stopped, contras activities continued ->
indicates that this is insufficient to establish that the contras activities were entirely dependent on the US aid o Though ICJ held that initial years of assistance by USA to contras, indicates contras were dependent on the US aid ->
but held insufficient evidence to conclude that contra entirely dependent on aid as US did not make use of the "potential for control inherent in that dependence" ie US didn't turn that initial dependence into a lasting one o Albeit ICJ stressed "that a degree of control by the United States Government, as described above is inherent in the position in which the contra force finds itself in relation to that Government" Ultimately failed on control element -> because all these activities DID NOT MEAN that USA had effective control over the contras, contras could still conduct these activities even if USA did not have effective control
? ICJ also rejected Nicaragua's argument that the contras were merely mercenaries recruited by the US, ie the contras did not have any cause to fight for, only fighting for money at USA's coordination
However, in the Tadic Appeal, the International Criminal Tribunal adopted a more flexible approach, noting that the degree of control might vary according to the circumstances and a high threshold might not always be required. A lower threshold may be warranted where the state deemed responsible was in clear and uncontested effective control of the territory where the violation occurred. - "OVERALL CONTROL" In the Genocide (Bosnia v Serbia) case, the ICJ reaffirmed its approach in the Nicaragua case. It held that the 'overall control' test was not sufficient for state responsibility and that the test under customary international law was that reflected in Art 8 whereby the state would be responsible for the acts of persons or groups (neither state organs nor equated with such organs) where an organ of the state gave the instructions or provided the direction pursuant to which
the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed.-
? Serbia not liable as the Applicant has not proved that instructions were issued by the federal authorities in Belgrade, or by any other organ of the FRY, to commit the massacres
? Test is still of "COMPLETE DEPENDENCE on the State that they cannot be considered otherwise than an organ of the State"
- could it be this doesn't have to be satisfied so long no effective control?
o No special exception for genocide Rejected Tadic's "overall control test" that allowed for Bosnian Serbs could give rise to international responsibility of the FRY on the basis of the overall control exercised by the FRY over the Republika Srpska and the VRS, without there being any need to prove that each operation during which acts were committed in breach of international law was carried out on the FRY's instructions, or under its effective control
? Tadic test would broaden the scope of state responsibility well beyond the fundamental principle governing international law: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf
? This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed It has not been shown that the FRY army took part in the massacres, nor that the political leaders of the FRY had a hand in preparing, planning or in any way carrying out the massacres
? Though admitted that there evidence of participation by FRY army in military operations -> but this doesn't show participation towards the massacres
? Also couldn't show that the de facto groups like the "Scorpions" were under the control of government -> only evidence was General saying "they would have been under the command of Mladic' and part of the chain of the command of the VRS", not enough evidence to say under effective control
Article 9 Conduct carried out in the absence or default of the official authorities 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. Article 11 Conduct acknowledged and adopted by a State as its own 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
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