Public
International
Law
Santa Clara Geneva Summer Abroad Program
Dr. Sandra Krähenmann
State Responsibility
 ‘international responsibility’ : all the forms of new legal
relationship which may be established in international law by
a State’s wrongful act
 Directly injured State and other States
 Countermeasures
 Reparations
 Source: Customary International Law
- reflected in ILC Articles on Responsibility of States for
Internationally Wrongful Acts
International Wrongful
Act (IWA)
 Elements of an IWA (Article 2):
1) Conduct (act or omission): objective element
2)
that is attributable to a state under international law:
subjective element
United States Diplomatic and Consular Staff in Teheran
(United States v. Iran), ICJ, Judgement, Merits, 1980.
"56.First it must determine how far, legally, the acts in questions
may be regarded as imputable to the Iranian State. Secondly, it
must consider their compatibility or incompatibility with the
obligations of Iran under treaties in force or under any other
rules of IL that may be applicable."
Attribution
Article 4: Conduct of State Organs
 covers all the individual or collective entities which make up
the organisation of the State and act on its behalf.
 includes any person or entity which has that status in
accordance with the internal law of the State
Salvador Commercial Company Case, Tribunal, 1902, RIAA,
Vol. XV, p.455, at p. 477:
"... a state is responsible for the acts of its rulers whether they
belong to the legislative, executive or judicial department of the
Government, so far as the acts are done in their official capacity."
“
Attribution
Article 5: Conduct of Persons or entities exercising elements
of governmental authority
 authorized by the law of the State
 to exercise elements of governmental authority
- e.g. Airlines checking passports
- e.g. Private Military and Security Companies
Attribution
Article 6: Conduct of Persons or entities placed at the disposal
of another State
 Attribution to the receiving State if:
1) Placed at the disposal of
2) Status of an organ of the sending State
3) Exercise of governmental authority
Drozd and Janousek v. France and Spain, European Court of Human Rights,
Judgement, 1992. Judiciary of Andorra composed of French and Spanish
Judges:
“Those courts, in particular the Tribunal de Corts, exercise their functions in an
autonomous manner; their judgements are not subject to supervision by the
authorities of France or Spain. …Finally, it should be recalled that the
secondment of judges or their placing at the disposal of foreign countries is also
practised between member States of the Council of Europe, as is demonstrated
by the presence of Austrian and Swiss jurists in Liechtenstein.”
Attribution
Article 7: Excess of Authority (Ultra Vires)
 Conduct of State organ, person or entity empowered to
exercise elements of governmental authority is attributable
even if:
1) acted ultra vires
2) or contrary to instructions
Velásquez Rodríguez v. Honduras, Inter-American Court, Judgement, 1988.
"170. This conclusion is independent of whether the organ or official has
contravened provisions of internal law or overstepped the limits of his
authority: under international law a State is responsible for the acts of its
agents undertaken in their official capacity and for their omissions, even when
those agents act outside the sphere of their authority or violate internal law.
Attribution
Article 8: Instructions or Conduct Directed or Controlled by
the State
 Attribution of conduct of private persons or entities
 Question of degree of control: effective
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
the United States of America), ICJ, Merits, Judgement.
“115. All the forms of the United States participation mentioned above, and
even the general control by the respondent State over a force with a high degree
of dependency on it, would not in themselves mean, without further evidence,
that the United States directed or enforced the perpetration of the acts contrary
to human rights and humanitarian law alleged by the applicant State. Such acts
could well be committed by members of the contras without the control of the
United States. For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that that State had effective
control of the military or paramilitary operations in the course of which the
alleged violations were committed. "
Attribution
Article 9: Conduct Carried out in the Absence or default of the
official authorities
 Attribution of conduct of private persons or entities
 if the persons or entities are in fact exercising elements of
governmental authority
 in the absence or default of official authority
 if the circumstances “call” for the exercise of those elements
of authority
Yeager v. the Islamic Republic or Iran, Iran-United States Claim Tribunal,
1987, 17 Iran.U.S.C.T.R 92, at 93-113: Acts of Revolutionary Guards:
43.The Tribunal finds sufficient evidence in the records to establish the
presumption that the revolutionary 'Komitehs' or 'Guards' after 11 February
1979 were acting in fact on behalf of the new government, or at least
exercised elements of governmental authority in the absence of official
authorities, in operations of which the new government must have had
knowledge and to which it did not specifically object.
Attribution
Article 10: Conduct of an Insurrectional or Other Movement
 Attribution of conduct of private persons or entities
 if the insurrectional movement becomes the new
government of the State; or
 if the insurrectional movement establishes a new State
Bolivar Railway Company, Claims Commission, 1903, RIAA, Vol.
IX, p.445, at p. 453:
"The nation is responsible for the obligations of a successful
revolution from its beginning, because in theory, it represented ab
initio, a changing national will, crystallising in the finally successful
result."
Attribution
Article 11: Conduct Acknowledged and Adopted by a State as
its own
 after the fact
 if and to the extent
 through words or conduct
 as its own
Attribution
Acts of Individuals as a “Catalyst”
 Conduct as such not attributable to the State
 But conduct reveals another unlawful act, usually an
omission, attributable to the State
Attribution
United States Diplomatic and Consular Staff in Teheran
(United States v. Iran), ICJ, Judgement, Merits, 1980.
1st Phase: Storming and initial occupation of the Embassy by the
Students: A purely private act
“59. Previously, it is true, the religious leader of the country, the Ayatollah
Khomeini had made several public declarations inveighing against the United
States as responsible for all his country's problems. ... In the view of the Court,
however, it would be going too far to interpret such general declarations of the
Ayatollah Khomeini to the people or students of Iran as amounting to an
authorization. ... Again, congratulations after the event, such as those reportedly
telephoned to the militants by the Ayatollah Khomeini on the actual evening of the
attack, and other subsequent statements of official approval, though highly
significant in another context shortly to be considered, do not alter the initially
independent and unofficial character of the militants' attack on the Embassy. ..."
