PBL: State responsibility

State responsibility

refers to the regime through which one State can make claims for reparation against another State for the commission of an internationally wrongful act or breaches of international obligation.

Art 1 DARWISA

Every internationally wrongful act of a State entails its international responsibility.

Art 2 DARWISA

An internationally wrongful act exists when conduct consisting of an act or omission is attributable to a State

Art 3 DARWISA

Characterization of an internationally wrongful act is governed by international law and is not affected by internal law.

Art 4 DARWISA

Any action of a state organ will be attributable to the state. Entities = state organ if compeletely dependant on state.

Art 5 DARWISA

The conduct of a person or entity which is empowered by the law of a State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

Art 6 DARWISA

Conduct of organs placed at the disposal of a state by another state, shall be considered the conduct of the state that placed it.

Art 7 DARWISA

Conduct of an organ/person/entity is considered an act of state even if it exceeds its authority or contravenes instructions (ultra vires

Art 8 DARWISA

Conduct of a person or group = act of a State under international law if acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

Art 9 DARWISA

Conduct of a person or group of persons is an act of a state if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities

Art 10 DARWISA

conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State

Art 11 DARWISA

Conduct which is not attributable to a State under the preceding articles shall be considered an act of that State if the State acknowledges and adopts the conduct

Nicaragua case

effective control test;, it would in principle have to be proved that USA had effective control of military/paramilitary operations in the course of commission of alleged violations

Tadic case

“States are not allowed to act de facto through individuals and then disassociate themselves from such conduct when these individuals breach International Law”. 2 degrees of control

Bosnia Genocide case (ICJ)

The Court was not satisfied that Yugoslavia exercised “effective” control over conduct amounting to the genocide. The Court was not persuaded that test can be used to determine whether a State is responsible for acts performed by military/paramilitary units that are not its oAicial organs

Art 20 DARWISA

Consent precludes wrongfulness

Art 21 DARWISA

self-defence precludes wrongfulness

Art 22 DARWISA

Countermeasures preclude wrongfulness

Art 23 DARWISA

Force majeure precludes wrongfulness

Art 24 DARWISA

Distress may preclude wrongfulness

Art 25 DARWISA

Necessity may preclude wrongfulness

Art 26 DARWISA

Peremptory norm may preclude wrongfulness

Art 32 DARWISA

internal law cannot be used to justify non-compliance

Art 33 DARWISA

the responsible state owes obligations to another state, several states or the international community as a whole

Art 34 DARWISA

Forms of reparation: restitution, compensation, and satisfaction

Art 35 DARWISA

Restitution (re-establish the situation from before the wrongful act if materially possible)

Art 36 DARWISA

Compensation (financially assessable damage for both material and non-material losses)

Art 37 DARWISA

Satisfaction (expression of acknowledgement, regret, +apology where restitution/compensation not possible, or in addition to it)