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Lecture 12

POL340Y1 Lecture 12: POL340 - Lecture 12 - State Responsibility - Lecture + Readings

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University of Toronto St. George
Political Science
Gerard J Kennedy

Week 12: State Responsibility (December 1 , 2016) When is a state responsible (i.e. liable) in international law? • Only a state that can have an international right or responsibility: - Unless a treaty has given another corporation or entity that right • There are differences between heads of government and someone who is a non-state actor When can a state be liable for the acts of private persons (including ‘private’ military or paramilitary personnel? Eichmann Case CASE What happened? • Adolf Eichmann fled from Austria to Argentina after WWII • Israeli secret service seized him and took him to Jerusalem for trial in Israeli Court Issue: • Eichmann argued that he hasn’t been brought to Israel rightfully so he can’t be rightfully trialed Holding: • Only Argentina has the right to make this case - Eichmann (as an individual) does not have the right to make this argument What are the consequences of the breach of international law? Where do we look to find the answers? (See: Week 12 Readings) • General Principles - e.g. Factory at Chorzow (Poland v. Germany) ▪ The victim state of the violation to international law requires a remedy from the Violator state • International Law Commission - “Draft Articles on the Responsibility of States for Internationally Wrong Acts” ▪ Needs to be related to a state act • This area is mostly dealt with CIL Reading Week 12: State Part III: State Responsibility (Chapter 12 pp.763) What is the nature of state responsibility? • State responsibility: - General set of rules governing the international legal consequences of violation by states ▪ Of their international legal obligations • Rules are found in: - Customary international law - International Law Commission (2001) ▪ “ICL Articles on State Responsibility” General Principle of State Responsibility - Permanent Court of International Justice (PCIJ) to address the issue of state responsibility in the 20 Century Chapter I: General Principles • Article I: Responsibility of a state for its internationally wrongful acts - Every international wrongful act of a State entails the international responsibility of that State • Article 2: Elements of an internationally wrongful act of a State - Conditions required to establish the existence of an internationally wrongful act of the state (the constituent elements of such an act) - There is an internationally wrongful act of a State when conduct consisting of an action or omission: ▪ Is attributable to the state under international law; and ▪ Constitutes a breach of an international obligation of the State • Article 55: Lex specialis - These articles do not apply where the extent of the conditions, content or implementation (of international responsibility / wrongful action) are: ▪ Governed by special rules of international law Attribution of Conduct of the State • Article 3: Characterization of an act of a State as internationally wrongful - States can only be held responsible for conduct that is attributable to them ▪ Governed by int’l law ▪ Not domestic / internal law • Article 4: Conduct of State Organs and Entities Empowered to Exercise Governmental Authority - State Organ: ▪ Legislative, executive, judicial or any other functions - Organ: ▪ Includes any person or entity which has that status ▪ According to the internal law of the State • Article 5: Conduct of persons or entities exercising elements of governmental authority - Persons (lawfully) exercising elements of governmental authority ▪ E.g. Genocide Convention (Bosnia vs. Serbia) (2007) • Article 7: Excess of authority or contravention of instructions - Conduct of an organ (state or person) empowered with governmental authority shall be considered an act of the State ▪ Does not prevent attribution - As long as entity is acting “in that capacity” ▪ E.g. Para-statal entities - Organization with political authority - E.g. Velasquez Rodriguez Case (1998) Bosnia and Herzegovina v. Serbia and Montenegro, ICJ (2007) CASE (Application of the Convention on the prevention and punishment of the crime of genocide) What happened? • Bosnian Serb (Republika Srpska) takeover of the UN “safe area” of Srebenica in Bosnia and Herzegovina (July 1995) • After seizing Srebrenica, the Bosnian Serb Army (VRS) massacred thousands of military- aged Bosnian Muslim men from that town Issue: • B&H sought a declaration that S&M (or predecessor, the Federal Republic of Yugoslavia (FRY)) was responsible or genocide in connection with the massacres • Where the perpetrators of genocide (B&H) acting on the Respondent’s (S&M or FRY) instructions or under its direction or control? o Simply: Did Serbia have control over the VRS? To be responsible for the VRS actions? Holding (ICJ): • Conduct of any State Organ is to be considered an act of the State under international law o CIL o Reflected in Article 4 of ILC • The acts of genocide at Srebrenica cannot be attributed to the Respondent (Serbia) o As having been committed by its organs or by persons or entities wholly or dependent upon it ▪ Republika Srpska and VRS were not “de jure’ organs of FRY o And thus, do not on this basis entail the Respondent’s international responsibility • What is needed is, effective control and not overall control • VRS acted as state authority o Article 5 of ILC (Court: While there was evidence of FRY influence over the Republika Sprkska and VRS, it had not been established that the massacres were committed on the instructions or under the direction of organs of the respondent state (FRY, SERBIA) nor that the respondent exercised effective control over the operations in the course of which those massacres were perpetrated) • [Cited the Nicaragua] “Was the relationship so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes with an organ of… or as acting on behalf of the gov’t?” • Americans gave support to a rebel group in Nicaragua and the question was, could the US be responsible for their actions? Velasquez Rodriguez Case, Inter-American Court on Human Rights (1998) CASE (Can a state organ act other than “in that capacity?” What happened? • Several students were “disappeared” by armed men in civilian clothing Issue: • Were these men state agents for the Honduran state? • Is the Honduran government responsible for their conduct? • Petitioners made claims against the Honduran government Holding: • Court focused on implications of Article 1(1) of American convention on Human Rights o Any exercise of public power that violates the rights recognized by the Convention is illegal • Whenever a state organ, official or public eneity violates one of these rights o Constitutes a failure of duty to respect the Convention • A state is responsible for the acts of its agents o Even when those agents act outside the sphere of their authority or violate internal law • Any act of public authority or persons who use their position of authority is imputable to the state o Article 7 of ILC 2) Conduct of Other Entities A) Persons Acting Under State Instructions, Direction or Control • Ar
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