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International Responsibility lecture notes week 1 - 7
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Very comprehensive and clear lecture notes week 1 - 7 (with preparatory questions and explanation of case law).
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International responsibilityPreparation lecture 1 – the concept of international responsibility
1. James Crawford and Simon Olleson, 'The Nature and Forms of International Responsibility':
a. Does the law of international responsibility distinguish types or degrees of liability according
to the source of the obligation breached, such as crime, contract or tort?
National legal systems often distinguish types or degrees of liability according to the source
of the obligation breached – for example, crime, contract, tort, or delict. In international law
it appears that there is no general distinction of this kind.
b. Does international law have a general requirement of fault before international responsibility
can be incurred? Why (not)?
There has been a major debate about whether international law has a general requirement
of fault before international responsibility can be incurred. The case law tends to support the
objective school (e.g., ICJ Corfu Channel), which states that international law does not
require fault on the part of the state. However, there is neither a rule that responsibility is
always based on fault, nor one that it is always independent of it, so there is no presumption
either way. But in any event circumstances alter cases and it illusory to seek for a single
dominant rule. Where responsibility is essentially based on acts of omission, considerations
of fault loom large. But if a state deliberately carries out some specific act, there is less room
for it to argue that the harmful consequences were unintended and should be disregarded.
In conclusion, most important, the ARSIWA endorses a more nuanced view. Under
arts. 2 and 12 ARSIWA, the international law of state responsibility does not require fault
before acts or omissions may be characterized as internationally wrongful.
Philip Allot, 'State Responsibility and the Unmaking of International Law':
a. What does the author mean when he distinguishes between the obligations-approach, the
delicts approach and the principles approach to the law of state responsibility?
It is possible to extract from the earlier codification efforts three different approaches to the
technical problem of codifying the law of state responsibility. These might be called:
o The "delicts" approach: identifying the delictual acts which give rise to responsibility,
such as denial of justice, expropriation, or government-sponsored personal injury;
o The "obligations" approach: identifying the obligations, breach of which gives rise to
responsibility, including obligations other than those regarding the treatment of
individual aliens;
o The "principles" approach: determining the rules and principles of international law
applying to all kinds of unlawful acts.
b. What approach was ultimately adopted by the ILC in its work on state responsibility?
The ILC chose for the “principles approach”.
c. Why does the author characterize the notion of responsibility as a “dangerous fiction”?
The aspect of the draft articles on state responsibility that demands particular attention is
their fundamental structural feature - the postulation of a concept of "responsibility-arising-
from-wrongfulness" distinct from the wrongful act and from the consequences of a wrongful
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, act. This middle category is a dangerous fiction, an unnecessary intrusion into the systematic
structure of a legal system. But it is not merely analytically unnecessary. In the particular case
of international law, it entails consequences of the most serious and undesirable kind.
Georg Nolte, ‘From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State
Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-State Relations’:
a. What is meant by the traditional bilateral conception of international law, and how was/is it
manifested in the law of international responsibility?
Most cases that one would look at in the context of international responsibility will deal with
disputes between two states. This implies that only violations of obligations between two
states can give rise to responsibility under international law. According to Anzilotti, the
(sovereign) equality of states excluded the invocation by one state the responsibility of
another state for violations of the rights of a third state (or the community of states as a
whole).
b. In what ways did Lauterpacht’s and Ago’s ideas diverge from this bilateral conception?
Ago postulates obligations towards the international community of states as a whole. So,
violations of obligations of international law can also give rise to international responsibility if
an obligation is breached towards the international community of states, because it is not
limited to the relationship between two states.
André Nollkaemper, ‘Introduction’ in A Nollkaemper and I Plakokefalos, Principles of Shared
Responsibility in International Law: An Appraisal of the State of the Art
a. What are contributing factors to the rise of situations of shared responsibility?
As states, international institutions and other actors increasingly engage in cooperative
action, the likelihood of harm resulting from such action multiplies. The increase in the
number of situations that appear to call for a shared responsibility is driven by
interdependence between states, underlying the passage from a society of coexistence to a
society of cooperation. This pattern of interdependence-induced shared responsibility is
supported by three trends.
1. The first is the increasing degree to which (some) states and other actors feel morally
compelled to act in relation to harm occurring elsewhere. An example is the notion of
‘responsibility to protect’ (R2P), which, because of its collective nature, raises questions
concerning the distribution of obligations to act.
2. The second supporting trend is the multiplication of actors that participate in the
cooperative pursuit of public goods.
