Before considering whether the right to exercise self-defence justifies
any measures taken by a State, let's take at look at the general rule of
international law regarding the use of force. The general prohibition
of the use of force is provided by Article 2 para 4 of the UN Charter.
Two exceptions to this prohibition are (1) authorization by the UN
Security Council (Article 42 UN Charter) and (2) self-defence (Article
51 of the UN Charter).
As can be learned from the Advisory Opinion on the Threat and Use of Nuclear Weapons
from 8 July 1996, paragraph 41, the submission of exercise of the right
of self-defence to conditions of necessity and proportionality, is a
rule of customary international law. Referring to the Nicaragua
case, the ICJ states that "there is a specific rule whereby self-defence
would warrant only measures which are proportional to the armed attack
and necessary to respond to it, a rule well established in customary
international law", see also paragraph 51 and paras 73-77 of the Oil Platforms case.
The Oil Platforms case also makes clear that the principle of necessity
is a strict and objective condition that leaves States no discretion.
Thus, the three requirements to invoke self-defence, (known as the
"Caroline test") as can be derived from the 1842 letter from Webster to
Ashburton, are: the other state must have performed an armed attack (1),
self-defence was necessary to respond to it (2) and the self-defence
was proportionate (3) (see also, paras 229-237 Nicaragua). Moreover,
Art. 51 of the UN Charter requires that measures taken shall be reported
to the Security Council immediately.
Different regimes for the UN Charter and customary international law (Caroline test)?
While measures taken in either reactive or anticipatory self-defence
would have to comply with the requirements of necessity and
proportionality, Art. 51 of the UN Charter stipulates that self-defence
can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of
customary international law, leaves the possibility that one invokes a
state of necessity if an imminent threat has been established,
the necessity of the self-defence is instant and a state has no other
means left to it than a use of force. Both the necessity and
proportionality principle imply that states have to confine themselves
to repelling the attack(er)- self-defence cannot be invoked in order to
pursue or impose punishment on the attacker.
Note that time is another condition of importance, as in the Nicaragua
case, the measures taken several months after the major offense, could
not be said to "correspond to a necessity justifying the action" (para
237).
Asssuming that any measures taken have not yet failed the
necessity test, the next question is, if the proportionality principle
has been met. The Court states in the Oil Platforms case
that "the scale of the whole operation has to be judged in order to
assess, whether the response ["self-defence"] was proportionate" (para
77).
A problem arises when an attack was performed by a non-state actor
[rebel groups, for instance]. Is their conduct attributable to a state?
A strict, traditionalist approach was applied in Nicaragua (demanding "effective control", paras 115-116), subsequently in Armed Activities on the Territory of The Congo (paras 146, 147) and the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro, para 406).
Provided that a state has delivered arms to a rebel group
(Nicaragua) and although providing training and military support to a
rebel group might violate customary international law (Armed Activities
Congo/ Uganda), the conclusion that follows from these cases is that
State could not be held responsible and that the self-defence plea had
to be rejected for these reasons.
Not everything has been said yet. A lot of controversy still
surrounds the question, whether the right to self-defence could be
invoked against non-state actors, assuming that their conduct cannot be
attributable to a state. It is rather unsure whether or not the
traditionalist approach still applies. Hence, in practice, the right to
invoke self-defence against non-state actors is no longer categorically
rejected.
Posts tonen met het label Nicaragua. Alle posts tonen
Posts tonen met het label Nicaragua. Alle posts tonen
zaterdag 25 februari 2017
Use of force as a means of self-defence
"Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for delibaration" (copy available from Yale, Avalon Project)
This clear and concise statement, the "Caroline test", provides the classic requirements for the invocation of self-defence. Before determining how the Caroline test applies to reactive self-defence and anticipatory self-defence, I am going to discuss the general prohibition of use of force under international law.
1.2. General prohibition of use of force and exceptions
The use of force is generally prohibited, as expressed in Article 2 (4) of the UN Charter. The right of self-defence as an exception is laid down in Article 51 of the UN Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain peace and security".
