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Page1
The Law of State Responsibility
-breach by international law subjects of its obligation = entails international resp...
Page2
-state organ = individual or collective entities making up the organisation of the state and acting o
behalf of it.
...
Page3
Conduct by lower level official – still attributable
Massey’s claim
US citizen was murdered in Mexico. The culprit w...
Page4
Youmans claim
A mob gathered around a house in Mexico within which were three American nationals. The local
mayor or...
Page5
Conduct of an insurrectional / other movement
Divided into two
i)conduct of an insurrectional movement which becomes...
Page6
United States Diplomatic and Consular Staff in Tehran case (subsequent adoption by a state of a
particular conduct)
...
Page7
b)denial of justice
-state is responsible if it fails to punish responsible individual / to provide the injured fore...
Page8
Condition = consent must be valid (the person giving the consent must be authorised to do so,
conduct must be within...
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Illustration by ILC – Unauthorised entry of an aircraft into foreign territory to save the lives of
passengers / ent...
Page10
-wiping out all the consequences may require some/all form of reparation depending on the type
and extent of injury...
Page11
5) The Treatment of Foreign Nationals
-once foreign nationals / companies are present in its territory, the State i...
Page12
*direct expropriation
-can take the form of confiscation or nationalisation
Confiscation = occurs when property is ...
Page13
Amoco case suggest that non discrimination is a condition of a lawful expropriation – but it is not an
absolute req...
Page14
Obligations erga omnes concerned with the enforceability of norms of international law, the
violation of which is d...
Page15
State responsibility in the context of diplomatic protection
Ie injury to foreign nationals or their property – the...
Page16
Condition : the nationality law will be recognised by other state only if it is consistent with rules of
internatio...
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rule : the state with which the natural person has the more effective and dominant connection has
the right to exer...
Page18
The corporation had, at the date of injury, the nationality of the state alleged to be
responsible for causing the ...
Page19
the Court of Appeal could not have reversed the board’s crucial finding of fact, it can only
consider question of l...
Page20
Countermeasure must be directed at the wrongdoer state only and with the aim of
compelling it to cease the wrongful...
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The law of state responsibility - international law

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Transcript of "The law of state responsibility - international law"

  1. 1. Page1 The Law of State Responsibility -breach by international law subjects of its obligation = entails international responsibility -SR enunciates the consequences of a breach by international subjects as well as the permissible responses to such breaches -discuss on the element of SR and defences available to avoid liability (exclude responsibility) 1) Nature of State Responsibility -responsibility arises from breach of an international obligation. Eg : fails to honour a treaty, violates territorial responsibility of another state, damages the territory or other property of another state -development of the law of SR is influenced by the work of ILC on the SR in 1949 – submitted their Draft Article 2001 to GA of the UN (taking into account suggestions and recommendations from government of the member state) – GA adopted resolution to take note of the Commission’s Articles on Responsibility of States for Internationally Wrongful Act 2001 2) The element of SR Article 2 of the Articles on Responsibility of States – there is an internationally wrongful act of a state when conduct consisting of an action or omission 1)is attributable to the State under international law 2)constitutes a breach of an international obligation of the State Kalau satisfy these two elements + provided that there are no defences available = state is responsible for any breach 2.1 Attribution of conduct to State -state can act only by and through its organ -state organ is considered as acting for the state and thus, the conduct is attributable to the State 2.1.1 Conduct of State Organ Article 4 – the conduct of a state organ shall be considered an act of that state under IL, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organisation of the state, and whatever its character as an organ of the central government / of a territorial unit of the state
  2. 2. Page2 -state organ = individual or collective entities making up the organisation of the state and acting o behalf of it. State is responsible for the conduct of its own organs and officials Immunity from Legal Process According to a well established rule of IL, the conduct of any organ of a state must be regarded as an act of that State. This rule is of a customary character. 3 main organs of State Executive organ(the government, ministries and government departments, police and forces, secret agent) Southern Pacific Properties (Middle East) Ltd v Arab Republic of Egypt The Southern Pacific Properties entered into a contract with Egyptian Government to develop land for tourism in Egypt. Due to intense public opposition, the Egyptian Government withdrew the permission. It was held that the act in question were the act of the Egyptian authorities including the highest executive authority of the government and that a state is responsible for wrongful act of its organ. Rainbow Warrior case (conduct of government secret agent) Rainbow Warrior, a Greenpeace vessel when it was leaving to protest French nuclear test in the Pacific, was blown up in Auckland Harbour by French Government secret service agent. The French Government admitted its responsibility for the destruction of the vessel. New Zealand sought and received an apology and compensation for the violation of its territorial sovereignty. Judicial organ Can be the cause of ST in the context of ‘denial of justice’ – example of a breach of international obligation by the judicial organ of a state for which the state is responsible -in respect of the application of a treaty, if the courts decline to give effect to the treaty or are unable to do so because the necessary change has not been made = the judgment involve the state in a breach of treaty Legislative organ State is responsible if the act of parliament are contrary to IL (yang dah incorporate dalam national law) Superior and subordinate organ Article 4 – does not make a distinction between the act of superior and subordinate organ
