State Responsibility General Principle: Every wrongful act of a state entails its responsibility.

-there are primary rules that set out the international obligations in terms of substantive codes of conduct -then there are secondary rules that specify the sanctions for breaches of obligations -state responsibility is not really codified because the procedures for its invocation usually informal diplomatic negotiations -thus, there is a dearth of case law on the subject matter and very few authoritative statements of the scope of the principle -one statement that may carry some weight is the International Law Commission, Draft Articles on

State Responsibility-some of these principles are codifications of international law and some are
more controversial with little support in state practice Article 1-every worngful act of state entails responsibility Article 2-every state can be held responsible for an internationally wrongful act Article 3-A wrongful act occurs when: a) acts or omissions are committed that are attributable to the state; and b) those acts violate international obligations Article 4-Acts are only unlawful if they violate international law and internal law on the conduct is irrelevant Article 19-1. An act of state that is a breach of international obligations is wrongful despite the subject matter of the obligation breached. 2. Where there is a wrongful act that is a breach of an international obligation so essential for the protection of the fundamental interest of the international community that the breach is recognized as a crime, it constitutes an international crime. 3. International crimes may result from: a) a breach of an international obligation of fundamental importance for mainatainance of intl peace and security such as that prohibting agression. b) breach of obligation wrt self determination of peoples such as maintainance by force of a colonial domination c) breaches of obligations wrt fundamental importance of human safety such as prohibiting slavery, genocide and apartheid d) serious environmental breaches 4. An other international wrongs not an intentional crime is an international delict Article 51-where there is the commision of an international crime it entails the consequences of any other wrongful act plus those in arts 52 and 53 Article 52-Where there is an international crime a) an injured state is entitled to restitution that is not limited by article 43 subs c and d. Article 53-where an international crime has taken place states are obligated a) not to recognize the situation rendered by the crime as lawful b) not to give aid to maintain the situation c) to cooperate to carry out a) and b) d) to cooperate to eliminate the consequences of the crime

Basis of Responsibility: Corfu Channel Case (Merits)(United Kingdom v. Albania [1949] FACTS: British war ship travelling in Albanian waters and was damaged by a mine. The U.K. then cleared the waters of all mines. U.K. could not prove if Albania had laid the mines or if it had done so with Yugoslavia. ISSUE: If a wrongful act is committed in the territorial waters of a state, can responsibility be automatically imputed? RATIO: There is no automatic imputability but where indirect evidence shows that a state did or ought to have known of the potential for an international wrong, beyond a reasonable doubt, responsibility is imputed. -UN Conference on Racism and Intolerance(in the NP)-there have been a series of preparatory meetings in difft areas of the world but the main controversy is that a number of African countries are likely to want to discuss a claim for State Responsibility against the US for the slave trade compensation for violation of HR -if that is put on the table, the US is unlikely to attend -the African nations also prospered on slavery and slavery still exists in certain African nations -no doctrine of inter-temporal lawif you are arguing a breach of intl law cannot look at it through 2001 glassesmust look at the customary intl law of the time, jus cogens, etc. -treaties are not retroactive unless they declare themselves to be so

Rainbow Warrior Case (NZ v. France)

-French govt was not pleased with Greenpeace organization b/c Greenpeace had been protesting French Nuke testing in the SP in the 1980sGP ship had been disrupting and was made to dock at Auckland, NZ -persons in scuba gear planted devices on it, it was blown up and a Dutch national was killed as a result -there were 4-5 divers, only two were arrestedFrench govt took the perspective that these were two citizens who might be members of Naval units but they denied responsibility -this claim was suspicious, France changed its position and acknowledged that the two persons were state agents following orders of the French DG of External Security -France argued that these men were acting under orders and thus, should not be prosecuted -France participated in the Nuremberg trials where it was proclaimed that this was no defence -at the same time France was prosecuting Claus Barbie for Crimes against humanity while he was in the occuping German govt in Lyons during WWII -if something is manifestly unlawful and the person had a reasonable moral choice (ie: the choice is not between putting the bombs on the boat and getting shot in the head), the defence will not work -as a result of arbitration, NZ was compensated, the two agents were taken into French custody on the condition that they be kept in isolation in French Polynesia

The Jessie, Thomas F. Bayard, and Pescawha (American and British Claims Arbitration, 1926)
FACTS: British sealing vessels were boarded by American authorities and their weapons were placed under seal and they were told not to remove them. There was no treaty in place authorizing the Americans to board the ship on the high seas. ISSUE: Liability? RATIO: The acts of the American officers constituted a breach of international law. The fact that the American officers acted in good faith does not excuse their government from liability.

