PIL: L5 – State Responsibility
What happens when obligations are breached:
…in a state?
- Torts, contract, criminal law…
- Damages, specific performance, criminal sanctions, penalties
…in international law?
- State responsibility, individual criminal responsibility
- Restitution, reparations, satisfaction
Distinguish between…
- Substance of the law (what the rules are)
- Procedure and consequences for breaches (secondary rules)
State Responsibility:
States are the principal bearers of international obligations
What amounts to a breach of international law by a State depends on the actual
content of that State’s international obligations
States have a different range of treaty and other commitments and
correspondingly distinct responsibilities
The underlying concepts of State responsibility—attribution, breach, excuses, and
consequences—are general in character
When one state commits an internationally wrongful act against another state
international responsibility is established between the two
A breach gives rise to an obligation to make reparation for injury caused by that
breach
International Law Commission (ILC) Draft Articles on Responsibility of States for
Internationally Wrongful Acts, adopted on 10 August 2001
Represent principles of customary international law
Not adopted as a treaty, but widely considered as setting out the rules on state
responsibility
Applies to states
I Origin of responsibility
II Content, form and degrees of responsibility
III settlement of disputes and international responsibility
Draft Articles on the Responsibility of International Organizations (DARIO) (2011)
applies to acts of international organizations – but largely reflect principles in the
DARSIWA
Rainbow Warrior Arbitration:
France and New Zealand (1990)
- France had been carrying out nuclear tests in the Mururoa Atoll in French
Polynesia
- French agents destroyed the Rainbow Warrior in Auckland harbour (denied
involvement)
, - Dispute arbitrated by UN Secretary-General Javier Pérez de Cuéllar
- France acknowldeged ‘the attack carried out against the Rainbow Warrior took
place in violation of the territorial sovereignty of New Zealand and that it was
therefore committed in violation of international law’
- NZ sought:
o a formal and unqualified apology for the violation of its sovereignty
o reimbursement of all costs which were the direct result of France’s unlawful
o compensation for the violation of its sovereignty
- France: assumption of responsibility it was entitled to obtain the release of its
agents
- Tribunal concluded that the condemnation of France, made public by the
Tribunal’s decision, constituted appropriate satisfaction for the legal and moral
damage caused to New Zealand
Gabčíkovo-Nagymaros Case (Hungary/Slovakia):
Whether or not a treaty is in force (law of treaties)
Whether suspension/denunciation is incompatible with the law of treaties (state
responsibility)
State Responsibility:
State Responsibility arises:
1. Existence of an international legal obligation
2. Act of omission that violates that obligation, which is imputable to that state
3. Loss or damage was caused as a result of the breach
Duty to make reparations for loss. Responsibility is the necessary corollary of the
legal obligation
State Responsibility:
Article 1 – “Every internationally wrongful act of a State entails the international
responsibility of that State.”
Article 2 – “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 – “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 – “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 – “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.”
A State is only responsible for breach of an obligation if the relevant obligation is in
force for that State at the time of the breach
What happens when obligations are breached:
…in a state?
- Torts, contract, criminal law…
- Damages, specific performance, criminal sanctions, penalties
…in international law?
- State responsibility, individual criminal responsibility
- Restitution, reparations, satisfaction
Distinguish between…
- Substance of the law (what the rules are)
- Procedure and consequences for breaches (secondary rules)
State Responsibility:
States are the principal bearers of international obligations
What amounts to a breach of international law by a State depends on the actual
content of that State’s international obligations
States have a different range of treaty and other commitments and
correspondingly distinct responsibilities
The underlying concepts of State responsibility—attribution, breach, excuses, and
consequences—are general in character
When one state commits an internationally wrongful act against another state
international responsibility is established between the two
A breach gives rise to an obligation to make reparation for injury caused by that
breach
International Law Commission (ILC) Draft Articles on Responsibility of States for
Internationally Wrongful Acts, adopted on 10 August 2001
Represent principles of customary international law
Not adopted as a treaty, but widely considered as setting out the rules on state
responsibility
Applies to states
I Origin of responsibility
II Content, form and degrees of responsibility
III settlement of disputes and international responsibility
Draft Articles on the Responsibility of International Organizations (DARIO) (2011)
applies to acts of international organizations – but largely reflect principles in the
DARSIWA
Rainbow Warrior Arbitration:
France and New Zealand (1990)
- France had been carrying out nuclear tests in the Mururoa Atoll in French
Polynesia
- French agents destroyed the Rainbow Warrior in Auckland harbour (denied
involvement)
, - Dispute arbitrated by UN Secretary-General Javier Pérez de Cuéllar
- France acknowldeged ‘the attack carried out against the Rainbow Warrior took
place in violation of the territorial sovereignty of New Zealand and that it was
therefore committed in violation of international law’
- NZ sought:
o a formal and unqualified apology for the violation of its sovereignty
o reimbursement of all costs which were the direct result of France’s unlawful
o compensation for the violation of its sovereignty
- France: assumption of responsibility it was entitled to obtain the release of its
agents
- Tribunal concluded that the condemnation of France, made public by the
Tribunal’s decision, constituted appropriate satisfaction for the legal and moral
damage caused to New Zealand
Gabčíkovo-Nagymaros Case (Hungary/Slovakia):
Whether or not a treaty is in force (law of treaties)
Whether suspension/denunciation is incompatible with the law of treaties (state
responsibility)
State Responsibility:
State Responsibility arises:
1. Existence of an international legal obligation
2. Act of omission that violates that obligation, which is imputable to that state
3. Loss or damage was caused as a result of the breach
Duty to make reparations for loss. Responsibility is the necessary corollary of the
legal obligation
State Responsibility:
Article 1 – “Every internationally wrongful act of a State entails the international
responsibility of that State.”
Article 2 – “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 – “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 – “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 – “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.”
A State is only responsible for breach of an obligation if the relevant obligation is in
force for that State at the time of the breach
