9 : State responsibility (II)

Question 1

What is the content of int resp. made up of ? (2)

Answer 1

1/ general content applicable to any breach of IL

2/ specific content applicable only to serious breaches of jus cogens norms

Question 2

What are the 3 main elements of the general content of int resp. applicable to any breach of IL ?

Answer 2

1/ continued duty of performance (Art. 29 ARSIWA)

2/ cessation and non-repetition (Art. 30 ARSIWA)

3/ reparation (Art. 31 ARSIWA)

Question 3

What are 2 obligations of the State responsible for an internationally wrongful act according to Art. 30 ARSIWA ?

Answer 3

1/ obligation to cease the act if it is continuing

2/ obligation to offer appropriate assurances and guarantees of non-repetition if the circumstances so require

Question 4

What are 2 essential conditions for the delivery of an order for the cessation or discontinuance of a wrongful act ? (see Rainbow Warrior award, para 114)

Answer 4

1/ wrongful act has a continuing character

2/ violated rule is still in force

Question 5

What is the general rule in relation to the issuance of an order of assurances of non-repetition ? (see LaGrand case, paras 123-124) (2)

Answer 5

1/ good faith of State must be presumed

2/ only when circumstances so warrant (i.e. when there is a risk that the State will repeat the act or conduct in the future) can a court issue an order requesting assurances of non-repetition

Question 6

Characteristics of reparation ? (5)

Answer 6

Article 31 ARSIWA

1/ reparation must be full

2/ it must as far as possible wipe out all the consequences of the illegal act and reestablish the situation which would in all probability have existed if that act had not been committed (Chorzow Factory)

3/ injury which can be repaired includes material and moral damage

4/ causation (i.e. link btwn breach of IL and damage suffered)

5/ full reparation includes restitution, compensation and satisfaction

Question 7

Who has a right to reparation ? (3)

Answer 7

Article 33 ARSIWA

1/ another State

2/ several States

3/ international community as a whole

( ! ) Answer to question depends on character+content of obligation and circumstances of the breach

Question 8

What is the nature of the regime of State resp. for grave breaches of jus cogens norms ? (2)

Answer 8

1/ aggravated regime

2/ consequences are different and additional to consequences arising from general regime

Question 9

Conditions of application specific regime ? (3)

Answer 9

Article 40 ARSIWA

1/ serious breach (i.e. gross or systematic failure to fulfil obligation)

2/ by a State

3/ of obligation arising under a peremptory norm of general IL

Question 10

What are some examples of jus cogens norms ? (5)

Answer 10

1/ prohibition use of force

2/ prohib torture

3/ prohib genocide

4/ prohib racial discrimination

5/ respect right to self-determination

Question 11

Does Article 40 ARSIWA reflect CIL ?

Answer 11

there are discussions about this, it is not clear and ICJ seems reluctant to rely on Article 40

Question 12

What are the aggravated legal consequences of the breach of a jus cogens norm ? (3)

Answer 12

Article 41 ARSIWA

1/ duty to cooperate to bring the breach to an end through lawful means

2/ duty of non-recognition and prohibition to render aid or assistance in maintaining unlawful situation

3/ also application of consequences set out by general regime

Question 13

What do you rely on when dealing with the implementation of int resp ? (2)

Answer 13

1/ reliance on erga omnes character of obligation as basis for standing

2/ this has to be distinguished from jus cogens nature of norm which relates to the hierarchy of norms

Question 14

What does Article 42 ARSIWA provide for ? (3)

Answer 14

1/ invocation of responsibility by an injured State

2/ when obligation breached is owed to it individually

3/ or when obligation breached is owed to a group of States/int community and

a) the invoking State is specially affected or
b) the breach is of such a character as to radically change the position of all other States

Question 15

What is the logic underlying Article 42 ARSIWA ?

Answer 15

obligations are of a reciprocal character

Question 16

What does Article 48 ARSIWA provide for ? (3)

Answer 16

1/ invocation of responsibility by a State other than an injured State

2/ obligation breached is owed to a group of States + protection of collective interest of the group

3/ obligation breached is owed to int community

Question 17

Which types of obligations does Article 48 ARSIWA distinguish ? (2)

Answer 17

1/ obligations erga omnes (obligations owed to int community as a whole)

2/ obligations erga omnes partes (obligations owed to parties to a relevant treaty and aiming to protect a collective interest)

Question 18

When invoking an obligation erga omnes, what can a claiming State not request ?

Answer 18

Compensation bc its only interest is to ensure compliance with the obligation

Question 19

Which ARSIWA articles relate to the standing of States ? (2)

Answer 19

1/ Art. 42 : injured State invokes resp

2/ Art. 48 : State other than the injured State invokes resp

Question 20

What distinction did the ICJ draw in the 1966 South West Africa judgment ? (2)

Answer 20

Seeks to determine standing of LIB and ETH by looking at provisions of South Africa’s mandate

1/ provisions aimed at protecting special interests of members of the League

2/ provisions related to the conduct of the mandatory power

Question 21

What did the ICJ find in its 1966 South West Africa judgment ? (2)

Answer 21

1/ LIB and ETH have a right to request compliance by South Africa with provisions protecting their special interests

2/ LIB and ETH however do not have standing to invoke compliance with obligations of conduct as these obligations do not create rights for the 2 States

Question 22

How did ICJ gradually change its approach after 1966 South West Africa judgment ? (3)

Answer 22

1/ evolutionary approach to CIL (North Sea Continental Shelf)

2/ change in procedural rules

3/ recognition of obligations erga omnes (Barcelona Traction, 1970)

Question 23

How did ICJ find BEL had standing in Obligation to prosecute or extradite (BEL v SEN) judgment ? (3)

Answer 23

1/ Convention against Torture seeks to protect a collective interest btwn parties

2/ a member of the community can thus require compliance with the provisions of the CT by another party

3/ these obligations are called obligations erga omnes inter partes

Question 24

Thoughts on extension of locus standi and recognition of obligations erga omnes inter partes ? (3)

Answer 24

1/ good thing that a member which has a collective interest can bring a case before ICJ even though not specially affected

2/ however danger of power politics in disguise

3/ thus, need to make sure this extension is used in an equal, coherent and consistent manner

Question 25

Conditions for diplomatic protection ? (4)

Answer 25

1/ breach of IL

2/ nationality

3/ exhaustion of local remedies

4/ some also invoke clean hands doctrine