State Responsibility

*The ILC Draft Articles on State Responsibility for internationally Wrongful Acts provides merely for the “secondary rules” in
state responsibility.

*Read: 2001 Draft Articles on State Responsibility for internationally Wrongful Acts with Commentaries.

*”Internationally wrongful act”

Draft Article 2 of the ILC: (a) action or omission attributable to the State under International Law; (b) constitutes a
breach of international obligation of State

Add: The “nexus” requirement.

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Scope of Responsibility

1. Cessation

2. Reparation

- Restitution

- Compensation and/or

- Satisfaction

3. Lawful countermeasures (self-help) by the victim (e.g. reprisals or retortion)

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Theories on State Responsibility

* Strict Liability Theory (or “objective or ris__ theory) liability attaches irrespective of bad faith or good faith.

* Fault Liability Theory (or “subjective” theory = liability attaches only upon proof of dolo (intent) or fault (negligence)

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*”Imputability Doctrine” (Principle of Attribution)

A state is liable only for its own acts and omissions, and in this context, the State is identified with its
governmental organs and apparatus, not with the population (nor with private [vs. ultra vires] acts of government
agents).

* “Governmental Organs or Apparatus”: Domestic Administrative Law is irrelevant. The issue is to be settled applying
international law principles.

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“breach of international obligation”

*Act or omission by a State actor;

* In violation of treaty or non-treaty obligations;

* Against States or Non-state actors;

* Not limited to States directly affected;

* Determined by “international law” (primary rules on state responsibility)

*Not affected by internal law on the lawfulness of the conduc; Act of State Doctrine cannot be invoked because responsibility of
state is determined by international law and international (not domestic) tribunal.

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Scope of Responsibility under the ILC Draft Articles

A. By State Organs and Quasi-State Organs (“Parastatal” entities):

* Act of any state organ or official without regard to nature of function;

(Art. 4)[State Organ]

* Act of a person or entity empowered to exercise governmental authority even if such act is in excess of authority or contravenes
instructions; (Arts. 5-7)[Quasi-state Organ]

B. By Non-State Organs:

* Act done pursuant to instruction of, or under the direct or control of, the State; (Art. 8)[What is the threshold of “direction or
control”?]

*Act done in the exercise of governmental authority in default of official authorities; (Art. 9)

* Conduct of rebel movement which becomes the new Government of a State; (Art. 10)

C. By Any Other Person/Entity: Conduct is adopted by the State, either expressly or by conduct, as its own. (Art. 11)

Modes of acquiring territory

1. Cession
2. Occupation
3. Prescription
4. Conquest/subjugation
5. Operation of nature/accretion
6. Adjudication
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1. Cession – transfer of territory usually by a treaty, from one state to another

Note: if there were defects in the ceding state’s title, the title of the state to which the territory is ceded
will be viated by the same defects applying “nemo dat quod non habet” [no one gives what he does not
have] (See: Islands of Palmas Case)

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2. Occupation – the acquisition of a terra nullius, that is, territory which immediately before the
acquisition, belonged to no state

Note: a territory is “terra nullius” either because it really did not belong to any state or may have been
abandoned by previous sovereign. There is “abandonment” if there is failure to exercise authority with
intent to abandon.

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Discovery of territory is not sufficient to acquire a terra nullius territory as it merely gives “inchoate title”
that is, an option to occupy the territory within a reasonable time, during which time other states were
not allowed to occupy the territory. Thus, occupation requires “effective control” and “intention and
will to act as sovereign.”

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3. Prescription – as distinguished from occupation, this presupposes acquisition of territory belonging to
another state. It also requires “effective control” and “intention and will to act as sovereign”. However,
since acquiescence (eg lack of protest) by the losing state is required for there to have effective control, a
longer period of time is required in prescription than in occupation (cf immemorial prescription doctrine)

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4. Conquest – accepted in 19th century since the prohibition against the use of force had not yet ripened
into CIL. It is now illegal to acquire territory by force. See “Stimson Doctrine”. It was only in 1970 when
the UN GA issued a resolution declaring the acquisition of territory by force as illegal. However, this rule
applies only to international, not civil, wars.
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The Law of the Sea
-Before UNCLOS, most laws of the sea were merely CIL

-Now, governed by the 1982 UNCLOS III (UNCLOS I-1958); II-1960;) which came into force in 1994 after
the 60th party signed it.

