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1

Article 1, ILC Articles on State Responsibility 2001 (“ARSIWA”)

Every internationally wrongful act of a State entails the international responsibility
of that State.

2

How are the ILC Articles formulated?

The ILC Articles are formulated as “principles” or “secondary rules”. Wrongful conduct itself is defined by a relevant primary rule (ie the prohibition on the use of force, breach of a treaty provision, etc). Separation of primary and secondary rules is vital to the project:
“[I]t is one thing to define a rule and the content of the obligation it imposes, and another to determine whether that obligation has been violated and what should be the consequences of the violation”: Rapporteur Ago, (1970)

3

ARISWA: General vs Special rules

The Articles provide the general rules dealing with the attribution and consequences of wrongful conduct at international law. They may be displaced by specific rules (lex specialis): Art 55 and 56. Consider for instance the “self-contained” provisions of the WTO or ECHR treaty regimes.

4

ARISWA: CIL?

The ILC project was one of codification and progressive development: Not every article is necessarily CIL (although ICJ has yet to consider an ILC Article and not find it to be CIL).

5

General treaties on SR?

There is no general treaty on State responsibility (as there is for instance on the law of treaties, cf Vienna Convention on the Law of Treaties).

6

Status of ILC Articles: UNGAR 56/83 (2001)

takes notes of Articles and “commends them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action”.

7

Organisation of ARISWA

Breach of an international obligation: Articles 1-3, 12-15, 28-39.
Attribution: Articles 4-11
Invocation by injured State (i.e. standing): Articles 42, 47.
Invocation by a State other than an injured State (standing/actio popularis): Articles 48, 54
Circumstances precluding responsibility (i.e. defences): Articles 20-27.
Content of State responsibility (the legal relations stemming from a breach): Articles 28-30 (duties of continued performance, cessation and non-repetition); and duty to make reparation Articles 31-39 (restitution, monetary compensation or satisfaction).
Countermeasures (self-help enforcement): Articles 49, 54.

8

Art 2 ARISWA

There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
The elements of State responsibility are thus: conduct, breach and attribution .

9

Conduct

May be an act or omission.
Characterisation of the act is governed by International Law; legal status of the act under internal law is not relevant (Art 3 ARSIWA)

10

. Breach

The relevant breach is of an international law obligation “regardless of its origin or character” (Art 12): ie treaty, custom, jus cogens, unilateral undertaking.
Matters of internal law are not relevant and provide no excuse or defence (Art 3).
Obligation must be in force for the State at the relevant time (Art. 13)
Breach may be continuing (Art. 14) or consist of a composite act (Art. 15)

11

Attribution

Articles 4-11 ARISWA

12

Whose acts are State Acts? Under what conditions?

PCIJ in German Settlers in Poland Case PCIJ Ser. B, no. 6 [1923], “States can only act by and through their agents and representatives”.

13

Relationship between State Responsibility and State Immunity?

Tempting to conclude that the focus on State acts must mean there is some relationship with State immunity. While this will generally be true, there are notable exceptions. E.g., a State may be responsible for the unauthorised or ultra vires acts of officials which might not be considered State acts covered by immunity ratione materiae. Equally, conduct may be attributable to a State (which would normally attract immunity ratione materiae), but States have expressly (Genocide Convention, art. IV) or implicitly (R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 3) [2000] 1 AC 147) waived immunity for such acts.

14

Article 4: Ariswa

Conduct of organs of State
Baasically: Any State organ, and organ includes any person/entity which has that status in accordance w internal law of the State
But the final test is one of IL. so ational law is relevant, not decisive

15

Art 7 AriSWa

Excess of authority or contravention of instructions
If the organ is acting in their capacity, doesnt matter if exceeds authority/contravenes instrucitons

16

Mallen Case, Mexico v USA

(1) In the course of a private dispute an off-duty official assaults a foreigner;
(2) Days later, the official returns with gun and badge to arrest him (in abuse of his authority). Mexico is responsible for (2), but not (1).
Act (2) – even though characterized as an act of personal revenge by the tribunal – was carried out under the colour of the official’s ostensible authority and using means placed at his disposal by his official position. Act (1) did not involve the (mis)use of State authority or means.

17

The Rainbow Warrior (1986)
re Art 7

Greenpeace ship moored in Auckland Harbour, preparing to protest against French nuclear testing in the South Pacific.
Explosive devices attached to the hull of the Rainbow Warrior detonated, ship sank within minutes, killing a photographer on board.
Two French citizens arrested. France initially denied link to the French government, and offered France’s full cooperation in New Zealand’s investigations.
France subsequently admitted they were (‘DGSE’) agents, and that DGSE agents had been sent to New Zealand to gather intelligence on Greenpeace, but continued to deny responsibility for the explosions on the basis that neither the French government nor the DGSE had ordered the attack.
Were the DGSE agents acting ultra vires or in their private capacity? What difference does it make in terms of France’s responsibility for the bombing?
Under mounting media pressure in France, the French Government finally admitted responsibility for the bombing.
NZ and France could not agree on the reparations (what compensation should be paid, imprisonment of the agents etc)
The UN Secretary General was called upon to resolve the dispute.

