LAW 1508 Lecture Notes - Lecture 6: Peremptory Norm, Erga Omnes, Ultra Vires
23 May 2018
School
Department
Course
Professor
State Resposiility
Art 1- context
Art 2
(b)What is the primary legal obligation?
-…-…
Has it been breached?
-fact
(a) Is it attributable?
-see facts and pick appropriate article
Draft Articles on the Responsibility of States for Internationally Wrongful Acts
(ILC, 53rd session, 2001)
STEP 1: Article 1: General Principe Every internationally wrongful act of a state
entails the international responsibility of that state.
STEP 2: Article 2: Two requirements: There is an internationally wrongful act
when conduct (an act or omission) is
(a) attributable to a state under international law; and
(b) breaches an international obligation of that state
BOTH elements must be satisfied Tehran Hostages case. Unless there
is a circumstance which prevents the act being considered wrongful
(excuse, justification, defence)
Article 3: Characterisation of act is a question of international law, not domestic
STEP 3: Establish primary legal obligation (TREATY, CUSTOM), ensure the state is
bound. Determine breach to satisfy 2(b)
eah of iteatioal oligatio he a at of that State is ot i ofoit
with what is required of it by that obligation, regardless of its origi o haate
(Custom or treaty): art 12.
TIMING
Beah ONLY ous if the State is bound by the obligation in question at
the time the at ous: art 13.
Not having a continuing character happens at the moment when the act
is preformed, even if its effects continue (EG: Breach occurs at time of
bombing.)
Effects May be continuing (Art 14) (rainbow Warrior Case)
Having a continuing character extends over the entire period during
which the act constitutes and remains not in conformity with the
international obligation (Art 14(2))
To prevent a given event occurs when the event occurs and extends
over a period of time during which the event continues and remains
not in conformity with that obligation (Art 14(3))
May consist of a composite act- more than one act- (art 15)
EG: series of five acts, fifth becomes genocide- responsibility
commences at first act even if though it became wrongful later
Serious breaches of obligations under peremptory norms of international law
(art 40 and 41) (jus cogens)
• Dual criterion: jus cogens obligation and a serious breach
Consequences: all other states under a duty
To co-operate to bring breach to an end (41(1))
Not to recognise its consequences (41(2))
Not to aid of assist
Legal consequences for States of the Continues Presence of South Africa
in Namibia (ICJ 1971)
Examples – obligations not to recognise:
the Iraqi invasion of Kuwait (1990) which breached the norm
prohibiting the use of force;
Rhodesia (1965) which breached the norm prohibiting apartheid.
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• Countermeasures cannot involve the breach of any peremptory norms – art
50(1).
• The circumstances precluding wrongfulness do not apply to breaches of a
peremptory norm – art 26.
ATTRIBUTION
BREAHC MUST BE ATTRIBUTABEL TOT THE STATE. Pick which one applies
• A state is responsible for the conduct of its organs (Art 4)
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
teitoial uit of the State (Art 4(1))
Definition A oga iludes a peso o etit hih has that status i
aodae ith the iteal la of the State : (art 4(2))
• Ultra Vires Acts: Even when those organs are acting in excess of authority (Art
7)
or contravenes instructions
Excess of authority rule:
Mallen Case no responsibility for off duty personal acts, but when in
the officer assaulted a foreign national in uniform- abused status,
legal powers and resources at disposal of state (gun/ badge) was
acting as part of the organ of that state= attributable
Carie Claim acted in capacity of officers= attributable
Responsibility cannot be limited to acts intra vires (Art 3)
LOOK TO: whether they acted in capacity
INDICIA: using weapons/ objects placed in their control
Six cases when a state may be responsible for the conduct of
persons/ entities which are not its organs
1. PRIVATE: Persons or entities empowered to exercise elements of
governmental authority UNDER LAW (private corporation running a
prison) (art 5)
2. Foreign state organs placed at another states disposal (public health
workers during an emergency, transferred from one state government to
another state governments- under power and control of state they have
been lent into- part of its organs) (art 6)
3. FUNDING/ TRAINING/ PROXY WARS: Persons or entities in FACT acting
under the direction and control of the state (Art 8)
(Nicaragua case- rebels under close direction and control of a
foreign state- treated as entities of that controlling state)
LOOK TO: EFFECTIVE control
4. govt. transition/ revolution Persons or entities exercising elements of
governmental authority in default of the official authorities (Art 9) (Quite
rare – example: Yeager v Iran)
5. ADOPTION: Successful revolutionary movements which become
government (state retrospectively responsible for acts during revolution)
(Art 10) high threshold
6. Where and to the extent that the state acknowledges and adopts the
conduct (Diplomatic and Consular Staff in Tehran) (Art 11)
Failure to protect
• Custom DUE DILLIGENCE
If a state is ot esposile fo … eets theseles, it a eetheless
be responsible, for what its authorities do or do not do to ward off the
consequences, within the limits of possibility:; Asian Agricultural
Products Ltd v Sri Lanka (1990) 4 ICSID Rep 246
LOOK: did they do everything their capacity to stop the acts?
(1) NO?- attribution
(2) YES?- no attribtion
Responsibility of a state in connection with the act of another state
• Aiding and Assisting
A State hih aids o assists aothe State i the oissio of a
internationally wrongful act by the latter is internationally responsible for
doing so if:
(a) that State does so with knowledge of the circumstances of the
internationally wrongful act; and
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Document Summary
State respo(cid:374)si(cid:271)ility (cid:858)(cid:271)(cid:396)ea(cid:272)h of i(cid:374)te(cid:396)(cid:374)atio(cid:374)al o(cid:271)ligatio(cid:374) (cid:449)he(cid:374) a(cid:374) a(cid:272)t of that state is (cid:374)ot i(cid:374) (cid:272)o(cid:374)fo(cid:396)(cid:373)it(cid:455) with what is required of it by that obligation, regardless of its origi(cid:374) o(cid:396) (cid:272)ha(cid:396)a(cid:272)te(cid:396)(cid:859) (custom or treaty): art 12. Draft articles on the responsibility of states for internationally wrongful acts (ilc, 53rd session, 2001) Step 1: article 1: general principe every internationally wrongful act of a state entails the international responsibility of that state. Step 2: article 2: two requirements: there is an internationally wrongful act when conduct (an act or omission) is (a) attributable to a state under international law; and (b) breaches an international obligation of that state. Both elements must be satisfied tehran hostages case. Unless there is a circumstance which prevents the act being considered wrongful (excuse, justification, defence) Article 3: characterisation of act is a question of international law, not domestic. Step 3: establish primary legal obligation (treaty, custom), ensure the state is bound.