-Basic Zones/Areas:
1. Internal Waters;
2. Territorial Sea;
3. Archipelagic Waters;
4. Contiguous Zone;
5. Exclusive Economic Zone;
6. Continental Shelf and;
7. High Seas

-Baseline (Low water mark method vs. Straight Baseline Method)

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Internal Waters

-Include ports, harbors, rivers, bays, straits, lakes and canals (c.f. “Archipelagic doctrine”)

-the coastal state can prohibit entry into its internal waters by foreign ships, except for ships in distress
-When already within internals waters, different legal questions arise depending on the kind of vessel
that is within the internal water: merchant ships, warships, other foreign non-commercial ships

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Territorial Sea

-Not Exceeding 12 n.m. from the baseline

-Baselines: 1. Normal Baseline (Low water mark method), and 2. Straight Baseline Method

-Limitation: “Right of Innocent Passage” be foreign ships. Must be

1. “expeditious” and “continuous” and
2. “Innocent.”
It is innocent if not prejudicial to the peace, good order or security of the coastal state. Fishing vessels
must comply with local laws and submarines must navigate on the surface and show their flag. May be
suspended for protection of security of the coastal state

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The “Median Line”

-Where the coasts of the two states are opposite or adjacent to each other, neither of them is entitled,
failing agreement between them to the contrary, to extend its territorial sea beyond the median line
every point of which is “equidistant” from the nearest points on the baselines. (Also applicable in the
case of continental shelf)

Exceptions: historic title or other special circumstances

Read: North Sea Continental Shelf Case

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Jurisdiction of Coastal State over foreign vessels in territorial waters

-Foreign public vessel – no jurisdiction

-Foreign Merchant vessel – full civil jurisdiction, but criminal jurisdiction may or may not be exercised by
the coastal state.

(c.f. “English Rule” and “French [Flag State] Rule”)

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Archipelagic Waters

-Waters around, between and connecting the islands of the archipelago and are inside the imaginary
“straight baseline” connecting the outermost points of the outermost islands of the archipelago

-Treated as “internal waters”

-But, subject to the right of innocent passage of foreign ships just like “territorial sea”

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Contiguous Zone

-24n.m. from the baseline

-Coastal State is limited to Protective Jurisdiction only, that is, to prevent infringement of its customs,
fiscal, immigration or sanitary regulations

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Exclusive Economic Zone

-200 n.m. from the baseline

-Coastal state has the sovereign rights over all the economic resources of the sea, seabed, and subsoil,
which includes not only fish but also minerals beneath the seabed

-However, if the coastal state is unable to fully exploit the resources, it must make arrangement to share
surplus with other states.

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Continental Shelf
-Consists of the seabed and the subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge of the continental margin, or
to a distance of 200 n.m., whichever is greater. But it shall not exceed 350n.m. from the baseline in case
the natural prolongation exceeds more than 200n.m.

-Coastal state’s rights are limited to harvesting of mineral and other “non-living” materials in the subsoil
and “living things attached to the shelf”

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High Seas

-beyond 200 n.m. from the base line

-may be used freely by ships of all nations (including land-locked states)

-“Freedom on the high seas” includes: freedom of navigation, freedom of fishing, freedom to lay
submarine cables and pipelines and freedom to fly over the high seas. These freedoms are however
subject to certain conventions and agreements. (c.f. Five Air Freedoms)

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-As a rule, ships in the high seas are governed by 1. International law and; 2. Law of the flag state

-The “flag of the state” refers to the nationality of the flag which is determined by the place of
registration
-A ship can only use one flag

-“Flags of Convenience” – countries that allow registration of a ship for a fee

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-Interference (by warships) with merchant ships of another states in the high seas:
1. Stateless ships
2. Hot Pursuit
3. Right of approach
4. Treaties
5. Piracy
6. Belligerent Rights
7. Self-defense and
8. Authorized by the UN

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Airspace and outer Space

“Common Heritage of Mankind Principle:”

-Applicable to the airspace, outer space and even the high seas, the term means that the exploration and
use or utilization of resources in areas beyond national jurisdiction “shall be the province of all mankind
and shall be carred out for the benefit and in the interests of all countries irrespective of their degree of
economic or scientific development.

