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20190415202016chpt_13_international_wrongful_acts_new.pptxInternational Wrongful Acts and the Legal Reaction Thereto
Chpt 13 Cassese
Concept of Collective Responsibility
Cassese ‘international community is so primitive that the archaic concept of collective responsibility still prevails.’
What does this mean for wrongful international acts?
Where there is infringement of IL the whole collectivity of the State bears the obligation to enforce
Sections of this chpt consider under what circumstances are individuals to blame for IL wrong doing
13.2 Traditional Reactions to Wrongful Acts
In traditional law what were the customary rules regarding State violation of an international rule? What was supposed to happen if a nation broke the rules?
Violators were to make reparation for the breach
Self-help system….meaning victimized States must help themselves
Self-help options against offending state:
Forcible action (armed reprisals, war)
Non-forcible action (economic sanctions, suspension or termination of treaty)
13.2 Traditional Reactions to Wrongful Acts
Cassese says traditional law was rudimentary, why?
1) did not specify what was international delinquency…intent (malicious, negligent)
2) did not specify the legal consequences for delinquency…restitution (compensation or satisfaction)
or any kind of rules for proportionality
13.3 Overview of Current Regulation of State Responsibility
What documents help to explain current regulations of IL and State responsibility?
UN International Law Commission (ILC)
Debates and discussion in UN General Assembly
Draft Articles on Responsibility of States for Internationally Wrongful Acts’ , 2001
13.4 ‘Ordinary’ State Responsibility
A basic precondition of State Responsibility is the commission of a wrongful act by a State
For a wrongful act to occur, some subjective and objective elements are necessary
Following sections are about these subjective and objective elements
13.4 ‘Ordinary’ State Responsibility
What are the subjective elements:
1) imputability to a State of conduct (action or omission) of an individual contrary to an international obligation
2) the fault of the State official performing the wrongful act.
13.4 ‘Ordinary’ State Responsibility
What are the objective elements?
1) inconsistency of particular conduct with an international obligation
2) a material or moral damage to another international subject
3) the absence of any of the various circumstances precluding wrongfulness
13.4 ‘Ordinary’ State Responsibility
Subjective: Imputability of an international wrong to a State
States act through individuals, so in order to hold a state responsible, it is necessary to determine whether the individual’s conduct may be attributed to the State
13.4 ‘Ordinary’ State Responsibility
What first has to be determined when considering if a State should be held responsible for an act?
Is the individual a State official
Is the action in part of his/her official capacity
Can a State be held accountable for a wrongful act carried out by a State official outside (or contrary to) his/her instructions or outside their remit?
Yes
Foreign states are NOT required to know the capacity of the official…all that is needed is 1) did the wrongful act occur 2) by a state official
13.4 ‘Ordinary’ State Responsibility
What happened in the Caire case, and how did the Pres. of the France-Mexico Claims Commission find?
Mr. Caire, a French national, kidnapped by 2 Mexican soldiers and 1 Mexican officer, held for $5,000US and when he couldn’t pay they killed him
Finding: States bear international responsibility for all acts committed by their officials or organs which are contrary to international law, regardless of whether the official or organ has acted within the limits of its competency
Necessary to show that they ‘acted’ as competent officials/organs of the state
13.4 ‘Ordinary’ State Responsibility
Please explain the Youmans case and finding.
1926 Mexico, angry mob surrounds house with American nationals due to a labor dispute, Mexican troops sent to protect Americans, but instead opened fire on the house and killed two Americans
Finding: Actions by troops not a private act, but were done in official capacity of the State, even if not ordered/approved by the State…soldiers committing crimes often act in disobedience of the State
13.4 ‘Ordinary’ State Responsibility
Another category of state actors are de facto State organs. How can one determine if a person or group is a de facto State organ?
When they:
1) are under instructions from a State
2) are under the overall control of a State
3) in fact behave as State officials
13.4 ‘Ordinary’ State Responsibility
The text mentions the case against Muammar Qaddafi and US-Nicaragua (contras). What happened—organs of the State?
13.4 ‘Ordinary’ State Responsibility
The Nicaragua case came up with an test to determine if an organ acts on behalf of a State. What is the test?
1) Whether or not individuals are State officials
2) if they are NOT, are they under the ‘effective control’ of the State
Paid or financed by the State
Actions co-ordinated and supervised by the State
State issues specific instructions concerning their unlawful actions
13.4 ‘Ordinary’ State Responsibility
In Tadic the courts came up with another test to determine if organs are responsible for State action. What are these tests?
1) Whether individuals or military organized groups act under specific instruction or subsequent public approval of a State
2) whether they are under the overall control of a State
3) whether they act defacto as State officials
13.4 ‘Ordinary’ State Responsibility
What about the US-Tehran case? Were the militants who occupied the US Embassy State officials?
Divide case into two parts
First Part—individuals not acting on behalf of the state
Second part—occupiers become actors of State, thus State responsible for US Embassy assault and occupation
13.4 ‘Ordinary’ State Responsibility
Moving onto to Objective Elements
For conduct of a State to be found inconsistent with an international obligation what must be met?