Cosmos 954 Claim (Canada v USSR) (1979)

FACTS: U.S.S.R. launched a satellite that had radioactive components and it crashed on Canadian soil. Canada had to clean up the mess and incurred expenses. ISSUES: Is the USSR responsible under the 1972 Convention on International Liability for Damage

Caused by Space Objects (both were parties) or under general principles of international law?
RATIO: a) Under the TreatyLaunching state is absolutely liable for damage caused to Earth by reentry. Under the treaty USSR is liable for the damage caused. Under international law, Canada had a duty to mitigate and did so. The clean-up would not have occurred had it not been for the damage caused by the satellite and Canada is entitled to damages that would put them in the position they would have been in if not for the accident. b) Principles of I.L.I) the entrance of the satellite debris on Canadian territory was a violation of sovereignty that is compensable under I.L. ii) iii) It is a general principle of international law that states are absolutely liable. It is mentioned in numerous agreements including the applicable treaty. Canada has only claimed reasonable compensation as is allowed for under general principles of international law.

Im Alone Case (Canada v. U.S.) (1935)

- British entered into bilateral treaty with US which allowed US to visit, board and arrest people engaged in rum-running - Cdn ship was only within 1 hr normal sailing distance of US coast when pursued onto high seas - US shot and sank Cdn ship and 1 crewman died so question was where did pursuit begin? - commissioners held that sinking by US Revenue of a Cdn ship was unlawful act b/c it was not justified by any provision of 1924 convention that governed case so awarded monetary dmges - measures must be proportionate not excessive Imputability (617) -issue is whetehr or not an act may be attributed to a state is a key element in international responsibility because it makes establishing liability easier -problem areas are the specification of state actors and responsibility for the activities of non state actors

Acts of the State -Iran Hostage Caseactions of agents are imputable to the state if they act in violation of intl law -even in the case where state agents exceed orders

Draft Articles on State Responsibilityit is quite obvious to see that when you have an agent or
organ of a state it is simple to trace the connection unless someone has a private vendetta -where there is a principle agent relationship, there is attribution Article 5-conduct of a state organ that has that status under internal law is imputable to the state as long as the organ was acting in that capacity Article 6-as long as it is an oran of any branch of the state, the state is responsible for its acts Article 7-acts of sub national governmental entities and organs thereof (must have been delegated govenrmental authority) are also attributable to the state Article 8: (Vicarious Liability)-if the person is in fact acting on the part of the state or exercising governmental authority they are responsible -eg: 2nd phase of Iran Hostage incidentpeople that overtook the embassy became agents of the state in fact when the revolutionary govt took over -Jaffe Casebail bondsmen took a prisoner from CanadaCanada argued that these men were acting on behalf of Florida because of the incentive provided in the form of a bond -acts of private individuals are not attributable to the country of citizenship of the nationals unless the home country has been negligent in failing to act and not performing due dilligence Article 9-where a state organ is placed at the disposal of one state by another state or international organization, the host state is responsible Article 10-Ultra Vires Acts: acts of state organs are attributable even if they exceed their instructions or competance

Youmans Case (620) (1926) (U.S. v. Mexico)

-Mexico stipulated to lack of imputability -dispute between a Mexican labourer and an American engineer involved in construction of a tunnel in Mexico (Americans were working for British company) -produces a riot, Medina( Mexican) got the other labourers to throw stones at the American and approach his house with a drawn machete -Connolly(American) fired shots in the aira mob then attacked the engineers and killed three of them -one engineer was killed by the Mexican troops who were assigned to protect them ISSUE: Imputability? Lack of Due Dilligence wrt stopping the mob? -US had two arguments for why Mexico should be responsible for deaths and as a consequence why compensation must be paid 1) Mexico had not used due dilligence to protect the father of the claimant from the fury of the mob (like in Hostages case where Iranian govt did not prevent acts of citizens) 2) Responsibility based on the actions of the soldiers who fired on the house of the engineers