Note that "measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council".
The other exception to the general prohibition of use of force, is authorization by the UN Security Council, as Art. 42 UN Charter reads. As the last sentence of Article 51 UN Charter makes clear, the Security Council may at any time take action, if deemed necessary in order to maintain or restore international security.
1.3. Self-defence (Art. 51 UN Charter)
According to the definition as laid down in Article 51 UN Charter, for self-defence to be justified, an attack must have occurred; furthermore, the attack must have been an armed attack. It is not to say that an "attack" as meant in para 74 of the Diplomatic and Consular Staff case of 1980 cannot qualify as an "armed attack", or that the deliverance of arms in para 195 of the Nicaragua case justifies the invocation of self-defence in accordance with Art. 2 (4) of the UN Charter.
When is Art. 51 of the UN Charter applicable? As the International Court concludes, "the most grave forms of the use force (those constituting an armed attack) must be distinguished from other less grave forms", see para 191 of the Nicaragua case.
Assuming that an armed attack (1) has occurred, the requirements of necessity (2) and proportionality (3) must be met (see also: Nicaragua, para 194; Threat or use of nuclear weapons, para 41; Oil Platforms, para 74).
1.3.1. Customary international law
As can be learned from paras 41-44 from the Threat or use of nuclear weapons Advisory Opinion 1996, the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality, is a rule of customary international law. As stated in the Nicaragua case, there is a "specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law"(para 176 Nicaragua).
1.3.2. Reservations by the US do not obstruct the application of customary law (Nicaragua)
The Court does not consider that it can be claimed that all the customary rules which may be invoked, have a content exactly identical to that of the rules contained in the treaty which cannot be applied by virtue of the US reservation. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary law (para 175). Even if the customary norm and the treaty norm were to have exactly the same content, the incorporation of the customary norm into treaty-law must not deprive the customary norm of its applicability (para 177).
However, the jurisdiction of the Court was limited in the Nicaragua and Oil Platforms cases, for the US had terminated the acceptance of the Court's jurisdiction. It did so by making a "multilateral treaty reservation"; when judging a dispute concerning multilateral treaties, as is the UN Charter, the Court could only apply norms of customary international law.
1.3.3. Armed Activities: use of force only justified within strict confines
What could, thus, be said about the difference between the UN Charter and customary international law regimes on the use of force? One main case where the ICJ could actually apply the provisions of the UN Charter is the Armed Activities Judgment (Congo vs. Uganda). The Court has found that:
"The prohibition against the use of force is a cornerstone of the UN Charter. Article 51 of the UN Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including recourse to the Security Council" (para 148).
1.3.4. State responsibility and the right to invoke self-defence
Art. 51 of the UN Charter does not expressly require that, for the right to to invoke self-defence, an occurred armed attack is attributable to another state. However, the Nicaragua case, the Armed Activities on the Territory of Congo Judgment, the Tadic case and Genocide case have questioned whether or not states can be held responsible for acts by non-state actors.
The effective control test was developed in the Nicaragua case: "For this conduct to give rise to legal responsibility of the US, it would have to be proved that the State had effective control [..]. The Court does not consider that the assistance given by the US [..] are imputable to that State" (paras 115, 116).
In the Armed Activities (Congo vs. Uganda, 2005) Judgment, the ICJ stated that "it did not find the acts by a rebel group could be attributable to Uganda, although providing training and support to a rebel group may violate obligations of customary international law" (para 161, 162). "While Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. (paras 146, 147).
A looser test than the "effective control" test was applied by the ICTY in the Tadic case of 1999:
an "overall control" test should suffice (paras 120-122 and 131, 132). This "overall control" test was rejected by the ICJ in the Genocide case of 2007 (Bosnia and Herzegovina vs. Serbia and Montenegro), for it stretched too far the connection which must exist between the conduct of a State's organs and its responsibility (para 406).
