Public International Law State Responsibility Santa Clara Geneva Summer Abroad Program Dr. Sandra Krähenmann

State Responsibility ‘international responsibility’ : all the forms of new legal relationship which may be established in international law by a State’s wrongful act Directly injured State and other States Countermeasures Reparations   Source: Customary International Law  - reflected in ILC Articles on Responsibility of States for Internationally Wrongful Acts

International Wrongful Act (IWA) Objective element: conduct (act or omission) Subjective element: Attribution IWA  United States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980. "56.First it must determine how far, legally, the acts in questions may be regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or incompatibility with the obligations of Iran under treaties in force or under any other rules of IL that may be applicable."  

CASE STUDY 1 Claire and Matt are finally on their way to their dream holiday to Luxembourg, travelling from Spain. Yet, before disembarking in Luxembourg, an airline employee controls their passports and noticed that Claire’s passport has expired. The airline employee immediately calls the police who arrests Claire for attempted unlawful entry into Luxembourg. Claire is thrown into jail where she currently awaits trial. You are Claire’s lawyers and you try to argue that her human rights have been violated by Luxembourg: First, the control of the passport by the airline employee has been unlawful as both countries are EU countries. Second, her arrest and continued detention amounts to arbitrary detention. The police and the judiciary in Luxembourg are staffed by Swiss officers, but they report to and follow orders of the Luxembourg executive.  

Attribution Article 4: Conduct of State Organs  covers all the individual or collective entities which make up the organisation of the State and act on its behalf.  includes any person or entity which has that status in accordance with the internal law of the State  Salvador Commercial Company Case, Tribunal, 1902, RIAA, Vol. XV, p.455, at p. 477: "... a state is responsible for the acts of its rulers whether they belong to the legislative, executive or judicial department of the Government, so far as the acts are done in their official capacity." “  

Attribution Article 5: Conduct of Persons or entities exercising elements of governmental authority  authorized by the law of the State  to exercise elements of governmental authority - e.g. Airlines checking passports - e.g. Private Military and Security Companies  

Attribution Article 6: Conduct of Persons or entities placed at the disposal of another State  Attribution to the receiving State if: 1) Placed at the disposal of 2) Status of an organ of the sending State 3) Exercise of governmental authority Drozd and Janousek v. France and Spain, European Court of Human Rights, Judgement, 1992. Judiciary of Andorra composed of French and Spanish Judges: “Those courts, in particular the Tribunal de Corts, exercise their functions in an autonomous manner; their judgements are not subject to supervision by the authorities of France or Spain. …Finally, it should be recalled that the secondment of judges or their placing at the disposal of foreign countries is also practised between member States of the Council of Europe, as is demonstrated by the presence of Austrian and Swiss jurists in Liechtenstein.”  

CASE STUDY 2 Gideon and Tristan have been working for the Service for the Protection of Personalities of the State of Monaland for several years. They are responsible to ensure the safety of the Ambassador of El Dorado in Monaland, Luisa, and her husband, Enrico. Gideon has a lot of gambling debts and convinces Tristan to help him out: In the morning of 16 May 2016, Gideon and Tristan start their service as usual, putting on their uniforms and taking their weapons. They are supposed to pick up Enrico and take him shopping. They arrive at the Ambassador’s house and Enrico enters their service car. Yet, instead of taking him to his favorite shops, they drive him to a garage where they keep him hostage and request ransom from Luisa. Yet, the secret service of Monaland discovers them and storms the garage three days later. During the rescue mission, Enrico is injured, but he survives. Is the state of Monaland responsible for the abduction and injury of Enrico?  

Attribution Article 7: Excess of Authority (Ultra Vires)  Conduct of State organ, person or entity empowered to exercise elements of governmental authority is attributable even if: 1) acted ultra vires 2) or contrary to instructions Velásquez Rodríguez v. Honduras, Inter-American Court, Judgement, 1988. "170. This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.  

Case Study 3 Mata is a highly developed state, while its neighbor Cole remains underdeveloped and poor. However, Mata’s industry relies significantly on the natural resources that exist in Cole and which are bought way below marked price by Mata. One day, a hitherto unknown group known as the Equalisation Committee (EC) attacks Mata, killing several border guards of Mata and breaking into several factories in Mata and stealing secret plans for highly sought after IT products. On their way back to Cole, EC injures and kills some policemen who try to stop them and disappears into Cole. Several days later, the media in Mata report that the EC was set up secretly on the order of the current president of Cole. While the EC does not have any official status and does not appear in any official document, its members have been trained and equipped by military officers of Cole and apparently they were ordered to stole the secret plans in Malta. Cole denies any responsibility for the EC, arguing that as a matter of principle, a state is not responsible for the acts of private actors. Assess Cole’s claim.