  3. 3. Page3 Conduct by lower level official – still attributable Massey’s claim US citizen was murdered in Mexico. The culprit was arrested but later escaped from the prison when the assistant prison warder allowed him to leave. Tribunal rejected Mexico’s claim that it was not responsible because of the low status of the official – Mexico responsible. Organ of the central government or of a territorial unit of the State The France/Mexico Claims Commission in the Pellat case “the principle of the international responsibility of a federal state for all the act of its separate states which gives rise to claims by foreign states” 2.1.2 in an official capacity -State will be responsible only if that person or entity act “in an official capacity” -kalau act of individual, no connection with the official function = state is not responsible Mallen case A Mexican consul had been violently attacked and beaten twice by an American police officer. As for the first attack, the evidence indicated a motiveless of a private individual who happened to be an official. On the second attack, the American police officer, showing hi badge to assert his “official capacity” struck Mallen with his revolver and took him at gun point to the country jail. CH – US was responsible for the second assault. 2.1.3 Persons or entities exercising element of governmental authority (Article 5) Article 5 – attribution of conduct to a state which is not state organ in the sense of Article 4 but authorized to exercise “elements of governmental authority” -refer to a situation = in some countries where the law of the state empowers certain public corporations and even private companies to exercise element of governmental authority” Eg : airlines companies having the power in relation to immigration control 2.1.4 Responsibility for ultra vires act (Article 7) Article 7 – the conduct of a state or person, entity empowered to exercise elements of the government authority shall be considered an act of the state under IL if the organ, person, entity acts in that capacity, even if it exceeds its authority or contravenes instruction Caire claim A French national was murdered by two Mexican military officers, who after failing to extort money, took him to the military barracks and shot him. The tribunal held that, for the ultra vires acts of the official to be attributable to the States “they should have acted as authorised officials or organs and should have used powers or measures appropriate to their official character”
  4. 4. Page4 Youmans claim A mob gathered around a house in Mexico within which were three American nationals. The local mayor ordered a lieutenant to proceed with troops to quell the riot and put an end to the attack upon the Americans. The troops however, upon arriving at the scene, opened fired on the house and resulted with the death of the Americans. The commission stated that the participation of the soldiers in the murder could not be regarded as acts by private individual when it was clear that the men were on duty under the immediate supervision and in the presence of a commanding officer. Mexico was responsible. 2.1.5 Conduct of persons directed or controlled by a state (Article 8) General rule – conduct of a person is not attributable to the state Article 8 – the conduct of a person or group of persons shall be considered an act of a state under IL if the person is i)acting on the instruction of the state state organ supplement their own action by recruiting private person/group who acts as “auxiliaries” while remaining outside the official structure of a state (as volunteers) eg : private person enlisted for a police search and cause injury to a foreign national – the act is attributable to the state Zafiro case The US was held responsible for looting by the civilian crew of a merchant vessel, employed as a supply vessel by American Naval forces during US war with Spain, under a command of a merchant captain who was under the order of an American naval officer. The tribunal emphasised the failure to proper control in the circumstances. ii)acting under the direction or control of the state -private person acts under the State’s direction or control Nicaragua case The question was whether the conduct of the contras, an insurrection movement against the Nicaraguan Government was attributable to the US so as to hold US responsible for breaches of international humanitarian law committed by the contras. This question was examined by the ICJ in term of effective control. Even though US had provided heavy subsidies and other support, there is no evidence that the US actually exercised such a degree of control. For US to be responsible, it would in principle have to be proved that the State had effective control of the military and paramilitary operations in the course of the violations being committed. ILC in its commentary to Article 8 – “such conduct will be attributable to the state only if it is directed / controlled the ‘specific operation’ and the conduct complained was the integral part of that operation. It obviously adopts the ‘effective control’ test of the Nicaragua case.