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Human Rights Law

-The three (3) “Generations” or Categories

A: UN Universal Declaration of Human Rights
1. Civil and Political Rights
2. Economic, Social and Cultural Rights
B: Opinion of Publicists
3. Right to peace, Self-Determination, common heritage of mankind principle, environment,
development, minority rights

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But, the Universal Declaration of Human Rights by the UN is not legally binding instrument as it merely
recommends states to keep it in mind in the enactment of legal measures.

However, if the particular right mentioned there has already ripened into a customary international law
(eg torture, slavery, racial discrimination), violation of human rights involves a “matter of international
concern”
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Illustrations of the application of the Human Rights Law
 1. State X passed a law imposing Death Penalty to the crimes of Homicide, Infanticide, Murder,
Parricide, Kidnapping, Robbery, Rape, rebellion, Sedition, and all crimes involving dangerous
drugs. How may the law be assailed as invalid?
2. When A, a ctizen of State X, wrote in Public that their president is corrupt and a drug lord, the
president created a fact finding commission which recommended that A be punished for what
he wrote against the President. A was then sent to jail.
3. Due to Budget constraints, the president of state Y decided to abolish free primary education
and encouraged instead private institutions to offer affordable primary education to all. May this
act of the government of State Y be assailed as invalid?
4. What is “torture”? What is racial “discrimination”?

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International Environmental Law

-A modern field of public international law (1970s)

-The “Trail Smelter case” (1965): “no State has the right to use or permit the use of its territory is such a
manner as to cause injury by fumes in or to the territory of another..”
-First major international environmental conference was convened by the UN General Assembly in
Stockholm (Sweden) in 1972 which later resulted to the adoption of certain environmental Principles.

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Basic Principles in International environmental Law
-responsibility and prevention (Principle 21, Stockholm Declaration)
-Sustainable development
-Intra and inter-generational responsibility (Principle 3, Rio Declaration)
-Conservation of resources (principle 8, Rio Declaration)
-Integration (Principle 4, Rio Declaration)
-Precautionary Principle (Principle 15, Rio declaration)
-Polluter-Pays Principle (Principle 16, Rio Declaration)

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Climate Change regime

United nations Framework Convention on Climate Change (UNFCCC)

Kyoto Protocol

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International Wars, Civil wars and Right to self-determination: Jus ad Bellum

-Jus Ad Bellum
Rules Governing the resort to Armed Conflict (Lawful War).

Jus In Bello:
Rules Governing the Actual Conduct of Armed Conflict (Lawful Acts in Times of War).
[International Humanitarian Law]

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Jus ad Bellum
-Article 2(4) of the UN Charter prohibits “use of force” and “threat to use force”; CIL
-Any use of force or threat to use force may only be lawful if done with the collective decision of the UN
in cases of threats to peace, breached of peace, or acts of aggression (including against international
terrorism, threats posed by weapons of mass destruction, and on humanitarian grounds)
-States can only justify use of force in case of self-defense as recognized in Art. 51 of the UN charter
(Individual or collective self-defense) until the Security Council has taken measures; the State exercising
right of self-defense must report the measures taken to the security council; Self-defense must comply
with the requirements of 1) presence of armed-attack 2)observance of principles of proportionality and
military necessity

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Jus Ad Bellum
-Rules on Self Defense:
-Inherent
Case: Caroline Case
-recognized by Art 51 of the UN Charter
-Preventive/Anticipatory Self-Defense Allowed?
Case: Nicaragua vs US
Self-defense and Claims to Territory?
1970 Gen Assembly Friendly Relations Declaration
Case: Falkland Island Case

