Please enable JavaScript.

Coggle requires JavaScript to display documents.

PIL - WEEK 5 - State Responsibility (ARSIWA) - Coggle Diagram

- - - - D. Circumstances Precluding Wrongfulness
        
        E. Countermeasures and Sanctions
        
        F. Legal Consequences of Internationally Wrongful Act
        
        H. Applicability of ARSIWA
        
        Applicability/Lex Specialis (Art. 55) - governs only when no special rules of international law govern.
        
        Special Laws/ - Covers strong forms (self contained regimes) and weaker forms (specific treaty provision on a single point
        
        Supplementary Rules (56) - The applicable rules of international law continue to govern questions concerning the responsibility of a State for an internationally wrongful act to the extent that they are not regulated by these articles.
        
        3 more items...
        
        UN Charter (Art. 59) - ARSIWA cannot contradict the UN Charter, as the UN Charter is a peremptory norm.
        
        Scope - Applies only to states, with the injured and breaching parties being both states. If non-states, then governed by other laws.
        
        Obligations of Reparation - “But it does not apply to obligations of reparation to the extent that these arise towards or are invoked to a person or entity other than a State”
        
        Duty to Continue Performance (art. 29) - The legal consequences of an internationally wrongful act under this part do not affect the continued duty of the responsible State to perform the obligation breached.
        
        Duty to Cease and Non-Repeat (30) - State responsible must:
        
        CEASE the act, if it is continuing
        
        OFFER - appropriate assurances and guarantees of non-repetition, if the circumstances so require.
        
        2 more items...
        
        Here, no presumption of termination of a treaty due to breach. But, breach itself may terminate the obligation itself.
        
        Distinguished from Reprisals -
        
        Reprisals: the aim is to punish;
        
        Countermeasure: the aim is to impel the responsible state to comply with its obligations
        
        Requisites (Gabcikovo) - For countermeasures to be justifiable, the following must be present:
        
        RESPONSE - It must be taken in response to a previous international wrongful act of another state and must be directed against that state
        
        CALLED UPON (Art. 52) - The injured state must have called upon the state committing the wrongful act to discontinue its wrongful conduct or to make reparation for it
        
        COMMENSURATE - The effects of a countermeasure must be commensurate with the injury suffered, taking account of the rights in question
        
        COMPLIANCE - That its purpose must be to induce the wrongdoing state to comply with its obligations under international law, and that the measure must therefore be reversible.
        
        Preconditions for Countermeasures - Injured state must: (a) call upon the responsible State, in accordance with article 43, to fulfill its obligations under part two, and; (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.
        
        Exception to Notification - the injured State may take such urgent countermeasures as are necessary to preserve its rights
        
        Bars to Countermeasures -
        
        GR - Countermeasures may not be taken, and if already taken must be suspended without undue delay if:
        1a. the internationally wrongful act has ceased; and
        1b. the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.
        
        XCPN - Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith
        
        Effect of Countermeasures (Art. 22) - Rule of preclusion. Must be non-forcible and meet substantive and procedural conditions to be considered legitimate.
        
        Scope - Only as regards the effects to the other state. Any effect on third parties which are not in breach of any obligations not precluded under Art. 22.
        
        Objects and Limits of Coutnermeasures (Art. 49) -
        
        An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two.
        
        Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.
        
        Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.
        
        Obligaitons not affected by Countermeasures (Art. 50) -
        
        2 more items...
        
        Proportionality (Art. 51) - Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.
        
        2 more items...
        
        Measures by Third Party (54) - This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.
        
        Enumeration -
        
        Consent
        
        Countermeasure
        
        Self-Defense
        
        Force Majeure
        
        Distress
        
        Necessity
        
        Consent (ARSIWA 20) - Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.
        
        Form of Consent - Here, actual consent is needed. It cannot be vitiated. However, such consent may be given in advance or, at the time the act is occurring.
        
        Scope of Preclusion - Only the specific act wherein consent is given is precluded, not the general act
        
        Self-Defense (Art. 21) - The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations
        
        Nature of Self-Defense - Lawful self defense. Thus, respects obligations of total restraint applicable in international armed conflict + requirements of proportionality and of necessity inherent in the notion of self defense.
        
        Scope of Preclusion - may justify non-performance of certain obligations other than that under Article 2, paragraph 4, of the Charter of the United Nations, provided that such non-performance is related to the breach of that provision.
        
        Countermeasures (Art. 22) - The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three.
        