  5. 5. Page5 Conduct of an insurrectional / other movement Divided into two i)conduct of an insurrectional movement which becomes the new government of a state Article 10 – the conduct of an insurrectional movement which becomes the new government of a state shall be considered an act of that state under IL Bolivar Railway Co claim “the nation is responsible for the obligation of a successful revolution from its beginning” -state is responsible not only for the wrongful act of the movement, but also for the wrongful act committed by the former government ILC commentary on Article 10 – The situation requires that acts committed during the struggle for power by the apparatus of the insurrectional movement should be attributable to the state, alongside acts of the then established government. Short v Iran An American citizen was employed by an American company in Iran. He alleged that he was forcefully expelled from Iran three days before the Islamic Revolutionary Government took office and claimed damages for his loss of employment benefits. The commission affirmed the principle that where a revolution leads to the establishment of a new government, the state is held responsible for the act of the overthrown government Article 10 (3) – exceptional cases where the State was in a position to adopt measures of vigilance, prevention of punishment in respect of the insurrectional movement but failed to do so – is clearly a conduct attributable to the State ii)unsuccessful or on going insurrectional movement -not attributable to the state (treated on the same footing as that of persons or groups) Home Missionary Society claim CH – it is a well established principle of IL that no government can be held responsible for the act of rebellious bodies of men committed in violation of its authority. Conduct acknowledged and adopted by a state as its own Article 11 – conduct which is not attributable to a state under the preceding articles shall be considered an act of that state if the state acknowledges and adopts the conduct in question as its own. -this article refers to a situation where the conduct is not attributable to a state at the time of commission but subsequently adopted and acknowledged by state as its own.
  6. 6. Page6 United States Diplomatic and Consular Staff in Tehran case (subsequent adoption by a state of a particular conduct) 1979 – several hundred student—demonstrator occupied the US Embassy in Tehran by force and held the embassy staff as hostage. The court divided the event into two phases 1st stage – the attack was carried out by militants who in no way could be regarded as agents or organs of the Iranian State – so the conduct of the militant could not be attributable to the state 2nd stage – started after completion of the occupation of the embassy. At this stage, the Iranian Government was legally bound to bring an end the unlawful occupation and pay reparation. Instead, it approved and endorsed the occupation and even issued a decree stating that the American Embassy was a centre of espionage and the staff did not enjoy diplomatic immunity. The decree further on saying that the embassy and the hostage will remain until the US hand over the former Shah for trial. CH – The approval given to the act of the militant translated into the act of the state. Conduct of private persons or entities Private persons/entities – not state organs, not exercising element of governmental authority, not acting as agent of the state – not attributable to the state Eg : violance against foreigners or destruction of foreign properties by private individuals – not attributable to state. States will only be responsible for its own omission or inaction GR – State will not be responsible for the act of private individual, but the act may be accompanied by some omission on the part of the state -it is responsible only if its own conduct by omission may be proved – there is failure to act in conformity with the international legal standard. The state is responsible for the conduct (omission, inaction, failure) of its own organ Two forms of omission on the part of the state a)failure to exercise due diligence -state is responsible under IL if it fails to exercise “due diligence” to prevent private persons from attacking foreign nationals, destroying foreign property Asian Agricultural Products Ltd v Sri Lanka British company brought an international action against Sri Lanka and claimed compensation for the destruction of its Sri Lankan farm. The tribunal found that the farm was in an area that was under the control of the Tamil Tiger rebels and that the farm management had offered to dismiss farm staff thought to be in league with them. Neglecting this offer, the Sri Lankan Government forces launched a counter-insurgency operation in that area causing the death of some company workers and the farm was destroyed. CH – Sri Lanka was responsible because it violated its due diligence obligation
  7. 7. Page7 b)denial of justice -state is responsible if it fails to punish responsible individual / to provide the injured foreign national with the opportunity of obtaining compensation from the wrongdoers in the local court Janes claim Janes, an American citizen was murdered at a mine in Mexico. The person who killed Janes was a well known person where the incident took place. There is evidence that a Mexican magistrate was informed of the shooting within five minutes after it took place. However, even after 8 years hhad elapsed, the murder had not been apprehended and punished by the Mexican authorities. CH – the Mexico was responsible for the denial of justice 2.2 Breach of an international obligation Article 12 – there is a breach of an international obligation by a state when an act of the state is not in conformity with what is required of it by that obligation, regardless of its origin or character “regardless of its origin” – all possible sources of international obligation Rainbow Warrior case Any violation by any state of any international obligation, of whatever origins, gives rise to state responsibility and consequently , to the duty of reparation. Inter-temporal law Article 13 – an act of a state does not constitute a breach of an international unless the state is bound by the obligation in question at the time the act occurs. (Island of Palmas case) 3) Defences (Circumstances precluding wrongfulness) Even though a conduct is attributable to the state + inconsistent with international obligation = responsibility will not follow for certain circumstances State practise + international decision as codified in the ICJ provide for six circumstances a)consent Article 20 – valid consent by a state to the commission of the given act by another state precludes the wrongfulness of that act in relation to the former state, to the extent that the act remains within the limits of that consent. -dalam normal circumstances, activities carried out will be prohibited by international law, but if there is consent = preclude responsibilities. Eg : consent to allow foreign troops on national territory, to allow aircraft to cross the airspace.