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Means of waging War and Criminal Responsibility: Jus In Bello
1. Meaning of “armed conflict” to which International Humanitarian Law (IHL) applies
2. What if there is no “armed conflict?”
3. Fundamental principles that govern conduct of war:
a. Military Necessity and Collateral Damage
b. Principle of Proportionality, and
c. Principle of Distinction
4. International Criminal Law (ICL)
5. Individual Responsibility

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Means of Waging War and Criminal Responsibility : Jus In Bello

International Humanitarian Law governs the laws of armed conflict or law of war. It primarily
seeks to protect civilian population and objects. It covers international or non-international armed
conflict, but not mere internal disturbances
E.g. The 1949 Geneva Conventions and international protocols prohibit the attack on civilian
population or object as such during armed conflict

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 International criminal law (ICL) is a body of international law that prohibits certain categories of
conduct viewed as serious atrocities and to make the perpetrators of such conduct criminally
accountable. It defines crimes, its elements, and individual criminal responsibility.
E.g. Rome Statute creating the International Criminal Court (ICC) in the Hague which defines and
punishes genocide, war crimes, crimes against humanity, and aggression.

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International Humanitarian Law
-Primarily governed by the 4 Geneva Conventions of 1949 and additional protocols

I – Amelioration of the Condition of the Wounded and Sick in Armed Forces

II – Amelioration of the Condition of Wounded and Sick and Shipwreck Members of the AF at Sea
III- Treatment of Prisoners of War
IV- Abduction of Persons in times of War

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Additional Protocols

AP I of 1977 – Protection of Victims of International Armed Conflicts

AP II of 1977 – Protection of Victims of Non-International Armed Conflicts

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Kinds of War IHL becomes applicable:

1. International Armed Conflict
2. Non-International Armed Conflict

An armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized armed groups or
between such groups within a state.

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International Armed Conflict
-An Armed conflict is international if it takes place between two or more states
-This includes the concept of “internationalized armed conflict”
-Wars of National Liberation are considered International Armed Conflict.
-Governed by the Geneva Conventions and Additional Protocol I

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Non-International Armed Conflict
-Armed Conlfict is non-international if it is restricted to the territory of a single State involving either
regular armed forces fighting against armed group or armed groups fighting against each other. The
armed violence must be “protracted” and engaged in by “organized groups”, thus, mere riots are not
covered.
-Governed by Common Article 3 of the 4 Geneva Conventions and Additional Protocol II.

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Non-International Internal Armed conflict vs. Internal Disturbance

Tests:
1. Intensity of the Conflict (Protracted) – consider seriousness of the attacks, increase in armed
clashes, spread of clashes over territory and over a period of time, etc
2. Organization of Parties (Organized Armed Groups) – Headquarters…

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Protected Persons and Objects in IHL:

1. Civilians – any person who does not belong to armed force and who is not a combatant
2. Civilian Objects – objects which are not military objects. “Military Objects” are those which by
their nature, location, purpose or use make effective contribution to military action and
advantage.
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Military Necessity
-Attacks must be limited strictly to military objectives. Insofar as objects are concerned, military
objectives are limited to those objects which by their nature, location, purpose, or use make an effective
contribution to military action whose total or partial destruction, capture or neutralization offers a
definite military advantage.

-(c.f. Principle of “Precaution”)

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International Criminal Law
-International Criminal Court governed by the rome Statute (July 1 2002) has jurisdiction over the
following crimes:
1. Genocide
2. Crimes Against Humanity
3. War Crimes
4. Crime of Aggression

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Criminal Responsibility of Superiors
-Superior responsibility – makes a “superior” criminally responsible for crimes committed by
subordinates under his or her effective authority and control by reason of his or her failure to exercise
control properly over such subordinates

-The concept is generic as to encompass “Command responsibility” which is applicable only to military
commanders.

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