Topic 9 - State Responsibility (3)

8/18/2019 Topic 9 - State Responsibility (3)

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Chapter 2

State Responsibility


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State Responsibility

Responsibility – liability under the law (originalnotion)

State responsibility (SR) – notion under

international law – breach of treaty or custom 2 categories of SR –

(1) breach of State to State obligation – if Statefails to comply with treaty obligations,

(2) breach of obligation of a State to national ofanother State – mistreatment of aliens – e .g. if aforeign tourist is killed, police must eercisereasonable care if not, State is responsible


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Source of Law on StateResponsibility

1!"! – #nt$l %aw &ommission (#%&) prepare'raft rticles on SR 1!! – *art 1 of it was appro+ed sent to

-/ but not completed o+erall – so not

con+ention but has some weightage rt 2 – elements of SR – (1) breach of

international obligations, (2)attributability0imputability i.e. whether the

breach is attributable to the State


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Elements of State Responsibility

rt. 1 rticles on SR 3+ery internationally wrongful act of a State

entails international responsibility of that State4

#nternational wrong#nternational

responsibility

• 5hen is there an internationalwrong6

• 5hen conduct (action oromission)

1.#s attributable to the Stateunder international law

2.&onstitutes a breach ofinternational obligation of that

Elements of SR –

(1) breach of

international obligations,(2) attributability /

imputability


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Attribution of Conduct to the State

#dentify State – identify go+t (all organs) rt " SR – conduct of any State organs (including

the indi+iduals) is considered as the conduct of theState ot only superior authority but also subordinate 7or federal States – not necessarily federal go+t but also

State go+t whate+er its character as an organ of the central go+t or of

territorial unit of that State4 in rt. "(1) SR

LaGrand case – implementation of measures indicated underthe 8rder was under 9urisdiction of /o+ernor of ri:ona. #t is onthe go+t of -S to transmit the 8rder to the /o+ernor.

;he act is in o


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Persons / entities exercising elements ofgovernmental authority (Art 5)

on=State organ4, but empowered by the lawof that State to 3ercise elements of go+ernmental authority

;he conduct of such person0entity is

considered act of the State but >ust act in that capacity at the time in ?uestion


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Responsibility for Ultra Vires Act

i.e. breach of int$l obligation by go+t actingbeyond its powers rt 1@ SR – go+t responsible e+en for ultra

+ires act

Youmans Claim (US v. Mexico) – defence act ofo


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Responsibility for Ultra Vires Act

Southern Pacifc Property Case&o entered into a contract with with 3gyptiango+t de+eloping land around /i:a pyramid fortourism. *ublic opposed co: it could damageanti?ues. 3gyptian go+t arbitrarily terminatedthe contract brought the case before #&S#'

3gypt$s arguments – permission to de+elop theland was null +oid for against 3gyptian lawesp. consti. lso permission gi+en by

*residential decree was unconstitutional#&S#' held – re9ected the arguments – the go+t

acted in o


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Conduct of Persons Directed orControlled by a State

rt B = Cthe conduct of a person or group ofpersons shall be considered an act of a Stateunder international law if the person or groupof persons is in fact acting on the instructionof, or under the direction or control of, thatState in carrying out the conduct$.

1. *ersons acting under State$s instruction – p+tpersons used by State agencies for police, publicorder other State functions, if cause in9ury toforeign national, can be attributable to the State

afro case – the conduct by pri+ate person wasunder the command of a merchant captain whowas under the orders of -S na+al o


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Conduct of Persons Directed orControlled by a State

2. *ersons under the direction or control of aState – e.g. insurgents in State helped byState A – is it attributable to State A

'epends on whether there is eDecti+e control

– deEned in !icara"ua case as that the Statehad directed or controlled the speciEcoperation and the conduct complained of wasan integral part of that operation

&ompare with #adic case – the test waso+erall control – more Feible (i.e. easier tomake the State responsible).


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Conduct of Persons Directed orControlled by a StateG.

Responsibility for conduct of State=ownedcorporations

not attributable co: of doctrine of separatelegal entity unless the State is eercising

elements of go+t authority in the meaningof rt H. &ompare S$%C& 'nc oremost #ehran

cases on what can constitute the eercising

of elements of go+t authority 8wnership (Sedco) +s go+t representati+e

sitting in Ao' (oremost #ehran)


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Conduct of Insurrectional or otherMovement (Art. 10)

&onduct of successful insurrectional mo+ementwhich becomes the new go+t ttributable to the State (rt 1@(1)) – olivar *ail+ay Co

– the nation is responsible for the obligations of asuccessful re+olution form its beginning4

but must be performed by agents of re+olutionarymo+ement not mere supporters (Short v 'ran)

Aut must be read in light of 1@(G) this rticle is without pre9udice to attribution to State any

conduct which is considered its act under rticles " to !.