  8. 8. Page8 Condition = consent must be valid (the person giving the consent must be authorised to do so, conduct must be within the limit of the consent b) Self-defence Article 21 – the wrongfulness of an act of a state is precluded if the act constitutes a lawful measure of self-defence in conformity with the UN Charter. Article 51 – preserve a state’s inherent right of self-defence in the face of an armed attack (so kalau state exercise right under Section 51, it is not in breach with Article 2 (4) which prohibits the threat of use of force) The legal consequence of the construction of wall in the Occupied Palestine Territory c)Countermeasures Embedded in Article 22 ICJ affirmed in the case of Gabcikovo-Nagymaros Project, countermeasures taken by a state in response to an internationally wrongful act of another state are not wrongful acts, but are recognised as valid means of self-help a long as certain conditions are respected. Conditions for valid countermeasures are discussed in Article 23 Force majeure is defined under Article 23 (1) – the occurrence of an irresistible force or of an unforeseeable event, beyond the control of the state, making it materially impossible in the circumstances to perform the obligation Rainbow Warrior case, France argued that urgency of medical treatment was the reason for repatriation to France, without the consent of New Zealand, of a French agent, who was responsible for the sinking of the vessel. They believed that those medical reasons amounted to force majeure. But this claim was rejected when the tribunal stated that “the test for applying the doctrine of force majeure was one of “absolute and material impossibility”. Circumstances rendering performance of the obligation more difficult or burdensome did not preclude wrongfulness. A state may not invoke force majeure if it has caused / produced the situation in question Libyan Arab Foreign Investment Co v Republic of Burundi The tribunal rejected a plea of force majeure because “the alleged impossibility was not the result of an irresistible force, or unforeseen external event beyond the control of Burundi. In fact, the impossibility is the result of a unilateral decision of that state. d)Distress Article 24 – situation where “the author of the wrongful act has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care
  9. 9. Page9 Illustration by ILC – Unauthorised entry of an aircraft into foreign territory to save the lives of passengers / entry of a military ship into a foreign port without authorisation due to storm. Rainbow Warrior France’s violation of the obligation to obtain the prior consent of New Zealand to the repatriation to mainland France of Major Mafart was justified by distress involving medical considerations. e)Necessity Defined in Article 25 (1) as the condition where an unlawful act is performed and such act a)is the only means for the State to safeguard an essential interest against a grave and imminent peril b)does not seriously impair an essential interest of the state / states towards which the obligation exist, or of the international community as a whole Torrey Canyon Torrey Canyon, a Liberian oil tanker, had run aground on the high seas off the British coast in 1967. Salvage operations were unsuccessful due to rough seas. To prevent further damage to the British and French coasts and the pollution of the marine environment, the British bombed the vessel so that the oil therein was burnt. The British Government invoked necessity and no other states protested Defences must not conflict with jus cogen Eg : consent for foreign armed forces to enter the territory to massacre civilians of a specific ethnic group will not be valid 4) Legal Consequences of an internationally wrongful act : Reparation -the state responsible for the internationally wrongful act is under the obligation to cease that act (if its continuing) and to offer appropriate assurance and guarantees of non-repetition. -the state is under an obligation to make full reparation for the injury caused by the internationally wrongful act The World Court in the Factory at Chorzow case, specified the content of the obligation of reparation in the following passage “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would not have existed if that act had not been committed. Forms of reparation Article 34 – 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
