international responsibility reduced

context

• decentralised international legal order= no central authirty; enforcement relies on state responsbility

• law of international responsibility governs accountability after a breach of IL

• ILC draft articles on responsibility of states for internationally wrongful acts 2001 codifies secondary rules (consequences of breaches of prmary IL rules)

• primary rules= substantive obligations (treaties customary law gen principles)

• secondary rules= cnsequences of breaches; focus of ilc articles 

concept of internationally wrongful acts

• article 1 ilc= any breach of an international obligation triggers state responsibility 

• article 2 ilc= two cumulative conditions:

  • attribution= act or omssion must be attributable to the state

  • breach= must violate and international olbigation (treaty or cstomary)

attributability= subjective element of an internationally wrongful act

• acts or omissions of state organs= legislative,executive,judicial, central/regional)

  • states can act only by and through their agents and representatives- german settlers in poland; caire case

  • even acts ultra vires (when states acts beyond their otherised power`0

  • us diplomatic staff in tehran, corfu channel case

• special situations under ilc articles

  • persons/entities excercising governmental authority ie canada mill boards- wto 

  • organs placed at states disposal by another state ie polciing migration in xhvara v italy ecthr

  • conduct ackowledged/adopted by the state ie tehran hostages 

• other groups 

  • directed or controlled by the state ie nicaragua icj had effective control

  • in absence/failure of official authorities ie tehran 

  • insurrectional movements once becoming new gov (there prior acts)

objective element= breach 

• must violate a treaty or customary obligation including multilateral rights

• no material damage is required- responsibility arises from the breach itself

  • (damage only required for lawful act)

circumstances precluding wrongfulness

• excuses acts that would otherwise be wrongful; however does not legalise them

• state must still stop conduct and repair damage caused

• never pplicable for jus cogens norms for prohibition to slavery/torture

• list (numerus clauses):

  • valid consent from state ie savarkar case uk and france

  • self defence- lawful under un charter

  • counter measures- in responce to prior wrongful act however must not

    • breach international humanitrian law (war law) OR JUS COGENS

    • follow on from negotiation attwmpts (last resort)

  • force majuere- irresitstable force/ beyond control

  • distress- unlawful act to save human life

  • state of necessity- only if:

    • only way to protect essential interest from grave,imminent peril

    • does not seriously impair essentil interests of other states/affected states in the international community

content of responsibility 

1. duty to comply with original obligation= cessastion of wrongful act

2. duty to offe guarantees of non repeition- unilateral declaration or via agreement with state

3. duty to repair damage- full reperations regardless of domestic law limits 

methods of reparation

1 restitution= restore prior original situation

2. compensation- financial/material compensation to cover actual damage and loss of profits eg chilean foreign minister letelier

3. satisfaction- non financial/moral compensation to restore reputation of affected state ie public apology, declaratory icj judgements

invocation of responsibility

• injured state=

  • nationality of claims (diplomatic protection)

  • exhaustion of local remedies

• any state= only for jus cogens breaches like genocide slavery

  • erga omnes obligations affecting the enitre international community

liability for lawful acts

• lawful but dangerous activities causing harm may trigger objective responsibility (strict liability)

• requirements:

  • must be a danerous activity

  • must cause actual damage/harm

  • causal connection between the activity and harm caused

• areas:

  • environmental law= trasnboundary harm and pollution

  • maritime transport

  • space object liability

  • other hazardous activities

• often regulated via bilateral and multilateral treaties

responibility of international organisations

• codfied in the ilc draft articles 2011; paralleling state respinsibility

• two dimesnions:

  • ios own internationally wrongful acts

  • states responsibility for

    • cooperating with ios wrongful acts

    • coercing ios to act wrongfully

• both objective (breach) and subjective (attributability) elements apply

• attribution of responsibilty to state agents working for ios is determined via effective control ecthr (is the io of state responsible)

counter measures 

• lawful measures in responce to prior wrongful acts

• requirements:

  • negotiations must have been attempted first

  • cannot vioate IHL or jus cogens

• two types:

  • individual= taken by one state to induce compliance of another ie rupture of diplomatic relations

  • collective= taken by mutiple sates via ineternational organisations to induce compliance ie UN security council sanctions for threats/breaches of peace

conclucision

• responsibility arises from breach and attribution

• circumstances precluding wrongfulness excuse but do not legalise the act

• reparation includes cessation, guarantees and full damage repair

• liability can be strict/objective for lawful but dangerous acts

• both states and ios can bear responsibility 

• countermeasures must comply with international law limits