Attribution Article 8: Instructions or Conduct Directed or Controlled by the State  Attribution of conduct of private persons or entities  Question of degree of control: effective Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), ICJ, Merits, Judgement. “115. All the forms of the United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. "  

Case Study 4 Unluckyland is a large coastal state, which is unevenly developed: the large majority of the state apparatus is concentrated in its capital, Fastcity. However, the nicest area of Unluckyland is Nicetown, located 1500 km from Fastcity and at the foot of one of the largest active volacano, Dementor. Nicetown can only be reached by air. On 15 April 2011, a terrible earthquake shakes Nicetown and Dementor breaks out, covering Nicetown in ashes. It is impossible to reach Nicetown by air during the following two weeks. Chaos breaks out in Nicetown. Its inhabitants organise themselves and try to prevent looting. However, the prison and most other governmental buildings have been destroyed in the Earthquake. Instead, the neighbourhood watches seizes the Consulate of Waikikiland which has a large and fortified basement, which is just perfect to serve as a temporary jail for suspected looters. After two weeks, the central authorities are finally able to reach Nicetown and re-establish law and order. When Waikikiland realises that its embassy has been seized, it protests vehemently. Unluckyland responds that it is not responsible for the acts of the neighborhood watch in Nicetown. Assess this claim.

Attribution Article 9: Conduct Carried out in the Absence or default of the official authorities  Attribution of conduct of private persons or entities  if the persons or entities are in fact exercising elements of governmental authority  in the absence or default of official authority  if the circumstances “call” for the exercise of those elements of authority Yeager v. the Islamic Republic or Iran, Iran-United States Claim Tribunal, 1987, 17 Iran.U.S.C.T.R 92, at 93-113: Acts of Revolutionary Guards: 43.The Tribunal finds sufficient evidence in the records to establish the presumption that the revolutionary 'Komitehs' or 'Guards' after 11 February 1979 were acting in fact on behalf of the new government, or at least exercised elements of governmental authority in the absence of official authorities, in operations of which the new government must have had knowledge and to which it did not specifically object.  

Case Study 5 Francoland is a dictatorship, ruled with an iron fist by Francito. Yet, after some teenagers are arrested for tagging and ‘disappear’, popular unrest spreads across Francoland. Francito tries to suppress the riots, but quickly an armed opposition group, Unity for Francoland, emerges. Francoland is thrown into a long and bloody civil war. Both the state armed forces and Unity for Francoland are repeatedly accused of war crimes. In particular, the local Observatory for Human Rights in Francoland documents war crimes by all parties to the conflict. After 27 months of fighting, Unity for Francoland, seizes the capital and kills Francito. The state armed forces dissipate, Unity for Francoland has officially won the war and installs a provisional government with a view to organise elections during the next 12 months. Unity for Francoland also sets up a fund to compensate the victims of the state armed forces during the conflict, but not those who suffered at the hands of Unity for Francoland. Unity for Francoland argues that this is consonant with international law where only the state authorities can be responsible under the law of state responsibility. Assess their claims.  

Attribution Article 10: Conduct of an Insurrectional or Other Movement  Attribution of conduct of private persons or entities  if the insurrectional movement becomes the new government of the State; or  if the insurrectional movement establishes a new State Bolivar Railway Company, Claims Commission, 1903, RIAA, Vol. IX, p.445, at p. 453: "The nation is responsible for the obligations of a successful revolution from its beginning, because in theory, it represented ab initio, a changing national will, crystallising in the finally successful result."  

Case Study 6 The situation between the States of Tirano and Saphery has been tense for several years: Tirano is a repressive state and many Tirano citizens have found refuge in Saphery where they regularly protest the regime of Tirano. On 30 April 2011, a large demonstration in front of the Embassy of Tirano in Saphery escalates: more and more people join the protests and all of the sudden, they tear down the gates and storm the embassy. The police forces present were outnumbered and did not intervene. Luckily enough, the embassy happened to be empty at that time. The protestors declare that they will keep the embassy occupied until the regime in Tirano resigns and allows free and fair elections. The government of Saphery congratulates the protestors for their act of civil courage to stand up for democracy. Moreover, the government of Saphery adds that it will send food and other supplies to the protestors in the embassy to assist their struggle for democracy. Tirano protests vehemently and accuses Saphery of violating international law. Saphery responds that this claim is ridiculous as it is well known that a state is only responsible for the acts of its own agents, not for the acts of private persons as the students. Assess.  

