User:Jose Edmundo Dayot/PIL Module 7

The general principles of International Law concerning State responsibility are equally applicable in the case of breach of treaty obligation, since in international law there is no distinction between contractual and tortious responsibility, so that any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation.

State responsibility is a cardinal institution of international law. It results from the general legal personality of every State under international law, and from the fact that States are the principal bearers of international obligations. State responsibility constitutes a central institution of the system of public international law.

Notion of responsibility

The law of state responsibility encompasses a variety of issues. First, it defines the circumstances in which a state will be held to have breached its international obligations, as well as the limited catalogue of justifications and defenses a state may rely upon in order to avoid responsibility for an otherwise wrongful act. Second, it covers the consequences of the breach of an international obligation, including in particular the central obligation to make full reparation, as well as the obligation to put an end to continuing wrongful acts. Finally, it deals with the way the responsibility arising from breach of an international obligation is implemented, in particular governing which states may invoke the responsibility of the wrongdoing state, as well as the means by which responsibility may be implemented, in particular through the adoption of countermeasures. Every internationally wrongful act of a State entails the international responsibility of that State. The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.

Elements of an internationally wrongful act of a State

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; and
2. constitutes a breach of an international obligation of the State.

Attribution

Attribution is the process by which international law establishes whether the conduct of a natural person or any other such intermediary can be considered an 'act of state', and thus be capable of giving rise to state responsibility.

The conduct of any State organ is be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. An organ includes any person or entity which has that status in accordance with the internal law of the State. The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority is considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. However, in times of war, the belligerent party is responsible for conduct of their armed forces at all time.

Cessation

The obligation to cease a continuing wrongful act in international public law is, traditionally, conceived as a legal consequence of the international responsibility of the State, separate from the obligation to repair the injury caused by a wrongful act. In its 2001 project of codification of the responsibility of States for internationally wrongful act, the International Law Commission has formulated a rule linking the commission of a continuing wrongful act and the obligation to cease it. Still, studying the States practices, one can argue that, in the current state of international law, the obligation of cessation is not always distinct from the obligation to repair when reparation is a restitution in kind. It is also highly difficult to ascertain that a rule does exist, that would link a continuing wrongful act to the creation of an obligation to cease it. This study aims at showing that the traditional notion of cessation actually hides two obligations distinct by nature and at rejecting the notion that the obligation of cessation arises from the commission of a continuing wrongful act. The obligation of cessation, according to the circumstances, can be described either as an obligation of ceasing an illegal situation generally caused by an instantaneous wrongful act, or as an order to cease a behavior, which constitutes a continuing breach of an international obligation, by an international jurisdiction which has the power to order the enforcement of an obligation.

Continued duty of performance

The legal consequences of an internationally wrongful act under this part do not affect the continued duty of the responsible State to perform the obligation breached.

Cessation and non-repetition

The State responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing; and to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.

Reparation

The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. 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.

Restitution

A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution is not materially impossible; and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.

Compensation

The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The compensation covers any financially assessable damage including loss of profits insofar as it is established.

Satisfaction

The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. It shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.

Countermeasures

In order to be justifiable, a countermeasure must be taken in response to a previous international wrongful act of another State and must be directed against that State; the injured State must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it; the effects of a countermeasure must be commensurate with the injury suffered; and the purpose must be to induce the wrongdoing State to comply with its obligations under international law.

Among the most debated issues related to the responsibility of States for internationally wrongful acts, the possibility to have recourse to countermeasures as a reaction by, or on behalf of, the injured State has been subject to various substantial and procedural limitations. Countermeasures are allowed as a means to ensure cessation and reparation by the responsible State. Even if their effect is afflictive, therefore, they cannot be regarded as a punishment in itself or as retribution. From this substantive limitation derives the essentially temporary character of countermeasures, which are limited to the temporary non-performance of certain international obligations towards the responsible State, and they should cease “as soon as the responsible State has complied with its obligations in relation to the internationally wrongful act”. Given their temporary character, they have to be devised in such a way as to permit the resumption of performance when and if compliance has been obtained.

Invocation of responsibility by an injured state

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 the obligation:

1. specially affects that State; or
2. is of such a character as radically to change the position of all the other States to which the

obligation is owed with respect to the further performance of the obligation.

The target of the countermeasure is only the responsible State.

Object and limits of countermeasures

An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State. Countermeasures are, as far as possible, taken in such a way as to permit the resumption of performance of the obligations in question.

Obligations not affected by countermeasures

Countermeasures shall not affect the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; obligations for the protection of fundamental human rights; obligations of a humanitarian character prohibiting reprisals; or other obligations under peremptory norms of general international law. A State taking countermeasures is not relieved from fulfilling its obligations under any dispute settlement procedure applicable between it and the responsible State; to respect the inviolability of diplomatic or consular agents, premises, archives and documents.

Proportionality

Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.

Conditions relating to resort to countermeasures

Before taking countermeasures, an injured State shall call upon the responsible State, to fulfil its obligations; and notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. Notwithstanding, the injured State may take such urgent countermeasures as are necessary to preserve its rights. Countermeasures may not be taken, and if already taken must be suspended without undue delay if the internationally wrongful act has ceased; and the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties.

Termination of countermeasures

Countermeasures are terminated as soon as the responsible State has complied with its obligations under part two in relation to the internationally wrongful act.