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PIL: WEEK 5, CHAPTER V CIRCUMSTANCES PRECLUDING WRONGFULNESS - Coggle…
PIL: WEEK 5
ARSIWA
PART ONE
THE INTERNATIONALLY WRONGFUL
ACT OF A STATE
CHAPTER I GENERAL PRINCIPLES
EVERY IWA ENTAILS INTERNATIONAL RESPONSIBILITY OF THAT STATE
Article 1 Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility of that State.
IWA ELEMENTS:
Article 2 Elements of an internationally wrongful act of a State
ACTION OR OMISSION
ATTRIBUTABLE TO STATE
a.
UNDER INT'L LAW
CONSTITUTING BREACH OF IO OF STATE
There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.
INT'L LAW GOVERNS WHETHER ACT IS IWA
Article 3 Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by international law.
INTERNAL LAW DEEMING IT LAWFUL DOES NOT AFFECT INT'L CHARACTERIZATION
Such characterization is not affected by the characterization of the same act as lawful by internal law.
CHAPTER II
ATTRIBUTION OF CONDUCT TO A STATE
STATE ORGAN'S CONDUCT IS STATE'S ACT UNDER INTERNATIONAL LAW
Article 4 Conduct of organs of a State
REGARDLESS IF/OF
LEGISLATIVE, EXECUTIVE, JUDICIAL, OR ANY OTHER
POSITION IN STATE'S ORGANIZATION
CENTRAL GOV'T OR TERRITORIAL UNIT
(1)The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
ORGAN INCLUDES ANY PERSON/ENTITY WITH THAT STATUS UNDER INTERNAL LAW
(2)An organ includes any person or entity which has that status in accordance with the internal law of the State.
NON-ORGAN PERSON'S CONDUCT IS STATE'S ACT IF:
EMPOWERED TO EXERCISE ELEMENTS OF
GOV'T AUTHORITY BY
a.
STATE'S LAW
ACTING IN THAT CAPACITY IN THAT
a.
PARTICULAR INSTANCE
Article 5 Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that 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.
ORGAN AT STATE'S DISPOSAL IS ACT OF THAT STATE UNDER INT'L LAW IF::
EXERCISING ELEMENTS OF GOV'T AUTHORITY OF
a.
STATE WHOSE DISPOSAL IT'S PLACED
Article 6 Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.
EXCESS OF AUTHORITY or CONTRAVENTION OF INSTRUCTION = STILL STATE'S ACT
Article 7 Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
PERSON OR GROUP OF PERSONS' ACT = STATE'S ACT IF UNDER STATE'S:
INSTRUCTIONS
DIRECTIONS
CONTROL
Article 8 Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under international law 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.
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CHAPTER III BREACH OF AN INTERNATIONAL OBLIGATION
BREACH OF IO ELEMENTS:
Article 12 Existence of a breach of an international obligation
STATE'S ACT
NOT IN CONFORMITY WITH
a.
REQS OF IO
b.
REGARDLESS OF ORIGIN/CHARACTER
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.
BOUND UPON BREACH:
TO BE A BREACH, STATE MUST BE
BOUND BY OBLIGATION
AT TIME OF ACT
Article 13 International obligation in force for a State 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.
NON-CONTINUING ACTS' BREACH OCCUR
AT MOMENT IT'S PERFORMED
(EVEN IF EFFECTS CONTINUE)
Article 14 Extension in time of the breach of an international obligation
The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.
CONTINUING ACTS' BREACH EXTENDS OVER
ENTIRE PERIOD IT:
CONTINUES
; AND
REMAINS NOT IN CONFORMITY WITH IO
2.The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.
FAILURE TO PREVENT BREACH OCCURS AND EXTENDS OVER ENTIRE PERIOD IT:
CONTINUES
REMAINS NOT IN CONFORMITY WITH IO
(3)The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.
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CHAPTER V CIRCUMSTANCES PRECLUDING WRONGFULNESS
VALID CONSENT:
PRECLUDES WRONGFULNESS TO
EXTENT ACT REMAINS WITHIN
a.
LIMITS OF THAT CONSENT
Article 20 Consent
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.
