Elements of State Responsibility: Internationally Wrongful Act

General Notes: 3 (International Law Discussions: Part: 5)

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Art. 2: There has to be an int. w. act,

- which constitutes a viol. of an int. obl.

- attributable to a state ( — in the next story)

1) The Material Element of State Responsibility: The Internationally Wrongful Act

Int. w. act is composed of a breach of a binding rule and attribution of that breach to a state. (Uluslararası hukuka aykırı fiil ve uluslararası haksız fiil mean the same thing in int. law of resp.)

1.1. Breach (The Material Element)

Art. 12: … when an act of that state is not in conformity with what is regulated by that obl. regardless of its origin.

a. The Autonomy of The Primary Obligation

“Primary obl.” is an autonomous concept. Primary rules were excluded from the codification project. Art. 12 is flexible enough to cover all forms of breach. Art. 12 refers only to acts (and omissions) of states. But when read with Art. 2, it also includes state organs.

b. Acts and Omissions

There was an omission in question in Corfu Channel case. Om. means having the obl. to act. In the concrete case, it was to warn other states agent mines, which were not even put by Albania. Albania was held resp. for this om.

In Tehran Hostages case, Iran was held resp. for the acts of private persons. There was again, an om. in question, since the state was obliged to act. It means also the obl. of due diligence.

c. Internationally Wrongful Act

Wrong according to int. law. Violating int. obl.

d. The Classification of Obligations

Categorization: positive and negative obl. N: Repression and prevention.

d.1. Obl. of Conduct and Obl. of Result

Performing of certain conduct or being obliged of a certain result. ILC articles do not classify the obl. types. According to Art. 17, origin and nature of an obl. is relevant. Though, such a distinction can be useful in practice. Obl. of conduct and obl. of result are complex and confusing. In Avena case, this distinction was used and it was held that USA had an obl. of conduct. It is important in terms of reparation.

d.2. Due Diligence and Obl. of Prevention

(özen yükümlülüğü ve önleme yükümlülüğü) Iran in Tehran was held resp. for both. Art. 23 (?). The distinction is not related to the secondary rule system of the resp. regime, so it seen unnecessary by ILC.

d.3. Substantive Obl. and Procedural Obl.

They both amount to int. w. act. These are all adjectives of obl. emerging from primary rules.

e. Illusory Obl.

An int. w. act constitutes of a breach of an int. obl. (not national) and attribution of that breach to a state and requires the absence of circumstances precluding wrongfulness of that act. Int. w. act is the material element of state resp. Not only acts but also omissions are taken into consideration. Obl. are not classified in ARSIWA. They only can be important in practice. Whatever the nature of the obl. is, the same resp. regime is applied.

Illusory obl. appear to be as legal obl. but indeed, they are only non-binding undertakings. Unfriendly conducts which do not breach an int. obl. can be given as examples. For example, in Oil Platforms case, USA destroyed some platforms which constitutes a violation of a treaty provision. But the Court did not hold this act as an int. w. act. because the provision in question was only a clause of friendship which is not legally binding. All in all, illusory obl. do not give rise to a states resp.

f. Non-Violation Complaints

This exists when there is a damage done to a state by another state without a breach of any int. obl. They are also not provided by ARSIWA. They are outside of the scope of resp. regime.

g. Breach (The Temporal Element)

g.1. Inter-temporal Law

The temporal element concerns the applicable law to the resp. states. It can be:

• the law in force at the time of the breach

• The law in force at which the case is brought to the court.

(Max Huber) Judicial fact must be appreciated with the contemporary law. tempus regit actum: Times rules the act principle. This principle is also provided by ILC Art. 13. If the treaty or customary norm is terminated, it will still be applicable to the cases. A state will be still responsible.

g.2. Duration of the Breach

• Instantaneous: Not having a continuing character. Act is performed, breach occurs. For example: Military forces shot a territory. Somebody destroys the building of an embassy.

• Continuing: For example: Tehran Hostages case. Iran had continuingly failed to perform its obligations. The breach was continuous.

• Composite: For example: Genocide constitutes of two main elements. The physical -killing- and the mental — the intent to destroy a nation in whole or in part-. An ethnically motivated murder can be the first act of genocide.

g.3. Jurisdiction

If a state recognized the authority of a court for 2010–2020. It is important whether the court is competent for composite acts.

In order to invoke a states resp., there need to be an int. w. act. which breaches an int. obl. and which can be attributed to that state. Otherwise, if the act is not attributed to a state, that act would not give rise to that states resp.

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