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Tutorial On State Responsibility

To bring a claim against a State under international law, four elements must be established: (1) the claimant must have nationality, (2) the injury must result from an internationally wrongful act by another State, (3) the act must be attributable to that State, and (4) the claimant must have exhausted local remedies. Supporting authorities include the Mavrommatis Framework and various case law examples that illustrate these elements. The document elaborates on each element, including the definitions of nationality, wrongful acts, attribution, and the necessity of exhausting local remedies before pursuing international claims.

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26 views3 pages

Tutorial On State Responsibility

To bring a claim against a State under international law, four elements must be established: (1) the claimant must have nationality, (2) the injury must result from an internationally wrongful act by another State, (3) the act must be attributable to that State, and (4) the claimant must have exhausted local remedies. Supporting authorities include the Mavrommatis Framework and various case law examples that illustrate these elements. The document elaborates on each element, including the definitions of nationality, wrongful acts, attribution, and the necessity of exhausting local remedies before pursuing international claims.

Uploaded by

angelicxbabez19
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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1. What are the elements required to bring a claim against a State?

In
answering this question, identify and fully explain each element with the
use of supporting authorities.

Mavrommatis Framework (or cite Draft Articles)


A state may bring a claim under international law
(1) for an injury to its national [nationality],
(2) by an act contrary to international law [illegality and circumstances
precluding
wrongfulness],
(3) committed by another state [attribution],
(4) from whom the national has been unable to obtain a remedy (through the
injuring state’s
legal system) [exhaustion of local remedies].

1. Nationality
ILC Commentary: In 1923 the PCIJ stated in the Nationality Decrees in Tunis and
Morocco case that: "in the present state of international law, questions of
nationality are in principle within the reserved domain".
Note, however Nottebohm Case - “It is international law which determines
whether a State is entitled to exercise protection and to seise the Court.”
Methods for acquiring nationality?
Genuine link; effective nationality
Legal persons
Ships and Aircraft - The M/V “Saiga” Case (No. 2): This right of the national state of
the ship to protect crew members regardless of their nationality is supported by
state practice and recognised in this case.
2. Internationally wrongful act
Draft Articles - Article 2. 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:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.

Note – self-defence, countermeasures, consent preclude wrongfulness


3. Committed by another state
The injury must be committed by another state or other international legal
entity—not merely a private citizen of that state. A state may harm you in a
variety of ways:
a) ‘directly’ (fault, culpa), or
b) through its agents (attribution), or
c) by not fulfilling its international duties to you (treatment of aliens,
unlawful expropriation, lack of due diligence), or
d) possibly, merely as a result of the injury occurring in its territory (the
risk theory).

Attributable to the state


Yeager – American national taken by Iranian revolutionary guards to a hotel
etc. attributed the revolutionary guards to state de facto
See Caire Claim (France v. Mexico), (1929) 5 R.I.A.A. 516 a captain and a major in
the
Conventionist forces in control of Mexico had demanded money from M. Caire under
threat of death, and had then ordered the shooting of their victim when the money
was not forthcoming. In holding Mexico responsible for this act, Verzijl, President of
the Commission, said:
 “The State also bears an international responsibility for all acts committed by
its officials or its organs which are delictual according to international law,
regardless of whether the official or organ has acted within the
limits of his competency or has exceeded those limits for acts
committed by its officials or organs outside their competence, it is
necessary that they should have acted, at least apparently, as authorized
officials or organs, or that, in acting, they should have used powers or
measures appropriate to their official character...
 Nicaragua case – was the US in effective control of the military/paramilitary
forces –was the State in control. It had been argued that the forces were
completely dependent but that was not satisfied in this case
 Srebenica genocide case confirmed the test of effective control. Court “to
equate persons or entities to State organs when they do not have that status
under internal law must be exceptional because it requires proof of a
particularly great degree of State control over them…the unit in question
must be “lacking any real autonomy”
LOOK at circumstances where a State may be liable for the acts of private
individuals

4. Exhaustion of Local Remedies


An international tribunal will not be able to adjudicate a claim until national
remedies have been exhausted
Draft ASR – 44 not admissible if “the claim is one to which the rule of exhaustion of
local remedies applies and any available andeffective local remedy has not been
exhausted”.
Draft ADP – 14
“1. A State may not present an international claim in respect of an injury to a
national or other person referred to in draft article 8 before the injured person has,
subject to draft article 15, exhausted all local remedies.
2. “Local remedies” means legal remedies which are open to an injured person
before the judicial or administrative courts or bodies, whether ordinary or special, of
the State alleged to be responsible for causing the injury.

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