I. BREACH
A. IS FAULT OR MALICE NECESSARY? B. THE STANDARD OF DILIGENCE II. ATTRIBUTION
A. DIRECT AND INDIRECT ATTRIBUTION B. CONDUCT ATTRIBUTABLE TO THE
STATE
III. CONSEQUENCES OF STATE
RESPONSIBILITY
A. DUTY TO MAKE REPARATION B. FORMS OF REPARATION
1. RESTITUTION 2. COMPENSATION 3. SATISFACTION
4. DECLARATORY RELIEF
IV. CIRCUMSTANCES PRECLUDING
WRONGFULNESS
V. DIPLOMATIC PROTECTION (“ESPOUSAL OF CLAIM”)
A. MATERIAL DATES
B. EXHAUSTION OF LOCAL REMEDIES Every internationally wrongful act of a State entails the international responsibility of that State.
Whether an act is “international wrongful” or not depends upon international law, and its wrongfulness is not affected by a contrary characterization in domestic law.
Requisites to Engage the Responsibility of a State
A binding obligation and a failure to fulfill that obligation (breach)
The act or omission is attributable to the she state
I.
Breach
A. Is Fault or Malice Necessary?
The issue of whether the failure to fulfill a binding obligation must be coupled with fault or malice is a contested area in international law.
Those who subscribe to the Doctrine or
Objective (or Strict) Liability hold that fault
or malice is unnecessary to engage the responsibility of the state, it being sufficient that there is a causal connection between the act done and the injury suffered (or how “remote” the injury suffered is from the act perpetrated).
Though the general rule for determining liability is objective responsibility, the theory of culpa may be relevant in certain special situations, such as:
i. When the breach results from acts of individuals not employed by the state or from the activities of licensees or trespassers on its territory;
ii. When a state engages in lawful activities, in which case responsibility may result from culpa in executing these lawful activities; iii. When determining the amount of the
damages;
iv. When due diligence or liability for culpa is stipulated in a treaty.
B. The Standard of Diligence
A state breaches its international obligation if it fails to exercise the due diligence which could reasonably have prevented the conduct that caused the injury.
Where due diligence is relevant, is a state’s ability to fulfill an obligation relevant?
The Relativist view holds that circumstances
affecting a State’s ability to perform its duties would be relevant in determining the degree of diligence that must characterize its performance of its obligations. Thus, a State breaches its obligation only if:
i. It is aware of its obligation; ii. It had the means to fulfill them;
iii. Yet it failed to do so (Tehran Hostages Case).
The Objective view holds that the State’s ability
to fulfill is irrelevant.
II. Attribution
A State becomes liable for the acts of individuals,
(1) when they are State organs or agent acting under color of authority.
(2) If they are not officers, the State is nonetheless liable when the state adopts the acts of individuals or
(3) when it is negligent in preventing or in punishing the acts.
EXAMPLE: When a State is bound by a duty to prosecute, or has an international obligation to exert efforts to prevent certain acts, and the State maliciously or negligently fails to do so.
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P U B L IC IN T E R N A T IO N A L L A WA. Direct and Indirect Attribution
1. Direct – State is liable for an act imputable to it that breaches an international obligation.
2. Indirect – the State becomes liable for being negligent in preventingor punishing the internationally wrongful conduct, not for the act itself.
B. Conduct Attributable to the State
1. Conduct of State organs (Art.4, Articles of State Responsibility (ASR))
Refers to any person or entity that is considered as such under its domestic law.
The conduct of a State organ is an act of that State, whatever the function of that organ, whatever position it holds in the organization of the State, whether it is the organ of the central government or a local unit of the State.
2. Conduct of persons or entities not being state organs but exercising elements of government authority (Para-Statal Entities) (Art.5, ASR)
3. Conduct of organs placed at the disposal of a State by another State (Art.6, ASR)
4. Ultra vires conduct (Art.7, ASR)
The acts of public officials, when done withapparent authority or in their official capacity, are imputable to their State, even when these acts are beyond their authority or contravene superior orders 5. Conduct directed or controlled by a State
(Art.8, ASR)
6. Conduct carried out in the absence or default of official authorities (Levee en
masse) (Art.9, ASR)
7. Conduct of an insurrectional movement that becomes the new government of the State (Art.10, ASR)
NOTE: Where the insurrectional movement does not succeed, its conduct shall not be attributable to the State.
8. Conduct acknowledged and adopted by a State as its own (Art.11, ASR)
When a State “adopts” the acts of individuals as its own, it becomes responsible therefor.
Adoption occurs when
(i) the State encourages these acts, (ii) the individuals effectively act as
agents in performing the offending acts, and
(iii) the State endorses as its own the acts of the individuals.
9. Failure to Exercise Due Diligence
A State becomes indirectly responsible when it has an international obligation to prevent the internationally wrongful acts of individuals under its control, and the State maliciously or negligently fails to do so.
III. Consequences
of
State
Responsibility
The responsible State is under the obligation: 1. To cease the act, if it is continuing; and 2. To offer appropriate assurances and
guarantees of non-repetition(Art.30, ASR).
A. Duty to Make Reparation
(Asked 1 time in the Bar)
Every breach on an international obligation involves the duty to make reparations. The responsible State is under the obligation to make full reparation for the injury cause by the internationally wrongful act. Injury includes any damage, whether material or moral.
NOTE: While a breach gives rise to state responsibility, the duty to make reparations is the consequence of state responsibility.
