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State Responsibility in International Law
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State Immunity from Jurisdiction
State immunity is a principle that prevents a state from being tried in the courts of another state without its consent. This is exemplified in the Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening, ICJ, 2012).
Non-intervention Principle
States must not intervene in the internal or external affairs of other states. Intervention may include direct military action or indirect methods such as covert operations. The Nicaragua v. United States case prominently featured the principle of non-intervention.
Circumstances Precluding Wrongfulness
Certain conditions can preclude the wrongfulness of an act that would otherwise be in breach of international law, like consent, self-defense, force majeure, distress, necessity, and countermeasures. The ILC Articles on State Responsibility elaborate on these conditions.
Prohibition of Genocide as a Jus Cogens Norm
The prohibition of genocide is a peremptory norm from which no derogation is permitted. States have an obligation to prevent and punish genocide, as affirmed in the Genocide Convention and cases such as Bosnia and Herzegovina v. Serbia and Montenegro.
Continued Existence and Responsibility
A state's responsibility for its internationally wrongful acts continues even if the state ceases to exist. Legal succession often deals with this issue, as seen in cases of state dissolution like the breakup of Yugoslavia.
Human Rights Violations and State Responsibility
States are responsible for human rights violations perpetrated by their agents or entities. The European Court of Human Rights often hears cases related to state responsibility for such violations, as in the case of Ilaşcu and Others v. Moldova and Russia.
Due Diligence Obligation
States have an obligation to prevent harm originating from their territory or activities within their control. The Trail Smelter arbitration (U.S.A. v. Canada, 1941) established that a state is responsible for private actions if it fails to exercise due diligence.
Obligations of Cessation and Non-Repetition
When a state has committed an internationally wrongful act, it is obliged to cease the act and guarantee non-repetition, ensuring a similar breach doesn't occur in the future. The ICJ affirmed these obligations in the LaGrand Case (Germany v. United States, 2001).
Attribution of Conduct to a State
A state is responsible for the actions of its organs and officials, including its legislative, executive, and judiciary; also for the actions of individuals exercising governmental authority. E.g., the ILC Draft Articles on State Responsibility cites acts of state organs as attributable to the state.
The Distinction between State and Government
Under international law, a state continues to exist and bear responsibility even when its government changes. This principle was evident in the Democratic Republic of the Congo v. Belgium (ICJ, Arrest Warrant Case, 2002).
Force Majeure as a Circumstance Precluding Wrongfulness
Force majeure refers to situations where unforeseeable events beyond a state's control prevent it from fulfilling its international obligations. This can absolve the state from responsibility, unless the state has assumed the risk of those events. There aren't many clear case examples but the principle is acknowledged in international law.
State Responsibility for Acts of Insurrectional Movements
A state may be responsible for the acts of insurrectional movements that become the new government, or when it acknowledges and adopts their actions as its own. This principle is not frequently applied and lacks direct case examples but is part of the discussion in state responsibility.
Obligations Erga Omnes
These are obligations a state owes towards the international community as a whole, such as preventing genocide or protecting human rights. The concept was developed in the Barcelona Traction case, acknowledged by the ICJ.
Necessity as a Circumstance Precluding Wrongfulness
Necessity is a defense that may preclude the wrongfulness of a state's conduct if the act was the only way to safeguard an essential interest against a grave and imminent peril. E.g., Gabčíkovo-Nagymaros Project (ICJ, 1997).
State Succession and Responsibility
State succession occurs when one state replaces another in the responsibility for the international relations of a territory. The Vienna Convention on Succession of States in respect of Treaties outlines the rules for such circumstances.
Countermeasures in Response to an Internationally Wrongful Act
Countermeasures are actions taken by a state against another state responsible for an internationally wrongful act, meant to induce compliance with international obligations. They must be proportional and not involve the use of force. The Lockerbie case (ICJ, 1992) involved issues regarding countermeasures.
Distinction Between Jus Cogens and Obligations Erga Omnes
Jus cogens (compelling law) refers to peremptory norms that override any conflicting treaties or customary laws, whereas obligations erga omnes are duties owed to the international community as a whole. Both concepts play a role in state responsibility and are discussed in cases like the Barcelona Traction case.
Complicity in the Internationally Wrongful Act of Another State
A state may incur responsibility if it aids or assists another state in committing an internationally wrongful act with knowledge of the circumstances. The Nicaragua case also touched upon the concept of complicity within the context of state responsibility.
Reparation for Injury
A state responsible for an internationally wrongful act is obligated to make full reparation for the injury caused. Types of reparation include restitution, compensation, and satisfaction. Factory at Chorzów case (PCIJ, 1928) sets a precedent for this principle.
Consent as a Circumstance Precluding Wrongfulness
If a state consents to the commission of an act by another state that would otherwise be wrongful, the act may not be considered wrongful. Consent must be given freely, be prior to the conduct, and fall within the state's competence. This is often discussed in academic literature more so than case law.
The Principle of Effective Control in Attribution
For an act to be attributed to a state, it must exercise effective control over the persons or entities performing the act. The ICJ clarified this principle in Bosnia and Herzegovina v. Serbia and Montenegro, concerning genocide.
Breach of an International Obligation
A breach occurs when a state's action or omission contravenes what is required of it by international law. Case example: Nicaragua v. United States (ICJ, 1986), where the U.S. was found in violation of Nicaragua's sovereignty.
Relevance of the Injury to Diplomatic Protection
Diplomatic protection is the right of states to take up the claim of one of its nationals and seek reparation from another state. The Barcelona Traction case (ICJ, 1970) deals with the issue of injury to shareholders and the limits of diplomatic protection.
Self-Defense in International Law
Self-defense is a recognized reason for the use of force by a state in response to an armed attack. According to Article 51 of the UN Charter, self-defense must be reported to the Security Council. The Caroline test (1837) established conditions under which self-defense is permissible.
Responsibility of International Organizations
International organizations can also bear responsibility for internationally wrongful acts. It operates similarly to state responsibility but applies to bodies like the United Nations. The ILC has drafted Articles on the Responsibility of International Organizations.
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