Topic 7 State Responsibility
Intro: A reparable claim against a State will arise when an act or omission attributable and violates int. legal obligation or duty owed with no justification which caused a state or its nationals injured or loss and entitled to raise a claim.
ILC Draft Articles on State Responsibility: Key points
-Only to acts of States (Art 57&58)
-No general requirement of fault intent (Art 2), except genocide -Legal under domestic law does not preclude illegality under int law (Art 3&31) -General rules in ILC Articles may be overridden by specific agreements with different rules (Art 55)
(a) General principles-Wrongful act and breach
ILC Art 1: Every internationally wrongful act of a State entails the international responsibility of that State. - can be one or more actions; may be attributable to more than one state ** Can be an omission. Corfu Channel Case, it was a sufficient basis for the responsibility that the State knew, but did nothing to warn third States of their presence.
Art 2: Define the wrongful act which consist of
2(a): attributable to State under int law and 2(b) constitutes a breach of its int obligation. –Under customary rule, treaty, general principle
Art 40: Serious breach of a peremptory norm, Art 41: by gross or systematic failure to fulfill obligation. Art 41: Particular consequences arise, including a requirement that all states refrain from recognizing as lawful a situation created by that breach and from rendering aid or assistance in maintaining that situation.
(b) Attribution-attributable to a state
1) Presumed knowledge & Omission:
**Corfu Channel Case:
Fact: Liability of Albania to UK for damage to UK ships/loss of life caused by mines in Albanian territorial waters - Could the laying/presence of mines in Albanian territorial waters be attributed to Albania? Held: No, Exclusive territorial control not attributable to liability for all events within territory, but may allow attribution of presumed knowledge to the state re: actions or events within their territory. Mere fact of presence did not permit knowledge. The State is liable if it did have knowledge of the event and fail to notify third State.
2) State Responsibility for Acts/Omissions of State organs:
Art 4(1): Acts of any State organ whether exercises lefislative, executive, judicial or other function, whatever position, whether an organ of the central govnt or of a territorial unit of the State. Art 4(2): Has the status as an organ in accordance with the internal law of the State. Note: purely private conduct on the part of a natural person that is a State organ may not be attributable to the State. In art 4, it links to the acts exercised in that capacity as a State organ. (ILC Commentary on Art 4).
**Art 7: includes acts exercising elements of govnt authority (ie. In governmental capacity), even when the acts are unauthorized or contrary to instructions.
3) Non- State Bodies
General principle: US v UK: no government can be held responsible for acts of rebellious bodies of men committed in violation of its authority. However it is responsible for a bad faith or negligence in failing to suppress those acts.
Art 10: The conduct of successful insurrectional movements which later formed a new government of the State shall be considered as an act of that state-responsible for conduct earlier committed by it.
Exceptions: act of non-State actor’s actions may be attributable in some way * Governmental authority by law (Art 5)
* Direction or control, acting on instructions of that State (Art 8) * Governmental authority for want of government, in fact exercising governmental authority in absence of the official authorities and circumstances call for the exercise of such authority (Art 9, Yeager v Iran) Maritime zones: Ocean space
UN Convention on Law of the Sea (1982)
Art 3: coastal states have a territorial sea which extend up to 12 nautical miles within which they have...
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