Professional Documents
Culture Documents
Responsibility
Miss E. Siangandu
Introduction
General Principle
Fault
ILC Draft articles provide no assistance in the
matter
& there are a number of conflicting
authorities.
Brownlie argues that the nature of liability will
depend on the precise nature of the particular
obligation
There is objective and subjective responsibility
views
Objective Responsibility
French- Mexican
Claims Commission
Subjective Responsibility
Claim was dismissed by tribunal;
Imputability
Further principles of
responsibility
Art. 5 & 8 quasi- governmental agencies &
conduct directed or controlled by a state.
see Zafiro Claim 6 RIAA 160
See also Yeager v. Iran (1987) 17 Iran-US
Claims Tribunal Reports 92.
Tribunal recognised a state might not be
responsible for the malicious acts of officials
acting in a personal capacity
But state would be responsible for wrongful
acts
Committed by soldiers under the command of
an officer
Soldiers were under immediate supervision &
in presence of their commanding officer.
Hostages Case
ICJ commented:
Insurrection or other
movement
Defences
Self defence need to be in accordance art 51
UN Charter
Art 23 force majeure
There must be irresistible force which was
foreseen event, beyond control of the state,
making it materially impossible in the
circumstances to perform obligations.
New Zealand v France (Mafart and Prieur)
(supra)
Reparations - I
Reparations- II
SR arises from ill treatment of foreign
nationals or corporations
Mistreatment of foreign
nationals in custody ( Robert
Claim, Paraguay v USA)
Failure to punish individuals
responsible for the attacks on
foreign nationals (Janes &
Massey Claim (1927).
Direct injury of foreign
nationals by state officials
(Youmans Claim)
Denial of justice to a foreign
national Chattin Claim (1927)
Nationality of Claims
Individuals
Guatemala disputed Liechtenstein s right to bring a
claim.
Nottebohm born in Germany 1881
1905 become a resident in Guatemala but retained
his German nationality.
He made few visits to Liechtenstein where his
brother lived
In 1939 he applied & obtained Liechtenstein
nationality.
Obtained a Guatemala visa for his Liechtenstein
passport & returned to Guatemala.
Court found
Nottebohm Rule
Case arose following action by Spain which
resulted in company being declared bankrupt
Belgium claimed most Barcelona T shares
owned by Belgian nationals & companies.
Spain claimed injury had been done to
company rather than shareholders
Therefore Belgium lacked Locus standi
Court held;
Multiple Nationalities
Conduct of host
state;
Expulsion of Aliens
Waiver
Exhaustion of Local
Remedies - I
Other examples on
Exhaustion of Local
Remedies
cases
Tutorial 8- state
Responsibility
Intro:
Rainbow warrior Case
Two types of fault Subjective & Objectives
Who are the actors involved?
What are their nationalities?
Who will be able to bring a claim?
What are the acts or omissions that have occurred?
Consider the Draft Article & case Law
Treatment of aliens/ foreign nationals
Need to exercise local remedies?
Defences?