  10. 10. Page10 -wiping out all the consequences may require some/all form of reparation depending on the type and extent of injury i)Restitution Article 35 –means, to re-establish the situation which existed before the wrongful was committed , provided and to the extent that restitution a)is not materially responsible b)does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation -restitution in this narrow sense may have to be completed by compensation inn order to ensure full reparation for the damage caused. -restitution most closely conforms to the concept of reparation, so it comes first among the forms of reparation. Supremacy of restitution is affirmed in the case of Factory at Chorzow. -Restitution may take the form of material restoration (return of territory, persons, or property Temple of Preah Vihear – the ICJ ordered Thailand to return to Cambodia religious objects it had taken illegally from a temple in Cambodia. ii) compensation out of the various types of reparation – compensation is the most commonly sought in international practise I’m Alone case The commissioners recommended the payment by the US of $25,000 as a material amend in respect of the wrong committed by the US in sinking I’m Alone iii) Satisfaction Article 37 – satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or other appropriate modality -refers to the case involving “moral” or “non-material” damages Eg : situation of insult to the national flag, attack on ship or aircraft -apology is the common form of satisfaction -expression of regrets or apologies were required in the I’m Alone case, Rainbow Warrior
  11. 11. Page11 5) The Treatment of Foreign Nationals -once foreign nationals / companies are present in its territory, the State is under an international obligation not ill treat them -if the state violates this obligation, in any way, it may incur international responsibility to the state of whom the person / company is the national International minimum standard -many states maintained that the treatment of foreign nationals is governed by an “international minimum standard” -every state must treat foreign nationals within its territory by reference to a minimum international standard, irrespective of how national law allows that state to treat its own national -the standard has enjoyed the support of many tribunals and claims commission such as in the Neer Claim. Mana nak guna? National or international minimum standard? – no consensus, caused problems in the field of expropriation of foreign property. But more and more countries are ready to support the international minimum standard Examples of international minimum standard Duty not to harm – the state and its organ have the legal obligation to refrain from harming foreign nationals (Youmans claim) Not to mistreat in lawful custody – in the Roberts claim, the Mexico US General Claim Commission found that, although Roberts had been lawfully detained according to Mexican criminal law, his treatment in prison and the length of detention before facing trial were unreasonable and below the “ordinary standard of civilization” Denial of justice A state is responsible if an injury to an alien results a denial of justice Eg : when there is denial, unwarranted delay / obstruction of access to court -foreign nationals are entitled to full access to the court Chattin claim Mexico was held responsible for absence of proper investigation, undue delay of proceedings and intentional severity of punishment. Expropriation of foreign property Definition : the deprivation by the State of foreign rights to property or its enjoyment -can take various forms. The process may include
  12. 12. Page12 *direct expropriation -can take the form of confiscation or nationalisation Confiscation = occurs when property is taken illegally / without compensation Nationalisation = the taking of the property as part of a government economic or social programme *indirect or creeping expropriation Eg : forced sales of property, exercising management control over the investment, administrative decisions which cancel license and permits necessary for the foreign business to function within the state and exorbitant taxation Exception : a state is not liable for economic injury which is a consequence of bona fide “regulation” within the accepted police powers of states (so, economic measure such as non-confiscatory taxation, exchange control regulation and currency revaluation do not normally result in expropriation ) Legal requirements of a lawful expropriation Opposing views between developed and developing countries – developed states maintained that expropriation was only legitimate if it complied with the international minimum standard set by the international law, the developing states denied this. 1962 – the General Assembly adopted Resolution 1803, Resolution on Permanent Sovereignty over Natural Resources, it has been accepted in a number of arbitration awards as reflecting customary international law . Two requirements of a lawful expropriation under the resolution are Public purpose Compensation 1974 – GA adopted the Charter of Economic Right and Duties of State – favours the view of developing states -does not mention on public purpose limitation. The resolution acknowledges that appropriate compensation should be paid but what is appropriate is to be determined by the law of expropriating state – so, compensation is likely to be narrow What is clear is that , there are three proposed requirements namely a)public purpose most of the arbitral decisions support the view that to be lawful, an expropriation must have a public purpose, a number of bilateral investment agreement also support this view b)non discrimination
