STATE RESPONSIBILITY

STATE RESPONSIBILITY

1. The existence of international obligation which has to be enforced between the concerning state

2. the omission of an act or occurrence of a wrongful violation of the existing legal obligation

3. Loss or damage must result from such a wrongful act or omission

 

DOCTRINE OF EQUALITY OF TREATMENT

The principle that there shall be no direct or indirect discrimination based on racial or ethnic origin, sex, religion or belief, disability, age or sexual orientation.

 

National Treatment Principle

The principle of giving others the same treatment as one's own nationals. National treatment also applies to imported goods once they enter the market, foreign and domestic services, and to foreign and local trademarks, copyrights, and patents.

 

Most Favored Nation Treatment Principle

A principle that requires Members to accord the most favorable tariff and regulatory treatment given to the pro- duct of any one Member at the time of import or export of “like products” to all other Members. This is a bedrock principle of the WTO.

 

International Standard Justice

Standard followed by a reasonable state, or norm of official conduct observed by states.

 

Minimum Standard of Treatment

A norm of customary international law which governs the treatment of aliens, by providing for a minimum set of principles which States, regardless of their domestic legislation and practices, must respect when dealing with foreign nationals and their property

 

Roberts v. United Mexican States

The test is whether aliens are treated in accordance with ordinary standards of civilization

 

DOCTRINE OF STATE RESPONSIBILITY

If a state violates a rule of customary international law or ignores an obligation of a treaty it has concluded, it commits a breach of international law or the so called “INTERNATIONAL WRONGFUL ACT”

 

ELEMENTS

1.    Attributable to the state under international law

                Article 4,5,6,7,8,9,10,11 of the Responsibility of States for Internationally                  Wrongful Acts

2.    Constitutes a breach of an international obligation of the State

 

Article 2, Responsibility of States for Internationally Wrongful Acts


Defenses available to a state

1. Consent is given by the injured state to the act complained of (Article 20)

            the breach must be within the limits of the consent given

            consent must be validly given

            the consent must not be vitiated by fraud, coercion, mistake or other factors that affect its                         validity

2. Lawful Self Defense (Article 21)

            does not preclude wrongfulness with respect to obligations under human rights law,                 international humanitarian law, and erga omnes obligaitons

3. The act complained of was a valid countermeasure (Article 22)

                Sanction or Reaction, Legitimate Reprisal, Self Protection or Self Help

                Proportional and unilateral non-forcible measures to induce a state to cease its                         conduct to make reparation and to guarantee non-repetition of the complained act

                The purpose must be to procure cessation of the wrongful act or achieve reparation;                 must be addressed only to the state that committed a wrongful act, and not to any                     neutral third state


4. Force majeure (Article 23)

Elements:

a. the act in question must be brought about by an irresistible force or unforeseen event

b. which is beyond the control of the state concerned

c. which makes it materially impossible in the circumstance to perform the obligation


                   circumstances precluding performance must result in the material impossibility of                     performance and not just difficulty of performance; it does not cover situations                         brought about by the neglect or default of the state concerned

5. Distress (Article 24)

                    limited to cases where human life is at stake; it does not cover the situation that                         was due to the conduct of the state invoking it, or the act in question is likely to                         create comparable or greater evil

6. Action is necessary to prevent grave and imminent peril (Article 25)


The remedy available to the injured state is Reparation

The 3 principal forms of reparation:

1. Restitution -entails re-establishing the status quo ante or the situation that existed prior to the wrongful conduct

2. compensation -entails monetary payment to the injured state for the injury it suffered or its nationals have suffered

3. satisfaction -a remedy available when the injury cannot be compensated financially or when there is just a non-material injury inflicted


Rights of the injured state

1. Right to invoke the breaching state's responsibility or the espousal of claims of a national 

Limitations:

a. Continuous Nationality Rule (exception is erga omnes obligation)

b. Local Remedies Rule

c. Waiver or acquiescence

2. the right to pursue countermeasures


Calvo Clause

Exclusion of Aliens

1. Deportation -removal of alien out of the country because his presence is inconsistent with the public welfare, and not because he committed a crime or that he evaded punishment in the country of origin or the country that removed him

2. Exclusion -denial of entry to an alien

3. Extradition -surrender of a person by one state to another state where he is wanted for prosecution or if already convicted for punishment


Principle of Specialty

A person extradited may be tried only for the crime specified in the request for extradition and included in the list of extraditable offenses under the extradition treaty


Rule on Double Criminality

The act, which is the basis for the request for extradition, must be punishable both in the requesting state and the requested state

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