SELF-DEFENSE:
PRECLUDES WRONGFULNESS IF
LAWFUL MEASURE OF SELF-DEFENCE
a.
IN CONFORMITY WITH UNC
Article 21 Self-defence
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.
COUNTERMEASURE:
WRONGFULNESS OF STATE'S ACT PRECLUDED
IF & TO EXTENT IT IS COUNTERMEASURE
a.
TO OBLIGEE STATE
Article 22 Countermeasures in respect of an internationally wrongful act
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.
FORCE MAJEURE PRECLUDES WRONGFULNESS IF:
DUE TO
a.
IRRESISTIBLE FORCE
b.
UNFORESEEN EVENT
BEYOND CONTROL OF STATE
MATERIALLY IMPOSSIBLE TO PERFORM OBLIGATION
Article 23 Force majeure
(1)The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded 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.
DISTRESS TO SAVE LIVES
PRECLUDES WRONGFULNESS IF
AUTHOR HAD NO OTHER
REASONABLE WAY IN
a.
DISTRESSFUL SITUATION
SAVING
a.
OWN AUTHOR'S LIFE
b.
OTHERS' LIVES
-
ENTRUSTED IN HIS CARE
Article 24 Distress
1)The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
NECESSITY PRECLUDES WRONGFULNESS IF ACT IS:
Article 25 Necessity
ONLY WAY TO SAFEGUARD
a.
ESSENTIAL INTEREST AGAINST
b.
GRAVE & IMMINENT PERIL
AND
DOES NOT IMPAIR OBLIGEE STATE/S'
a.
ESSENTIAL INTEREST
b.
SERIOUSLY
(1)Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) 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.
NECESSITY MAY NOT BE INVOKED IF:
IO EXCLUDES INVOKING NECESSITY
OR
STATE CONTRIBUTED TO NECESSITY
In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes the possibility of invoking necessity; or
(b) the State has contributed to the situation of necessity.
JUS COGENS NORMS UNPREJUDICED
Article 26 Compliance with peremptory norms Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.
UNPREJUDICED IS
COMPLIANCE WITH OBLIGATION
IF AND TO EXTENT THAT PRECLUSION OF WRONGFULNESS NO LONGER EXISTS
COMPENSATION FOR MATERIAL LOSS
Article 27 Consequences of invoking a circumstance precluding wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to:
(a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists;
(b) the question of compensation for any material loss caused by the act in question.
EXCEPT IF
DISRESS IS DUE TO STATE'S CONDUCT
a.
ALONE or IN COMBO w/ OTHER FACTORS
COMPARABLE/GREATER PERIL CREATED BY ACT
(2)Paragraph 1 does not apply if:
(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
(b) the act in question is likely to create a comparable or greater peril.
EXCEPT IF:
(2)Paragraph 1 does not apply if:
DUE TO INVOKING STATE'S CONDUCT
a.
ALONE or IN COMBO w/ OTHER FACTORS
(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or
OR
ASSUMPTION OF RISK
(b) the State has assumed the risk of that situation occurring.
PART TWO CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE CHAPTER I GENERAL PRINCIPLES
INTERNATIONAL RESPONSIBILITY
-> LEGAL CONSEQUENCES
Article 28 Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of part one involves legal consequences as set out in this part.
CONTINUED DUTY TO PERFORM DESPITE
LEGAL CONSEQUENCES
Article 29 Continued duty of performance
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.
CESSATION/NON-REPETITION:
RESPONSIBLE STATE OBLIGED TO:
CEASE ACT
a.
IF CONTINUING
OFFER ASSURANCE & GUARANTEE OF
NON-REPRETITION
Article 30 Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
(a) to cease that act, if it is continuing;
(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
REPARATION:
RESPONSIBLE STATE OBLIGED TO:
MAKE FULL REPARATION FOR INJURY
a.
INCLUDES DAMAGE
b.
MATERIAL or MORAL
c.
CAUSED BY IWA
Article 31 Reparation
(1)The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
(2)Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State
CHAPTER II REPARATION FOR INJURY
FORMS OF REPARATION:
RESTITUTION
COMPENSATION & SATISFACTION
; or
COMBINATION
Article 34 Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.