        Nature of Countermeasures - Refers to non-forcible countermeasures. May be used as long as the necessary conditions are satisfied; however, these may only be used between the involved states.
        
        Effect - Suspends or terminates the underlying obligation.
        
        Force-Majeure -
        
        GR - Wrongfulness is precluded if, if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation
        
        XCPN -
        2a. the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
        2b. the State has assumed the risk of that situation occurring.
        
        Elements -
        
        The act is brought about by an irresistible force or
        unforeseen event;
        
        It is beyond the control of the State concerned;
        
        It is materially impossible to perform the obligation.
        
        Material impossibility” may be due to a natural or physical event or to human intervention, or a combination of these. This contemplates a substantial difficulty, not circumstances which are merely difficult.
        
        Distress (ARSIWA 24) -
        
        GR - Wrongfulness is precluded if, the author of the act has no nother reasonable way, in a situation of distress, of saving life of himself or persons entrusted under the author's care.
        
        XCPN
        2a. the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it;
        2b. The act in question is likely to create a comparable or greater peril
        
        Voluntariness - Here, person invoking is voluntarily doing so but, choice is effectively nullified due to peril.
        
        Scope - Limited to cases where human life is at stake. This may only be invoked when a State agent saves his or her own life or where there exists a special relationship between the State organ or agent and the persons in danger. It doesn’t extend to more general cases of emergencies
        
        Duration - Distress must be invoked only as far as necessary to avoid the threat.
        
        Necessity -
        
        GR - Precluded IF either:
        1a. is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
        1b. does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole
        
        XCPN - not precluded even if 1, if:
        2a. the international obligation in question excludes the possibility of invoking necessity
        2b. the State has contributed to the situation of necessity
        
        Scope - the whole State and its population is in danger.
        
        Inapplicability due to Exclusion - the contribution to the necessity must be sufficiently substantial and not merely incidental
        
        Peremptory Norms (ARSIWA 26) - No preclusion of wrongfulness if peremptory norm is violated.
        
        Effect of Preclusion - Without Prejudice to:
        
        compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists;
        
        the question of compensation for any material loss caused by the act in question.
      - Existence of a Breach (ARSIWA 12) - There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.
        
        Intertemporal Principle (ARSIWA 13) - An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.
        
        Preparatory Conduct - May be considered a breach if, it predetermines the final decision to be taken.
        
        A subsequent termination of the obligation does not extinguish the liability.
        
        When Breach Occurs (14) - Dependent on whether or not the breach is continuing or not.
        
        Non-Continuing - Occurs at the moment the act is performed, even if its effects continue.
        
        Preparatory Act (Gabcikovo nagymaros) - A preparatory act is not a breach of the international obligation per se. Thus, important to distinguish between the wrongful act itself (commission) and preparatory act.
        
        Continuing Breach - Extends over the entire period during which the act continues and remains not in conformity with the international obligation.
        
        Composite Acts (Art. 15) - A composite wrongful act refers to a series of acts defined in aggregate as wrongful.
        
        When Occurring - occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act e.g., racial discrimination, genocide, etc.,
        
        Period of Breach - the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.
        
        Composite Obligation - There is a distinction between a composite obligation and a simple obligation breached by a composite act. Article 15 refers to simple obligations, composite acts.
        
        Composite Obligations - The obligation itself
        is defined in terms of the cumulative character of the conduct
        
        Finding of a Breach (Commentary) - Whether or not there has been a breach of an international obligation depends on the precise terms of the obligation, its interpretation and application, taking into account its object and purpose, and the facts of the case. However, there may be breach even if act is partly contrary to an international obligation.
    - - Conduct of a State Organ (Art. 4) - The conduct of any State organ shall be considered an act of that State under international law, regardless of its function, position and organization.
        
        Scope of State Organ - includes any person or entity which has that status in accordance with the internal law of the State.
        
        Conduct of Non-Organ (Art. 5) - Conduct of a person or entity which is not an organ of the State under article 4 is an act of the state if:
        
        Empowered by the law of that State to exercise elements of the governmental authority and;
        
        The person or entity is acting in that capacity in the particular instance.
        
        US Anti- Dumping and Countervailing Duties (China) - that 'the essence of government is that it enjoys the effective power to regulate, control, or supervise individuals, or otherwise restrain their conduct, through the exercise of lawful authority.
        
        Case Involved whether Canada's provincial milk marketing boards were government agencies for the purposes of the agreement on agriculture.
        
