9. State responsibility

The Law ◽

The law of international responsibility sets out the legal consequences arising from a breach by a State of its international obligations. It should be distinguished from ‘primary rules’ of international law, which lay down international obligations. International responsibility arises when a certain act or omission is wrongful, i.e. it is attributed to a State and it amounts to a violation of its ‘primary’ obligations. The international responsibility may be excused under certain strict circumstances, like consent or necessity. Otherwise, the responsible State should cease the wrongful conduct and in case of damage, it should provide reparation to the injured State, in the form of restitution, compensation, and satisfaction.

9. State responsibility

10.1093/he/9780192895684.003.0009 ◽

2021 ◽

pp. 117-132

Author(s):

Ilias Bantekas ◽

Efthymios Papastavridis

Keyword(s):

International Law ◽

State Responsibility ◽

The Law ◽

The law of international responsibility sets out the legal consequences arising from a breach by a State of its international obligations. It should be distinguished from ‘primary rules’ of international law, which lay down international obligations. International responsibility arises when a certain act or omission is wrongful, ie it is attributed to a State and it amounts to a violation of its ‘primary’ obligations. The international responsibility may be excused under certain strict circumstances, such as consent or necessity. Otherwise, the responsible State should cease the wrongful conduct and, in case of damage, it should provide reparation to the injured State, in the form of restitution, compensation, and satisfaction.

9. State responsibility

International Law Concentrate ◽

10.1093/he/9780198840978.003.0009 ◽

2019 ◽

pp. 113-126

Author(s):

Ilias Bantekas ◽

Efthymios Papastavridis

Keyword(s):

International Law ◽

State Responsibility ◽

The Law ◽

COVID-19 și posibilele apărări în dreptul internațional: ar putea forța majoră și schimbarea fundamentetnală a circumstanțelor să justifice neexecutarea obligațiilor internaționale?

Analele Universitării din București Drept ◽

10.31178/aubd.2020.10 ◽

2020 ◽

Vol 2020 (2020) ◽

pp. 186-202

Author(s):

Ion GÂLEA ◽

Keyword(s):

Public Opinion ◽

International Law ◽

Common Sense ◽

Prima Facie ◽

Fundamental Change ◽

The Public ◽

Force Majeure ◽

The Law

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if “common sense” might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the “best candidate” as a justification or excuse is distress, while the “second best candidate” might be represented by the state of necessity.

Righting Wrongs: Reparations in the Articles on State Responsibility

The American Journal of International Law ◽

10.2307/3070681 ◽

2002 ◽

Vol 96 (4) ◽

pp. 833-856 ◽

Cited By ~ 17

Author(s):

Dinah Shelton

Keyword(s):

International Law ◽

Theoretical Foundation ◽

State Responsibility ◽

Practical Application ◽

Progressive Development ◽

The Law

The International Law Commission’s articles on reparations restate the existing law on remedies, but they also innovate in significant ways to reinforce broader community interests in international legality. Given the dearth of precedents on reparations, both aspects can be helpful to tribunals and parties engaged in traditional interstate litigation, but the progressive elements, if they are accepted by states, could have wider application in supporting mechanisms to enhance implementation and observance of international obligations. The combination of codification and progressive development, however, is sometimes an uneasy fit and leaves unanswered several important questions about the theoretical foundation and practical application of the law of reparations. Even the seeming clarity of the articles is deceptive because some of the concepts included in the broadly drafted provisions can be difficult to apply in practice.

14. The Character and Forms of International Responsibility

International Law ◽

10.1093/he/9780198791836.003.0014 ◽

2018 ◽

Author(s):

James Crawford ◽

Simon Olleson

Keyword(s):

International Law ◽

General Character ◽

State Responsibility ◽

The Third ◽

International Obligation ◽

The Law ◽

Constituent Elements

This chapter begins with an overview of the different forms of responsibility/liability in international law, and then focuses on the general character of State responsibility. The law of State responsibility deals with three general questions: (1) has there been a breach by a State of an international obligation; (2) what are the consequences of the breach in terms of cessation and reparation; and (3) who may seek reparation or otherwise respond to the breach as such, and in what ways? As to the first question, the chapter discusses the constituent elements of attribution and breach, as well as the possible justifications or excuses that may preclude responsibility. The second question concerns the various secondary obligations that arise upon the commission of an internationally wrongful act by a State, and in particular the forms of reparation. The third question concerns issues of invocation of responsibility, including the taking of countermeasures.

4 The Nature of International Obligations Regarding Transit of Energy: from Bilateral to Indivisible Obligations

10.1093/law/9780198717423.003.0004 ◽

2015 ◽

Author(s):

Azaria Danae

Keyword(s):

International Law ◽

The Law

Chapter 4 classifies treaty obligations concerning transit with a view to determining which state is injured under the law of international responsibility and can invoke responsibility including by recourse to countermeasures against the responsible transit state. The question posed is to whom is each obligation owed. The analysis in this chapter also assists in determining which treaty party may have recourse to means available in the treaty where the treaty does not contain sufficiently express rules on standing, a matter which is analysed in Chapter 6. The analysis illustrates the polyphony of primary rules vis-à-vis their nature, and argues that bilateralism is not the only model in this area of international law (either in form or in substance). Rather, a number of treaties create collectively owed obligations: some erga omnes partes and some interdependent..

