W4: State Responsibility Remedies

Flashcards covering State Responsibility, ARSIWA provisions, key legal cases, countermeasures, and diplomatic protection based on Public International Law lecture slides.

Primary Rules

Substantive obligations under international law defining what a State must do or refrain from doing, such as the prohibition on force or the obligation to perform treaties in good faith.

Secondary Rules

Rules of international law determining the legal consequences of breaching a primary rule, including attribution, available defenses, forms of reparation, and standing.

ARSIWA Article 1

Establishes that every internationally wrongful act of a State entails its international responsibility, without requiring proof of damage, injury, or fault.

ARSIWA Article 2

Defines the two necessary elements of an internationally wrongful act: conduct consisting of an action or omission attributable to the State under international law, and a breach of an international obligation of that State.

ARSIWA Article 3

Establishes that the characterization of an act as internationally wrongful is governed solely by international law and is unaffected by its characterization as lawful under internal municipal law.

ARSIWA Article 4

Attribution rule stating that the conduct of any State organ (legislative, executive, judicial, central, or territorial) is considered an act of that State regardless of its rank or position.

ARSIWA Article 5

Attribution rule covering the conduct of non-organ persons or entities empowered by domestic law to exercise elements of governmental authority, provided they act in that capacity in the instance.

ARSIWA Article 6

Attribution rule governing conduct of organs placed at the disposal of a State by another State, if acting in the exercise of elements of governmental authority of the receiving State.

ARSIWA Article 7

Rule establishing that ultra vires conduct of an organ or empowered entity acting in an official capacity is attributable to the State even if it exceeds its authority or contravenes instructions.

ARSIWA Article 8

Rule attributing private conduct to a State if the person or group is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

ARSIWA Article 9

Attribution rule covering conduct carried out in the absence or default of official authorities to fill a governmental vacuum in circumstances requiring the exercise of authority.

ARSIWA Article 10

Attribution rule under which the conduct of an insurrectional movement becomes attributable to the State if the movement successfully becomes the new government or establishes a new State.

ARSIWA Article 11

Attribution rule stating that conduct not otherwise attributable shall be considered an act of a State if and to the extent the State acknowledges and adopts the conduct as its own.

ARSIWA Article 12

Defines a breach as non-conformity with what an international obligation requires, regardless of its origin or character (treaty, custom, general principle, or unilateral act).

ARSIWA Article 13

Establishes the temporal requirement that an act does not constitute a breach unless the State was bound by the obligation at the time the act occurred.

ARSIWA Article 14

Governs the extension in time of a breach, providing that a continuing breach extends over the entire period during which the act continues and remains non-compliant.

ARSIWA Article 15

Defines composite acts as a breach consisting of a series of actions or omissions defined in aggregate as wrongful.

ARSIWA Article 20

Circumstance precluding wrongfulness where valid consent to a specific act is given by a State, provided the conduct remains strictly within the limits of that consent.

ARSIWA Article 21

Circumstance precluding wrongfulness for a lawful measure of self-defence taken in conformity with the UN Charter and customary international law requirements.

ARSIWA Article 23

Circumstance precluding wrongfulness based on force majeure, requiring absolute and material impossibility of performance due to an irresistible force or unforeseen event.

ARSIWA Article 24

Circumstance precluding wrongfulness based on distress, applicable when the actor has no other reasonable way of saving lives in a situation of extreme peril.

ARSIWA Article 25

Circumstance precluding wrongfulness based on necessity, applicable only when an act is the sole way to safeguard an essential interest against grave and imminent peril.

ARSIWA Article 26

Provision establishing that no circumstance precluding wrongfulness in Chapter V can excuse an act that violates a peremptory norm of general international law (jus cogens).

ARSIWA Article 27(a)

Clarifies that invoking a circumstance precluding wrongfulness is without prejudice to compliance with the underlying obligation once the circumstance no longer exists.

ARSIWA Article 27(b)

Clarifies that invoking a circumstance precluding wrongfulness is without prejudice to compensation for any material loss caused by the act.

ARSIWA Article 35

Form of reparation requiring a State to re-establish the situation existing before the wrongful act, limited by material impossibility and disproportionate burden.

ARSIWA Article 36

Form of reparation covering any financially assessable damage (including established loss of profits) not made good by restitution, excluding punitive damages.

ARSIWA Article 37

Form of reparation for non-material injury that cannot be remedied by restitution or compensation, consisting of acknowledgement, regret, or formal apology.

LaGrand (Germany v United States)

2001 ICJ case establishing that actions of sub-national federal authorities (Governor and courts of Arizona) engage the international responsibility of the central federal State.

Toonen v Australia

1994 UN Human Rights Committee case holding Australia internationally responsible for Tasmanian Criminal Code provisions inconsistent with the ICCPR, overriding internal federal power divisions.

Youmans Claim (1926)

Arbitration decision holding Mexico directly responsible and awarding US$20,000$ for ultra vires actions of on-duty soldiers who joined a riot and killed an American supervisor.

Effective Control Test

Legal standard established in Nicaragua (1986) requiring proof that a State exerted control over specific wrongful operations to attribute private actor conduct under Article 8.

Tehran Hostages Case (1980)

1980 ICJ ruling where government approval and official decrees by Ayatollah Khomeini transformed private student occupation of the US Embassy into State action under Article 11.

Rainbow Warrior (No 2) (1990)

1990 arbitration ruling that France failed to establish force majeure or distress to justify the unauthorized removal and non-return of military agents from Hao island.

Gabčíkovo-Nagymaros (1997)

1997 ICJ judgment outlining the five cumulative conditions required to establish the defense of necessity under Article 25.

Factory at Chorzów (1928)

1928 PCIJ decision laying down the foundational standard that reparation must wipe out all consequences of the illegal act and re-establish the probable status quo ante.

Retorsion

Unfriendly but strictly lawful State conduct (e.g., expelling diplomats or severing voluntary aid) that involves no breach and requires no legal justification.

Countermeasures

Non-forcible, otherwise illegal acts taken by an injured State against a breaching State solely to induce compliance with secondary legal obligations.

Air Services Agreement (1978)

1978 arbitration ruling upholding US suspension of Air France flights after France restricted Pan Am, confirming a margin of tolerance when assessing proportionality under Article 51.

Mavrommatis Palestine Concessions (1924)

1924 PCIJ ruling establishing that a State taking up a diplomatic protection claim is asserting its own sovereign right to enforce international law.

Barcelona Traction (1970)

1970 ICJ ruling affirming a State's complete discretionary power over diplomatic protection claims and holding that injury to a corporation does not grant standing to the shareholders' home State.

National Treatment Standard

Doctrine favored by capital-importing States holding that foreign nationals are entitled to no greater rights or legal protections than domestic citizens under local law.

International Minimum Standard

Doctrine favored by capital-exporting States asserting an objective global standard of civil treatment for aliens below which no State may fall, regardless of domestic legislation.

Neer Claim (1926)

1926 claims commission ruling establishing a high threshold for alien treatment breaches, requiring conduct amounting to outrage, bad faith, or willful neglect of duty.

Roberts Claim (1926)

1926 claims commission ruling finding Mexico liable for breaching the international minimum standard by detaining an American national for 19 months in sub-human prison conditions.