B. Forms of Reparation
Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination (Art.34, ASR).
1. Restitution (Art.35, ASR)
Wiping out all the consequences of the breach.
Re-establishing the situation which would probably have existed had the wrongful act not been committed.
Restitution could take the form of: (i) Legal Restitution – the declaration
that an offending treaty, law, executive act, or other, is invalid; and
(ii) Specific Restitution – restitution in kind.
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P U B L IC IN T E R N A T IO N A L L A W2. Compensation (Art.36, ASR)
The payment of money as valuation of the wrong done. The amount thereof must correspond to:
i. The value in which a restitution in kind would bear; and
ii. The award of damages for loss sustained which would not be covered by restitution in kind or payment in place of it (Chorzow Factory Case).
3. Satisfaction (Art.37, ASR)
Insofar as the injury suffered by the offended State is not made good by restitution or compensation, the responsible State is under the obligation to render satisfaction. It may consist of: i. Apology and other acknowledgment
of wrongdoing;
ii. Punishment of individuals concerned; and
iii. Taking measures to prevent a recurrence of the wrong.
Satisfaction may also be in pecuniary form.
Pecuniary satisfaction, however, is distinguishable from compensation on the basis of their intention.
Pecuniary satisfaction is meant to be a token of regret and acknowledgement of wrongdoing (a monetary "sorry"), while compensation is intended to repair the injury caused.
4. Declaratory Relief
Tribunals may give declaratory judgments when:
1. It is, or the parties deem it to be, the proper way to deal with a dispute (ex. disputes over territory); or
2. The object is not to give satisfaction for the wrong received (BROWNLIE)
IV. Circumstances
Precluding
Wrongfulness
1. Wronged State consented to the act that caused injury (Art.20, ASR)
2. Act was done in self-defense (Art.21, ASR) 3. Act was a countermeasure taken against the
another State (Art.22, ASR)
4. Act done in compliance with the offender State's obligations under a peremptory norm (Art.23, ASR)
5. Author of the wrongful act has no other reasonable way, in a situation of distress, to save his life or the life of a person entrusted to his case.
Exception: When the State caused the distress or the act in question will cause a greater peril (Art.23, ASR). In such cases, the act shall remain wrongful.
6. Act was done due to force majeure (Art.24, ASR)
7. Act was done in due to a state of necessity (Art. 25)
As a general rule, necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State.
Except when:
a. The act was the only way to safeguard an essential interest from a grave and imminent peril
b. Act must not seriously impair an essential interest of the State or States to which the obligation breached is owed, or of the international community as a whole c. The existence and imminence of
such a peril must be duly established
d. The means to avert the peril must be absolutely necessary to avert the danger
e. The obligation violated must not be of peremptory character.
V. Diplomatic Protection (“Espousal of
Claim”)
DEFINITIONS.
A procedure whereby the State asks relief for the violation of the rights of the State through the harm done to its citizens, and the tribunal would award damages to the
State(OPPENHEIM).
Consists of the invocation by a State, through diplomatic action or other means of peaceful settlement,
of the responsibility of another State
for an injury caused by an internationally wrongful act of that State
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P U B L IC IN T E R N A T IO N A L L A W to a natural or legal person that is a national of the former State
with a view to the enforcement of such responsibility (Sec.1, Draft Articles on Diplomatic Protection).
The State entitled to exercise diplomatic protection is the State of Nationality (Sec.3(1), DADP).
1. A natural person’s State of nationality pertains to the State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States or in any other manner, not inconsistent with international law (Sec.4, DADP).
2. A Corporation’s State of nationality
pertains to the State under whose law the corporation was incorporated.
However, when the corporation is
controlled by nationals of another State or States and
has no substantial business activities in the State of incorporation, and
the seat of management and the financial control of the corporation are both located in another State,
that State shall be regarded as the State of nationality (Sec.4, DADP).
A. Material Dates
A State is entitled to exercise diplomatic protection in respect of a person who was a national of that State continuously from the (1) date of injury to the date of the (2) official presentation of the claim.
Continuity is presumed if that nationality existed at both these dates (Sec.5, DADP). Mavromattis case: the primary nexus for
diplomatic protection is nationality. An injury to the national is also an injury to the State Amvatielos case: Since individuals are not
within the jurisdiction of an international court, it is only through a State’s espousal of its national’s claims that the individual to the international scene upon its discretion. The decision whether to espouse a claim or not is entirely for the State to determine.
Nottebohm Case: Other states are not bound by another's claim of nationality. Determining nationality is a matter of domestic law.
When a person, however, is given
nationality by 2 states, the case now goes into the realm of international law.
The test for the nationality of a person is the most significant link. In this case, Nottebohm failed to satisfy the test. Even though he was a national of Liechtenstein, Guatemala was not bound to recognize such citizenship because he merely had a citizenship of convenience (not a genuinelink to Liechtenstein).
B. Exhaustion of Local Remedies
Local remedies refers to the legal remedies which are open to an injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury.
The exhaustion of local remedies is a pre- condition before a State may present an international claim in behalf of its injured national.
Exceptions:
i. There are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress;
ii. There is undue delay in the remedial process which is attributable to the State alleged to be responsible;
iii. There was no relevant connection between the injured person and the State alleged to be responsible at the date of injury;
iv. The injured person is manifestly precluded from pursuing local remedies; or
v. The State alleged to be responsible has waived the requirement that local remedies be exhausted.