-nsuccessful0on=going insurrectional or othermo+ements ot attributable to the State (,ome Missionary Society

Claim)


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Conduct Acknowledged/Adopted bya State as its Own rt 11 = Cconduct which is not attributable to a State

under the preceding articles shall ne+ertheless beconsidered an act of that State under international lawif and to the etent that the State acknowledges andadopts the conduct in ?uestion as its own$.

ttribution not at the time of commission of the wrongbut acknowledgment0adoption after the commission

US %iplomatic - Consular Sta in #ehran case – 2phases – before completion of occupation of embassy and after. Aefore – not attributable co: was

committed by mere supporters not agents. Aut after,the conduct (endorsing the occupation issuing adecree that the embassy was used for espionage wasattributable.


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Acts of Private Individuals Unrelated toState to Make State Responsible

&onditions where cts of pri+ate indi+idualsmake State responsible

1. 7ailure to take reasonable care (diligence) – /sian /"ricultural Products v Sri Lan0a

2. 'enial of 9ustice (failure to punish indi+iduals) – 1anes claim

cts of insurgents0terrorists – State is not

responsible but act in good faith nonegligence

Sam a""io – insurgents not under thecontrol of the State. So it is not responsible


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Breach of International Obligation

rt 12 – there is a breach of internationalobligation by State when act of that State isnot in conformity with what is re?uired by theobligation regardless its origin character.

#ntertemporal law

%, treaty, 9udgment by #&I other internationaltribunals or decision of competent #8


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Circumstances Precluding Wrongfulness (Defences)

1. &onsent by a State to the commission of an actby another State (rt 2@) – +alid consent (withauthorisation freely gi+en) the act whose wrongfulness is precluded

remains within the limits of that consent2. Self=defence (rt 21) – must be read in light of rtH1 which pro+ides an eception to prohibition ofuse of force in rt 2(") -&

G. &ountermeasures (rt 22 Ga2ci0ovo3

!a"ymaros) ;ypes of countermeasures (1) retorsion –unfriendly act (not illegal) against an unfriendlyact of another State, (2) reprisal – illegal actagainst illegal act of another State – armedreprisal is now illegal under international law


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4. orce ma5eure (rt 2G(1)) = Ctheoccurrence of an irresistible force or ofan unforeseeable e+ent, beyond thecontrol of the State, making it materially

impossible in the circumstances toperform the obligation$

*ain2o+ 6arrior rbitration = Cmateriallyimpossible$ does not co+er circumstance which

makes it di


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H. 'istress (rt 2"(1)) – no option to sa+e li+esbut for eample to enter into foreignterritory J foreign military ship to sa+e li+es– *ain2o+ 6arrior /r2itration

. ecessity (rt 2H(1)) – unlawful act isperformed to safeguard an essential interestagainst a gra+e imminent peril doesnot seriously impair an essential interest of

the State(s) towards which the obligationeists or of the international community asa whole – #orrey Canyon Ga2ci0ovo3!a"ymaros Pro5ect cases


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'efences must not contrast 9us cogens.


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Legal Consequences of AnInternationally Wrongful Act

&ontinued duty of performance (rt 2!) –duty to perform obligation in the future &essation non=repetition (rt G@) ssurances guarantees of non=repetition –

apology is not enough Reparation for in9ury


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Reparation for Injury

rt. G" – full reparation for in9ury caused byinternationally wrongful act shall take the form ofrestitution, compensation satisfaction.

in9ury4 in rt G1(2) – includes material moral (notEnancially assessable) damage

;ypes of Reparation1. Restitution (rt GH 'SR) – reestablish the situation

which eisted before the wrongful act was committedpro+ided that it is (a) not materially impossible (b)does not in+ol+e a burden out of all proportion to thebeneEt deri+ing from restitution instead of

compensation#emple o7 Preah 8ihear case2. &ompensation (rt G) – damages in terms of money

#he '9m /lone case


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Types of ReparationG. Satisfaction (rt GK) – meant for moral damage

– eamples

apology ominal damages – for satisfaction of

+ictims 'isciplinary action against go+ty

committing misconduct *unishment of the culprits

orch"rave9s case (Aelgium +Spain)