  13. 13. Page13 Amoco case suggest that non discrimination is a condition of a lawful expropriation – but it is not an absolute requirement, so does not reflect customary international law (resolution 1803 + 1974 charter mention about it) c)compensation -compensation is an essential requirement of a lawful expropriation -According to the Hull formula – compensation is to be the full value of the property at the time of the taking -1974 Charter (presenting the views of the developing states) – what is appropriate is to be determined by the law of the expropriating state and therefore, more likely to be very low Reparation for an unlawful expropriation Chorzow Factory case The ordinary international law rules of state responsibility apply – “the remedy is restitution in kind or if impossible, its monetary equivalent. Restitution will seldom be possible where an enterprise is expropriated. 6) Invocation of the responsibility of a state Once a state is said to be responsible of the breach of international obligation, the next step is what the injured state may do, or what action they may take in order to secure the performance of the obligation / reparation on the part of the responsible state. ILC commentaries – invocation means taking measure Eg : raising a claim, or commencement of proceeding against a state at the international tribunal Invocation of responsibility by an injured state Article 42 – a state is entitled as an “injured state” to invoke the responsibility of another state if the obligation breached is owed to that state individually, or a group of states including that state or the international community as a whole and the breach of obligation specially affects that state Concept of the injured state – the state whose individual right has been infringed by the internationally wrongful act / which has otherwise been particularly affected by that act. A state injured in the sense of Article 42 – entitled to resort to all means of redress (can raise claim against the state, commence proceeding) Invocation of responsibility by other states : the concept of obligations erga omnes Erga omnes – towards all
  14. 14. Page14 Obligations erga omnes concerned with the enforceability of norms of international law, the violation of which is deemed to be an offence not only against the state directly affected by the breach, but also against all members of the international community. Article 48 (1) – any state other than an injured state is entitled to invoke the responsibility of another state in accordance with paragraph 2 if The obligation breached is owed to the international community as a whole The existence of the obligation erga omnes has been confirmed by the ICJ in Barcelona Traction, Light and Power Co in these words An essential distinction should be drawn between the obligations of a state towards the international community as a whole, and those arising vis-a-vis another state in the field of the diplomatic protection. By their very nature the former are the concern of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection , they are obligation erga omnes. Eg : outlawing of acts of aggression, and of genocides, principle and rules concerning basic rights of the human person (protection from slavery and racial discrimination) East Timor case – the court added the right of self-determination of peoples to the right -Each state is entitled (as international community) to invoke responsibility of another state for breach of obligation erga omnes (but invocation under Article 48 is limited as compared to invocation by injured state. Action that can be taken under Article 48 – focusing on the cessation of the internationally wrongful act and assurance , guarantees of non-repetition. Second type of claim – claim for the performance of obligation of reparation in the interest of the injured state The Law of diplomatic protection Initial distinction has to be drawn between Responsibility arising in the context of direct state to state wrongdoing The responsibility arising in the context of diplomatic protection (injury to foreign nationals or property) Direct state to state responsibility Problems which arise in the context of diplomatic protection (nationality of claim, exhaustion of local remedies) do not arise in the context of state to state disputes. -issue in these direct state to state cases is whether conduct attributable to a state (the breach of obligation) – if so, responsibility is prima facie.
