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I. Doctrine of state responsibility

1. CONCEPT

Every internationally wrongful act of a State entails the international responsibility of that State. (Article 1, Draft Articles on Responsibility for Internationally Wrongful Acts by the International Law Commission)

a. Draft Articles on Responsibility for Internationally Wrongful Acts by the International Law Commission

1) 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:

1) Is attributable to the State under international law; and

2) Constitutes a breach of an international obligation of the State. (Article 2, Ibid.)

2) Characterization of an act of a State as internationally wrongful

1) The characterization of an act of a State as internationally wrongful is governed by international law. (Article 3, Ibid.)

2) Such characterization is not affected by the characterization of the same act as lawful by internal law. (Paragraph 2, Article 3, Ibid.)

3) Conduct of organs of a State

1) 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. (Article 4[1], Ibid.)

2) An organ includes any person or entity which has that status in accordance with the internal law of the State. (Article 4[2], Ibid.)

4) Conduct of persons or entities exercising elements of governmental authority

The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. (Article 5, Ibid.)

5) Excess of authority or contravention of instructions

The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. (Article 7, Ibid.)

6) Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act of a State under international law if the 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. (Article 8, Ibid.)

7) Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own. (Article 11, Ibid.)

8) Existence of a breach of an international obligation

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 its origin or character. (Article 12, Ibid.)

9) International obligation in force for a State

An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs. (Article 13, Ibid.)

10) Aid or assistance in the commission of an internationally wrongful act

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

1) That State does so with knowledge of the circumstances of the internationally wrongful act; and,

2) The act would be internationally wrongful if committed by that State. (Article 16, Ibid.)

11) Direction and control exercised over the commission of an internationally wrongful act

A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if:

1) That State does so with knowledge of the circumstances of the internationally wrongful act; and,

2) The act would be internationally wrongful if

committed by that State. (Article 17, Ibid.)

12) Coercion of another State

A State which coerces another State to commit an act is internationally responsible for that act if:

1) The act would, but for the coercion, be an internationally wrongful act of the coerced State; and,

2) The coercing State does so with knowledge of the circumstances of the act. (Article 18, Ibid.)

13) Consent

Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent. (Article 20, Ibid.)

14) Self-defence

The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations. (Article 21, Ibid.)

15) Countermeasures in respect of an internationally wrongful act

The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of Part Three. (Article 22, Ibid.)

16) Force majeure

1) The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. (Article 23[1], Ibid.)

2) Paragraph 1 does not apply if:

(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or,

(b) the State has assumed the risk of that situation occurring. (Article 23[2], Ibid.)

17) Distress

1) The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care. (Article 24[1], Ibid.)

2) Paragraph 1 does not apply if:

(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or,

(b) the act in question is likely to create a comparable or greater peril. (Article 24[2], Ibid.)

18) Necessity

1) Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State 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 of the international community as a whole. (Article 25[1], Ibid.)

2) In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:

(a) the international obligation in question excludes the possibility of invoking necessity; or,

(b) the State has contributed to the situation of necessity. (Article 25[2], Ibid.)

Article 26. Compliance with peremptory norms

Nothing in this chapter precludes the wrongfulness

of any act of a State which is not in conformity with an

obligation arising under a peremptory norm of general international law. (Article 26, Ibid.)

19) Legal consequences of an internationally wrongful act

The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part. (Article 28, Ibid.)

20) Reparation

1) The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. (Article 31[1], Ibid.)

2) Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. (Article 31[2], Ibid.)

21) Irrelevance of internal law

The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this Part. (Article 32, Ibid.)

22) Restitution

A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:

1) Is not materially impossible;

2) Does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. (Article 35, Ibid.)

23) Compensation

1) The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is

not made good by restitution. (Article 36[1], Ibid.)

2) The compensation shall cover any financially assessable damage including loss of profits insofar as it is established. (Article 36[2], Ibid.)

24) Satisfaction

1) The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. (Article 37[1], Ibid.)

2) Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. (Article 37[2], Ibid.)

3) Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State. (Article 37[3], Ibid.)

25) Interest

1) Interest on any principal sum due under this chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result. (Article 38[1], Ibid.)

2) Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled. (Article 38[2], Ibid.)

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