State Responsibility

1. Reading list

1. The attribution (imputability) of the conduct to a State:

1. any state organ (person / entity)

2. person or entity not an organ of the State but which is empowered by the law of that State to exercise elements of governmental authority

3. organ or agent of the State placed at the disposal of another State / international legal entity

4. ultra vires acts

5. private individuals (for failure to exercise the control necessary to prevent the violations)

6. person / group of persons in fact acting on the instruction of, or under the direction or control of, that State

7. person / group of persons exercising elements of the governmental authority in the absence or default of the official authorities

8. insurrectional movement

9. acknowledgement (adoption of a conduct as its own (State’s)

2. Armed Activities on the Territory of the Congo (2005)

1. armed bounds or irregulars sent by the State within the sense of the G.A. Resolution on the definition of aggression (146)

2. creation of the armed groups, control or direction (160)

3. non-attribution to the State doesn’t exclude its responsibility (161)

4. military personnel (213-214)

3. Application of the Convention on Genocide (2007)

1. attribution of the conduct of State’s organs

1. real participation in military operations (386)

2. organs de jure – the status of organ of the State under its internal law (386)

3. under military administration

4. payment, promotion, pensions handed by the State (387)

5. substantial (financial) support, payment of salaries and other benefits doesn’t automatically made these organs as organs of the State

6. appointment to the commands and subordination to the political leadership

7. orders receives from the State

8. “state organ” applies to one or other individual or collective entities which make up the organization of the State and act on its behalf

9. exercise of the elements of the public authority of the State (388)

2. official act (documents) as the evidence in attribution (389)

3. de facto ^ de jure organs (390)

4. private persons non organs of State = organs de facto

1. dependence (complete, closely attached – 392) on one side and control (such a degree thereof in all fields to justify treating these entities as action on behalf of the State – 391 + Nicaragua case)

2. persons, group of persons can be equated with state organs, even if that status doesn’t follow from the internal law; in complete dependence of the State, of which they are ultimately merely the instrument (392)

3. such equation must be exceptional requiring the proof of a particularly great degree => to prove complete dependence:

• lack of real autonomy (394)

• political, military, logistical ties are not so corroborative

• absence of differences over strategic opinions

• although qualified, but real margin of independence is relevant

• the very important support without which it could not have conducted its crucial or most significant military or paramilitary activities doesn’t signify a total dependence upon the State (394)

5. direction (control)

equation (organs de facto)	direction, control, instructions
= whether those persons were in a relationship of such complete dependence on the State that they cannot be considered otherwise than as organs of the State, so that their actions performed in such capacity would be attributed to the State (397)	= whether the State organs – incontestably having that status under internal law – originated the genocide by issuing instructions to the perpetrators or exercising direction / control (397) = effective control (399)

• there’s no need to prove the “complete dependence” – it’s enough to prove that they acted in accordance with the state’s instruction / under its “effective control” - !!! in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions (400)

• the particular character of genocide is not significant (401)

• overall control – without need to prove that each operation during which acts were committed in breach of international law war carried out on the instructions or under effective control of the State (ITFY, Tatić case) (402)

4. Gertrude Parker Massey (US v. Mexica)

1. State is not held responsible for the actions of minor officials or private persons but must be held responsible for the failure to diligently prosecute and properly punish (=to tale effective actions to apprehend the accused – 27) such offenders (19)

2. a gross degree of negligence (21)

3. theory of non-responsibility of States for acts of minor officials

4. failure to prosecute:

1. authorities administering the Mexican law act in au outrageous way, in bad faith, in willful neglect of their duties, or in a pronounced degree of improper action

2. that law rendered it impossible for them to fulfill properly their task (§1, p. 163)

5. Commentaries to the Articles on State Responsibility (ILC)

1. art. 4

1. principle of the unity of the State (4)

2. characteristics of organ (11):

• internal law and practice

• powers of the entity

• its relation to the other bodies under internal law (11)

• acts in a apparently official capacity, or under color of authority (13) ^ merely the act of a private individual which is no attributable to the State

^ acting ultra vires / in breach of the rules governing its operation => in the name of the State (13)

2. art. 5

1. para-statal entities (1)

2. governmental authority:

• exercise of the functions of a public character normally exercised by state organ

• conduct of the entity relates to the exercise of the governmental authority concerned (2)

3. assets, ownership is not significant

4. of particular importance are:

• content of the powers

• way they are conferred on an entity

• purposes for which they are to be exercised

• extent to which the entity is accountable to government to their exercise (6)

• in accordance with internal law (7)

• by special authorization (7)

5. there’s no need to show that the conduct was in fact carried out under the control of the State (7)

3. art. 8

1. principle of effectiveness (1)

2. direction / control of a specific operation and the conduct complained was an integral part of that operation – not incidentally or peripherally (3)

3. degree of control: a general situation of dependence and support in son sufficient (4)

4. state-owned companies as a corporate veil for abuses => under art. 5 => attribution (6)

5. activities beyond authorization:

• lawful instruction => non-attribution

• control => attribution (8)

• aggregate of group of individuals without legal personality (9)

2. Lecture

1. private person – attribution:

• obligation to prevent

• obligation to prosecute

2. special rapporteur of the issue on state responsibility: нужно знать, чтобы использовать Draft Articles как труд qualified publicists

3. only some provisions of Draft reflect the international custom

4. международно-правовое понимание «органа»

soldier / army as a state organ

5. state organ ^ entity exercising governmental authorities

state organ:

• the State is responsible for all its actions except: outside their official capacity = as a private person (например, два солдата убили мирного гражданина)

6. organ as a private person ^ individual organ ultra vires

individual organ ultra vires:

• предпочтение ultra vires – as long as it’s not apparent that it acts beyond its official capacity (Cairo case)

• using means disposed at its power by the State – “using methods or powers appropriate to their official capacity – Shaw textbook, p. 788

Gordon v. US case

7. другие случаи , когда действуют частные лица

acknowledgement | adoption | approval

8. effective ^ overall control

a) instruction:

- State is responsible for concrete actions

- in respect of particular action

b) direction or control:

- control: the State is responsible for all actions

- direction:

* in respect of the whole operation

* implies the closer supervision in comparison with “control”

* is frequently subsumed by “control”