  15. 15. Page15 State responsibility in the context of diplomatic protection Ie injury to foreign nationals or their property – the questions of admissibility can be raised before international tribunal. ELSI case US sought to base its action on breach of a bilateral treaty, the International Court stated that its claim was in the nature of diplomatic protection of a national and was thus, subject to such requirements as the exhaustion of local remedies. The national state has the right under international law to extend diplomatic protection over its nationals or corporations present in a foreign country. This is known as the right of diplomatic protection. ILC adopted Draft Articles on Diplomatic Protection in 2006. Article 1 provides that Diplomatic protection consist of the invocation by a state, through diplomatic action / other means of peaceful settlement , of the responsibility of another state for an injury caused by an internationally wrongful act of that state to a natural or legal person that is national of the former state with a view to the implementation of such responsibility Admissibility of claim Responsibility in the context of diplomatic protection (states’s nationals / companies) - admissibility of claim plays a crucial role Article 44 – two requirements need to be satisfied before a case is admissible to an international court or tribunal. 1)nationality of claims -claim against another state will fail unless it can be proved that the injured individual is a national of the claimant state. This nationality of claim rule is well established in customary IL Paneveys-Saldutiskis case CH- in the absence of a special agreement, it is the bond of nationality between the state and the individual which alone confers upon the state, the right of diplomatic protection and it is the function of the diplomatic protection to ensure the right to take up a claim and respect for international rules. Protection of natural person -state can extend its protection to a natural person only when that person is its national. -nationality is the term used to manifest the connection between a state and an individual General rule – State can decide to define who its nationals
  16. 16. Page16 Condition : the nationality law will be recognised by other state only if it is consistent with rules of international law. What are the rules of international law? Nottebohm case Mr Nottebohm was born in Germany and had German nationality 1905 – He went to Guatemala, where he resided and conducted his business activities until 1934 1939 – he visited Liechtenstein to apply for naturalisation. After acquiring Liechtenstein nationality, he went back to Guatemala. Later, Guatemala expelled and seized the property of Nottebohm. Liechtenstein instituted proceeding against Guatemala. Guatemala argued that Liechtenstein could not extend diplomatic protection to Nottebohm in a claim against Guatemala. The ICJ observes that – nationality was a legal bond between the person and the State granting the nationality and the recognition that the person was more closely connected with that state, compared to other state. The court found that – Nottebohm had been settled in Guatemala where he conducted his business for almost 34 years and with that country he had a genuine connection and strong sentimental attachment. The court did not find any close connection between Nottebohm and Liechtenstein. CH – Liechtenstein was not entitled to extend its diplomatic protection to Nottebohm and claim was inadmissible. Principle in this case : The court refers to close connection / genuine link between the individual and the state for the right of diplomatic protection (received criticism) ILC in its Draft Article on Diplomatic Protection 2006 – did not require the establishment of genuine link as a requirement of nationality (Nottebohm case should be limited to its facts alone) Article 4 of the Draft Article provides that – for the purpose of the diplomatic protection of a natural person, a state nationality means a state whose nationality that person acquired in accordance with the law of that state, by birth, descent, naturalisation, succession of state/ in any other manner, not inconsistent with international law. ILC emphasised on the continuous nationality, Article 5 – the nationality must exist at the date of injury and should continue until at least the date of the official presentation of the claim. ILC makes a distinction between : i)dual / multiple nationality and claim against a third state exist when a natural person possesses dual/multiple nationality, any state which he is national may exercise diplomatic protection in respect of that national against a third state -no need to establish genuine link between the state nationality and the dual/multiple national ii)dual / multiple nationality where one state of nationality makes a claim against another state of nationality
  17. 17. Page17 rule : the state with which the natural person has the more effective and dominant connection has the right to exercise diplomatic protection Article 7 of ILC Draft Articles on Diplomatic Protection 2006 – a state of nationality may not exercise diplomatic protection in respect of a person against a state which that person is also a national unless the nationality of the former state is predominant, both at the date of injury and at the date of official presentation of the claim. Merge claim ILC ruled that the US shall be entitled to protect its national in cases of dual nationality, US and Italy, whenever the US nationality is the effective nationality. In order to establish the prevalence of the US nationality in individual case, habitual residence can be one of the criteria. Can also consider – the conduct of the individual in his economic, social, political, civic and family life Protection of legal persons (corporation) -claim may also be made on behalf of corporations possessing the nationality of the claimant state Barcelona Traction, Light and Power Co case The company was established in Canada under the Canadian Law to develop electricity supplies in Spain. In 1948, it was declared bankrupt by a Spanish court. Other steps injuring the company were also taken by the Spanish authorities. Canada intervened on behalf on behalf of the company but then withdrew. Belgium brought this claim in respect of the injury caused to its national, who were shareholders, resulting from the injury of the company. Spain objected that since the injury was to the company, not the shareholders. Belgium