11. State Responsibility

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
The State ◽  
Legal Person ◽  
State Responsibility ◽  
Responsibility Attribution ◽  
Customary International Law ◽  
International Obligation

State responsibility arises from the violation by a State (or other international legal person) of an international obligation that can be one of customary international law or arising from a treaty. The violation must be due to conduct attributable to a State. This chapter discusses the nature of State responsibility; attribution; breach of an international obligation of the State; circumstances precluding wrongfulness (defences); consequences of a breach; enforcement of a claim; and treatment of aliens.

25. The conditions for international responsibility

2019 ◽  
pp. 523-551
Author(s):  
James Crawford
Keyword(s):  
The State ◽  
State Responsibility ◽  
Responsibility Attribution ◽  
International Obligation ◽  
International Responsibility ◽  
The Law

This chapter discusses the basis and character of state responsibility, attribution to the state, breach of an international obligation, and circumstances precluding wrongfulness. This chapter focuses on the articulation of the law of responsibility through the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts.

Book III Privileges and Immunities, 12 Privileges and Immunities of the State, The Head of State, State Officials, and State Agencies

2016 ◽  
Author(s):  
Fox Hazel
Keyword(s):  
International Law ◽  
The State ◽  
Legal Person ◽  
State Agencies ◽  
General Description ◽  
Customary International Law ◽  
State Immunity ◽  
Head Of State ◽  
Written Form ◽  
The Law

This chapter provides an account of the immunities of the State, its officials, and state agencies in international law. It first offers a general description of the plea of state immunity and a brief historical account of the development of the law of state immunity. Then it briefly sets out the law relating to the immunities of the State itself as a legal person, followed by the law applicable to its officials and to state agencies. In addition an account based on customary international law will be provided on the immunities of senior state officials. The chapter concludes by taking note of the extent to which the practice of diplomatic missions at the present time accords with requirements of state immunity law as now set out in written form in the 2004 UN Convention on the Jurisdictional Immunities of States and their Property.

United States: Comments on the Draft Articles on State Responsibility

1998 ◽  
Vol 37 (2) ◽  
pp. 468-487
Keyword(s):  
United States ◽  
International Law ◽  
Dispute Settlement ◽  
The United States ◽  
The State ◽  
State Responsibility ◽  
Customary International Law ◽  
International Responsibility ◽  
The Law

The United States agrees with the Commission that a statement of the law of state responsibility must provide guidance to states with respect to the following questions:When does an act of a state entail international responsibility? What actions are attributable to the state? What consequences flow from a state'sviolation of its international responsibility? Customary international law provides answers to these questions, but the Commission has in many instances not codified such norms but rather proposed new substantive rules. In particular, the sections on countermeasures, crimes, dispute settlement, and state injury contain provisions that are not supported by customary international law.

Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 446-484
Keyword(s):  
Due Process ◽  
The State ◽  
State Responsibility ◽  
Responsibility Attribution ◽  
Content Type ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Equitable Treatment ◽  
Debt Recovery

446Jurisdiction — Investment — Derivative transactions — Interpretation — Claims to money used to create an economic value — Claims to money associated with an investment — Whether a hedging agreement constituted an investment under the BITJurisdiction — Investment — Territorial requirement — Derivative transactions — Whether a hedging agreement satisfied the condition of territorial nexus to the host StateJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Derivative transactions — Salini test — Contribution to economic development — Regularity of profit and return — Whether a hedging agreement constituted an investment — Whether all five elements of the Salini test were legal criteria for an investment under ICSID jurisdictionJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Derivative transactions — Ordinary commercial transaction — Contingent liability — Whether a hedging agreement was an ordinary commercial transaction or a contingent liabilityJurisdiction — Contract — State-owned entity — Municipal law — Whether a hedging agreement was void because the transaction was outside a State-owned entity’s statutory authorityState responsibility — Attribution — Judicial acts — ILC Articles on State Responsibility, Article 4 — Whether a superior court was an organ of the host StateState responsibility — Attribution — Central bank — ILC Articles on State Responsibility, Article 4 — Whether a central bank was an organ of the host StateState responsibility — Attribution — State-owned entity — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 5 — ILC Articles on State Responsibility, Article 8 — Whether a State-owned entity was an organ of the State — Whether actions of a State-owned entity were attributable to the State as an exercise of governmental authority — Whether a State-owned entity was acting under instructions or the direction and control of the StateFair and equitable treatment — Judicial acts — Due process — Interim order — Political motive — Whether court orders violated the standard of fair and equitable treatment — Whether public statements of a senior judge evidenced the political motive of court ordersFair and equitable treatment — Autonomous standard — Interpretation — Minimum standard of treatment — Whether the standard of fair and equitable treatment was materially different from customary international law447Fair and equitable treatment — Government investigation — Due process — Bad faith — Transparency — Whether a central bank’s investigation violated the standard of fair and equitable treatmentExpropriation — Indirect expropriation — Contract — Derivative transaction — Substantial deprivation — Debt recovery — Municipal law — Whether the subsistence of a contractual debt and the possibility to claim under the chosen law of a third State prevented a finding of expropriation — Whether the possibility of recovery in a third State was to be assessed as a prerequisite in the cause of action of expropriation or as a matter of causation and quantumExpropriation — Indirect expropriation — Contract — Substantial deprivation — Legitimate regulatory authority — Proportionality — Whether an interference with contractual rights was an exercise of the host State’s legitimate regulatory authority — Whether the regulatory measures were proportionateRemedies — Damages — Causation — Contract — Debt recovery — Whether the claimant suffered damages if it had the possibility to recover a contractual debt in the courts of a third StateCosts — Indemnity — Egregious breach — Bad faith — Whether the egregious nature of the host State’s breaches of its international obligations meant the claimant was entitled to full recovery of its costs, legal fees and expenses

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

2017 ◽  
Vol 3 (1) ◽  
pp. 1-38
Author(s):  
Brian Sang YK
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Policy Implications ◽  
Targeted Killing ◽  
Customary International Law ◽  
Lethal Force ◽  
Legal Challenges ◽  
State Practice ◽  
Clear And Present Danger

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

2013 ◽  
Vol 50 ◽  
pp. 243-287 ◽  
Author(s):  
Paul David Mora
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
The State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
Law Of Armed Conflict ◽  
International Human

SummaryIn its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.

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