State responsibility and State liability in international law. Sigmar Stadlmeier

Transcription

1 State responsibility and State liability in international law 1

2 State responsibility and State liability State responsibility Accountability for an internationally wrongful act State liability Wiping out consequences of a wrongful act Codification processed by the UN International Law Commission since : Final Draft for a Convention on State responsibility (ILC Draft Articles on State responsibility) 2

3 State Responsibility conduct consisting of an action or omission attributable to the State breach of an international obligation Internationally wrongful act entailing state responsibility specific damage as a result of that failure is not required 3

4 Attribution Responsibility of the State for sovereign conduct of all organs of the State (if person has status of an organ according to internal law)... for any other person or entity which is empowered by the law of that State to exercise elements of the governmental authority or if in fact acting on the instructions of, or under the direction or control of the State Tinoco case 1923: actions of any government, irrespective of how it seized power, will be attributed to its State ( principle of effectiveness ) 4

5 Attribution Rebels & Insurgents Spanish Zone of Morocco case 1924: no suppression of insurrection due to the lack of effective state authority; but obligation to take additional means in order to counter terrorist acts (After a successful rebellion) wrongful acts of rebellious groups shall be considered an act of the new State Tinoco case1923: attribution of any government to any pre-existing government, irrespective of how it seized power 5

6 Breach of an international obligation (1) A breach of international law is defined by international law itself Qualification within national law is not relevant no specific damage required 6

7 Breach of an international obligation (2) Obligations of conduct: Norms which require a subject of international law to adopt a particular course of conduct (acts or omissions) Obligations of result: Norms which require a subject of international law to cause or prevent a particular result 7

8 Breach of an international obligation (3) Breach consisting of a continuing set of acts/omissions extends over the entire period during which the act continues and remains not in conformity with the international obligation e.g. after the exhaustion of domestic remedies, prior to this point in time a breach of international law may be ceased (and conformity with international law established) by a higher authority / court 8

9 Breach by a distinct subject of international law A State which aids or assists another State in the commission of an internationally wrongful act by the latter or which directs, controls or coerces another State to do so, is internationally responsible if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed (only) by that State 9

10 Serious breaches of international law Breach of ius cogens (peremptory norms of general international law) in a serious and systematic manner Prohibition to assist or support another state in maintaining a breach Positive obligation of states to cooperate in order to end a breach of ius cogens (by lawful means) (Cf Genocide Convention) (ICJ, Advisory Opinion Palestine Wall) 10

11 Fault (1) Subjective element on the part of the breaching party which constitutes a requirement for an internationally wrongful act (in addition to the objectve breach of an international obligation as such) ILC: concept of objective responsibility, fault does not constitute a necessary element of an internationally wrongful act; attribution and breach of obligation are sufficient 11

12 Fault (2) Legal Doctrine: concepts of subjective responsibility (responsiblity based on fault) Concept of subjective responsibility (Seidl-Hohenveldern): fault as a necessary requirement in any case Concept of limited subjective responsibility (Zemanek) distinguishes: Obligations of conduct objective responsibility Obligations of result subjective responsibility 12

13 Fault (3) PRO requirement of fault: subject of international law should not be held responsible for a certain (unlawful) result if it took all reasonable measures for achieving the required result or for avoiding the unlawful result CONTRA requirement of fault: international law cannot impose on any subject of international law an obligation which would exceed its means of conduct (ultra posse nemo tenetur); objective restriction already inherent in the legal norm which is breached 13

14 Circumstances precluding wrongfulness Consent Self-defence Countermeasure Force majeure Distress Necessity 14

15 Consent of injured party volenti non fit iniuria Consent to a breach of ius cogens invalid Character of ius cogens Erga omnes obligations! 15

16 Self-defence exception to the prohibition of the use of force in international relations in accordance with the UN-Charta (Art 51) only upon strict requirements 16