HELD: Mexico was responsible. These acts were ultra vires b/c the soldiers did not have orders to fire on Americans. The Commission takes the position that military personnel who exceed their instructions or act contrary to their instructions, as long as they are acting in a military capacity, the state is responsible directly. Not all acts of soldiers would result in responsibility for example if they act in a private capacity to loot, commit wanton destruction, etc. Acts of Private Persons

International Law Commission Draft Articles on State Responsibility

Article 11-conduct of persons not acting on behalf of state are not an act of State under I.L. -this does not preclude attribution as it is laid down in articles 5-10 -the state is generally not responsible for the act of private citizens -generally, that person is prosecuted or sued domestically -but if the state refuses to provide justice, it may be responsible -or else, if the person is transformed from a person acting in a personal capacity to a state agent Types of Private Persons 1. Military and Paramilitary Activities in and Against Nicaragua(Nicaragua v. U.S.) [1986] FACTS: Nicaragua argues that CIAs involvement w/ the contras made them US state agents. -allegations of U.S. planting of mines in Nicaraguan harbours ISSUE: Was the U.S. responsible for the acts of the Contras? RATIO: A consideration of the degree of control over the private citizens is necessary. Just because you finance a group does not mean you are controlling them as agents. In certain circumstances they may have autonomy. The U.S. was responsible for certain specific acts of the contras (ie: Mine planting) however in response to the general question of U.S. responsibility the answer was negative. U.S. participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of operations is still insufficient in itself..for the purpose of attributing to the U.S. the acts committed by the contras -need to show direction or enforcement of acts contrary to human rights and humanitarian laweffective control over the general operations of the group or persons 2. Acts of Insurgents

International Law Commission Draft Articles on State Responsibility

Article 14-Acts OF insurgent groups are not attributable to the state Article 15-Insurgents brings their baggage with them when they come to power. Even though they are not in government when they did what they did, they can be made responsible when they enter govt.

Asian Agricultural Products Ltd. v. Sri Lanka ICSID (1990)

FACTS: Damages to property of an industrial concern operating in Sri Lanka by the Sri Lankan military on reports that the plant was being used to house local rebels. ISSUE: Due dilligence and what it entails? RATIO: There is extensive and consistent state practice with regard to the exercise of due dilligence. The State was bound to take all reasonable steps to prevent the occurrence of damage to property. This included using the local municipal mechanisms to evict the rebels from their suspected hiding place prior to lauching an assault. Acts of International Organizations (628-629) -if an intl organization situated on the terrritory of a state and the organization or its agents commit a wrong on the territory of the state, the state is not responsible -if a wrong is committed by UN peacekeepers, then the UN may be liable

Circumstances Precluding Wrongness Draft Articles -Article 29-ConsentIf a state consents to another state doing something in its territory, you cannot argue that there has been a breach of sovereignty -but the consent must be genuine and voluntary, no undue influence or duress on the state or its officials, no bribery or corruption and also the scope of consent must not be exceeded -a state cannot consent wrt any matter that would violate a peremptory norm of international law Article 30-Counter-Measures: If state A expropriated foreign property and refuses to give

compensation, state B could not settle the dispute and state B decides to expropriate the property of state As nationals, the wrongfulness of the act could be precluded if it was a counter-measure which in the circumstances of the case is appropriate. -must be a a legitimate counter measure under international law -Article 31-Force Majeure and Fortuitous Events: Where a state breaches an obligation due to an irresistable force or unforeseen external event that makes it materially impossible to comply with obligations, or to know that they are not in compliance, it is not responsible -this does not apply if the state created the situation of material impossibility -Article 32-Distress-where the author of the conduct was threatened or had his family threatened such that he has no other choice to save his own life, responsibility is precluded -this does not apply where the state creates the peril or the peril that will result from the impugned conduct is comparable or greater then the distress -Necessity (Article 33)most discussed Article1. a) the act must be the only way of safeguarding an essential interest against grave and imminent peril; and

b) the act does not seriously impair an essential interest of the state to which an obligation existed 2. Necessity cannot be invoked if a) the international obligation arises out of a peremptory norm of general international law; or b) the obligation is laid down by a treaty which precludes the defence of necessity c) if the state in question has created the situation of necessity Article 34-Self Defence: Precludes wrongfulness if the act is a valid self defense measure according to the Charter of the UN

Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ

FACTS: Hunagry and Czechoslovakia concluded a treaty in 1977, to build a series of dams in Slovakia and Hungary on the Danube. Hungary abandoned the project because of environmental problems. Slovakia insisted on compliance and planned and put into effect a project on Slovak territory. This project affected Hungarys access to the water. ISSUE: What are the criteria for invoking a claim of necessity? RATIO: 1) the invoking state must have an essential interest affected 3) the interest must have been threatened by a grave and imminent peril -peril evokes the idea of risk BUT peril is not the mere apprehension of harmimminence means immediate and not contingenta peril that is unavoidable and certain even if in the long term can be grave and imminent 4) The act must be the only means of safeguarding that interest 5) The act cannot seriously impair the essential interest of the state to which the obligation was breached 6) The state claiming necessity cannot have created the situation of necessity RESULT: Hungarys defence of necessity failed. Defining the Injured State -state may suffer injury directly, indirectly and generally

ILC Draft Article on SR

Article 40: Meaning of Injured State 1. Any state which has its rights infringed by another state if the perpetrator has committed an internationally wrongful act. 2. Injured State means-a) right infringed arises from a bilateral treaty b) right arising from an international tribunal decision c) if the right arises from a decision of an international organ d) a 3rd party state who had rights arising from a treaty to which it was not party e) if the right arises by way of customary law or multilateral treaty, if the state is bound by the rule or treaty is liable for breaches if: i) the right was created or established in its favour

ii) iii)

the breach of obligation affects other states rights or obligations bound by treaty or custom the right was established for the protection of human rights

f) if the right arises by multilateral treaty, any state party to the treaty if it is established that the right is stipulated in the treaty for the collective interest of all parties. g) For criminal matters all states no necessity to go before domestic courts -injury may be indirect like injury to nationals in which case there are rules for espousal of claims -injury can be of a general natureinjury to the intl community as a whole erga omnes aggression, human rights, prohibition on genocide Responsibility for Injury to Aliens 1. Standard of Treatment-National Treatment -if a Canadian goes to state A and is arrested and tortured or brutalized, the persons human rights have been violated, it is no defence that state A treats its citizens in a similarly brutal fashion -a state is not forced to accept foreign citizens on its territory, if it does it must meet international standards of treatmentthis might also help to improve standards of treatment for nationals -latin american states argued that this was a breach of sovereignty -eg: Neer Claim (US v. Mexico) (1926) FACTS: US national was killed by unknown assailants. The US government claimed that the Mexican authorities did not do enough investigation. RATIO: 1. Propriety of governmental acts should be tested against international standards of treatment 2. In order to constitute a delinquency the treatment of an alien must amount to an outrage, bad faith, wilful neglect of duty or insufficiency of govenrmental actions which fall far short of international standards that every reasonable state would recognize the insufficiency. authority to enforce. -states have often attempted to use non-discrimination as a defence but international tribunals have held that if the standard of treatment of nationals is lower then international standards, states are not afforded a defence of non-discrimination -if an individual is a permanent resident, they are deemd to have accepted the jurisdiction of the state and non-discrimination will sufficeeg: if property of both resident aliens and nationals is expropriated and only partial compensation is paid to nationals, foreigners cannot expect more -if transpotation property is expropriated in times of war, full compensation must be paid -but for human rights abuses of aliens or nationals, minimum standards of treatment are necessary It is immaterial whether the insufficiency resulted from failure to enforce a good law or by a lack of

Admission and Expulsion -states are not obligated to accept foreigners but if it does it must meet standards