3. The third supporting trend is the increased value attached to the accountability of
contributing actors. Both in practice and in legal scholarship, more weight is attached to
holding those who do not deliver accountable for their conduct. Many actors, including
the press, civil society and sometimes also states and international institutions are not
(always) content with putting all the blame on just one actor, who may be the most
visible wrongdoer, but extend blame to wider networks of actors who made the wrong
possible.
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, b. How does the author define the concept of shared responsibility?
In this volume the concept of shared responsibility refers to situations where a multiplicity of
actors contributes to a single harmful outcome, and legal responsibility for this harmful
outcome is distributed among more than one of the contributing actors.
ICJ Corfu Channel case (Judgment):
a. What different foundations for Albania’s responsibility did the UK base its claim on?
The obligations incumbent upon the Albanian authorities consisted in notifying the existence
of a minefield in Albanian territorial waters and in warning the approaching British warships
of the imminent danger to which the minefield exposed them. Such obligations are based on
certain general and well-recognized principles, namely: elementary considerations of
humanity, even more exacting in peace than in war; the principle of the freedom of maritime
communication; and every state’s obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other states.
b. On what basis did the Court ultimately decide that Albania was internationally responsible?
As the parties agree that the minefield had been recently laid, it must be concluded that the
operation was carried out during the period of close watch by the Albanian authorities in this
sector. Another indication of the Albanian government’s knowledge consists in the fact that
that government did not notify the presence of mines in its waters when it must have known
this. Furthermore, whereas the Greek government immediately appointed a commission to
inquire into the events, the Albanian government took no decision of such a nature, nor did it
proceed to the judicial investigation incumbent, in such a case, on the territorial sovereign.
This attitude does not seem reconcilable with the alleged ignorance of the Albanian
authorities that the minefield had been laid in Albanian territorial waters. It could be
explained if the Albanian government, while knowing of the minelaying, desired the
circumstances of the operation to remain secret.
In addition, the laying of a minefield in these waters could hardly fail to have been
observed by the Albanian coastal defences. On this subject, it must first be said that the
minelaying operation itself must have required a certain time. The ICJ cannot fail to give
great weight to the opinion of the experts who examined the locality in a manner giving
every guarantee of correct and impartial information.
In fact, Albania neither notified the existence of the minefield, nor warned the British
warships of the danger they were approaching. So, nothing was attempted by the Albanian
authorities to prevent the disaster. These grave omissions involve the international
responsibility of Albania.
c. Would you qualify the circumstances of this case as an example of shared responsibility?
The dispute was between Albania and the UK, but a third state was involved, namely
Yugoslavia that placed the mines. Given Yugoslavia's involvement in the placement of the
mines, one could speak of shared responsibility, even though the dispute is limited to two
states.
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, Lecture 1: the concept of international responsibility
>>>> Materials:
ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) and ILC
Articles on the Responsibility of International Organizations (ARIO): not all articles in the ARSIWA are
customary international law. Hence, when using the ARSIWA you must reflect in the light of other
materials whether that particular principle in question reflects customary international law.
>>>> The concept of international responsibility:
Definition:
There are two definitions of international responsibility:
- To say that someone is responsible means that that person is the author of an unlawful act –
breach of an international obligation – and is answerable in law to the injured party for the
act’s prejudicial consequences (Bin Cheng, 1953).
- There is responsibility when there is an infringement of a legal interest of one subject of the
law by another (Crawford).
It is important to make a distinction between on the one hand primary rules and on the other hand
secondary rules:
- Primary rules: prescribe the required conduct of states and organizations.
NB: not part of the law of responsibility.
- Secondary rules: determine the conditions under which the breach of a primary rule engages
responsibility, and it determines the consequences of that responsibility.
NB: part of the law of responsibility.
The central role of international obligations:
There are two elements of an internationally wrongful act:
1. Attribution: the conduct is attributed to the state.
2. Unlawful act: in all cases, responsibility is engaged when it is determined that there is a
breach of an international obligation.
o On the one hand, the contents of these international obligations (which are primary
rules) are as such not part of the law of responsibility. So, only the secondary rules are
part of the law of international responsibility.
o On the other hand, in responsibility claims the determination that a particular primary
rule is applicable and the interpretation of such an obligation in the light of the facts,
often is the most important part of a claim.
o ICJ Corfu Channel case: this case focuses on the question whether there was an
obligation and the question whether that obligation was breached in the light of the
facts. The ICJ did find that a wrongful act had been committed.
What are the facts of the case?
The dispute arose out of the explosions of mines by which some British warships
suffered damage while passing through the Corfu Channel in a part of the Albanian
waters which had been previously swept. The authors of the minelaying remain
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