Section 5 - State Responsibility Flashcards
when is a state responsible in intl law?
A state is responsible in international law for conduct in breach of its international obligations
Does state responsibility belong to customary or treaty law, and why?
The law of state responsibility is customary international law. Unlike state immunity, which has been developed largely by domestic legislation and domestic courts, state responsibility is pre-eminently an area of international law developed by state practice and international judgments,
define international obligation
an obligation owed under international law by
one state to another state (therefore ‘primary obligation’);
define primary rules
‘primary rules’: the rules of international law which determine whether
there has been a breach of a primary obligation
define secondary rules
‘secondary rules’: the rules of international law which determine whether a breach of a primary obligation is attributable to a state and the legal consequences (i.e. the law of state responsibility);
define internationally wrongful act
a breach of a primary obligation which is
attributable to a state;
what is an injury?
the effect of an internationally wrongful act on another state or its nationals, including any damage, material or moral;
what is an injured state
the state harmed by the injury;
what is a responsible state?
the state which caused, or is believed to have caused,
the injury;
When is an act wrongful?
Articles 1, 2 and 3 provide that every internationally wrongful act of a state entails its international responsibility The act is wrongful only when conduct (a) is attributable to that state under international law and (b) constitutes a breach of an international obligation of that state
when can responsibility be attributed to a state?
For a state to be responsible, the conduct in questionmust be attributable to the state. The general rule is that only the conduct of a state’s organs of government or its agents (persons or entities acting under the direction, instigation or control of those organs) can be attributable to the state.
give an example of when a person can be considered as an organ of the state
It also includes persons or entities that in fact act as organs, even if they are not classified as such by internal law. Police forces outside London are not treated in UK law as state organs,15 but are regarded as such in
international law since their task, the maintenance of law and order, is a fundamental function of the state.
Can pure;y personal act committed by person of state be attributed to a state?
No. Purely personal acts cannot be attributed to a state, even if committed by someone who is clearly an agent of the state, such as an assault by a policewoman on a foreign national she catches in bed with her husband, even if the assailant has not yet taken off her uniform
what happens If an organ of state A is ‘placed at the disposal’ of state B to exercise elements of governmental authority of state?
If an organ of state A is ‘placed at the disposal’ of state B to exercise elements of governmental authority of state B, its conduct is considered an act of state B (Article 6). The organ must be acting with the consent, and under the authority and direction and control, of the other state and for its purposes.
explain unauthorised/ultra vires conduct and wrongful acts
The conduct of state organs, or persons or entities empowered to exercise elements of governmental authority, are considered acts of the state if those organs, persons or entities act in that capacity, and even if they exceed 1their authority or contravene instructions (Article 7). This is a strict rule, states having sought to evade responsibility by claiming that the conduct was unauthorised.
this is often the case with torture
Under which condiitons is the conduct of an individual person attributable to a state?
(1) they are in fact exercising elements of governmental authority, even if this is on their own initiative;
(2) they do so in the absence or default of the official authorities, which may be due to the total or partial collapse of state institutions;
(3) the circumstances ‘call for’ the exercise of those elements of governmental authority, in that there is a need for the functions to be carried on
what were the findings of the court in the Tehran Hostages case in regards to attribution of responsibility?
In the Tehran Hostages case, the International Court of Justice found that the seizure of the US embassy and the detention of its staff by militant students was attributable to Iran. By subsequently endorsing the actions and perpetuating them, organs of the Iranian state hadmadethose actions into acts of the state
what is considered a breach of international obligation?
That will be the case if the act is ‘not in conformity with what is required of [the state] by that obligation’, and regardless of the origin or character of the obligation.
To determine whether there has actually been a breach of an international obligation,
has to examine the facts of each case in the light of the primary rules, whether contained in a treaty or in customary international law.
International law does not draw the distinction found in domestic law between contractual and tortious responsibility, and therefore, in deciding whether there has been a breach of a treaty, one may have to interpret its provisions in the light of relevant customary international law.
An international obligation can exist in respect of any matter. The enactment of legislation that is in conflict with an international obligation will not necessarily amount to a breach: it depends how the legislation is given effect
what is the intemporal rule in IL?
‘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.’
This is a general principle of international law: an act must be judged according to the applicable international law at the time, not the law when a dispute about it arises, which could be many years later
what is a big issue when intl obligation breaches are extended in time?
Identifying when an internationally wrongful act begins, and how long it continues, is a problem that often arises. Article 14(1) provides that the breach of an international obligation by an act that itself does not have a ‘continuing character’ occurs at the moment the act is performed, even if its effects continue.When awrongful act has been completed but its effects continue (for example, pain fromtorture), this prolongation is relevant to the amount of compensation. A breach by an act that does have a continuing character extends over the entire period the wrongful act continues, such as unlawful occupation of territory or an embassy
how would genocide be considered a breach of internaitonal obligations?
The breach of an international obligation through a series of acts ‘defined in the aggregate as wrongful’ occurs when conduct occurs which, taken with other acts, is sufficient to constitute thewrongful act. The breach then extends over the entire period the acts are repeated and are still wrongful (Article 15). Genocide or systematic acts of discrimination prohibited by a trade agreement would fall into this category
which circumstances preclude wrongfulness in international law?
1 - when consent is given
2 - self defence
3 - force majeure
4 - distress
5 - necessity
what is the difference between jus ad bellum and jus in bello?
law on the use of force (jus ad bellum)
law of armed conflict (jus in bello)
what is the substance of repsonsibility in intl wrongful acts?
obligation to make reparation. they also have to cease the act, and offcer appropriate assurances and guarantees in case they cant