Rankin v. Iran (1987)

FACTS: Rankin was employed by a U.S. company and requested a transfer from Iran after the Islamic revolution. He sued Iran for loss of salary and abandoned property. ISSUE: Expulsion? RATIO: A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling states action, (arbitrary, discrimnatory or breach of treaty obligations). This applies not only to the direct actions of a state but also to situations where an individuals continued presence in a state is made impossible by acts of state. -state can deport or expel foreigners as long as it does not do so in an arbitrary way that violate conceptions of human rights, must give a reasonable opportunity to leave the country and collect their property -this tribunal was set up following the release of the hostages in Iran, this tribunal was strikingly active wrt expropriation and compensation issue

Quintanilla Claim (US v. Mexico) (1926)

-Mexican person accused of lassoin a 14 yr. Old girl and then he flees, tracked down and he was never brought to the police station. Were the police responsible for his death? -tribunal found for Mexico, if police take a prisoner into custody they are responsible to account for injuries to the prisoner

B.E. Chattin Claim (US v. Mexico) (1927)

-US citizen accused of embezzlement while working as a railway conductor in Mexico, was arrested and brought to trial ISSUE: Does state responsibility arise through the treatment accorded to him by the court and prison system in Mexico? Was there a maladministration of justice? RATIO: The whole procedure fell below civilized standards, proceedings were insufficient, there was injustice committed by the judiciary, bad faith, undue delay of proceedings, hearings in open court were a mere formality, absence of seriousness. -denial of justice is sometimes used in other wayswhether the injustice is just with the courts or government inaction against a perpetrator of an international wrong both can be the basis of a claim of denial of justice (646)-Declaration on theRights of persons who are not citizens of the Country in Which They

Live
-right to liberty and SOP, right to not be arbitrarily arrested or detained, due process, right of privacy and non-invasion, equalit before the courts, free assistance of an interpreter, legal

assistance in Crim proceedings; right to marry; free thought, opinion, conscience, religion subject to limits presecribed by law to protect safety, order, public health or morals or rights and fredoms of others; right to retain own language, culture, traditions; right to transfer earnings or other assets subject to domestic currenc regs; right to leave the country, free expresson, peaceable assembly, right to own property subject to domestic law; freedom of movement, choice of residence; family must be admitted to join an alien -no cruel and inhumane treatment or punishment, no experimentation without free and voluntary consent -no expulsion without due process, no individual or collective expulsion on the basis of race, color, religion, culture, descent or national or ethnic origin -safe working conditions, fair wages, equal pay for equal work -right to join unions, and other organizations -right to health protection, edical care, social security, social services, education -no arbitrary deprivation of lawfully acquired assets -right to communicate with consulate or diplomatic mission of his state Property

Canada/US free trade agreement, Nafta Chapter 1110, s. 712 of 3rd Restatement of Foreign Relations Law of the US
-central issue is expropriation of property -expropriation is a violation of intl lawif a country lets a foreigner operate in their territory, expropriation is illegal (649)UN ResolutionsResolution on Permanent Sovereignty over Natural Resources (1962) 1. Right of peoples of sovereignty over natural resources must be exercised in the interest of national development and well being of the citizens of the state concerned 3. Capital imports and earnings on capial is governed by terms thereof, domestic law and international law 4. Expropriation must be based on grounds of public utility, security or national interest that override the individual interests, standard of appropriate compensation in accordance with the domestic rules and international law -this resolution was adopted by the GA by 87 to 2 with 12 abstentions

Charter ofEconomic Rights and Duties of States (1974)

Article 2-1. State has permanent sovereignty over wealth, natural resources and economic activities 2. a) States have the right to regulate foreign investment in their domestic law and no state shall be forced to give preferential treatment to foreigners b) States have the right to regulate multinationals according to their domestic law and corporations shall not interfere in the internal affairs of governance of the host

c)Compensation standard is the domestic standard unless the parties choose to be govened by another body of law Article 16-1. Right and duty of states to abolish apartheid, colonialism, discrimination, neo colonialism and other forms of aggression, occupation, domination and the consequences thereof. 2. No state has the right to allow investment which would be an obstacle to the liberation of a territory occupied by force -the charter was adopted by 120 with 6 against and 10 abstentions -the abstentions and dissents were all from industrialized, Western countries -this is because the major difference is the standard of compensation