17 Countermeasure Breach of law committed by injuring party must be in response to a prior breach of law by injured party principle of proportionality right to take countermeasures solely in respect to injuring party (not vis-à-vis third states) No breach of the prohibition of the use of force as stipulated by the UN Charta, human rights, humanitarian obligations or ius cogens Not to be confused with Retorsion: not an unlawful, but only an unfriendly conduct 17

18 Force majeure Irresistible force or unforeseen event, beyond the control of the State Making it materially impossible in the circumstances to perform the obligation As a consequence, the wrongfulness of the State s act is precluded (ultra posse nemo tenetur!) NOT if the situation of force majeure results from the conduct of the State invoking it or the State has assumed the risk of that situation occurring 18

19 Distress No responsibility if the conduct in question is the only reasonable way of saving the lives of other persons NOT if the situation of distress is due to the conduct of the State invoking it or the act in question is likely to create a comparable or greater peril 19

20 Necessity the only way for the State to safeguard an essential interest against a grave and imminent peril NOT if the State has contributed to the situation of necessity 20

21 Liability (1) The legal consequences of an internationally wrongful act encompass: to cease the wrongful conduct to offer appropriate assurances and guarantees of non-repetition LaGrand case 2001: ICJ held for the first time that guarantee of nonrepetition is due, although US had already made a formal apology to Germany 21

22 Liability (2) to make full reparation for the injury (whether material or moral) caused by the internationally wrongful act: Restitution Compensation ( or $$$ ) Satisfaction Chorzow case 1928: 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. 22

23 Restitution Primary obligation to reestablish the situation which had existed before the wrongful act was committed provided that reparation is possible and a reasonable burden (proportionality) Annulment of laws and administrative acts Reconsideration or non-enforcement of a judgment, or (if impossible) at least elimination of its consequences Responsible State may not rely on its internal law as justification for its failure to comply with international law 23

24 Compensation (1) shall cover any financially quanitifiable damage insofar as such damage is not made good by restitution Compensation for loss of profits? cf. expropriation Compensation for indirect damage: compensation is controversial if a clear causal link between breach of obligation and damage cannot be established ( remote damage ) Compensation for moral damage hardly recognised in practice 24

25 Satisfaction Formal acknowledgement of the wrongful conduct Reparation for moral damages Formal apology Expression of regret (or another appropriate modality) Arbitral award or judgment (Corfu Channel case) Practice: punishment of an organ in the case of his/her personal culpability (Gust Adams case 1933) may be awarded in addition to restitution or compensation 25

26 How to invoke (1) Injured State shall give notice of its claim to the State allegedly responsible If several responsible States, responsibility of each State may be invoked Invocation of erga omnes obligations (which are owed to the international community as a whole) may be invoked by any State(s) other than the injured State(s): by demanding cessation of the internationally wrongful act and non-repetition Reparation only to the benefit of the injured state 26

27 How to invoke (2) In order to exercise diplomatic protection claim must be brought in accordance with the nationality of claims rule as well as the local remedies rule; ILC: exhaustion of all available and effective remedies No invocation of responsibility if: injured State has validly waived the claim; or consented to the the lapse of the claim (even by conclusive behaviour / acquiescence, principle of estoppel) 27

28 Specific forms of liability Risk liability Strict liability Obligation to pay compensation is not linked to state responsibility / the commission of an internationally wrongful act 28

29 Risk liability (1) State liability without the occurrence of an internationally wrongful act As a result of a State s conduct involving a reasonable risk in the course of a hazardous activity which is accepted by the international community (e.g. space activities, peaceful use of nuclear power) 29

30 Risk liability (2) Liability for predictable risks ILC: tends to acknowledge risk liability in international law ( International liability for acts not prohibited by international law ) Obligation to prevent transboundary harm Obligation to mitigate damage Obligation to make compensation 30

31 Strict liability Ultra-hazardous activities (marine pollution, failure to take precautionary measures in the event of floodings, damage resulting from land use near boundaries, transboundary fire, transboundary contamination) Purerly objective (objective liability for the result) Liability on the basis of the principle of causation (liability of the beneficiary of the activity), irrespecitve of the violation of due diligence (strict liability) 31