State responsibility (2) / basic principles of state responsibility / attribution of conduct (1) S10

Question 1

Explain what the ARSIWA covers

Answer 1

ARSIWA covers:
1) A: attribution: when acts are legally linked to a state

2) R: Joint/collective responsibility

3) S: Excusing circumstances (e.g., necessity, force majeure)

4) Legal consequences of wrongful acts

5) Who can invoke responsibility

Question 2

Explain what is the core principle of state responsibility

Answer 2

Core responsibility of state responsibility: a state is held internationally responsible when it commits an internationally wrongful act (ILC Article 1)

Question 3

Name the key elements for state responsibility

Answer 3

Key elements state responsibility:
1) Breach of an international obligation

2) Attribution of the act to the state

Question 4

Name and explain the rules with regarding to attribution of the act to the state as key element of state responsibility

Answer 4

Rules with regarding to attribution of the act to the state as key element of state responsibility:
1) No Need for Damage: a breach can occur without material harm: violation of a rule alone can trigger responsibility

2) Unified Legal Approach: international law does not separate liability into categories like civil or criminal as national systems do. All wrongful acts are treated under a single framework

3) No “International Crimes” of States: while the idea of criminal liability for states was rejected, state officials can still be prosecuted for serious international crimes

Question 5

Explain what is stated in ILC Article 3

Answer 5

ILC Article 3: National Law is No Excuse: a state cannot justify breaching international obligations by pointing to its national laws

Question 6

Explain what is meant by ‘attribution of conduct’

Answer 6

Attribution of conduct: attribution determines when wrongful conduct is legally linked to a state

Question 7

Name and explain the general rule with regarding to the attribution of conduct

Answer 7

General rule attribution of conduct: a state is responsible for acts of its official organs (executive, legislative, judiciary), even if those officials act beyond their authority (ultra vires), as long as they appear to act in an official capacity

Question 8

Explain if states are responsible for private individuals/groups

Answer 8

No, states are not responsible for private individuals/groups, unless:
1) The state delegate government functions to individuals/groups

2) The state instruct, direct, or exercise effective control over them

Question 9

Explain the rule about borrowed organs with regarding to state responsibility

Answer 9

If a state uses officials from another another state (= borrowed organs), state responsibility lies with the receiving state (= the state that uses the officials from another state), unless the lending state retains control

Question 10

Explain the rule about rebels and insurrectional movements with regarding to state responsibility

Answer 10

A state is not responsible for rebel actions, unless t
1) The group comes to power

2) The group forms a new state, in which case the new authority assumes responsibility