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Treatment of Foreign Nationals

2 standards of treatment (9ustice)1. ational treatment std – e?ual treatment between

foreign own nationals

2. #nternational minimum std – treatment of aliensaccording to established treatment in ci+ilised society

(international std) ational treatment std – State still not responsible

though treatment below int$l min. std. 7irst championed by %atin merican countries now

fa+oured by de+eloping countries (found in rt !>onte+ideo &on+ on Rights 'uties of States 1!GG)

can make States impose se+ere criminal penalties onforeigners J nationalise the property of foreigncompanies if it does the same to own nationals


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Treatment of Foreign Nationals #nternational minimum standard ot refer to national laws regulations -sed by de+eloped countries lso supported by many tribunals claims

commissions

!eer Claim

&laims &ommission held – treatment of analien should not be an internationaldelin?uency amounting to a willful neglectof duty J insu


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Treatment of Foreign Nationals5hich one is to be followed6

o consensus – so no %

Aut with globalisation – int$l min std (#>S) is moreappealing

Some principles in #>S can be useful 'uty not to harm (Youmans Claim) ot to mistreat in lawful custody (*o2erts Claim) 'enial of 9ustice – Lar+ard Research 'raft creates

responsibility if in9ury to alien causes a denial of

9ustice = eists when there is denial, unwarranteddelay or obstructn of access to courts, grossdeEciency in admin of 9ustice, manifestly un9ust 9udgment, failed remedial process (Chattin Claim)


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Expropriation

>eans depri+ation by the State of foreign rights toproperty or its en9oyment (Arownlie)

;he process of epropriation1. 'irect epropriation – nationalisation or conEscation

2. #ndirect epropriation – forced sales of property,cancellation of licences0permits to do business,eorbitant taation.

Aut States may not be responsible if in9ury resultsfrom bona Ede regulation within the accepted policepower of States (Sedco + #8&)

Low epropriation is legal under #%61. *ublic purpose2. ppropriate compensationG. on=discrimination – not %6


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Invocation of Responsibility: Responses by the Injured State & Other States

2 ways1. #n+ocation of responsibility by

an in9ured State

2. #n+ocation of responsibility byother States the concept ofobligations ergam omnes


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Invocation of Responsibility by anInjured State rt "2 = state is an in9ured State if

obligation breached is owed to that Stateindi+idually or a group of States includingthat State or the international community asa whole, and the breach of the obligationspecially aDects that State

Situation concerned – indi+idual right of theState has been infringed by internationallywrongful act of another State

#n9ured State can resort to all means ofredress (e.g. raise a claim, instituteproceedings, take countermeasures


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Invocation of Responsibility by Other States –the Concept of Obligation Erga Omnes

8bligation erga omnes – enforceability of norms of internationallaw, the +iolation of which is an oDence not only against the Statedirectly aDected by the breach, but also against all members of theinternational community.

rt "B(1) = Cany State other than the in9ured State is entitled to

in+oke the responsibility of another State in accordance with para.2 if (b) the obligation breached is owed to the internationalcommunity as a whole$

3istence of obligation erga omnes is conErmed in arcelona#raction: Li"ht - Po+er Co case – also laid down eamples of suchobligations – prohibition of acts of aggression, genocide, sla+ery racial discrimination.

Rights a+ailable from the in+ocation – (1) cessation, assurances guarantees of non=repetition (rt "B(2)(a)), (2) reparation forin9ured State or beneEciaries of the obligation breached (rt "B(2)(b))


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Law of Diplomatic Protection

2 types of responsibility1.State to State

2. #n contet of diplomatic protection (in9ury toforeign nationals 0 property)


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Admissibility of Claims

rt "" – 2 re?uirements1.ationality of claims

2.3haustion of local remedies

ationality of &laims -nder %, State has a right to protect its

nationals (diplomatic protection)


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Nationality of Claims Mavrommatis Palestine Concession &ase#nitially was a dispute between p+t person a State

(>a+rommatis + /A). %ater /reek go+t took up thecase sue /A. #ssue – whether State (/reece)had the right to protect nationals

Leld – if no remedies for indi+idual, then State cantake action on his0her0its behalf (ehaustion oflocal remedies)

Aasis of claim – bond of nationality – Paneve;ys3Saldutis0is &ase (3stonia + %ithuania) – %ithuaniaepropriated 3stonian railway co. the later – #&I

ag. ;he former on the co.$s behalf Leld it is the bond of nationality between State indi+iduals which confers right of diplomaticprotection taking up the claim on the State


