Vorlesung Völkerrecht II Staatenverantwortlichkeit Prof. Dr. Andreas Zimmermann, LL.M. (Harvard)

Etablierter Grundsatz der Staatenverantwortlichkeit PCIJ, Chorzow Factory, para. 28 (1927): “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.”

ILC-Entwurf zur Staatenverantwortlichkeit 2001, vier Abschnitte: Internationally wrongful act of a State, Art. 1 ff. Content of the International Responsibility, Art. 28 ff. Implementation of the International Responsibility, Art. 42 ff. General Provisions, Art. 55 ff.

ILC-Entwurf zur Staatenverantwortlichkeit Art. 2 There is an internationally wrongful act of a State when conduct consisting of an act or omission: a) is attributable to the State under international law; and b) constitutes a breach of an international obligation of the State.

ILC-Entwurf zur Staatenverantwortlichkeit Art. 4: 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.

Rechtsprechung zu Art. 4 ILC ICJ, Bosnian Genocide Case, para. 385: “[…] the well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State.”

Der Begriff des Staatsorgans Kommentar zum ILC-Entwurf, Art. 4, para. 6 It is not limited to the organs of the central government, to officials at a high level or to persons with responsibility for the external relations of the State. It extends to organs of government of whatever kind or classification, exercising whatever functions, and at whatever level in the hierarchy, including those at provincial or even local level.

ILC-Entwurf zur Staatenverantwortlichkeit Art. 5 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.

ILC-Entwurf zur Staatenverantwortlichkeit Art. 8 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.

Anforderungen an „Kontrolle” i. S. d. Art. 8 ILC-Entwurf ICJ, Nicaragua Case, 1986, para. 115: “[I]t would in principle have to be proved that the State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.”

Anforderungen an „Kontrolle” i. S. d. Art. 8 ILC-Entwurf ICTY, Tadic, 1999, para. 131 (Berufungskammer) “In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.”

ILC-Entwurf zur Staatenverantwortlichkeit Art. 10: 1. The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law. 2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State 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. 3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.

ILC-Entwurf zur Staatenverantwortlichkeit Art. 11 Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent the State acknowledges and adopts the conduct in question as its own.

Nachträgliche Anerkennung und Annahme privaten Verhaltens durch den Staat ICJ, Teheran Hostage Case, para. 74: “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 that State.”

Verletzung einer Schutzverpflichtung seitens des Staates ICJ, Teheran Hostage Case, para 61: “The conclusion [that the act] cannot be considered as in itself imputable to the Iranian State does not mean that Iran is, in consequence, free of any responsibility in regard to those attacks; for its own conduct was in conflict with its international obligations. […] 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 […].”

ILC-Entwurf zur Staatenverantwortlichkeit Rechtfertigungsgründe Einwilligung, Art. 20 Selbstverteidigung nach Art. 51 UN-Charta, Art. 21 Gegenmaßnahmen (countermeasures), Art. 22 Höhere Gewalt (Force Majeure), Art. 23 Notlage (Distress), Art. 24 Notstand (Necessity), Art. 25

Verhältnismäßigkeit von Gegenmaßnahmen ICJ, Gabcikovo-Nagymaros Project, para. 87: “The Court considers that Czechoslovakia, by unilaterally assuming control of a shared resource […] with the continuing effects of the diversion of these waters on the ecology of the riparian area of the Szigetköz - failed to respect the proportionality which is required by international law [...]. The Court thus considers that the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not proportionate.”

Zum völkerrechtlichen Notstand ICJ, Gabcikovo-Nagymaros Project, para. 51: “The Court considers […] that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis.”

Zum völkerrechtlichen Notstand ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 140: “The Court has, however considered whether Israel could rely on a state of necessity which would preclude the wrongfulness of the construction of the wall. […] However, the Court will not need to consider that question. […] In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.”

ILC-Entwurf zur Staatenverantwortlichkeit 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. 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.

Rechtsfolgen PCIJ, Chorzow Factory, para. 47: “The essential principle contained in the actual notion of an illegal Act […] is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”

ILC-Entwurf zur Staatenverantwortlichkeit Das System der Wiedergutmachung: Restitution, Art. 35 Compensation, Art. 36 Satisfaction, Art. 37

Zur Verpflichtung von Drittstaaten ICJ, Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 154: “Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall […]. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.”