Attribution Article 11: Conduct Acknowledged and Adopted by a State as its own  after the fact  if and to the extent  through words or conduct  as its own  

Attribution Acts of Individuals as a “Catalyst”  Conduct as such not attributable to the State  But conduct reveals another unlawful act, usually an omission, attributable to the State  

Attribution United States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980. 1st Phase: Storming and initial occupation of the Embassy by the Students: A purely private act “59. Previously, it is true, the religious leader of the country, the Ayatollah Khomeini had made several public declarations inveighing against the United States as responsible for all his country's problems. ... In the view of the Court, however, it would be going too far to interpret such general declarations of the Ayatollah Khomeini to the people or students of Iran as amounting to an authorization. ... Again, congratulations after the event, such as those reportedly telephoned to the militants by the Ayatollah Khomeini on the actual evening of the attack, and other subsequent statements of official approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the militants' attack on the Embassy. ..."  

Attribution United States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980. 1st Phase: Storming and initial occupation of the Embassy by the Students: Catalyst effect 61. The conclusion just reached by the Court, that the initiation of the attack on the United States Embassy on 4 November 1979, and of the attacks on the Consulates at Tabriz and Shiraz the following day, cannot be considered as in itself imputable to the Iranian State does not mean that Iran is, in consequence free of an responsibility in regard to those attacks; for its own conduct was in conflict with its international obligations. By a number of provisions of the Vienna Conventions of 1961 and 1963, Iran was placed under the most categorical obligations, as a receiving State, to take appropriate steps to ensure the protection of the United States Embassy and Consulates, their staffs, their archives, their means of communication and the freedom of movement of the members of their staff. ... §67. This inaction of the Iranian Government by itself constituted a clear and serious violation of Iran's obligations to the United States….  

Attribution United States Diplomatic and Consular Staff in Teheran (United States v. Iran), ICJ, Judgement, Merits, 1980. 2nd Phase: Continuing Occupation: Conduct acknowledged and endorsed "74. The policy thus announced by the Ayatollah Khomeini, of maintaining the occupation of the Embassy and the detention of its inmates as hostages for the purpose of exerting pressure on the United States government was complied with by other Iranian authorities and endorsed by them repeatedly in statements made in various contexts. The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of the State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible. ..."  

Circumstances Precluding Wrongfulness (CPW) Article 20: Consent - e.g. presence of foreign troops Article 21: Self-defence - in accordance with UNC Article 22: Countermeasures   - Acts in response to an IWA

Circumstances Precluding Wrongfulness (CPW) Article 23: Force majeure Irresistible force or unforeseen event Beyond the control of the State concerned Absolute impossibility to perform the obligation Article 24: Distress Choice to act is effectively nullified   No other reasonable way To save life of the author or lives of others

Circumstances Precluding Wrongfulness (CPW) Article 25: Necessity Necessity may not be invoked 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 the international community as a whole   In any case, necessity may not be invoked a ) the obligation in question excludes it; b) The state contributed to the situation of necessity

Wrap up: Is there state responsibility? Is the conduct attributable? (Arts. 4-11) If not: Does the conduct reveal another conduct (omission) that is attributable? Is the conduct a violation of an international obligation? (Arts.12-13) No circumstance precluding wrongfulness? (Arts. 20-25)  

Legal Consequences of an Unlawful Act Article 30: Cessation and non-repetition If the act is on-going If adequate, guarantees of non-repetition Article 31: Reparations Factory at Chorzów (Germany v. Poland), PCIJ, Judgement, Jurisdiction, 1927, Series A, No.9, at p. 21. “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. “  

Legal Consequences of an Unlawful Act Forms of Reparation Restitution (Article 35) Compensation (Article 36) Satisfaction (Article 37) Rainbow Warrior (New Zealand/France), Arbitration Tribunal, 1990, RIAA, Vol. XX, 1990, p. 217, at p. 272. "There is a long established practice of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities. "  

Countermeasures: implementation of international responsibility Substantive Limitations 1) Directed against the State who committed the IWA 2) Temporary : termination once IWA ceases and made reparations 3) As far as possible: reversible in their effects 4) Proportionate 5) Shall not affect certain obligations: Dispute resolution Fundamental obligations, namely:   a) Threat or use of force b) Human Rights obligations c) obligations of a humanitarian character prohibiting reprisals d) other peremptory norms

Countermeasures: implementation of international responsibility Procedural Limitations: “Cooling off” 1) Call upon responsible State to comply with its obligations 2) Notification 3) Offer to negotiate   But: urgent countermeasures to preserve the injured State’s rights are allowed