had not right to bring the claim. Court rejected the Belgian claim on the ground that it did not have a legal interest in the matter. Although shareholders may suffer if wrong is done to a company, it is the right of the company that have been infringed. If the right of the shareholders were affected, then they would have an independent action. Principle in this case : the court denied under the CIL, of a inherent right for the national state of shareholders in a foreign company to exercise diplomatic protection Court accepted the existence of a right to protect shareholders in the two cases where When the company is no longer in legal existence Where the state in which the company is incorporated, itself causes the injury to the company. Article 9 of Draft Article on Diplomatic Protection 2006 – determining which state is the state of nationality of a corporations Article 11 – issue on whether national state of the shareholders may extend diplomatic protection or not. Conditions The corporation has ceased to exist
  18. 18. Page18 The corporation had, at the date of injury, the nationality of the state alleged to be responsible for causing the injury and incorporation in that state was required by it as a precondition for doing business there 2)Exhaustion of local remedies General rule : an injured national or legal person must exhaust local remedies in the state which committed the international wrongful act, before it national state can bring the claim on its behalf. However, if the injury is inflicted directly on a state (eg : when territory is invaded, diplomats are attacked ) – no need to exhaust local remedies Meaning of local remedies Article 14 of the ILC on Draft Articles on Diplomatic Protection, 2006 defines local remedies – 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 -foreign national must exhaust all the available judicial remedies provided for in the municipal law of the respondent state -kena go to the highest court to secure binding decision -administrative remedies must also be exhausted. General rule Ambatielos arbitration Ambatielos, a Greek ship owner contracted to buy some ships from the British Government and later accused the British Government of breach of contract. In the litigation before the English High Court, Ambatielos failed to call an important witness and lost : his appeal was dismissed by the Court of Appeal. When Greece subsequently made a claim on his behalf, the commission of arbitration held that Ambatielos failed to exhaust local remedies because he had failed to call a vital witness and because he had failed to appeal from the Court of Appeal to the House of Lords. Exception to the local remedies rule Article 44 (b) - only those local remedies that are effective and available have to be exhausted Obvious futility test – if local remedies are obviously futile – rule does not apply Finnish Ship Owners arbitration Finland brought the claim to International Court. The UK objected on the ground that the Finnish ship owners had not exhausted local remedies in the UK. The arbitrator rejected this objection and ruled that Finland’ failure to appeal to the court of appeal did not mean that it had not exhausted local remedies. Such an appeal would have been obviously futile because
  19. 19. Page19 the Court of Appeal could not have reversed the board’s crucial finding of fact, it can only consider question of law. Lack of independent judiciary Local remedies do not need to be exhausted when it is clear that the local court will not provide redress for the injured individuals Robert E Brown case CH – the local remedies rule did not apply because it found that “all three branches of the government of South African Republic conspired to ruin the claimant’s enterprise Burden of proof – for the state claiming that local remedies have not been exhausted to show that such remedies exist Waiver of local remedies rule State parties to a treaty can therein agree that the local remedies rule shall not apply to claims based on alleged breaches of that treaty Elettronica Sicula SpA (ELSI) case The US argued that the doctrine did not apply since the case was brought under a treaty between the two states which provided for the submission of disputes relating to the treaty to International Court, with no mention of local remedies. Countermeasures ILC defined countermeasure as – non forcible measures taken by an injured state in response to a breach of international law in order to secure the end of the breach and if necessary, reparation. -Countermeasure may only be taken in response to an international wrongful act and only against the state responsible for that act. -countermeasures are limited to the temporary non performance of one/ some of the international obligations of the injured state owed to the responsible state. Eg of countermeasures – temporary non performance of a treaty obligation, the suspension of trade agreement Air Service arbitration The arbitral tribunal found that the US retaliatory measure were permissible which were not disproportionate to the violation done by France. The tribunal ruled that if a situation arises which in one state’ view, results in the violation of an international obligation by another state, the first state is entitled within the limit set by general rules of IL to the use of armed force (countermeasure) Limitation (open for abuse)
  20. 20. Page20 Countermeasure must be directed at the wrongdoer state only and with the aim of compelling it to cease the wrongful act or to make reparation for it Shall not involve the use of armed force Shall not violate basic obligation under IL (Eg :protection of fundamental rights) Shall not affect any dispute settlement procedure between two parties and inviolability of diplomatic agents Principle of proportionality must be complied with. Naulilaa case – it was held that one should consider as excessive and therefore unlawful countermeasure out of all proportion to the act motivating them Procedural condition The injured state is required to call on the responsible state to comply with its obligations The injured state is required to notify the responsible state that it intend to take countermeasure and to offer to negotiate with that state If the responsible state ceased the wrongful act and the dispute is before a competent court – no countermeasure This condition does not apply if the responsible state fails to implement dispute settlement procedures in good faith.

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