State Responsibility: Circumstances Precluding Wrongfulness

Circumstances Precluding Wrongfulness

In principle, the unlawful conduct of a State is not considered wrongful if there are causes that preclude the wrongfulness of the act.

State Consent

The wrongfulness of an act does not constitute an internationally wrongful act if the injured State gives its consent to this behavior. This is provided that the requirements for valid consent are met, or there is an agreement which clearly states that the consent is attributable to the State.

Countermeasures

Behavior will not be considered illegal in principle when it is a legitimate action, according to International Law (DI), to react to an act committed by another State. These actions are considered penalties or countermeasures.

Force Majeure and Fortuitous Events

This refers to an irresistible force or an event beyond the control of the State, making it materially impossible to comply with an international obligation. This may be due to a natural factor or a result of human action. For this to apply, it is necessary that the State has not caused the force majeure situation and has not assumed the risk thereof.

Distress

Wrongfulness is precluded when the wrongful conduct is the only way for a state agent to save his own life or the lives of those in his care (dependents).

Necessity

Necessity occurs when the violation of an international obligation is the only way for the State to protect an essential interest against a grave and imminent danger. Unlike distress, this does not concern the life of the agent, but rather an essential interest of the State itself. The risk must affect the very existence of the State, its economic or political survival, the functioning of essential services, or the maintenance of internal peace.

Self-Defense

Self-defense justifies the use of armed force by a State when it is intended to stop or reject an armed attack by another State.

Effects of an Internationally Wrongful Act

The Repair of Damage and Its Modalities

The obligation to repair is established in the draft articles of the International Law Commission and stems from a general principle of law, applicable both internationally and domestically.

Restitution

Restitution consists of restoring the situation to how it was before the wrongful act occurred and removing all consequences of that act. The State concerned is obliged to provide restitution unless it is materially impossible or imposes a disproportionate burden on the offender.

Satisfaction

When damages do not have a specific economic value, they are often addressed through satisfaction. This may include an apology, an expression of grief, or official notification from the offender.

Compensation

When restitution has not fully remedied the damage, compensation is payable for economic loss. This should cover the actual damages (damnum emergens) and the lost profits (lucrum cessans), including interest on the total sum of both quantities.