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Treatment of Foreign Nationals –Nationality of Claims*rotection of pri+ate indi+iduals State can only protect its nationals. ationality –

legal connection between State its citi:ensconferring rights duties on both

#% is neutral as to how to determine nationality

(citi:enship). So look to domestic law (rt 1 ofLague &on+ention on Muestions Rel. to &onFictof ationality %aws) – basic principle – eachState determines under its own law who aretheir nationals, but national laws will only berecognised by other States if conform with #%

dual nationality = rt H – in a third State, aperson with more than 1 nationality is acceptedto ha+e only one nationality – how to decide6


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Nationality of Claims

*rotection of #ndi+iduals (cont$d) !otte2ohm case – court looked at 5here was his main seat of business =

/enuine connection of eistence strong

sentimental attachment Settled in /uatemala for G" years (his main

seat of business) o close connection between him

%iechtenstein the latter cant eercisediplomatic protection.


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Nationality of Claims*rotection of #ndi+iduals (cont$d) #%& 'raft rticles on 'iplomatic *rotection

does not re?uire genuine link as re?uirementof nationality.

rt " – State of nationality means Statewhose nationality that person has ac?uired inaccordance of the law of that State by birth,descent, naturalisation, succession of Statesnot inconsistent with international law.

rt. H – nationality must eist at date ofin9ury continue until at least the date ofpresentation of claim.


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Nationality of Claims*rotection of #ndi+iduals (cont$d) 2 situations

1. 'ual0multiple nationality claim against Grd State o need to establish genuine link

2. 'ual0multiple nationality claim against State ofnationality

State with more eDecti+e dominant connection hasright to eercise diplomatic protection

>erge claim – between -S #taly %ooked at habitual residence, conduct of indi+idual in

his economic, social, political, ci+ic and family life 5hich has closer more eDecti+e bond

rt. K – State may not eercise diplomaticprotection against another national State unlessnationality of that State is predominant both atdate of in9ury date of presentation of the claim


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Treatment of Foreign Nationals –Nationality of Claims*rotection of &ompanies – arcelona #raction:

Li"ht - Po+er case

A;%* – incorporated in &anada, did business inSpain. 'eclared bankrupt in Spanish ct. othersteps in9uring the co were also taken by Spanish

authorities. &anada inter+ened on behalf ofA;%* but later withdrew. ;hen Aelgium broughta claim on behalf of the shareholders

Leld – under #% – only State of nationality of the

co. can bring int$l claim on behalf of it. A;%* stilleisted (put under recei+ership but if alreadyli?uidated then Aelgium could take action


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Treatment of Foreign Nationals –Nationality of Claims*rotection of &ompanies rt. ! – national State – State whose law the

corporation was incorporated Aut if corporation is controlled by nationals of other

States has no substantial business acti+ities inState of incorporation seat of mgt Enancial

control located in another State, that other State willbe State of nationality.

Low national State of shareholders can etenddiplomatic protection &orporation ceases to eist under law of State of

incorporation for reasons unrelated to in9ury &orporation had at the date of in9ury nationality of

State causing the in9ury incorporation in that Statewas re?uired as precondition to do business there.


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Exhaustion of Local Remedies

/m2atielos /r2itration (Greece v U


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Exhaustion of Local Remedies innish Ship o+ners= /r2itration

1G ships belonging to 7innish ship=owners butused by -N go+t during war were lost. ;heshipowners claimed damage throughdmiralty rb. Aoard in -N. ;he board

re9ected. o compensation made no appeal.7inland took up the case before internationaltribunal

Leld – where no eDecti+e remedy0ob+iously

futile. Remedies did not apply. o appealablepoints of law. o Aritish legislation allowingcompensation. 7inland had ehausted localremedies though not go to &o


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Countermeasures

&ountermeasures may be taken only in responseto international wrongful act only against theState responsible for that act

&ant be used to punish 8nly temporary non=performance of obligations %imitations to countermeasures (rt H1 SR)1. 8nly directed against wrongdoer State to compel cessation

of wrongful act or make reparation

2. ot in+ol+e use of force

G. ot +iolate basic obligations under international law". ot aDect dispute settlement procedure between 2 parties

in+iolability of diplomatic agents

H. *roportionality – commensurate with in9ury suDered

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Topic 9 - State Responsibility (3)