18

Military and Paramilitary Activities in and against Nicaragua
re Responsibility for conduct of persons/entities that are not State organs

US financed the contras
Provided uniforms, ammunition, and communications and military equipment; Supplied the contras with intelligence on the movement of Nicaraguan troops (¶106);
and trained the contras (¶s101-2).
A number of the contras’ paramilitary operations were decided and planned in close collaboration with US advisers, and the US selected targets for the contras’ armed activities.
The Court distinguishes between two separate bases of attribution in the assigned paragraphs, one bearing on de facto organ status, and one setting out a de facto agent test. What are these two standards of attribution and what are their consequences vis a vis how much of the contras’ activities the US might have been responsible for had the Court found attributability?

19

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
re Responsibility for conduct of NSAs

Effective control (Nicaragua) vs Overall control (Tadic)
Test of control should be variable, dependent on context
Effective control is fine for Nicaragua, where US and contras shared same objective, but those could be achieved without war crimes/CAHs
But where the shared objective i the commission of INT crimes, to require control over the NSA, and the specific operations in the context of whcih INT crimes were committed is too high a threshold

20

Tehran Hostages Case (1980)
re Responsibility for conduct of NSAs

States can adopt the actions of NSAs post facto
Ayatollah Khomeini encouraged activity against he US
Iran owed obligation under Vienna convention and GIL to protect embassy and diplomats
Failed to take "appropriate steps" to protect, or to respond in face of urgent and repeated requests for help (in contrast w similar situation w Iraq), despite previous assurances
refused to order the young people to evacuate the embassy, and forbade council and officials for meeting w Carter's representatives sent to obtain release of hostages and evacuation of the embassy
Seal of official gvt approval set on situation by decree by Ayatollah. Ordered policy maintiang the occuaption and the detention of hostages. Transformed the legal nature of the situation

21

Article 20 ARISWA

Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.
Eg, the sending of State A’s troops into State B’s territory would normally be an act of aggression: Declaration on Friendly Relations. However, there is no wrong done when that presence has been requested (the position adopted by the French in regard to Libya and Mali).
Consent may also be provided after the fact (although there is an obvious risk it will not be).

22

Lowe in (1999) 10(2) European Journal of Intl Law

Points out that consent is really ‘exculpation’ rather than an excuse/defence. That is, if consent is provided from the outset (consent ab initio) this will render the act intrinsically lawful. If consent is given after the fact (consent post facto) then there has been a waiver of rights.

23

Article 23 ARSIWA

Force majeure
Requires, cumulatively:
An irresistible force or an unforeseen event (ie “neither foreseen nor of an easily foreseeable kind”),
Beyond the control of the State (ie “a constraint which the State was unable to avoid or oppose by its own means”),
Making performance of the obligation materially impossible (note there must be a causal link between the two and that the standard is “impossible” not “difficult”).

24

Standard of proof required for force majeure

High
Rainbow Warrior
UNSG ruled that the French agents should be transferred to French military base (on the French Polynesian island of Hao) and prohibited from leaving for three years, except with mutual consent of both NZ and France.
Before the end of the term, Mafart was in need of medical care, and the French Government removed him to a hospital in Paris without the consent of NZ (although efforts were indeed made to obtain this consent). France plead that it was medically necessary to remove agent to mainland France in violation of its agreement with NZ (relying on force majeur).
The Arbitral Tribunal stressed that the test is “absolute and material impossibility” not that performance of obligation became more burdensome.

25

Requirements of force majeur may be satisfied by natural or human causes
E.g.?

Unauthorised over-flights by State aircraft caused by force of weather or emergency (ILC Commentary 2001)
Where an obligation cannot be carried out due to “loss of control over a portion of the State’s territory as a result of an insurrection or devastation of an area by military operations carried out by a third State”. For example, destruction by a third government of an object required to carry out obligation: Lighthouses Arbitration (France/Greece post WWI).

26

Article 24 ARSIWA

Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2. Paragraph 1 does not apply if:
a. the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
b. the act in question is likely to create a comparable or greater peril.

27

Article 25 ARSIWA

Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
a. is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
b. does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
a. the international obligation in question excludes the possibility of invoking necessity; or
b. the State has contributed to the situation of necessity.

28

The Danube Dam case
re Necessity

Necessity is recognized by CIL for precluding the wrongfulness of an act not in conformity with an international obligation.
It is an exceptional basis for precluding wrongfulness. The State concerned is not the sole judge of whether the conditions for necessity have been met.
Court accepts that environmental interests are “essential interests” of a State. BUT - need also to establish that the peril was grave and imminent and the absence of other means to respond to it.
An inevitable peril or one that is long term is not imminent. And it must be more than simply possible – uncertainty of outcomes do not lend themselves to finding a state of necessity. Need a certain amount of certainty – even if the peril is very grave – and environmental assessments concluded that full environmental impact could not be evaluated.
In addition, environmental impacts had not escaped the attention of the parties in 1977 – and H would not have been permitted to rely upon the state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission, to bring it about.

29

ICJ Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (2004)
re necessity

o “the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.” The Court does not pronounce itself on whether the security concerns invoked by Israel satisfy the “safeguard an essential interest against a grave and imminent peril.”

30

Counter Measures

Articles 49-52