Chapter 4: Circumstances precluding wrongfulness
(CPWs) have a systematic role within the law of responsibility. They indicate that responsibility is neither for fault nor strict liability linked only to the causation of some damage (ultra-hazardous activities). International responsibility rests on what the continental lawyer calls a ‘relative objective responsibility’, i.e. a strict but not an absolute responsibility. To trigger responsibility it is sufficient to show an attributable IWA; but the violating State can try to rely on a CPW to escape its responsibility. Normally the State that committed the IWA must bear the burden of proving the conditions triggering the application of the CPW.326 Moreover, since CPWs cure an otherwise unlawful act, their interpretation tends to be narrow. The illegality of an action can be erased only when the strict conditions of the CPWs are met. Any broad interpretation of such circumstances would impinge on the sphere of respect of international legality, i.e. the performance of obligations assumed, and ultimately on pacta vel consuetudo sunt servanda.
CPWs are legal facts (i.e. facts envisaged by a legal norm) which either erase or cure the breach (IWA) or alternatively impede its imputation to the State.327 An act which generally has to be considered an IWA is not an IWA in the specific circumstances of a case, because of some intermediating fact, e.g. a consent given by the territorial State to the sending of agents onto its territory. There is thus a distinction between the general legal plane (State agents penetrating territories of other States is...
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