PENESA, Blanche G.

194079
Public International Law 2020-2021
Worksheet 8

March 23, 2021

State Responsibility
Readings:
Outline Introduction to Public International Law¸ pp. 124-131
2001 Draft Articles on State Responsibility
Chorzow Factory Case, 1927
Corfu Channel Case, 1949
Military and Paramilitary Activities in and against Nicaragua, 1986

Questions:

1. Define the following terms:

a. State responsibility
- State incurs international liability when it commits an
internationally wrongful act or IWA.

b. Internationally Wrongful Act

- exists when there is an act or omission that is attributable to the
State under international law, and such conduct constitutes a
breach of an international obligation of that State.

c. Direct wrong
- occurs when the conduct of one State directly harms another
State, such as when it launches an invasion.

d. Indirect Wrong
- occurs when the conduct of one State ultimately harms another
State. An example is when a State harms foreign national within
its territory.

e. Organ of the State

- any person or entity which holds the status of being a State organ
in accordance with that State’s internal law. These include all
those dispensing legislative, executive, and judicial power,
regardless of their position or rank.

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f. Effective Control
- the State must be shown to have had effective control over the
conduct of the private entities. As a rule, effective control entails
more than just mere moral support or financial assistance, but
rather assistance of such a high level that the acting entity is
effectively placed under control of the State.

g. Overall Control
- this doctrine requires a lower degree of control to bind the State
when compared to the doctrine of effective control. Thus,
indirectly control generated through financial or logistical
support could trigger State responsibility.

h. Objective Theory
- regardless of intent, the commission of any act or omission that
leads to a violation of international law would make the State
liable.

i. Subjective Theory
- suggests that intent and the degree of harm caused, if any, should
be considered when determining if a State should be held liable.

2. What is the status of the 2001 Draft Articles on State Responsibility as a source
of international law?

Although labelled as draft articles, it must be noted that the ASR contains
several provisions which are merely codifications of existing customary
international law.

3. Can the state invoke legality of its conduct under its domestic law to escape
liability for an internationally wrongful act?

NO, the State cannot escape liability by claiming the legality of their
conduct under domestice laws. This is like Article 27 of the VCLT which
prohibits States from invoking their domestic laws to escape treaty obligations.

4. Complete the following table:

Actors Do Their Acts Give Rise to Exceptions if Any

State Responsibility?
State and its agents Yes. These include all those When the entity is

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dispensing legislative, acting in a private
executive, and judicial capacity, such acts or
power, regardless of their omissions do NOT
position or rank. trigger State
Responsibility.
Private entities No. The conduct of private 1. If the conduct was
entities will not trigger State directed or controlled
responsibility. by the State, such
conduct will be
considered an act of
the State.

2. If private entities
are exercising
governmental
authority, in the
absence or default of
official authorities,
and in a situation that
calls for the exercise
of such authority.

Insurrectionary Yes. If the movement If the insurrectionary

Movements manages to overthrow the
government, the acts of the
insurrectionary movement
shall be deemed acts of the
State.
movement only
manages to establish
a new State in the
territory of the
original State, the acts
of the insurrectionary
movement shall be
considered as acts of
the New State only.

5. Enumerate and briefly define the following:

a. International law remedies against internationally wrongful acts

 Satisfaction – This can be done in several ways including a written
apology, punishment of individuals, and promises not to do the same
again.

 Declarations – Denotes a judicial declaration of wrongfulness.

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 Injunctions – Could have effect only as from the date it is delivered, a
judicial declaration of illegality would embrace not merely subsequent
tests but also those that already took place.

 Restitutions – An obligation to re-establish the situation which existed

before the wrongful act was committed, provided the same is not
materially impossible or involves a burden out of all proportion o the
benefits to be derived from restitution when compared to
compensation.

 Damages – These are imited to actual and quantifiable pecuniary

damages.

b. Defenses against liability for internationally wrongful acts

 Consent of the other State - Where consent was obtained to perform
the conduct in question.

 Self-defense – These are measures taken by a state meant to repel an

armed attack against it. It is only valid if they confor with the
provisions of the UN Charter.

 Force Majeure – A State cannot be held liable for failing to meet its
obligations when such failure is due to the occurrence of an irresistible
force or an unforeseen event, beyond the control of the State, which
makes it materially impossible for th State to perform its obligations
under the circumstances.
o A State cannot invoke this if it contributed to the Force Majeure
or it assumed the risk associated.

 Distress – Where an individual whose act is attributable to the state

has no other reasonable way, in this situation, to save his life or the
lives of others in his care, any wrongfulness emanating from the acts
he performs will not trigger state liability.

 State of Necessity – A State can invoke necessity to escape liability for

acts not in conformity with its international obligations where the
conduct in question is the only way for the State to safeguard an
essential interest agaist a grave and imminent peril, and the same does
not seriously impair an essential interest of other States towards which
the obligation exists, or of the international community.

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o Necessity cannot be invoked if the international obligation in
question excludes the possibility of invoking necessity or if the
State itself has contributed to the situation of necessity.

 Countermeasures – These are narrowly tailored and legaly permissible

reprisals allowed to a State.

6. What are the limitations on countermeasures against internationally wrongful

acts?

Pursuant to Art. 49 of the ASR, an injured State may only conduct

countermeasures in response to an IWA, and only for the purpose of inducing
the errant State to comply with its international obligations. Such
countermeasures are limited to the non-performance for the time being of
international obligations towards the errant State and must be done in a way that
would permit the eventual resumption of the obligation.

7. What are the prohibited countermeasures against internationally wrongful

acts?

According to Art. 50 of the ASR, a State employing countermeasures is

still bound by the obligation to refrain from the threat or use of force, the
obligation to protect fundamental human rights, the humanitarian obligation to
refrain from resprisals, the invoilability of diplomatic and consular premises and
agents, and other peremptory norms of international law.

8. In the Chorzow Factory case:

a. According to the Court, when does the obligation to make reparation

arise?
It is a general rule in international law that every violation of an
engagement between two independent States ensue an obligation to make
reparation.

b. According to the Court, what is the purpose of reparation?

The essential principle contained in the actual notion of an illegal
act is that reparation, must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation

9. In the Corfu Channel case:

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a. On what basis did the Court find Albania liable for the explosions that
occurred in the Corfu Channel?
Knou-leoge of the minelaying cannot be imputed to the Albanian
Government by reason merely of the fact that a minefield discovered in
Albanian temtorial waters caused the explosions of which the British
warships were the victims.

b. What, if any, was the sanction against the United Kingdom for having
violated the sovereignty of Albania by reason of the acts of the British
Navy in Albanian waters during the operation of November 12 and 13,
1946?
Although the Court held that by reason of the acts of the British
Navy in Albanian waters during the Operation of November 12th and
13th, 1946, the United Kingdom violated the sovereignty of the People's
Republic of Albania, it did not provide for any sanctions for the British
Navy.

10. In the case concerning military and paramilitary activities in and against
Nicaragua, what was the basis for the court to find the United States liable for
training, equipping, financing, and otherwise giving support to the contras?
The Court has noted above (paragraphs 169 and 170) the attitude of the
United States, as expressed in the finding of the Congress of 29 July 1985, linking
United States support to the contras with alleged breaches by the Government of
Nicaragua of its "solemn commitments to the Nica- raguan people, the United
States, and the Organization of American States".