RESTITUTION =
RESTORE STATUS QUO PRIOR TO IWA
IF:
NOT MATERIALLY IMPOSSIBLE
NO BURDEN DISPROPORTIONATE TO BENEFIT OF RESTITUTION
a.
COMPARED TO COMPENSATION
Article 35 Restitution
A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.
COMPENSATION
RESPONSIBLE STATE OBLIGED TO:
COMPENSATE
a.
DAMAGE BY IWA
b.
NOT MADE GOOD BY RESTITUTION
FINANCIALLY COVER
a.
ASSESSABLE DAMAGE, INCLUDING
b.
LOSS OF PROFITS ESTABLISHED
Article 36 Compensation
(1)The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
(2)The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.
SATISFACTION
RESPONSIBLE STATE OBLIGED TO:
SATISFY INJURY NOT MADE GOOD BY:
a.
RESTITUTION
; OR
b.
COMPENSATION
Article 37 Satisfaction
(1)The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
SATISFACTION MAY CONSIST IN:
ACKNOWLEDGMENT OF BREACH
EXPRESSION OF REGRET
FORMAL APOLOGY
OTHER APPROPRIATE MODALITY
(2)Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
SATISFACTION CANNOT BE:
DISPROPORTIONATE TO INJURY
HUMILIATING TO RESPONSIBLE STATE
(3)Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
CHAPTER II COUNTERMEASURES
ONLY OBJECT OF COUNTERMEASURES:
INDUCE COMPLIANCE
Article 49 Object and limits of countermeasures
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.
LIMITED TO NON-PERFORMANCE OF IO BY STATE TAKING MEASURES TOWARDS RESPONSIBLE STATE
Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.
TAKEN TO PERMIT RESUMPTION OF PERFORMANCE OF OBLIGATIONS
Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.
OBLIGATIONS NOT AFFECTED BY COUNTERMEASURES, OBLIGATION TO:
REFRAIN FROM THREAT/FORCE
a.
AS UNDER UNC
PROTECT FUNDAMENTAL HUMAN RIGHTS
PROHIBIT REPRISALS
a.
BY HUMANITARIAN OBLIGATIONS
JUS COGENS
Article 50 Obligations not affected by countermeasures
(1) Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.
STATE TAKING COUNTERMEASURES NOT RELIEVED FROM OBLIGATIONS
UNDER ANY DISPUTE SETTLEMENT
a.
APPLICABLE BETWEEN IT AND RESPONSIBLE STATE
RESPECT INVIOLABILITY OF
a.
DIPLOMATIC or CONSULAR AGENTS
b.
PREMISES
c.
ARCHIVES & DOCUMENTS
(2)A State taking countermeasures is not relieved from fulfilling its obligations:
(a) under any dispute settlement procedure applicable between it and the responsible State;
(b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.
COMMENSURATE WITH INJURY
COUNTERMEASURES MUST BE:
COMMENSURATE WITH INJURY
ACCOUNTING FOR:
a.
GRAVITY OF IWA
b.
RIGHTS IN QUESTION
Article 51 Proportionality
Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.
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PART FOUR GENERAL PROVISIONS
ARSIWA NOT APPLICABLE TO EXTENT GOVERNED BY SPECIAL RULES OF INT'L LAW
Article 55 Lex specialis
These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.
QUESTIONS OF STATE RESPONSIBILITY GOVERNED BY RULES OF INT'L LAW TO EXTENT NOT REGULATED BY ARSIWA
Article 56 Questions of State responsibility not regulated by these articles
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.
UNPREJUDICED IS RESPONSIBILITY OF:
IO
STATE
a.
FOR IO'S CONDUCT
Article 57 Responsibility of an international organization
These articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.
UNPREJUDICED IS ANY QUESTION OF::
INDIVIDUAL RESPONSIBILITY
UNDER INT'L LAW
ANY PERSON ACTING ON BEHALF OF A STATE
Article 58 Individual responsibility
These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.
UNPREJUDICED IS UN CHARTER
Article 59 Charter of the United Nations
These articles are without prejudice to the Charter of the United Nations.