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Chapter 13, International Law, A South African Perspective, John Dugard Commentaries to the draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001) The nature and forms of International Responsibility, James Crawford and Simon Olleson
The nature of State Responsibility The Draft Articles on State Responsibility o Attribution of conduct to a state o Circumstances precluding wrongfulness o Legal consequences of internationally wrongful acts o Serious breaches of peremptory norm o Invocation of the responsibility of a state o Countermeasures The treatment of aliens The expropriation of foreign property
State responsibility
Draft articles large represent codification of international law Has been considered as a restatement of law Have been cited with approval by the ICJ and international tribunals-eg Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Hezegovina v Serbia and Montenegro 2007)
The emphasis is on the secondary rules of State responsibility (the general conditions under international law for the State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow there from) The articles do not attempt to define the content of the international obligations breach of which gives rise to responsibility (This is the function of the primary rules, whose codification would involve restating most of substantive international law, customary and conventional)
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro 2007)
one of the cornerstones of the law of state responsibility, that the conduct of any state organ is to be considered an act of the state under international law, and therefore gives rise to the responsibility of the state if it constitutes a breach of an international obligation of the state. This rule, which is one of customary international law, is reflected in article 4 of the ILC Draft Articles on State Responsibility.
Art 4, 5, 6,8,9,10,11 of the ILC Draft Articles on State Responsibility States act through its organs or agents The rules of attribution specify whose conduct may engage the responsibility of the state Eg. state officials, army, police, court etc the defendant state cannot argue that the conduct in question is permitted by its municipal law- Norwegian Loans Case
legislative
Executive
The conduct of an insurrectional movement which becomes the new government of a state art 10
Article 4 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion Rainbow Warrior Incident 1985 Nicaragua case
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro 2007) the expression state organ as used in customary international law and in art 4 of the ILC articles, applies to one or other of the individual or collective entities which make up the organization of the state and cat on its behalf it remained to be determined in the present case whether , the persons that committed the acts of genocide had such ties with the FRY that they can be deemed to have been completely dependent on it
Article 7-A state is responsible for acts performed by officials within the scope of their employment. Liability extends beyond official acts performed within the scope of duty to ultra vires acts committed by officials Youmans Claim, S v Ebrahim, Caire Case
As a general principle the conduct of private persons is not attributable to a state under international law, but where there is a special relationship between the persons and the state their conduct is attributed to the state This include the conduct of groups which I. Art 11-conduct acknowledged and adopted by state-Tehran Hostages case II. act under the direction or control of the state-Article 8
In Nicaragua Case, ICJ held that for this conduct to give rise to legal responsibility of the US, it would in principle have to proved that the state had effective control of the military or paramilitary operations in the course of which the alleged violations were committed
In the Prosecutor v Tadic, the Appeals Chamber held that it was sufficient, for attribution to take place, to establish overall control going beyond the mere financing and quipping of such forces and involving also participation in the planning and supervision of military operations
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro 2007)
Tadic Case concerns with individual criminal responsibility Overall control test used to determine the nature of the armed conflict Overall control test broadened the scope of state responsibility
The Applicant has not proved that instructions were issued by the federal authorities in Belgrade, or by any other organ of FRY, to commit the massacresall indications are to the contrary: that the decision to kill adult male population of the muslim community in Sebrenica was taken by some of the VRS main staff, but without instructions from or effective control by the FRY
Article 9 The conduct of a group of persons maybe attributed to a state if the group were in fact exercising elements of governmental authority in default of the official authorities In Yeager v Islamic Republic of Iran, it was held that at least exercised elements of governmental authority in the absence of official authorities, in operation of which the new Government must have had knowledge and to which it did not specifically object
d) force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the state-art 23 e) where the author of the act in question has no other reasonable way in a situation of distress, of saving the authors life or the lives of other persons entrusted to the authors care-art 24 f) necessity-art 25 None of these circumstances can be relied on if to do so would conflict with a peremptory norm of general international law-art 26
Self help measures not involving the use of force Countermeasures are limited to special circumstances and subjected to strict control Art 49 provides that: 1.an injured state may only take countermeasures against a State which is responsible for an international wrongful act in order to induce that state to comply with its obligations 2. Countermeasures are limited to the non performance for the time being of international obligations of the State taking the measures towards the responsible state
Countermeasures
Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary of its rights to an equitable and reasonable share of the natural resources of the Danubefailed to respect the proportionality which is required by international law
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligation in question Countermeasures are to be proportionate Shall not affect: a) The obligation to refrain from the threat or use of force as embodied in the UNC ; b) Obligation for the protection of fundamental human rights c) Obligations of humanitarian character for prohibiting reprisals d) Peremptory norms of general international law
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 f that State unless the act:(a) is the only way for the state to safeguard an essential interest against a grave and imminent peril (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; b) The State has contributed to the situation of necessity
A state taking countermeasures is not relieved from fulfilling its obligations: a. Under any dispute settlement procedure applicable between it and the responsible State b. To respect the inviolability of diplomatic consular agents, premises, archives and documents Art 49 shall not prejudice the right of a state to take lawful measures against a state that breaches any obligation owed to the international community as a whole to ensure cessation of the breach and reparation in the interest of the injured state or the beneficiaries of the obligation breached
In the Chorzow Factory Case, the PCIJ held that: the essential principle contained in the actual notion of an illegal actis that reparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish a situation which would in all probability, have existed if the act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which restitution in kind would bear
If not possible
If not possible
Art 40 and 41 provide that states shall co-operate to bring to an end through lawful means any serious breach of international obligation arising under a peremptory norm of general international law and shall not recognise as lawful situation created by such serious breach Examples of such norms: the prohibition on aggression, slavery, genocide, race discrimination, apartheid, and torture and the obligation to respect the right of self determination A breach of an obligation is serious if it involves a gross or systematic failure by the responsible state to fulfill the obligation-art 40(2)
Art 48(1) provides that: Any State other than an injured State is entitled to invoke the responsibility of another state if. (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole A state which is not itself injured by an internationally wrongful act, may nevertheless invoke the responsibility of the wrongdoing state when it violates obligations protecting the collective interests of a group of states or of the international community as a whole