Attribution
United States Diplomatic and Consular Staff in Teheran
(United States v. Iran), ICJ, Judgement, Merits, 1980.
1st Phase: Storming and initial occupation of the Embassy by the
Students: Catalyst effect
61. The conclusion just reached by the Court, that the initiation of the attack on the
United States Embassy on 4 November 1979, and of the attacks on the Consulates
at Tabriz and Shiraz the following day, cannot be considered as in itself imputable
to the Iranian State does not mean that Iran is, in consequence free of an
responsibility in regard to those attacks; for its own conduct was in conflict with
its international obligations. By a number of provisions of the Vienna Conventions
of 1961 and 1963, Iran was placed under the most categorical obligations, as a
receiving State, to take appropriate steps to ensure the protection of the United
States Embassy and Consulates, their staffs, their archives, their means of
communication and the freedom of movement of the members of their staff. ...
§67. This inaction of the Iranian Government by itself constituted a clear and
serious violation of Iran's obligations to the United States….
Attribution
United States Diplomatic and Consular Staff in Teheran
(United States v. Iran), ICJ, Judgement, Merits, 1980.
2nd Phase: Continuing Occupation: Conduct acknowledged and
endorsed
"74. The policy thus announced by the Ayatollah Khomeini, of maintaining the
occupation of the Embassy and the detention of its inmates as hostages for the
purpose of exerting pressure on the United States government was complied with
by other Iranian authorities and endorsed by them repeatedly in statements made
in various contexts. The result of that policy was fundamentally to transform the
legal nature of the situation created by the occupation of the Embassy and the
detention of its diplomatic and consular staff as hostages. The approval given to
these facts by the Ayatollah Khomeini and other organs of the Iranian State, and
the decision to perpetuate them, translated continuing occupation of the Embassy
and detention of the hostages into acts of the State. The militants, authors of the
invasion and jailers of the hostages, had now become agents of the Iranian State
for whose acts the State itself was internationally responsible. ..."
Circumstances
Precluding Wrongfulness
(CPW)
Article 20: Consent
- e.g. presence of foreign troops
Article 21: Self-defence
- in accordance with UNC
Article 22: Countermeasures
- Acts in response to an IWA
Circumstances Precluding
Wrongfulness (CPW)
Article 23: Force majeure
 Irresistible force or unforeseen event
 Beyond the control of the State concerned
 Absolute impossibility to perform the obligation
Article 24: Distress
 Choice to act is effectively nullified
 No other reasonable way
 To save life of the author or lives of others
Circumstances Precluding
Wrongfulness (CPW)
Article 25: Necessity
 Necessity may not be invoked unless the act :
a) is the only way for the State to safeguard an essential interest
against a grave and imminent peril; and
b) does not seriously impair an essential interest of the State or
States towards which the obligation exists, or the international
community as a whole
 In any case, necessity may not be invoked
a ) the obligation in question excludes it;
b) The state contributed to the situation of necessity
Circumstances Precluding
Wrongfulness (CPW)
Article 25: Necessity
 Necessity may not be invoked unless the act :
a) is the only way for the State to safeguard an essential interest
against a grave and imminent peril; and
b) does not seriously impair an essential interest of the State or
States towards which the obligation exists, or the international
community as a whole
 In any case, necessity may not be invoked
a ) the obligation in question excludes it;
b) The state contributed to the situation of necessity
Circumstances Precluding
Wrongfulness (CPW)
Article 25: Necessity
 Necessity may not be invoked unless the act :
a) is the only way for the State to safeguard an essential interest
against a grave and imminent peril; and
b) does not seriously impair an essential interest of the State or
States towards which the obligation exists, or the international
community as a whole
 In any case, necessity may not be invoked
a ) the obligation in question excludes it;
b) The state contributed to the situation of necessity
Legal Consequences of an
Unlawful Act
Article 30: Cessation and non-repetition
 If the act is on-going
 If adequate, guarantees of non-repetition
Article 31: Reparations
Factory at Chorzów (Germany v. Poland), PCIJ, Judgement,
Jurisdiction, 1927, Series A, No.9, at p. 21.
"It is a principle of international law that the breach of an
engagement involves an obligation to make reparation in an
adequate form. “
Legal Consequences of an
Unlawful Act
Forms of Reparation
3) Satisfaction (Article 37)
Rainbow Warrior (New Zealand/France), Arbitration Tribunal,
1990, RIAA, Vol. XX, 1990, p. 217, at p. 272.
"There is a long established practice of States and international
Courts and Tribunals of using satisfaction as a remedy or form of
reparation (in the wide sense) for the breach of an international
obligation. This practice relates particularly to the case of moral or
legal damage done directly to the State, especially as opposed to the
case of damage to persons involving international responsibilities. "
Countermeasures: implementation
of international responsibility
Substantive Limitations
1) Directed against the State who committed the IWA
2) Temporary : termination once IWA ceases and made reparations
3) As far as possible: reversible in their effects
4) Proportionate
5) Shall not affect certain obligations:
 Dispute resolution
 Fundamental obligations, namely:
a) Threat or use of force
b) Human Rights obligations
c) obligations of a humanitarian character prohibiting
reprisals
d) other peremptory norms
Countermeasures: implementation
of international responsibility
Procedural Limitations: “Cooling off”
1) Call upon responsible State to comply with its obligations
2) Notification
3) Offer to negotiate
 But: urgent countermeasures to preserve the injured State’s rights
are allowed