Texaco v. Libya (1977)

ISSUE: What is the standard of compensation? Is it governed by international law which means that it is full, prompt or is it governed by the domestic laws of the expropriating state? -1962 resolution had favour from a mix of countries from all over the world in different economic stagesresoltutions can be used as evidence of state practice, opinio juris to lead us to determine if there is a rule of customary international law -Charter of Economic Rights and Duties of States (1974) p652120 in favour to 6 against, 10 abstentionsArticle dealing w/ compensation 2c) comes to the conculsion that this article was not as accepted as the rest of the Charterall industrialized countries voted against or abstained -whats the difference between the two resolution wrt compensation issue -Should the standard of compensation be drawn from the rules of intl law (Res 1803 of 1962) or else from the domestic law of the expropriating state -1803 is still the pertinent resolution on the standard of compensation -Libya agreed to pay for the expropriation of Texacos assets a monetary sum agreed between the two parties ISSUE B: Contractual Rights RATIO: A state has a right to control its own industries as a facet of sovereignty but that does not allow it to breach international commitments. Where the contract stipulates that the current rules will govern the relationship, a state cannot change the rules without the consent of the other party. What is the customary rule of international law on the standard of compensation? -res. 1803 uses the word appropriate instead of prompt, adequate and fullthis creates an ambiguity -there are two campsthe first says that appropriate means adequate and adequate means full -the other camp says that appropriate depends on the facts of the caseie: certain third world countries may not be able to pay right away -expropriation must be for a public purpose in order to be legalbut proof of the absence of a public purpose is near impossible

Shahin v. Iranmajority took the position that appropriate is a flexible concept

-the prompt, adequate and effective standard is not the customary international law -probably not much difference between the flexible approach and the host state dominated approach What is reparation by equivalentif specific performance cannot be given, the compensation is monetary -this case also dealt with another issue of the nationality of the claimthe claimant was a dual citizenthe espousing state must be the state of citizenship of the claimant -a state is in reality asserting its own rightso an injury to a national is an injury done to that nationals state, it is only in certain circumstances that we see the individual being able to assert their own claim at the international level -European Convention on Human Rights, Iran US claims tribunal, NAFTA Chapter 11 these are exceptions to the general rule -where the state espouses a claim there is no obligation to indemnify the injured party although this is the norm Enforcement of Claims: Espousal and Nationality of Claims

Mavrommatis Palestine Concessions Case (Greece v. UK) (1924)

FACTS: Greek governemnt brought an action on behalf of one its nationals who had a contract with the Ottoman empire which was the governing authority in Palestine prior to the British mandate. The British government breached the contract. standing. ISSUE: Standing/espousal RATIO: A state has the right to bring suit in international law for a wrong committed against one of its nationals. Once a state has taken up the claim, in the eyes of international law the state is the sole claimant. Nottebohn case he did not have the proper link w/ Lichtensteina state espousing a claim must have a genuine link Dual Citizensgeneral rule applied on this question (p473) 1930 Hague ConventionArticle 4-a state may not afford protection to one of its nationals against another state to which the person has nationality Article 5-respondent state only has to recognize the ability to espouse of the state that has the closest genuine link to the person -in the Iran-US tribunal, (474-5) it stated that under this tribunals terms of jurisdiction (ie: hearing individual claimants), the rules of state espousal ad the dual nationality issue is not applicable to the cases decided here -refer to the Nottebohn decision and the real and effective nationality of the individual based on the factsif this had been a case of the U.S. v. Iran has the customary norm moved away from the The British argue that Greece does not have

Hague Conventionanswer accepted in obiter is yes, if it can be established that there is a

substantial connection between the citizen and state, a state may afford protection against another state to which the person holds citizenship -Corporationsmust be a genuine link as well-where is it incorporated, where are its stocks listed, etc. (Barcelona Traction) Waiver and Exhaustion of Local Remedies

