Aula 27 - Responsabilidade Internacional dos Estados - parte 2

Summary

In this lecture, Professor Marcelo Varela discusses the concept of state responsibility in international law, focusing on the key elements: the act or omission, causality, and damage. The lecture explains how states can be held accountable for violations, including the direct link between an act and its consequences. Examples, such as the Corfu Channel case, highlight the complexities of causality and the severity of damages. The lecture also covers the conditions under which a state may be exempt from responsibility, including consent, necessity, and force majeure, as well as the reparations required for violations.

Takeaways

• 😀 The concept of state responsibility in international law involves three main elements: the act, the causality, and the damage.
• 😀 Acts that lead to state responsibility are typically carried out by public agents such as executive, legislative, or judicial authorities.
• 😀 State actions can be either active or omissive, meaning a state can be held responsible for both its actions and its failure to act when required.
• 😀 An act can be violative of international law if it contravenes treaties, agreements, or rules, but it could also cause unjustifiable harm even if not explicitly prohibited by a treaty.
• 😀 The direct causal link between a state’s action (or inaction) and the resulting harm must be established for international responsibility to apply.
• 😀 In cases where harm is not directly linked to a state’s action, such as historical events (e.g., WWII-related damages), the link is considered indirect and may complicate reparations.
• 😀 The degree of harm caused by a state’s action is crucial. Serious damage to individuals or property can justify international claims, with economic impacts often considered in international disputes.
• 😀 The state of nationality is always the primary entity that represents the interests of the individual or corporation harmed internationally.
• 😀 When a state breaches its international obligations, reparations may involve compensation or other forms of rectification, including public apologies or changes in law.
• 😀 The principle of exhaustion of domestic remedies is important: a state can only be held internationally responsible if its own legal systems have been exhausted, unless there is no domestic remedy or the legal system is inadequate.

Q & A

What are the three main elements in determining international responsibility of a state?

The three main elements are the act, causality, and damage.

What is the significance of the act committed by a state in establishing international responsibility?

The act must be attributable to the state and can involve actions by public agents such as the executive, legislative, or judiciary, which could be either positive actions or omissions.

How do omissions by a state contribute to its international responsibility?

Omissions, where a state fails to take necessary actions, can be considered violations if the state was obligated to act, thus contributing to its responsibility.

What role does 'causal link' play in the international responsibility of a state?

The causal link is crucial because it must establish a direct connection between the state’s act (or omission) and the resulting damage. If the link is too indirect, the state may not be held responsible.

Can international responsibility arise from actions of private individuals or entities?

Yes, states can be held internationally responsible if they are complicit or fail to prevent private individuals or entities from committing acts that harm other states.

What are some examples of acts that can lead to a state's international responsibility?

Examples include unlawful acts by security forces, the unjustified expulsion or death of a foreigner, or violations by the judiciary or legislature that contravene international treaties.

What is the concept of 'state's duty to avoid harm' in the context of international responsibility?

States are obligated to take all reasonable measures to prevent damage from occurring to foreign individuals or entities, as part of their responsibility in international law.

What are the criteria for determining the severity of damage in international law?

The severity of the damage is assessed based on factors such as the impact on the state, the nature of the harm, and whether the damage was grave enough to affect international relations, including in cases involving national security or economic harm.

How does the nationality of the victim affect a state's international responsibility?

The state of the nationality of the victim, whether an individual or a legal entity, is responsible for defending its national’s rights and pursuing reparations if the victim suffers from unlawful acts in another state.

What are some circumstances that can exclude a state's international responsibility?

Certain circumstances, like consent of the victim, necessity, or force majeure (such as natural disasters), can exclude or mitigate a state's international responsibility by justifying the act or omission.