For State responsibility to arise, it is necessary to show that an obligation was in force when it was breached by a State
Wrongful act may be instantaneous or continual in nature
13.4.1 Consequences of Ordinary Wrongful Acts
Who is legally entitled to call to account the wrongdoer and to bring an action against it?
It is the injured State that is entitled to invoke consequences of the wrongful act vis-a-vis the responsible State
Victimized State
Part of group of victimized States
Wrongful State breached a ‘community obligation’
13.4.1 Consequences of Ordinary Wrongful Acts
In addition to the legal entitlement, some have asserted that a distinct specific element is required to bring action against a State. What is this element?
Material or Moral damage
13.4.1 Circumstances Precluding Wrongfulness
What are the circumstances in which IL could be violated but may be excluded from wrongfulness?
1) consent of the State injured
2) self-defense
3) countermeasures in respect of an international wrong
4) force majeure
5) distress
6) state of necessity
13.4.1 4
Are there circumstances which preclude the wrongfulness of breaking a jus cogens?
no
May a State still be required to pay compensation if found to be precluded of wrongfulness for a violation of ordinary acts?
Yes
13.4.2 Consequences of Ordinary Wrongful Acts
What are the obligations of the State responsible for the wrong-doing?
1) Must cease the wrong-doing
2) Must ‘offer appropriate assurances and guarantees of non-repetition’
3) Must ‘make full reparation for the injury caused’
4) if the State refuses to make reparation or to pay compensation to the extent required by the injured State, the responsible State must genuinely attempt to peacefully end the dispute
13.4.2 Consequences of Ordinary Wrongful Acts
Consequences of Wrongful Acts
Modern IL has hierarchy for making reparation:
Cases of Material Damage
1) State must provide restitution in kind
‘to re-establish the situation which existed before the wrongful act was committed.’
Provided a) it is possible; b) does not involve a burden out of all proportion to the benefit from restitution instead of compensation
IF this is NOT possible then---
2) State must provide compensation
‘compensation shall cover any financially assessable damage including loss of profits’
13.4.2 Consequences of Ordinary Wrongful Acts
Consequences of Wrongful Acts
Modern IL has hierarchy for making reparation:
Cases of Moral Damage
Redressed only by Satisfaction
‘may consist in acknowledgement of the breach an expression of regret, a formal apology or another appropriate modality’
BUT
Shall not humiliate the responsible State
And can include a symbolic payment of small sum
13.4.2 Consequences of Ordinary Wrongful Acts
Material damage case: Spanish zone of Morocco pg 259
Moral damage case:1998 Case of Israeli secret agents in Berne, Switzerland pg 260
13.4.2 Consequences of Ordinary Wrongful Acts pg 261
How does the victimized State carry out accusation and demand of reparation from the responsible State?
1) Must ‘give notice of its claim to that State’ and specify a) how to cease the wrongful act, & b) what form reparation should take
2) If the responsible State does not comply with the request, injured State must seek to end dispute peacefully
Negotiations, mediation, conciliation, or arbitration
3) Only when the responsible State does not go along with 1 or 2 is the injured State able to make countermeasures
End treaty, end diplomacy….if they want to take forceful action this must be approved by the UN
13.5 Aggravated State Responsibility
Thus far we have discussed ‘ordinary offenses’ this section discusses aggravated crimes
‘aggravated’ State responsibility arises when a State violates a ‘community obligation’ (aka jus cogens)
Violates fundamental international values (peace, human rights, self-determination, torture, genocide)
13.5 Aggravated State Responsibility
Who can invoke the responsibility of the wrongdoer?
Any State…do not have to be the victim
Why?
‘public’ nature of the offense makes it possible for any State to respond to the wrong
Usually handled through an international organization (UN, NATO, EU etc)
Human Rights Violations
UN Human Rights Committee
UN Convention on Human Rights
1966 UN Covenant on Civil and Political Rights
Geneva Conventions
European Union
NATO
13.5 Consequences of the wrongful act
What are the obligations of the delinquent State?
same as with ordinary wrongful act
BUT obligations owed not only to the damaged State, if any, but also to all the other members of the international community
Restitution, compensation, satisfaction
Genocide? Pay compensation to the victimized families or groups
13.5 Consequences of the wrongful act
What are the rights, powers, and obligations of other States?
1) not to recognize as lawful the situation created by the breach
2) not to render aid or assistance to the responsible State in maintain the situation created
3) to co-operate as far as possible to bring the breach to an end.
13.5 Consequences of the wrongful act
What are other States Powers, Rights, or Claims?
1) Invoke aggravated responsibility of the delinquent State, bring claim to their notice
2) Demand cessation of the wrong, and/or request assurances of non-repetition
3) Claim reparation in a form consistent with the nature of the wrong
4) States act through IO to ask State to cease illegal activity
5) IF they do not, cannot take on peaceful countermeasures
Unilateral –sanctions, withhold aid
Serbia gave over Milosevic after the US threatened to withhold 50 million in assistance
Multilateral—sanctions,
6) In case of armed aggression, States are entitled to resort to collective defense
