8 : State responsbility

Question 1

Rationale behind responsibility ?

Answer 1

When laws are breached, there have to be consequences. Otherwise, law is no longer law

Question 2

Characteristics of sanction in IL ? (3)

Answer 2

1/ sanction in IL does not refer to the same concepts and ideas as in domestic legal orders

2/ sanction is constructed in a more sophisticated sense

3/ international responsibility is one of the sanctions that allow IL to be characterised as law

Question 3

What did the Chorzow Factory case say in relation to international responsibility ?

Answer 3

any breach of an engagement involves an obligation to make reparation

=> this is a principle of IL + a general conception of law

Question 4

What can responsibility be understood as ? (2)

Answer 4

1/ set of rules governing the legal consequences arising from a breach of an int obligation

2/ legal regime that attaches to the breach of a norm

Question 5

What distinction did Hart introduce ? (2)

Answer 5

1/ primary norms : relate to the conduct of States

2/ secondary norms : attach consequences to the breach of primary norms

Question 6

What can be said about the codification of the IL on State responsibility ? (4)

Answer 6

1/ 1930s : early efforts to codify responsibility for injuries caused to aliens

2/ 1945 : creation of ILC which took over project on State responsibility and held 2 readings (1949-96 ; 1998-2001)

3/ 1996 : appointment of Roberto Ago as Special Rapporteur on State responsibility

4/ 2001 : completion of Articles on Responsibility of States for Internationally Wrongful Acts

Question 7

Is ARSIWA a convention ? (2)

Answer 7

1/ no, it was not adopted as a convention and its instrumentum is not binding

2/ but its content does reflect CIL rules in various parts

Question 8

Structure of ILC ARSIWA ? (3)

Answer 8

1/ the internationally wrongful act (arts. 1-27)

2/ content of int responsibility (arts. 27-41)

3/ implementation of responsibility (arts. 42-58)

Question 9

Characteristics of internationally wrongful act ? (see Art. 2 ARSIWA) (3)

Answer 9

1/ action or omission

2/ attributable to a State under IL

3/ breach of an int obligation of that State

Question 10

Reasoning in the determining of whether an internationally wrongful act took place ? (3)

Answer 10

1/ attribution

2/ breach of int obligation

3/ circumstance(s) precluding wrongfulness ?

Question 11

What are the grounds of attribution ? (Arts. 4-11 ARSIWA) (8)

Answer 11

Art. 4 conduct of State organs

Art. 5 conduct of entities exercising elements of governmental authority

Art. 6 conduct of State organs placed at the disposal of another State

Art. 7 ultra vires acts of entity falling within the scope of the 3 above mentioned categories

Art. 8 conduct of a person/group of persons instructed, directed or controlled by a State

Art. 9 conduct in the absence or default of the official authorities

Art. 10 conduct of an insurrectional or other movement

Art. 11 conduct acknowledged and adopted by a State as its own

Question 12

Characteristics of the breach of an int obligation ? (see Art. 12 ARSIWA) (3)

Answer 12

1/ conduct of the State

2/ that is not in conformity with what is required by the int obligation

3/ regardless of origin/character of obligation

Question 13

What are, in principle, unnecessary conditions to prove the breach of an int obligation ? (3)

Answer 13

1/ damage

2/ fault

3/ but question of due diligence

Question 14

What does an obligation of due diligence entail ?

Answer 14

obligation to prevent a harm from happening

Question 15

What does due diligence require ? (3)

Answer 15

1/ int obligation of due diligence

2/ State’s knowledge of the danger

3/ failure to prevent the danger from happening

Question 16

Different circumstances precluding wrongfulness ? (6)

Answer 16

1/ consent

2/ self-defence

3/ countermeasures

4/ force majeure

5/ distress

6/ necessity

Question 17

Limits to legal effects of CPWs ? (4)

Answer 17

1/ conditions almost impossible to satisfy

2/ CPWs and compliance with jus cogens norms

3/ duration of the CPW

4/ question of compensation

Question 18

Characteristics of CPWs ? (3)

Answer 18

1/ reasons and situations in which it cannot be expected from a State to comply with its obligations

2/ circumstances have to subsist

3/ do not annul or terminate obligation but only suspend it

Question 19

Why could acts of the contras not be attributed to US ? (3)

Answer 19

1/ not created by US

2/ no participation of the US in concrete and direct military operations

3/ US however did help chose the leaders, provided financial support/training/equipment and helped the contras to organize themselves (but this general control is not enough for attribution)

Question 20

What are the 2 poles State responsibility is built around?

Answer 20

1/ responsibility for all acts of the State

2/ responsibility only for acts of the State itself

Question 21

What test did ICJ develop in the Nicaragua case to determine whether conduct of an armed group is attributable to a State ? And what does this test entail ? (3)

Answer 21

1/ effective control test

2/ State must have and exercise control over every specific situation in which breaches of IL were committed

3/ thus, general control/financing/training is not enough

Question 22

Why did ICTY have to deal with the question of attribution of State responsibility in Tadic case ? (3)

Answer 22

1/ its Statute confined its jurisdiction to grave breaches of IHL (Art. 2) or other violations of customary IHL (Art. 3)

2/ ICTY wanted to exercise its jurisdiction based on Art. 2 and thus needed to determine whether there was an IAC first

3/ an IAC requires a conflict btwn States, and thus question of whether acts of VRS and small independent Serbian entities were acting on behalf of FRY in Bosnia (i.e. attribution of these acts to FRY)

Question 23

What distinction did the ICTY put forward in its Tadic judgment in relation to attribution of acts to a State ? (3)

Answer 23

1/ private and isolated individuals => effective control test

2/ groups of individuals not hierarchically organized => effective control test

3/ organized and hierarchically structured groups => overall control test

Question 24

How can “overall control” be defined ? (3)

Answer 24

1/ organized and hierarchically structured group

2/ financial/logistical/other support ; participation in the general direction, coordination and supervision of activities/operations of the group

3/ thus, no need to control every specific situation in which violations of IL occurred, but control of a more general nature

Question 25

What is the reasoning when dealing with Article 8 ARSIWA ? (4)

Answer 25

1/ check whether there are instructions/directions

2/ if none, apply the control test

3/ explain there are 2 interpretations of the control test (effective & overall) and which one is the relevant criteria in personal view

4/ apply test to facts of the case

Question 26

What are the 2 hypothesises for attribution the ICJ distinguishes in Bosnia v Serbia Genocide case ?

Answer 26

1/ complete dependency of individuals/entities towards the State

=> assimilation to State organs under Art. 4 ARSIWA + attribution of actions to State

2/ effective control test in relation to Art. 8 ARSIWA

=> effective control of the State on each specific operation of the person/group of persons in which IL was breached

Question 27

What was the second issue the ICJ was dealing with in the Bosnia v Serbia Genocide case, after it found genocide could not be attributed to Serbia ?

Answer 27

Question of complicity of Serbia in the commission of the genocide (see Art. 16 ARSIWA, aid and assistance)

Question 28

What did the ICJ find in relation to the potential complicity of Serbia in the commission of the genocide ? (3)

Answer 28

1/ genocide requires a special intent, i.e. a dolus specialis

2/ FRY provided aid and assistance to the VRS and Republika Srpska

3/ but FRY was unaware its aid/assistance was used to commit genocide

=> Serbia not an accomplice

Question 29

Conditions application Art. 16 ARSIWA (aid and assistance) ? (4)

Answer 29

1/ relation btwn States

2/ aid and assistance, and no link with instructions/directions/control of Art. 8 ARSIWA

3/ knowledge of the circumstances of the internationally wrongful act

4/ States bound by the same legal obligation