Tutorial 5 - State Responsibility

Tutorial discussion:
From July 2005, an armed conflict has been in existence between the Republic of Hydronica
and the Principality of Aluminia. Hydronica is a poor State and is frequently in need of outside
financial assistance.
In August 2011, the Sultanate of Carbonica enters into an agreement with Hydronica,
according to which Carbonica will transfer US$ 20m to Hydronica by December 2011, to help
Hydronica build schools and hospitals in particularly deprived regions. Carbonica transfers the
money by 31 December 2011.
On 31 January 2012, troops of Hydronica fire missiles at Alloy City, a municipality with
15,000 inhabitants in Aluminia. As a result, 5,000 civilians die.
—> self defence out of a conflict
In September 2014, a United Nations report reveals that the attack on Alloy City had only
been possible because Hydronica was able to pay for its missiles on 15 January 2012. A UN task force
was able to identify the origins of the money – it was taken from the funds which Carbonica had
provided on 31 December 2011.
Aluminia wants to bring the case to the International Court of Justice. They would ideally like
to proceed against Carbonica, because it is much richer than Hydronica, and they therefore want to
get reparation from Carbonica.
Advise Aluminia:
They cannot sue Carbonica; because answer to the main question is: (Article 2)
- Breach of international agreement to the state ; YES, but maybe not because necessity self
defence.
- Attributable to the state (imputability to the state and under international law); NO, they did
not know, no effective and overall control. BUT the war for 6 years could be mentioned as an
argument that they could have known that this could have been used for war.
- Is the committed act wrongful?
- Is the act a breach of an international obligation of the state?
- Is the act immutable to Carbonica?
- Did Carbonica have any control (effective/overall) on spending the fund?

Obligation owed to a State:

The rules of state responsibility determine, in general, when an obligation has been breached and the
legal consequences of that violation. In this way they are "secondary" rules that address basic issues
of responsibility and remedies available for breach of "primary" or substantive rules of international
law, such as with respect to the use of armed force. According to the Draft Articles, an internationally
wrongful act must:
● be attributable to the state under international law; and
● constitute a breach of an international obligation of the state.
International legal responsibilities
- First chapter of draft articles 1-3
- A1 : every internationally wrongful act entails liability of a State
 - A2 : what is an internationally wrongful act of a State - will exist when there is conduct by
that state (act, mission) that involves a breach of an international obligation of that state,
that is attributional to the state. Then it is an internationally wrongful act. State
responsibility comprises two elements:
1. An unlawful act or omission - a breach of an international obligation of the state
2. Imputability - to the state & under international law
- A3 : proceeds to state that it does not matter whether the domestic action is lawful under
national law, this does not make it a rightful international act.
Obligation may be derived from or consist of:
- A treaty or customary law (binding on the state)
- Non fulfillment of a binding judicial decision
- Assistance in the commission of an internationally wrongful act by a state or non-state
- When a state ill-treats nationals of other states
State responsibility occurs when a state violates an international obligation owed to another state.

State responsibility based on fault?

The general principles of state responsibility is particularly clear in its exposition of the objective
nature of international responsibility and its rejection of any general requirement of fault.
Responsibility: an act or ommission breach when a treaty is enforced and ratified.
Theoretical basis of state responsibility:
- Risk theory = objective: once a breach of an obligation is established. Liability of a state is
strict, black and white.
- Fault = subjective: requires the establishment of an element of intention, fault or negligence
on the part of the State. The state is subjectively to blame. The liability of the state is relative.
- Not preferred because there does not always have to be an intention they believe.
- Korvo chanel case

Conduct of private nationals:

Normally, acts of individuals that are neither officials or government representatives of the state and
do not act out of the state are private actors - and their actions cannot be attributed to the state.
Only if their acts can be attributed to the State to the extent they are:
- Exercising governmental authority
- Acting under the direction or control of the state
- Empowered/defined by domestic law
- Acknowledges it as its own; subsequently adopted by the state

Circumstances precluding wrongfulness:

Acts or omission is not always wrongful by court, but sometimes just wrong. Circumstances:
- The right to self defense under the UN Charter (A21)
- Force majeure (A23)
- Compliance with peremptory norms (A26)
- Distress (saving lives of other people) (A24)
- Necessity (A25); safeguarding an essential interest of the state against a grave and imminent
peril. It has been invoked by States and has been dealt with by a number of international
tribunals. Non-states cannot rely on these elements.
There have been tensions between the Kingdom of Livorno (KL) and Pisaland for a long time. These
two States have very different political and economic structures.
One day, some students from the University of KL’s capital city assemble before Pisaland’s
embassy to protest “against the inhumane capitalistic system of Pisaland and the threat that Pisa’s
anarcho-capitalist practices poses to the world’s peace and security”. After a peaceful start, the
demonstration becomes violent and the students break into the embassy and occupy it. The students
declare that they will not clear the embassy “unless Pisaland’s government commits to adopt
measures to restore environmental and labour standards in its territory”.
In response to Pisaland’s requests to terminate the invasion and punish the students, the King
Filippo I of KL praises them for the courage shown and the nobility of their goals. It further declares
that it will support the students providing them with water and food supplies. However, the King
condemns the students for the destruction of the embassy’s archives, perpetrated by the students.
Pisaland sends an urgent note of protest to KL, lamenting a serious breach of international
law. KL replies that the State’s responsibility cannot be established for acts of private citizens and
refuses to concede its liability. Both States are parties to the Vienna Convention on Diplomatic
Relations.
Is Pisaland correct in invoking KL’s responsibility for the events described?
YES, they can subsequently take responsibilities. The King recognised the act by supporting them
expressing approval. Condemnations is not enough, they have to also do something to stop them. They
could have done something to stop them and should have based on the vienna convention on
diplomatic relations.

The government of Monkey Island and the Global Exploitation Company (GEC) have decided
to form a new company, the GTA (Goodwill To All) corporation. The government owns 49 % of the
shares, GEC owns 51 %. The GTA is charged with the exploitation of mineral resources in the
Guybrush region of Monkey Island. In pursuit of this aim, it is given absolute discretion as to the
choice of means by its shareholders.
The GTA starts to forcefully recruit inhabitants of the Paulus region to work (without
payment) in the mines belonging to the GTA. It is to be assumed that this act constitutes an
international crime. Following some extremely negative reporting of GTA practices in the
international press, the government of Monkey Island seeks your advice as to its potential
responsibility under international law.
Advice:
They are empowered by domestic law (A5)
Has knowledge about wrongfulness