The Law of International Organisations: “Internal” or “International”? A Critical Analysis of the Relevant Practice of the United Nations Codification Organs

Revista Chilena de Derecho y Ciencia Política ◽

10.7770/rchdycp-v5n2-art702 ◽

2014 ◽

pp. 141-163

Author(s):

Diego Mejía-Lemos

Keyword(s):

United Nations ◽

International Law ◽

Critical Analysis ◽

International Organisations ◽

Member States ◽

Legal Personality ◽

Special Rule ◽

The Law ◽

The main claims of this paper are that the law of international organisations is internal in nature and that, in this regard, the use of “rules of the organisation” instead of “internal law of the international organisation” by United Nations codification organs does not address the problems that the latter apparently raises and is not based on solid grounds. In particular, the characterisation of the law of international organisations as “internal” is a corollary of international organisations’ legal personality under international law, without prejudice to the international nature of some of the instruments which contain “rules of the organisation”. Indeed, the law of international organisations is “internal law”, for it applies only to member states qua members, autonomously from the application of “international law”, which applies to them qua states parties to a treaty or bound by a custom or principle. Lastly, the characterisation of the law of an international organisation, including its “rules”, as “internal law” has practical legal consequences, for, as “internal law”, no rule of the organisation can be considered as a special rule of international law derogating from the law of treaties or the law of international responsibility.

State Responsibility in International Law

International Law ◽

10.1093/obo/9780199796953-0031 ◽

2012 ◽

Author(s):

Silvia Borelli

Keyword(s):

International Law ◽

Primary Source ◽

State Responsibility ◽

Public International Law ◽

International Obligation ◽

Great Relevance ◽

The Law ◽

International Law Commission

State responsibility constitutes a central institution of the system of public international law. The law of state responsibility encompasses a variety of issues. First, it defines the circumstances in which a state will be held to have breached its international obligations, as well as the limited catalogue of justifications and defenses a state may rely upon in order to avoid responsibility for an otherwise wrongful act. Second, it covers the consequences of the breach of an international obligation, including in particular the central obligation to make full reparation, as well as the obligation to put an end to continuing wrongful acts. Finally, it deals with the way the responsibility arising from breach of an international obligation is implemented, in particular governing which states may invoke the responsibility of the wrongdoing state, as well as the means by which responsibility may be implemented, in particular through the adoption of countermeasures. The primary point of reference in relation to the law of state responsibility is the Articles on the Responsibility of States for Internationally Wrongful Acts (the ILC Articles), adopted by the International Law Commission (ILC) in 2001, which constitute the fruit of the ILC’s attempt to codify and progressively develop the law in this area. The work of the ILC on the topic has exerted a profound influence in setting the terms of the debate. Since 2001, discussion of particular issues of state responsibility has generally been framed by—or is avowedly a reaction to—the approach taken by the ILC. Even prior to 2001, and in particular since the early 1970s, much of the literature discussed questions of state responsibility primarily by reference to the state of the ILC’s work as it stood at the time. To the extent that the approach of the ILC on specific questions evolved over the course of its work, some caution is necessary in referring to older literature. That is not to say, however, that literature prior to the adoption of the ILC Articles has been entirely superseded. In relation to a number of issues, in particular questions of the theory of state responsibility, some of the older literature remains of great relevance. Similarly, to the extent that particular questions, for instance the notion of “state crimes” or the classification of obligations, were eventually not included in the final version of the ILC Articles, the older literature remains the primary source of reference.

United States: Comments on the Draft Articles on State Responsibility

International Legal Materials ◽

10.1017/s0020782900018362 ◽

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 ◽

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.

The Notion of Consent in Part One of the Draft Articles on State Responsibility

Leiden Journal of International Law ◽

10.1017/s0922156513000642 ◽

2014 ◽

Vol 27 (1) ◽

pp. 55-73 ◽

Cited By ~ 5

Author(s):

CLIFF FARHANG

Keyword(s):

International Law ◽

State Responsibility ◽

Vienna Convention ◽

Special Rapporteur ◽

Primary Rule ◽

The Law ◽

Definition Of ◽

Peremptory Norms ◽

Secondary Rule

AbstractFor over three decades, it has been the International Law Commission's position that the circumstance of consent involves something other than the consent which, through the rule pacta sunt servanda, imparts objective force to international agreements. During the tenure of the second Special Rapporteur on the law of state responsibility, Roberto Ago, the Commission adopted the view that the former suspends the international obligations which are incumbent on states whereas the latter functions to create, modify, or extinguish the rules whence such obligations stem forth. However, as the result of the study carried out by its last Special Rapporteur, James Crawford, the Commission has now come to distinguish between the circumstance of consent defined as a justification for non-performance of subsisting obligations, and consent defined as a requirement for the application of obligations. In this contribution, it is argued that both analyses are problematic. The former gives succour to a mistaken view of the sources of international law. The latter is based on a misunderstanding of the primary-rule–secondary-rule terminology; it justifies itself by referring to an ill-conceived definition of the notion of peremptory norms, and no less importantly undermines the purposefully cumbersome mechanism envisaged in the 1969 Vienna Convention on the Law of Treaties for suspension of multilateral treaties as between certain of the contracting parties only.