Breaching of International Law

Law of international state responsibility

secondary rules providing the constitutive conditions of an international wrongful act and its legal consequences.

Unitary regime

does not provide for different forms of responsibility according to the kind of sources of the obligations breached → no difference between breach of contract or delict or crime.

How is an international wrongful act of a state defined under Article 2 of the ASR

An International wrongful act of a State consists of a conduct/omission:

1. attributable to the State;

2. in violation of an international obligation (positive or negative obligations).

What does Tanzi point out about fault:

were fault on the part of the state organs required for there to be an international wrong, states could very rarely be held responsible

What does the case of LaGrand note about the conduct of organs of a state?

The Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States

What are the circumstances precluding wrongfulness?

Consent, measures of self help and situations of necessity

Consent must be:

• Validly expressed

• Freely given

• Prior to the “wrongful” conduct

Self-help

Self-help refers to lawful violations of international obligations carried out as a response to a previous violation by another state

Self Defence must:

• comply with the UN Charter

• be necessary and proportionate

Countermeasures

Countermeasures are exceptional responses to prior breaches of international law

Countermeasure must:

• Be directed only against the responsible state

• Be proportionate

• Aim at inducing compliance, not punishment

• Usually be temporary and reversible

The situation of necessity cannot be invoked if:

• the state accepted the risk (objective responsibility)

• Participated in creating the situation

Force Majeure

Natural, irresistible, unforseen

Distress

Peril for the organ itself or for persons under its care

Necesssity

The only way to safeguard an essential interest from a grave and imminent peril

Bilateral obligation

These are obligations owed by one state directly to another state

Erga omnes

These are obligations owed to the international community as a whole

Erga omnes partes

to all parties to a treaty

What case introduces the idea of erga omnes

Barcelona Traction, Light and Power Company

Reparation constitutes:

the main object of the legal relationship of responsibility

Factory at Chorzow case, reparation is intended to :

as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed'.

Restitution

Primary remedy for reparing material damage

Compensation

Monetary equivalent for damage where restitution is not possible

Satisfaction

Reparation for non-material damages

What case established the no harm rule?

The trail smelter case

What was held in the trail smelter case?

The tribunal held that a state must not allow activities within its territory to cause serious harm to another state, affirming the so-called ‘no harm rule’ for the first time