What is it?
Determines the way in which states ought to be held responsible for violations of IL. Note distinction between direct and
indirect victim status of state (direct breach of breach of citizens).
Sources
- ILC began a process of codifying basic rules on SR in 1950’s.
- Highly controversial process, states have different views about SR, cannot be too lax or too strict.
- Adoption of ASRIWA – Articles on the Responsibilities of States for Internationally Wrongful Acts
- Not a treaty so not binding but seen as codification of CIL; articles adopted in UN General Assembly Resolution,
acknowledgement of the central status they have adopted.
Scope:
- State responsibility. No one else.
- Parallel rules exist for international organisations: Articles on the Responsibility of International Orgs. 2011.
- Two body of rules are almost identical.
Basics:
- Article 1 ASRIWA: ‘every internationally wrongful act of State entails the international responsibility of that State.
- Article 2: definition of an ‘internationally wrongful act’. Constitutes a two-stage process for establishing SR.
The role of fault/intention:
Two approaches:
- Objective approach: fault or intention is relevant. All that matters is that the act can be attributed to the state. Caire
Claim case. You are responsible even for the ultra vires acts of officials.
- Subjective approach: need additional element of fault/negligence before responsibility can occur. Corfu Channel
case.
Classification of wrongful acts:
Not possible to classify breaches at the international level because of the variety of concepts and limited number of tools.
E.g. “in the international law field, there is no distinction between contractual and tortious responsibility, so that any violation
of a State obligation of whatever origin gives rise to State Responsibility.’ Rainbow Warrior case.
E.g. When a State has committed an internationally wrongful act, its international responsibility is likely to be involved
whatever the nature of the obligation it has failed to respect.’ Gabčíkovo–Nagymaros Project (Hungary/Slovakia)
States as criminals?
- Suggestion in 1996 ILC draft article that some crimes were so heinous they could be considered as criminal for states.
This was abandoned. States cannot be put in prison so hard to have concept of criminal liability. But see articles
40/41 – perhaps not completely abandoned.
Attribution:
Which types of conduct will be attributable to a state?
- Clear that ordinary acts by private individuals will not entail SR.
- Noyes Case: ‘The mere fact that an alien has suffered at the hands of private persons an aggression, which could
have been averted by the presence of a sufficient police force on the spot, does not make a government liable for
damages under international law. There must be shown special circumstances from which the responsibility of the
authorities arises: either their behaviour in connection with the particular occurrence, or a general failure to comply
with their duty to maintain order, to prevent crimes or to prosecute and punish criminals.’.
STATE ORGANS
- Article 4: conduct of organs of a state.
- Article 7: excess of authority or contravention of instructions – even if it exceeds orders. See Youmans Claim where
, Mexico were still held to be liable. See alternatively Mullen case: not acting in official capacity so no SR.
- Article 5: allows coverage of non-state actors. E.g. private prisons. Actions traditionally carried out by State. Means
States cannot contract out of their international obligations.
What happens when a private actor has not been officially empowered?
I.e. that no contract exists. There are circumstances where private conduct will be attributable to the state:
- Article 8 ASRIWA: not empowered by law to act but doing so under direction or control of state. Noyes case.
Tehran hostages case: not controlled or directed by Iranian state but subsequent endorsement of actions and hence
conduct could be attributed to the insurgents. Seen here as applying retrospectively. Confusion about parameters.
How much direction and control is required?
- Nicaragua case: effective control test. US not responsible for contras, only their organs. Providing support not
sufficient to hold them responsible. They would have needed control of day to day operations which they didn’t. but
they organised, trained, supplied and equipped them; and planned the whole of its operation. Very high threshold.
- Prosecutor v Tadíc: move away from effective control test. When we are talking about groups, overall control should
be the test instead. Did a foreign state exercise overall control?
‘The requirement of international law for the attribution of acts performed by private individuals is that the State exercises
control over the individuals. The degree of control, may, however, vary according to the factual circumstances of each case.
The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the
test of control’.
- Bosnian Genocide: ICJ decided that real test was effective control, criticising approach taken in Tadíc: ‘[T]he overall
control test has the major drawback of broadening the scope of State responsibility well beyond the fundamental
principle governing the law of international responsibility: a State is responsible only for its own conduct, that is to
say the conduct of persons acting, on whatever basis, on its behalf... In this regard, the "overall control" test is
unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of
a State's organs and its international responsibility’
Attribution 2:
- Article 9: essentially if insurgents become the state, their actions will become attributable to the state once state is
back in power
- Article 10: conduct of insurrectional movement which becomes the state is after attributed to the state.
Attribution and international organisations:
- Article 7 ARIO: where state organs are placed at the disposal of IO, the IO can be held responsible if exercises
effective control over actions. Controversial in context of UN authorised operations.
Behrami/ Saramati v France: conduct was attributed to the UN and not France. Problem: what if chain of command suggest
MS retain high level of effective control?
Al Jedda v UK: neither UK or UN had effective control.
Netherlands v Nuhanovic: court will have regard to factual control over specific conduct. Possibility of dial attribution.
Jaloud v Netherlands: again, who actually had effective control of the troops?
Defences to SR:
- Article 20: Consent – example of military involvement. Hard to prove consent and its limits. E.g. assassination Ben
Laden in Pakistan.
- Article 21: Self-defence.
- Article 23: Force majeure.
- Article 24: Distress. E.g. airspace, if you believe someone to be in danger.
- Article 25: Necessity. Drafted negatively. See Torry Canyon, bombing of ship leaking oil.
- Article 22: Countermeasures.
See US French Air Services: requirements for countermeasures in article 52. And proportionality.
Remedies:
- Article 35: Restitution, when you can’t you move to:
- Article 36: Compensation, when you can’t you move to:
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