        Governmental Authority - Crawford: “Effective power to regulate, control, or supervise individuals or otherwise restrain. Here, conduct need not be under the control of the state.
        
        Beyond a certain limit, what is regarded as “government” depends on the particular society its history and traditions. Of particular importance will not be just the content of the powers, bu the way they a re conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise.
        
        Organs of a State used by another State (Art. 6) - Still an act of the original state if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.
        
        Aide-Work (Commentary) - The sending of aide-work is not covered by Article 6. Article 6 is not concerned with ordinary situations of inter-State cooperation or collaboration, pursuant to a treaty or otherwise.
        
        Disposal - For there to be “disposal”, the aides have to end up being part of the government/absorbed by the government.
        
        Conduct by State-Controlled Parties (Art. 8) - If the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct, then their acts are acts of a State under international law.
        
        Conduct in Excess of Authority (Art. 7) - State organ or a person or entity empowered to exercise elements of the governmental authority, even if exceeding authority/contravenes instructions is still an act of the State under international law.
        
        Conduct in Absence of Authority (Art. 9) - 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 and in circumstances such as to call for the exercise of those elements of authority, then conduct of a person/group of persons is considered an act of a state.
        
        Elements -
        
        Conduct must effectively relate to exercise of governmental authority
        
        Carried out in absence or default of official authorities
        
        The circumstances must have been such as to call for the exercise of those elements of authority
        
        Coverage - This deals with ultra vires acts of State organs or entities. International responsibility is incurred by a State if:
        
        Damage is sustained by a foreigner as a result of unauthorized acts of its officials performed under cover of their official character; AND
        
        used means placed at their disposal on account of that status
        
        Requirement of Authority - “It is necessary that they should have acted, at least apparently as authorized officials or organs, or that, in acting, they should have used powers or measures appropriate to their official character.
        
        Conduct by an Insurrectional/Other movement (Art. 10)
        
        Movement Becomes Government - Considered an act of a State under international law.
        
        Movement Establishes Succeeding State - If new state is in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law.
        
        Conduct Acknowledged and Adopted by a State (Art. 11) - Conduct which is not attributable to a State under the preceding articles shall be an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.
        
        Distinction from Support - Acknowledgment and adoption are different from cases of mere endorsement and support. Mere acknowledgment of factual existence is NOT its actual adoption of the acts as its own conduct as a state.
        
        Forms of Adoption (US DIplomatic & Consular Staff) - Expressions of approval of the take-over of the embassy and of the consulted by militants came from numerous Iranian authorities, including the Ayatollah. Thus, it was considered as having been adopted by the State and thus it entails that they can be internationally responsible for the violations of the VCDR.
      - Principle of Unity of The State (DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS OF A SPECIAL RAPPORTEUR OF THE CHR) - entails that acts or omissions of all its organs should be regarded as acts or omission of the State for the purposes of international responsibility. It goes without saying that there is no category of organs specially designated for the commission of internationally wrongful acts and virtually any State organ may be the author of such acts.
    - - Tests for Attribution (Nicaragua) - for such individuals to be regarded as de facto State organs, acting on behalf of the State:
        
        Acting under instructions from a State or
        
        Acting under the direction or control of a State, in carrying out the conduct.
        
        Under Articles 2 and 12 of the ILC, the international law of State responsibility does not require fault before an act or omission may be characterized as internationally wrongful
        
        In some circumstances, the mere breach of an obligation will be sufficient to give rise to responsibility;
        
        are under instructions from a State, or
        
        are under the overall control of a State, or
        
        in fact behave as State officials
        
        Alternative Test Tadic (Merits) -
        
        The ILC Articles adopt the some what stricter test of the Nicaragua Case
        
        Effective Control Standard (Nicaragua) -
        
        They were paid or financed by the state
        
        Coordinated and supervised by the State
        
        State had issued specific instructions concerning each of their unlawful actions
        
        Overall Control (Tadics)
  - - - International Responsibility (Crawford) - International responsibility covers the new legal relations which arise under international law by reason of the internationally wrongful act of a state.
      - Attributable - the operation of attaching a given action or omission to a State. Its concern is to establish that there is an act of the State for the purposes of attributing responsibility
      - Inaction (Corfu Channel) - A State can be held liable for its inaction, if such inaction amounts to a failure to comply with an obligation. However, there need not be fault, so long as breach of obligation.