Ambatielos Arbitration (Greece v. UK) (1956)

FACTS: Greece sought to espouse the claim of one of its nationals in a contract dispute with UK. ISSUE: Is there a duty to exhaust local remedies before bring a claim? RATIO: Where there is a direct injury to the state or organs, there is no need to exhaust local remedies (eg: Iran hostage case) BUT in all other circumstances, especially where there is a corporation concerned, there is an onus on the party to exhaust local remedies unless exhausting local remedies is going to be futile because the Supreme Court of X has already ruled on the issue (municpal law), or the remedies available are in some way not enforceable or insufficient. -this doctrine applies not only to state civil responsibility but also to human rights issuesunder the

European Convention on Human Rightsthe local remedies must still be exhausted before going to
an international tribunal Waiver-if someone waives (without undue influence) state espoussal, and to utilize the domestic system then such a waiver will be upheld eg: North American Dredging Company Claim (1926) Calvo Clause: a clause by which a person decides to waive its right to pursue the claim internationally and accepts the jurisdiction of the host state. ISSUE: What can be waived by such a clause? RATIO: Such a clause precludes the claimaint from seeking an international remedy related to the performance of the contract. It does not preclude the invocation of international remedies/jurisdiction where there has been a denial or maladministration of justice that is considered an internationally wrongful act. if you go before a local court system and are treated with a lack of seriousness by the court (eg:

Chattin)

Canadian Espousal of claims -must have been a Canadian citizen at all relevant times -local remedies must be exhausted unless there is a denial of justice -for corporations, must be incorporated in Canada -shareholders of non Canadian companies who are oppressed may seek Canadian espousal of claims

Remedies

Draft Articles on State Responsibility

Article 41: Cessation of Wrongful Conducta state commiting an internationally wrongful act has the obligation to stop this conduct if it is ongoing Article 42: Reparations1. state has a right to reparations for injuries in the form of restitution, compensation, guarantee of non repetition 2. In determination of reparation, account shall be taken of negligence or wilful conduct of: a) the injured state; or b) a national of the injured state who brings the claim which contributed to the damage 3. Raparation cannot deprive a population of a state of its means of subsistence 4. Cannot invoke internal law as justification. Article 43: Restitution in KindInjured State is entitled to be made whole provided: a) it is not materially impossible b) would not involve a breach of a peremptory norm c) the burden to the defendant state does not outweigh the benefit obtained by the injured state d) it would not seriously jeopardize political and economic stability to pay and that if not paid the injured state would not be similarly affected Article 44: Compensation1. Beyond restitution an injured state is allowed to claim compensation. 2. May include interest and loss of profits. Article 45: SatisfactionInjured State is entitled to receive satisfaction for moral damages which can take the form of: a) an apology b) nominal damages b) where the infringement of the rights is gross, damages reflecting the gravity of the breach c) disciplinary action or punishment of officials responsible for misconduct or criminal misconduct 3. This right does not justify demands which would impair the dinity of the state which committed the internationally wrongful act. Article 46: Assurances and Guarantees of Non-Repetitioninjured stae is entitled to receive these.

Charzow Factory Case (1928) (PCIJ)

RATIO: Reparations are due upon commitment of an internationally wrongful act. The measure of reparations is paid by the state to another state espousing the claims of its nationals. Countermeasures -because of the frequent failure of States to except the jurisdiction of international tribunals, states often resort to what would be internationally unlawful acts if not for their character as counter measures which precludes wrongfulness

