Internationally Wrongful acts


International responsibility arises when a state breaches international obligation. That is, breach of international treaties or any other obligation arising out of other sources of international law result into internationally wrongful act.

Article 2 of the ARSIWA

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:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.



In factory at Chorzow (Jurisdiction), the PCIJ held that:

“it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”

Not just action but also omission can amount to internationally wrongful act:

Corfu Channel Case (UK v. Albania ICJ Reports 1949):

“these grave, omissions involve the international responsibility of Albania [which] is responsible under international law for the explosions which occurred and for the damage and loss of human life which resulted from them.”

US Diplomatic and Consular Staff in Tehran (US v Iran), ICJ Reports 1980.

  1. Attribution to the State

Concept of attribution to the state relates to the process and rules that establishes the relationship between the perpetrator of internationally wrongful act and a state. As a state in itself cannot possibly carry out any act, let alone internationally wrongful act, state organs and persons act on behalf of a state. Therefore, it becomes essential to separate acts of persons that are actually act of states and acts of persons on their private capacity. For international law of state responsibility only the former is relevant.

Before discussing various rules of state attribution, it is also important to note that not always it is necessary that state agents be the direct perpetrators of the internationally wrongful act. In Corfu Channel Case, Albania was held responsible for the consequences of mine-laying in her territorial waters by reason of the Albanian authorities’ knowledge and failure to warn of the presence of the mines. (like omission)

  1. State Organs

Article 4:

“The conduct of any State organ shall be considered an act of that State under international law…”

  1. Executive Organ
  • Most common source of international responsibility.
  • Executive organ and authorities’ acts are attributable to the state.
  • In principle the distinction between higher and lower officials has no significance in terms of responsibility.
  • Organs that do not generally enjoy governmental authority may nonetheless may enjoy powers that are unique to the government. Such para-statal bodies’ act are also attributable to the state granting powers to those bodies. Examples of such bodies can be regulatory organizations, private corporations with government control etc. See article 5.
  • Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Reports 2007. In this case the ICJ raised and in principle accepted the rule that acts of a group of persons or entities can be attributable to the state if such groups or entities are “instruments ” of state actions.
  • See also article 8, which provides that acts of a person or group are attributable to the state if that person or group acted on “the instructions of, or under the direction or control of, that State in carrying out the conduct.”

 

  1. Armed Forces

Same rule as applicable in case of the executive is also applicable in case of armed forces.

Armed Activities on the Territory of the Congo (the Democratic Republic of the Congo v Uganda) ICJ Reports 2005.

The ICJ found that the act of the Ugandan military in DRC as attributable to Uganda.

However, the exception to this rule is indicated in Behrami & Saramati v France, Germany and Norway ECtHR 2007. In this case the European Court of Human Rights held that the acts of a military force under the control of some other entity (in this case NATO) other than the state cannot be attributed to the state.

  • Federal Units, Provinces and other Internal Divisions

The general rule is a state can not plead municipal law as a justification for the violation of international law.

 

Article 4

The conduct of any State organ shall 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.

 

In LaGrand (Provisional Measures) ICJ, held that:

“the international responsibility of a state is engaged by the action of the competent organs and authorities acting in that state, whatever they may be…the Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States.”

 

However, See GATT Article XXVI

  1. Each contracting party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories.

 

  1. The Legislature

 

  1. The Judiciary

In US-Shrimp WTO (Appellate Body Report), in response to the argument that discriminatory treatment had been a consequences of the government’s obligation to follow judicial decisions, the WTO Appellate Body affirmed that ‘the United States, like all other members of the WTO and of the general community of states, bears responsibility for acts of all ts departments of government, including its judiciary.”

See also, LaGrand and Avena (ICJ decesions).

 

  1. Ulta Vires or Unauthorized Acts

When a person or group carry out internationally wrongful act within their apparent authority or general scope of their authority, the state cannot plead that the  person or group’s carrying out of such act was illegal under the domestic law.

That is, internationally wrongful acts of persons can still be attributed to the state even in situation where the person in question behaves outside her authority according to municipal law.

In Armed Activities (DRC v. Uganada) the ICJ held that customary international law provides that, in the case of armed conflict, all the acts of a state’s armed forces are attributable to that state, regardless of which instructions were given or whether personnel acted ultra vires.

 

  1. Mob Violence, Insurrections, Revolutions and Civil War

Two points are relevant in this regard.

In case of extreme disorder and formidable insurrections, the new state will be responsible for the de facto state’s act.

In case of violence if international law is violated and the state fails to take reasonable action or prevent the violation of international law, the state becomes responsible.

 

  1. Aid or Assistance in the commission of Internationally Wrongful Act

Article 14 of the ARSIWA

See also, Genocide (Bosnia and Herzegovina v Serbia and Montenegro), p 217.

 

  1. Approval or Adoption by a State of Wrongful Act

Article 11 of the ARSIWA

 

  1. Breach of International Obligation
  1. The rule relevant in determining the responsibility of a state is that of “objective responsibility”. That is, unlike domestic legal system that seeks subjective culpa international responsibility does not necessitate existence of
  2. Sometimes culpa may make the violation clearer or more apparent. However, the general rule remains that subjective culpa is not essential for the finding of breach of international obligation.
  3. The principle of objective responsibility also rejects the relevance of intent or motive.
  4. International obligation may also be breached in case of acts that are not actually prohibited by international law but nevertheless commission of such act may result into breach of international obligation.

See, GATT article 23, international environment law (lawful act may result into liability under environmental law).

 

  • Circumstances Precluding Wrongfulness

ARSIWA provide the following forms of circumstances that may preclude wrongfulness

  1. Consent
  2. Self Defence
  3. Countermeasures

Strict conditions should be met. See Gabcikovo-Nagymaros Case

  • Before resorting to countermeasures a state that finds itself injured must call upon the wrongdoing state to cease the wrongful conduct.
  • If another state is continuing to injure the injured state must call upon that state to make reparation for any injury.
  • Formal notification to the perpetrator state and negotiation.
  • Countermeasures should not be taken when the dispute is subjudice.
  • Countermeasures should be proportional.

Article 49

(1) 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 under Part Two.

  1. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.
  2. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.

 

See also articles 50 -54.

 

  1. Force majeure

Force majeure defence can only be successful in extraordinary circumstances such as war, insurrection and civil war etc. See Gabcikovo-Nagymaros Case.

 

  1. Distress
  2. Necessity

 

  1. Consequences

In the event of an internationally wrongful act by a state or other subject of international law, other subjects may be entitled to respond. This may be done by invoking the responsibility of the wrongdoer, seeking cessation and/or reparation, or possibly by taking countermeasures. Countermeasures can be taken only when efforts to obtain cessation and reparation have failed.