Can a state invoke the right of self-defence against non-state actors, assuming that their conduct cannot be attributable to a state? That is a controversial question, but not a hypothethical one.
It is rather unsure whether the traditionalist approach in the Nicaragua, Congo and Genocide still applies, when in practice the right to invoke self-defence against non-state actors is no longer categorically rejected.
2. Requirements of necessity and proportionality
The necessity of self-defence has to be determined by applying the "Caroline test", as derived from the letter from Webster to Ashburton: instant, overwhelming, leaving no choice of means and no moment for delibaration. Assumed that an act of self-defence meets the criterion of necessity, there is another condition of importance: the time between an armed attack and the measures taken to exercise the right of self-defence. On the question of necessity, the Court in the Nicaragua case observes that:
"The US measures taken, cannot be said to correspond to a "necessity" justifying the action [..]. First, these measures were only taken several months after the major offensive. [..] Finally, the Court must also observe that the reaction of the US (in the context of what it regarded as self-defence) was continued long after the period in which any presumed attack by Nicaragua could reasonably be contemplated" (para 237).
Proportionality. Although the invocation of self-defence had already failed in the Oil Platforms case of 2003, the Court states in para 77 that:
"Had the Court found that it [the attack] was necessary in response to the Sea Isle Incident as an armed attack [..] have been considered proportionate. The Court cannot close its eyes to the scale of the whole operation, which cannot be regarded as a proportionate use of force in self-defence".
3. Anticipatory self-defence and the Caroline test: an imminent threat?
Anticipatory self-defence refers to the situation where measures are to be taken, although an armed attack by another state has not yet occurred. The Caroline test must again be applied, now to decide whether an imminent threat justifies anticipatory self-defence. The 2005 Report of the Secretary-General of the UN confirms that the existence of an imminent threat has to be assessed along the line of the main requirements "instant and overwhelming" and "leaving no other means or a moment for deliberation".
Is preventive self-defence permitted? The Secretary-General of the UN has stated in 2003 that, regarding preventive self-defence, "This logic represents a fundamental challenge to the principles in which, however imperfectly, world peace and stability have rested for the last fifty-eight years. My concern is that, if it were to be adopted, it could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification". The conclusion could thus be that permitting preventive self-defence would be incompatible with the object and purpose of the general prohibition of use of force as laid down in Article 2(4) of the UN Charter (and as reflected by customary international law).
3.1. UN Charter vs. customary international law (Caroline test)
While measures taken in either reactive or anticipatory self-defence would have to comply with the requirements of necessity and proportionality, Art. 51 of the UN Charter stipulates that self-defence can only be invoked after the occurrence of an armed attack.
The Caroline test, formulating the requirements of customary international law, leaves the possibility that one invokes a state of necessity if an imminent threat has been established, the necessity of the self-defence is instant and a state has no other means left to it than a use of force. Both the necessity and proportionality principle imply that states have to confine themselves to repelling the attack(er)- self-defence cannot be invoked in order to pursue or impose punishment on the attacker.
4. Collective self-defence
Article 51 of the UN Charter applied to both individual and collective self-defence. A state may use force in the defence of an attacked state, provided that the attacked state has made a request to other states to engage in collective self-defence.
As expressed in the Oil Platforms Judgment, "..The US has not claimed to be exercising collective self-defence on behalf of the neutral States engaged in [...]; this would have required the existence of a request made to the US by the State which regards itself as the victim of an armed attack" (para 51).
In the Nicaragua case, it is set out that "The exercise of the right of collective self-defence presupposes that an armed attack has occurred. It is [also] evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will normally make an express request to that effect" (para 232). There is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack (paras 199, 200).
On state responsibility: internationally wrongful acts and case law (Tadić, Nicaragua, 2007 Genocide case)
Crawford provides us with an accurate description of the rationale behind state responsibility:
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), 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.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
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;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, 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;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), 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.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
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;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, 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;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
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