ILC Draft Articles on State Responsibility

Article 47: Countermeasures by an Injured State: 1. If a state does not comply with its international obligations, an injured state may take counter measures 2. Those countermeasures must be consistent with Arts. 41-46 3. A countermeasure that affects a third state is not justifiable. Article 48: Conditions Relating to resort to Countermeasures 1. Prior to taking CMs a state has a duty to negotiate but this does not preclude taking steps to protect themselves from injury. 2. An injured state taking CMs must fulfil obligations in relation to dispute settlement mechanisms 3. CMs must be suspended upon cessation of an internationally wrongful act provided that the States are settling their disputes in good faith pursuant to the proper dispute settlement mechanism 4. CMs may proceed where a State does not comply with orders of an international tribunal. Article 49: ProportionalityCMs cannot be disproportional to the wrong originally committed Article 50: Prohibited CountermeasuresAn injured state may not by way of CM resort to a) threat or use of force as prohibited by the UN Charter b) economic or political coercion designed to endanger the integrity or independence of another state c) violations of diplomatic or consular agents, premises, archives, documents d) violations of basic human rights e) violations of peremptory norms of international law Mar. 21/01: Stepan Wood Lecture on State Responsibility for Environmental Harm -state responsibility plays a relatively insignificant role in intl environmental law -intl env. Law has its origins in theories of state responsibilityTrail Smelter Arbitrationis the foundation of intl env. Lawsmelter at Trail, B.C. was emitting fumes that crossed the border into Washington State and caused property damage their -in default of private remedies the two govt decided to arbitrate the disputes -the arbitral tribunal enunciated a principle in finding against Canada(982) no state has the right to use or permit the use of its territory as such as to cause injury by fumes to a neighbouring state -Lac Lanoux (983)Hydro electric development where France wanted to dam a river shared with Spain -when dealing with environmental issues that have shared effects there is a duty of consultation -1972, UN Conference on Human Environment @ Stockholmoccurred at the same time as the emergence of the modern environmental movementStockholm Declaration (985)Principle 21 reiterated the basic principle of responsibility for transboundary harmstates have a sovereign

right to exploit resources and a corresponding obligation to ensure that such activities do not cause harm to neighbouring states -Stockholm Conference urged states to work towards rules for liability and responsibility -what has happened?nothing -1992, Rio ConferenceRio DeclarationPrinciple 2it reiterates the Stockhold principle on state responsibility -principle 13reiterates the desire to found a regime for settlement of disputes -very few recent cases about state responsibility -one case where Australia V. Nauruended in settlement but denied Australian responsibility Why is SR relatively insignificant in International Environmental Law? Why has so little progress been made on developing the rules of SR? 1. nature of the actors involved in environmental problemsnot exclusive to environmental arena, states are not the relevant actors in the realm of international law -it is now private actors that are causing the problems but they do not have standing in international law -thus, the focus has been on the polluter themselves rather then the polluting stategiven rise to the Polluter Pays principle -also, there has been a focus on private remedies for harms caused to the environment 2. nature of the problemsthese problems are global problems with difuse impacts and the focus is on harm to the commons rather then harms to the individual states -it is difficult to pin down responsibility 3. Limitations of the Rules of SRa reasonableness or due dilligence defense is available to the governments involvedthere are some exceptions for ultra-hazardous activities but the general rule is due dilligence -it is very difficult and expensive to disprove DD -also, the complaining state must establish that it has suffered a grave injury 4. Political Sensitivitytension between devped and devping countries and the political reality of victim Pays -N/S difference dominates environmental issuesall of the treaties requires a consensus between N & S and this robs these treaties of their substantive force -the lions share of the responsibility is forced on the devped world and the devping world takes limited responsibility -devped world caused the existing problems -any talk of state responsibility would scuttle the existing consensus victim paysgovts have found that the dominant principle is that victim pays when dealing with intl problems -eg: problems with the downstream states on the Rhine was resolved when the downstream states paid the polluters to stop their behaviour -similar situations whereby the 1st world pays for the 3rd world to stop polluting -this turns state responsibility on its head

5. These Issues are Being Dealt With Elsewherethis is being dealt with in the state responsibility field and international liability for acts not in violation of international law 6. Supremacy of Economicsthe emphasis has been on opening of borders and making states responsible for not opening borders -NAFTA, Chapter 11 -side agreement on the environmentdoes not focus on SR instead discusses domestic obligations and not international obligations 7. Era of Institution/Norm Building -many treaties and institutions have been developed but are still in their infancy -price of consensus is weak substance (general, vague, incapable of real measurement)impossible to prove causation, damage, responsibility 8. Sustainable Developmentthis is the era of sustainable development where the environmental crisis is something that can be managed through existing institutions and this is what sustainable development is all about